EXHIBIT 10(a)
===============================================================
FIVE-YEAR CREDIT AGREEMENT
Dated as of February 23, 2005
Among
THE ▇▇▇▇ DISNEY COMPANY
as Borrower
and
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as Lenders
and
BANC OF AMERICA SECURITIES LLC and CITIGROUP GLOBAL MARKETS, INC.
as Joint Lead Arrangers and Joint Book Managers
and
CITICORP USA, INC.
as Administrative Agent
and
BANK OF AMERICA, N.A.
as Syndication Agent
and
BARCLAYS BANK, PLC,
BNP PARIBAS SA and HSBC BANK USA
as Co-Documentation Agents
===============================================================
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS....................................................................... 1
SECTION 1.01 Certain Defined Terms...................................................................... 1
SECTION 1.02 Computation of Time Periods................................................................ 11
SECTION 1.03 Accounting Terms........................................................................... 12
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES..................................................................... 12
SECTION 2.01 The Advances............................................................................... 12
SECTION 2.02 Making the Advances........................................................................ 12
SECTION 2.03 Fees....................................................................................... 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 Eurocurrency Rate Advances.......................................... 15
SECTION 2.08 Interest Rate Determination................................................................ 15
SECTION 2.09 Optional Conversion of Advances............................................................ 17
SECTION 2.10 Prepayments of Advances.................................................................... 17
SECTION 2.11 Increased Costs............................................................................ 18
SECTION 2.12 Illegality................................................................................. 19
SECTION 2.13 Payments and Computations.................................................................. 20
SECTION 2.14 Taxes...................................................................................... 21
SECTION 2.15 Sharing of Payments, Etc................................................................... 23
SECTION 2.16 Mandatory Assignment by a Lender; Mitigation............................................... 24
SECTION 2.17 Evidence of Debt........................................................................... 24
SECTION 2.18 Use of Proceeds............................................................................ 25
SECTION 2.19 Increase in the Aggregate Commitments...................................................... 25
SECTION 2.20 Extension of Termination Date.............................................................. 26
ARTICLE III CONDITIONS OF EFFECTIVENESS AND LENDING.............................................................. 28
SECTION 3.01 Conditions Precedent to Effectiveness of Section 2.01...................................... 28
SECTION 3.02 Conditions Precedent to Each Borrowing..................................................... 29
SECTION 3.03 Determinations Under Section 3.01.......................................................... 30
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................ 30
SECTION 4.01 Representations and Warranties of the Borrower............................................. 30
SECTION 4.02 Additional Representations and Warranties of the Borrower as of Each Increase Date and Each
Extension Date................................................................................. 31
ARTICLE V COVENANTS OF THE BORROWER.............................................................................. 31
SECTION 5.01 Affirmative Covenants...................................................................... 31
SECTION 5.02 Negative Covenants......................................................................... 33
ARTICLE VI EVENTS OF DEFAULT..................................................................................... 34
SECTION 6.01 Events of Default.......................................................................... 34
ARTICLE VII THE ADMINISTRATIVE AGENT............................................................................. 35
SECTION 7.01 Authorization and Action................................................................... 35
SECTION 7.02 Administrative Agent's Relianc, Etc........................................................ 36
SECTION 7.03 CUSA and Affiliates........................................................................ 36
SECTION 7.04 Lender Credit Decision..................................................................... 36
SECTION 7.05 Indemnification............................................................................ 36
SECTION 7.06 Successor Administrative Agent............................................................. 37
ARTICLE VIII MISCELLANEOUS....................................................................................... 37
SECTION 8.01 Amendments, Etc............................................................................ 37
SECTION 8.02 Notices, Etc............................................................................... 37
SECTION 8.03 No Waiver; Remedies........................................................................ 39
SECTION 8.04 Costs and Expenses......................................................................... 39
SECTION 8.05 Right of Set-off........................................................................... 39
SECTION 8.06 Binding Effect............................................................................. 39
SECTION 8.07 Assignments and Participations............................................................. 40
SECTION 8.08 Indemnification............................................................................ 42
SECTION 8.09 Confidentiality............................................................................ 43
SECTION 8.10 Patriot Act................................................................................ 43
SECTION 8.11 Judgment................................................................................... 43
SECTION 8.12 Consent to Jurisdiction and Service of Process............................................. 44
SECTION 8.13 Substitution of Currency................................................................... 44
SECTION 8.14 Governing Law.............................................................................. 44
SECTION 8.15 Execution in Counterparts.................................................................. 44
SECTION 8.16 Severability............................................................................... 44
TABLE OF CONTENTS................................................................................................ i
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SCHEDULE
Schedule I - List of Applicable Lending Offices
EXHIBITS
Exhibit A - Form of Notice of Borrowing
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Opinion of Deputy General Counsel of the Borrower
Exhibit D-1 - Form of Foreign Lender Certificate
Exhibit D-2 - Form of Foreign Lender Certificate
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FIVE-YEAR CREDIT AGREEMENT
DATED AS OF FEBRUARY 23, 2005
THE ▇▇▇▇ DISNEY COMPANY, a Delaware corporation (the "BORROWER"),
the banks, financial institutions and other institutional lenders (the "INITIAL
LENDERS") listed on the signature pages hereof under the heading "The Initial
Lenders", CITICORP USA, INC., a Delaware corporation ("CUSA"), as administrative
agent (together with any successor administrative agent appointed pursuant to
Article VIII, the "ADMINISTRATIVE AGENT") for the Lenders (as hereinafter
defined) hereunder, BANK OF AMERICA, N.A., as syndication agent (the
"SYNDICATION AGENT"), BANC OF AMERICA SECURITIES LLC and CITIGROUP GLOBAL
MARKETS, INC., as Joint Lead Arrangers and Joint Book Managers (the
"ARRANGERS"), and BARCLAYS BANK PLC, BNP PARIBAS SA and HSBC BANK USA as
co-documentation agents (the "CO-DOCUMENTATION AGENTS") for the Lenders
hereunder, hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms.
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"ABC" means ABC, Inc., a New York corporation and a wholly owned
Subsidiary of the Borrower, or any successor thereto.
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means (a) in the case of Advances
denominated in Dollars, the account of the Administrative Agent maintained
by the Administrative Agent at the office of Citibank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and (b) in the case of Advances denominated in
any Committed Currency, such other account of the Administrative Agent as
the Administrative Agent shall notify in writing 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 Eurocurrency Rate
Advance, each of which shall be a "Type" of Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person.
"AGREEMENT" means this Five-Year Credit Agreement, as it may be
amended, supplemented or otherwise modified from time to time in
accordance with Section 8.01.
"ANNIVERSARY DATE" means February 23, 2006 and February 23 in each
succeeding calendar year occurring during the term of this Agreement.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent and the Borrower, in substantially the form of
Exhibit B hereto.
"ASSUMING LENDER" has the meaning specified in Section 2.19(d).
"ASSUMPTION AGREEMENT" has the meaning specified in Section
2.19(d)(ii).
"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 higher of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate in effect for such
day; and
(b) 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 Eurocurrency Rate Advances, on which dealings
are carried on in the London interbank market.
"CITIBANK" means Citibank, N.A., a national banking association.
"CO-DOCUMENTATION AGENTS" has the meaning specified in the recital
of parties to this Agreement.
"COMMITMENT" has the meaning specified in Section 2.01.
"COMMITMENT DATE" has the meaning specified in Section 2.19(b).
"COMMITMENT INCREASE" has the meaning specified in Section 2.19(a).
"COMMITTED CURRENCIES" means lawful currency of the United Kingdom
of Great Britain and Northern Ireland, lawful currency of Japan and lawful
currency of the European Economic and Monetary Union.
"CONSOLIDATED EBITDA" means, for any period, (a) net income or net
loss, as the case may be, of the Borrower and its Subsidiaries on a
consolidated basis for such period, as determined in accordance with GAAP
for such period, plus (b) the sum of all amounts which, in the
determination of such consolidated net income or net loss, as the case may
be, for such period, have been deducted for (i) Consolidated Interest
Expense, (ii) consolidated income tax expense,
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(iii) consolidated depreciation expense, and (iv) consolidated
amortization expense, in each case determined in accordance with GAAP for
such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
interest expense of the Borrower and its Subsidiaries with respect to all
outstanding Debt of the Borrower and its Subsidiaries during such period,
all as determined on a consolidated basis for such period and in
accordance with GAAP for such period.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion
of Advances of one Type into Advances of another Type pursuant to Section
2.08 or 2.09.
"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.
"DECLINING LENDER" has the meaning specified in Section 2.20(b).
"DISNEY" means Disney Enterprises, Inc., a Delaware corporation and
a wholly owned Subsidiary of the Borrower, or any successor thereto.
"DOLLARS" and the "$" sign each means lawful currency of the United
States.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance, as the case may be, pursuant to which it became
a Lender, or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent for such
purpose.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (a) a Lender or any Affiliate of a Lender
or (b) any bank or other financial institution, or any other Person, which
has been approved in writing by the Borrower and the Administrative Agent
as an Eligible Assignee for purposes of this Agreement; provided, however,
that none of the Borrower's approval or the Administrative Agent's
approval shall be unreasonably withheld; and provided further, however,
that the Borrower may withhold its approval if the Borrower reasonably
believes that an assignment to such Eligible Assignee pursuant to Section
8.07 will result in the incurrence of increased costs payable by the
Borrower pursuant to Section 2.11 or 2.14.
"ENVIRONMENTAL CLAIM" means any administrative, regulatory or
judicial action, suit, demand, claim, lien, notice or proceeding relating
to any Environmental Law or any Environmental Permit.
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"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.
"EQUIVALENT" in Dollars of any Committed Currency on any date means
the equivalent in Dollars of such Committed Currency determined by using
the quoted spot rate at which the principal office of the Administrative
Agent or one of its Affiliates, in London, offers to exchange Dollars for
such Committed Currency in London at or about 4:00 P.M. (London time)
(unless otherwise indicated by the terms of this Agreement) on such date
as is required pursuant to the terms of this Agreement, and the
"Equivalent" in any Committed Currency of Dollars means the equivalent in
such Committed Currency of Dollars determined by using the quoted spot
rate at which the principal office of the Administrative Agent or one of
its Affiliates, in London, offers to exchange such Committed Currency for
Dollars in London at or about 4:00 P.M. (London time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required
pursuant to the terms of this Agreement.
"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.
4
"EUROCURRENCY LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurocurrency 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.
"EUROCURRENCY RATE" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing, (a) the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars or the applicable Committed
Currency, as the case may be, 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 divided by (b) a percentage equal to 100% minus the
Eurocurrency Rate Reserve Percentage for such Interest Period (provided,
that, if for any reason such rate is not available, the term "Eurocurrency
Rate" shall mean, for any Interest Period for each Eurocurrency Rate
Advance comprising part of the same Borrowing, (a) 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 Dollars or the applicable Committed
Currency, as the case may be, 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) Eurocurrency Rate Advance comprising part
of such Borrowing divided by (b) a percentage equal to 100% minus the
Eurocurrency Rate Reserve Percentage for such Interest Period). In the
event that the Eurocurrency Rate is to be determined by the Reference
Banks, the Eurocurrency Rate for any Interest Period for each Eurocurrency
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.
"EUROCURRENCY RATE ADVANCE" means an Advance denominated in Dollars
or a Committed Currency which bears interest as provided in Section
2.06(a)(ii).
"EUROCURRENCY 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/▇▇▇▇▇'▇ APPLICABLE MARGIN
---------------------------- -----------------
Level 1
AA-/Aa3 or above 0.115%
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇-/▇▇▇ but 0.130%
at least A/A2
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇/▇▇ but 0.140%
at least A-/A3
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇-/▇▇ but 0.175%
at least BBB+/Baa1
5
Level 5
Lower than BBB+/Baa1 or no 0.300%
Public Debt Rating in effect
"EUROCURRENCY RATE RESERVE PERCENTAGE" means, with respect to any
Lender for any Interest Period for any Eurocurrency 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 (or with
respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurocurrency Rate Advances is
determined) having a term equal to such Interest Period.
"EURO DISNEY ENTITY" means any Subsidiary of the Borrower and any
other Person whose equity securities or interests are owned, directly or
indirectly, in whole or in part, by the Borrower or any of its
Subsidiaries, the primary business of which is the direct or indirect
ownership, management, operation, design, construction and/or financing of
the recreational, commercial and residential facilities and complex, or
any part thereof or any addition thereto, commonly known as `Euro Disney',
`Euro Disneyland' or `Disneyland Resort Paris', located in
Marne-▇▇-▇▇▇▇▇▇, France, which Subsidiaries and other Persons include,
without limitation, as of the date hereof, Euro Disney Investments, Inc.,
EDL S.N.C. Corporation, Euro Disney Associes SCA, Euro Disneyland SNC,
Euro Disney SCA, Euro Disneyland Participations S.A.., Euro Disney S.A..,
EDL Holding Company, EDL Participations S.A.., Centre de Congres Newport
S.A.S., Euro Disneyland Imagineering S.a.r.l. and Societe de Gerance
d'Euro Disneyland SA.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCLUDED ENTITY" means each of the Euro Disney Entities, the Hong
Kong Disneyland Entities and the Specified Project Entities.
"EXISTING FIVE-YEAR CREDIT AGREEMENT" means the Five-Year Credit
Agreement dated as of February 25, 2004 among the Borrower, the banks,
financial institutions and other institutional lenders party thereto, the
Issuing Banks (as defined therein), CUSA, as administrative agent
thereunder, Bank of America, N.A., as syndication agent, and Barclays Bank
Plc, BNP Paribas SA, HSBC Bank USA and JPMorgan Chase Bank, as
co-documentation agents thereunder, as such agreement may be amended,
supplemented or otherwise modified hereafter from time to time.
"EXTENSION DATE" has the meaning specified in Section 2.20(b).
"EXTENDING LENDER" has the meaning specified in Section 2.20(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:
6
PUBLIC DEBT RATING
S&P/▇▇▇▇▇'▇ PERCENTAGE
Level 1
AA-/Aa3 or above 0.060%
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇-/▇▇▇ but 0.070%
at least A/A2
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇/▇▇ but 0.085%
at least A-/A3
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇-/▇▇ but 0.100%
at least BBB+/Baa1
Level 5
Lower than BBB+/Baa1 or 0.150%
no Public Debt Rating in effect
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by the Administrative Agent.
"GAAP" means generally accepted accounting principles consistent
with those applied in the preparation of the audited financial statements
referred to in Section 4.01(c) dated September 30, 2004, subject, however,
to the provisions of Section 1.03.
"HAZARDOUS MATERIAL" means (a) any petroleum or petroleum product,
natural or synthetic gas, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, or radon gas, (b) any
substance defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "toxic
substances", "contaminants" or "pollutants", or words of similar import,
under any applicable Environmental Law or (c) any other substance exposure
to which is regulated by any governmental or regulatory authority.
"HONG KONG DISNEYLAND ENTITY" means any Subsidiary of the Borrower
and any other Person whose equity securities or interests are owned,
directly or indirectly, in whole or in part, by the Borrower or any of its
Subsidiaries, the primary business of which is the direct or indirect
ownership, management, operation, design, construction and/or financing of
the recreational and commercial facilities and complex, or any part
thereof or any addition thereto, commonly known as `Hong Kong Disney',
`Hong Kong Disneyland' or `Disneyland Resort Hong Kong' located at Penny's
Bay on Lantau Island, Hong Kong, which Subsidiaries and other Persons
include, without limitation, as of the date hereof, Hongkong International
Theme Parks Limited, Hong Kong Disneyland Management Limited, and ▇▇▇▇
Disney Holdings (Hong Kong) Limited.
"INCREASE DATE" has the meaning specified in Section 2.19(a).
"INCREASING LENDER" has the meaning specified in Section 2.19(b).
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"INDEMNIFIED MATTERS" has the meaning specified in Section 8.08.
"INDEMNIFIED PARTY" has the meaning specified in Section 8.08.
"INITIAL LENDERS" has the meaning specified in the recital of
parties to this Agreement.
"INTEREST PERIOD" means, for each Eurocurrency Rate Advance
comprising part of the same Borrowing, the period commencing on the date
of such Eurocurrency Rate Advance or on the date of the Conversion of any
Base Rate Advance into such Eurocurrency 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, nine or twelve months as the
Borrower may, upon notice received by the Administrative Agent not later
than (x) 11:00 A.M. (New York City time) on the third Business Day prior
to the first day of such Interest Period for each Eurocurrency Rate
Advance denominated in any Committed Currency, or (y) 1:00 P.M. (New York
City time) on the third Business Day prior to the first day of such
Interest Period for each Eurocurrency Rate Advance denominated in Dollars,
select; provided, however, that:
(i) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that if such extension
would cause the last day of such Interest Period to occur in the
next succeeding calendar month, the last day of such Interest Period
shall occur on the immediately preceding Business Day;
(iii) whenever the first day of any Interest Period occurs on
a day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month; and
(iv) the Borrower may not select for any Advance any Interest
Period which ends after the scheduled Termination Date then in
effect.
"IRS" has the meaning specified in Section 2.14(e).
"LENDERS" means, collectively, each Initial Lender, to the extent
applicable, each Assuming Lender that shall become a party hereto pursuant
to Section 2.19 or 2.20 and each Eligible Assignee that shall become a
party hereto pursuant to Section 8.07; provided, however, that for
purposes of any determination to be made under Section 2.07, 2.11, 2.12 or
8.04(b) with respect to CUSA, in its capacity as Lender, the term
"Lenders" shall be deemed to include Citibank.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement
which has the same effect as a lien or security interest.
8
"MAJORITY LENDERS" means, at any time, Lenders owed at least a
majority in interest of the aggregate unpaid principal amount of the
Advances owing to the Lenders at such time, or, if no such principal
amount is outstanding at such time, Lenders having at least a majority in
interest of the Commitments at such time; provided, however, that neither
the Borrower nor any of its Affiliates, if a Lender, shall be included in
the determination of the Majority Lenders at any time.
"MATERIAL SUBSIDIARY" means, at any date of determination, a
Subsidiary of the Borrower that, either individually or together with its
Subsidiaries, taken as a whole, has total assets exceeding $100,000,000 on
such date.
"MEASUREMENT PERIOD" means, at any date of determination, the most
recently completed four consecutive fiscal quarters of the Borrower on or
immediately prior to such date.
"MOODY'S" means ▇▇▇▇▇'▇ 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.
"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).
"PATRIOT ACT" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001, Pub. L. 107-56 and all other laws and regulations relating to
money-laundering and terrorist activities.
"PAYMENT OFFICE" means, for any Committed Currency, such office of
Citibank as shall be from time to time selected by the Administrative
Agent and notified by the Administrative Agent to the Borrower and the
Lenders.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political
subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PUBLIC DEBT RATING" means, as of any date of determination, the
higher rating that has been most recently announced by either S&P or
Moody's, as the case may be, for any class of non-credit enhanced
long-term senior unsecured public debt issued by the Borrower. For
purposes of the foregoing, (a) if only one of S&P and Moody's shall have
in effect a Public Debt
9
Rating, the Eurocurrency Rate Margin and the Facility Fee Percentage shall
be determined by reference to the available rating; (b) if neither S&P nor
Moody's shall have in effect a Public Debt Rating, the Eurocurrency Rate
Margin and the Facility Fee Percentage will be set in accordance with
Level 5 under the definition of "Eurocurrency Rate Margin" or "Facility
Fee Percentage", as the case may be; (c) if the ratings established by S&P
and Moody's shall fall within different levels, the Eurocurrency 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, Bank of America, N.A., Barclays
Bank Plc and BNP Paribas, or, in the event that fewer 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).
"REPLACED LOAN AGREEMENT" means the 364-Day Credit Agreement dated
as of February 25, 2004, as amended, among the Borrower, the lenders party
thereto and Citicorp USA, Inc., as administrative agent.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successor thereto.
"SEC" has the meaning specified in Section 5.01(e)(i).
"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.
"SPECIFIED PROJECT ENTITY" means:
(a) DVD Financing, Inc.;
(b) each Affiliate of the Borrower organized after February 25, 2004
(the "ORGANIZATION DATE") (or whose business commenced after the
Organization Date) and any other Person organized after the Organization
Date (or whose business commenced after the Organization Date) whose
equity securities or interests are owned, directly or indirectly, in whole
or in part, by the Borrower or any of its Subsidiaries, in each case, if:
(i) such Affiliate or other Person has incurred Debt for the
purpose of financing all or a part of the costs of the acquisition,
construction, development or operation of a particular project
("PROJECT DEBT");
(ii) except for customary guaranties, keep-well agreements and
similar credit and equity support arrangements in respect of Project
Debt incurred by such Affiliate or
10
other Person from the Borrower or any of its Subsidiaries not in
excess of $150,000,000 or from third parties, the source of
repayment of such Project Debt is limited to the assets and revenues
of such particular project (or, if such particular project comprises
all or substantially all of the assets of such Affiliate or other
Person, the assets and revenues of such Affiliate or other Person);
and
(iii) the property over which Liens are granted to secure such
Project Debt, if any, consists solely of the assets and revenues of
such particular project or the equity securities or interests of
such Affiliate or other Person or a Subsidiary of the Borrower
referred to in clause (c) below; and
(c) each Affiliate of the Borrower organized after the Organization
Date (or whose business commenced after the Organization Date) whose
equity securities or interests are owned, directly or indirectly, in whole
or in part, by the Borrower or any of its Subsidiaries, the primary
business of which is the direct or indirect ownership, management or
operation of, or provision of services to, any Affiliate or other Person
referred to in clause (b) above.
"SUBSIDIARY" means with respect to any Person, any (a) corporation
(or foreign equivalent) other than an Excluded Entity or (b) general
partnership, limited partnership or limited liability company (or foreign
equivalent) other than an Excluded Entity (each, a "NON-CORPORATE
ENTITY"), in either case, of which more than 50% of the outstanding
capital stock (or comparable interest) having ordinary voting power
(irrespective of whether at the time capital stock (or comparable
interest) of any other class or classes of such corporation or
Non-Corporate Entity shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly (through one or
more Subsidiaries) owned by such Person. In the case of a Non-Corporate
Entity, a Person shall be deemed to have more than 50% of interests having
ordinary voting power only if such Person's vote in respect of such
interests comprises more than 50% of the total voting power of all such
interests in such Non-Corporate Entity. For purposes of this definition,
any managerial powers or rights comparable to managerial powers afforded
to a Person solely by reason of such Person's ownership of general partner
or comparable interests (or foreign equivalent) shall not be deemed to be
`interests having ordinary voting power'.
"TAXES" has the meaning specified in Section 2.14(a).
"TERMINATION DATE" means the earlier of (a) February 22, 2010,
subject to the extension thereof pursuant to Section 2.20, and (b) the
date of termination in whole of the aggregate Commitments pursuant to
Section 2.04 or 6.01; provided, however, that the Termination Date of any
Lender that is a Declining Lender in connection with any requested
extension pursuant to Section 2.20 shall be the Termination Date in effect
immediately prior to the applicable Extension Date for all purposes of
this Agreement.
"TYPE" has the meaning specified in the definition of "Advance".
"UNITED STATES" and "U.S." each means the United States of America.
"UTILIZATION FEE" has the meaning specified in Section 2.03(b).
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".
11
SECTION 1.03 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP; provided, however,
that if any changes in accounting principles from those used in the preparation
of the financial statements referred to in Section 4.01(c) dated September 30,
2004 hereafter occur by reason of the promulgation of rules, regulations,
pronouncements, opinions or other requirements of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and result in a change in
the method of calculation of financial covenants or the terms related thereto
contained in this Agreement, the Borrower shall, at its option, (i) furnish to
the Administrative Agent, together with each delivery of the consolidated
financial statements of the Borrower and its subsidiaries required to be
delivered pursuant to Section 5.01(e), a written reconciliation setting forth
the differences that would have resulted if such financial statements had been
prepared utilizing accounting principles and policies in conformity with those
used to prepare the financial statements referred to in Section 4.01(c) dated
September 30, 2004 or (ii) enter into negotiations with the Administrative Agent
and the Lenders to amend such financial covenants or terms equitably to reflect
such changes so that the criteria for evaluating the financial condition of the
Borrower and its subsidiaries shall be the same after such changes as if such
changes had not been made; provided, however, that at all times in the case of
clause (i) above, and in the case of clause (ii) above until the amendment
referred to in such clause (ii) becomes effective, all covenants and related
calculations under this Agreement shall be performed, observed and determined as
though no such changes in accounting principles had been made.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 The Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances to the Borrower
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in an aggregate amount (based in respect of any
Advances denominated in a Committed Currency on the Equivalent in Dollars
determined on the date of delivery of the applicable Notice of Borrowing) not to
exceed at any time outstanding the Dollar 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 Dollar 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 Dollar amount set forth
for such Lender in the Register maintained by the Administrative Agent pursuant
to Section 8.07(c), as such amount may be reduced pursuant to Section 2.04 or
increased pursuant to Section 2.19 (such Lender's "COMMITMENT"), provided, that,
the Lenders shall not be obligated to, and shall not, make any Advances as part
of a Borrowing if after giving effect to such Borrowing the sum of the then
outstanding aggregate amount of all Borrowings shall exceed the aggregate amount
of the Commitments then in effect. Each Borrowing shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or
the Equivalent thereof in any Committed Currency determined on the date of
delivery of the applicable Notice of Borrowing). Except as provided in Section
2.02(b), each Borrowing 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 (x) 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, (y) 11:00 A.M. (New York City time) on the third Business Day prior to
the date of a proposed Borrowing comprised of Eurocurrency Rate Advances
denominated in any Committed Currency, or (z) 1:00 P.M. (New York City time) on
the third Business Day prior to the date of a proposed Borrowing comprised of
Eurocurrency Rate Advances denominated in Dollars, by the Borrower to the
Administrative Agent, which shall give to each Lender prompt notice
12
thereof by telecopier. Each such notice of a Borrowing (a "NOTICE OF BORROWING")
shall be by telecopier, or by telephone, confirmed immediately by telecopier, 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 Eurocurrency Rate Advances, initial
Interest Period and currency for each such Advance. Each Lender shall, before
(A) 1:00 P.M. (New York City time) on the date of such Borrowing consisting of
Advances denominated in Dollars or (B) 1:00 P.M. (London time) on the date of
such Borrowing consisting of Advances denominated in any Committed Currency,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower at the office where the Administrative Agent's Account
is maintained.
(b) Anything in subsection (a) above or Section 2.01 to the contrary
notwithstanding, the Borrower may not select Eurocurrency Rate Advances
for any Borrowing if the aggregate amount of such Borrowing is less than
$20,000,000 (or the Equivalent thereof in any Committed Currency
determined on the date of delivery of the applicable Notice of Borrowing)
or if the obligation of the Lenders to make Eurocurrency 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 as to be comprised of Eurocurrency 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 redeployment 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 (A) the Federal Funds Rate in the case of
Advances denominated in Dollars or (B) the cost of funds incurred by the
Administrative Agent in respect of such amount in the case of Advances
denominated in Committed Currencies; 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
13
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.
(d) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of
any Borrowing.
SECTION 2.03 Fees. (a) Facility Fee. The Borrower agrees to pay to
each Lender a facility fee on the average daily amount (whether used or unused)
of such Lender's Commitment from the Effective Date, in the case of each Initial
Lender, and from the later of (a) the Effective Date and (b) the effective date
specified in the Assumption Agreement or the Assignment and Acceptance pursuant
to which it became a Lender, in the case of each other Lender, until, in each
case, the Termination Date, payable quarterly in arrears on the first Business
Day of each January, April, July and October during the term of such Lender's
Commitment, commencing April 1, 2005, and on the Termination Date, at the rate
per annum equal to the Facility Fee Percentage in effect from time to time.
(a) Utilization Fee. For each day on which the outstanding Advances
exceed 50% of the Commitments, the Borrower agrees to pay to the Agent for
the account of each Lender, a utilization fee equal to the quotient
obtained by dividing (A) the product of (1) the difference between the
aggregate outstanding Advances on such day and the outstanding Base Rate
Advances on such day and (2) 0.10% by (B) 365 (or, for any such day in a
leap year, 366). This Utilization Fee shall be paid quarterly in arrears
on the first Business Day of each January, April, July and October of each
year, and on the Termination Date.
SECTION 2.04 Reduction of the Commitments. The Borrower shall have
the right, upon at least three Business Days' notice to the Administrative
Agent, to terminate in whole or reduce ratably in part the unused portions of
the respective Commitments of the Lenders; provided that each partial reduction
shall be in the aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and; provided, further, that after giving effect to
any such partial reduction, the total Commitments shall not be less than the
then outstanding aggregate amount of Advances. Once terminated, such Commitments
may not be reinstated.
SECTION 2.05 Repayment of Advances. The Borrower shall repay to each
Lender on the Termination Date the aggregate principal amount of the Advances
owing to such Lender on such date.
SECTION 2.06 Interest on Advances. (a) Scheduled Interest. The
Borrower shall pay to each Lender interest on the unpaid principal amount of
each Advance owing to such Lender from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the Base Rate
in effect from time to time, payable quarterly in arrears on the first
Business Day of each January, April, July and October during such periods
and on the date such Base Rate Advance shall be Converted or paid in full
and, for the avoidance of doubt, a Utilization Fee shall not be payable
during such periods as such Advance is a Base Rate Advance.
14
(ii) Eurocurrency Rate Advances. During such periods as such
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A) the
Eurocurrency Rate for such Interest Period for such Advance and (B) the
Eurocurrency 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 Eurocurrency 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 Eurocurrency 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 Eurocurrency 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
Eurocurrency Rate for the applicable Interest Period for such Advance from (ii)
the rate obtained by dividing such Eurocurrency Rate by a percentage equal to
100% minus the Eurocurrency 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) To the extent
required, each Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Eurocurrency 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,
if applicable, 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 Eurocurrency Rate
for any Eurocurrency Rate Advances, (i) the Administrative Agent shall
forthwith notify the Borrower and the Lenders that the interest rate
cannot be determined for such Eurocurrency Rate Advances, (ii) each such
Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance (or, if such Advance is
then a Base Rate Advance, will continue as a Base Rate Advance), and (iii)
the obligation of the Lenders to make, or to Convert Advances into,
Eurocurrency 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.
15
(d) If, with respect to any Eurocurrency Rate Advances, the Majority
Lenders notify the Administrative Agent that (i) they are unable to obtain
matching deposits in the London inter-bank market at or about 11:00 A.M.
(London time) on the second Business Day before the making of a Borrowing
in sufficient amounts to fund their respective Eurocurrency Rate Advances
as a part of such Borrowing during its Interest Period or (ii) the
Eurocurrency 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 Eurocurrency Rate Advances
for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Lenders, whereupon, unless the Eurocurrency
Rate Margin shall be increased to reflect such costs as determined by such
Majority Lenders and as agreed by the Borrower, (A) the obligation of the
Lenders to make, or to Convert Base Rate Advances into, Eurocurrency 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, and (B) the Borrower will, on the last day of
the then existing Interest Period therefor, (1) if such Eurocurrency Rate
Advances are denominated in Dollars, either (x) prepay such Advances or
(y) Convert such Advances into Base Rate Advances and (2) if such
Eurocurrency Rate Advances are denominated in any Committed Currency,
either (x) prepay such Advances or (y) redenominate such Advances into an
Equivalent amount of Dollars and Convert such Advances into Base Rate
Advances. 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 Eurocurrency 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, (i) if such Eurocurrency Rate
Advances are denominated in Dollars, be Converted into Base Rate Advances
and (ii) if such Eurocurrency Rate Advances are denominated in a Committed
Currency, be redenominated into an Equivalent amount of Dollars and be
Converted into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $20,000,000, such
Eurocurrency 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 Eurocurrency Rate Advances shall terminate; provided,
however, that if and so long as each such Eurocurrency Rate Advance shall
have the same Interest Period as Eurocurrency Rate Advances comprising
another Borrowing or Borrowings, and the aggregate unpaid principal amount
of all such Eurocurrency Rate Advances shall equal or exceed $20,000,000,
the Borrower shall have the right to continue all such Eurocurrency Rate
Advances as, or to Convert all such Advances into, Eurocurrency 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 Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advances are denominated in
Dollars, be Converted into Base Rate Advances and (B) if such Eurocurrency
Rate Advances are denominated in any Committed Currency, be redenominated
into an Equivalent amount of
16
Dollars and be Converted into Base Rate Advances and (ii) the obligation
of the Lenders to make, or to Convert Advances into, Eurocurrency 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
(i) 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 Eurocurrency Rate Advances
into Base Rate Advances, and (ii) 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 Eurocurrency Rate Advances or of
Eurocurrency Rate Advances of one Interest Period into Eurocurrency 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 denominated in
Dollars of one Type comprising the same Borrowing into Advances denominated in
Dollars of the other Type; provided, however, that any Conversion of any
Eurocurrency Rate Advances into Base Rate Advances or into Eurocurrency Rate
Advances of another Interest Period shall be made on, and only on, the last day
of an Interest Period for such Eurocurrency 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 (x) the date of such Conversion (which shall be a Business
Day), (y) the Advances to be Converted, and (z) if such Conversion is into
Eurocurrency Rate Advances, the duration of the initial Interest Period for each
such Advance. The Borrower may Convert all Eurocurrency 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
denominated in Dollars 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. (a) Optional. The Borrower
may, upon not less than (i) 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, (ii) three Business Days' notice to
the Administrative Agent received not later than 11:00 A.M. (New York City time)
in the case of Borrowings consisting of Eurocurrency Rate Advances denominated
in any Committed Currency, or (iii) 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 Eurocurrency Rate Advances denominated in
Dollars, 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
(x) 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 (or the
Equivalent thereof in a Committed Currency determined on the date notice of
prepayment is given), and (y) in the case of any such prepayment of Eurocurrency
Rate Advances, the Borrower shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 8.04(b).
(b) Mandatory. (i) If, the Administrative Agent notifies the
Borrower in writing that, on any date, the sum of (A) the aggregate
principal amount of all Advances denominated in Dollars then outstanding
and (B) the Equivalent in Dollars (determined on the third Business Day
prior to such date) of the aggregate principal amount of all Advances
denominated in Committed Currencies then outstanding exceeds 102% of the
aggregate Commitments of the Lenders on such date, the Borrower shall,
within two Business Days after receipt of such notice, prepay the
outstanding principal amount of any Advances necessary so that, after
giving effect to such prepayment of Advances the sum of (A) and (B) above
does not exceed 100% of the aggregate
17
Commitments of the Lenders as set forth in the written notice from the
Administrative Agent to the Borrower.
(ii) Each prepayment made pursuant to this Section 2.10(b)
shall be made together with any interest accrued to the date of such
prepayment on the principal amounts prepaid and, in the case of any
prepayment of a Eurocurrency Rate Advance on a date other than the last
day of an Interest Period, with any additional amounts which the Borrower
shall be obligated to reimburse to the Lenders in respect thereof pursuant
to Section 8.04(b). The Administrative Agent shall give prompt notice of
any prepayment required under this Section 2.10(b) to the Borrower and the
Lenders.
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 Eurocurrency 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, including, without limitation, any
agency of the European Union or similar monetary or multinational authority
(whether or not having the force of law), which guideline or request either (x)
imposes, modifies or deems applicable any reserve, special deposit or similar
requirement against letters of credit or guarantees issued by, or assets held by
or deposits in or for the account of, any Lender or (y) imposes on any Lender
any other condition regarding this Agreement or any collateral thereon, 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
Eurocurrency Rate Advances, then such Lender shall so notify the Borrower
promptly after such Lender knows of such increased cost and determines that such
cost is material and the Borrower shall from time to time, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate of
such Lender as to the amount of such increased cost in reasonable detail and
stating the basis upon which such amount has been calculated and certifying that
such Lender's method of allocating such costs is fair and reasonable and that
such Lender's demand for payment of such costs hereunder is not inconsistent
with its treatment of other borrowers which, as a credit matter, are
substantially similar to the Borrower and which are subject to similar
provisions, submitted to the Borrower and the Administrative Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
(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, including,
without limitation, any agency of the European Union or similar monetary
or multinational 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 entity 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
18
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 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.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.11 shall survive the payment in full (after
the Termination Date) of all payment obligations of the Borrower in
respect of Advances hereunder.
SECTION 2.12 Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its
Eurocurrency Lending Office to perform its obligations hereunder to make
Eurocurrency Rate Advances in Dollars or any Committed Currency or to fund or
maintain Eurocurrency Rate Advances in Dollars or any Committed Currency, (a)
the obligation of such Lender to make, or to Convert Base Rate Advances into,
Eurocurrency 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 (b) the Borrower
shall forthwith prepay in full all Eurocurrency 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 Eurocurrency Rate Advances, (i) if such Eurocurrency Rate Advance is
denominated in Dollars, Converts it into a Base Rate Advance or an Advance that
bears interest at the rate set forth in Section 2.06(a)(i), and (ii) if such
Eurocurrency Rate Advance is denominated in any Committed Currency,
redenominates it into an Equivalent amount of Dollars and Converts it into a
Base Rate Advance or an Advance that bears interest at the rate set forth in
Section 2.06(a)(i).
19
SECTION 2.13 Payments and Computations. (a) The Borrower shall make
each payment hereunder (and under the Notes, if any), irrespective of any right
of set-off or counterclaim, except with respect to principal of, interest on,
and other amounts relating to, Advances denominated in a Committed Currency, not
later than 11:00 A.M. (New York City time) on the day when due, in Dollars to
the Administrative Agent at the Administrative Agent's Account in same day
funds. The Borrower shall make each payment hereunder with respect to principal
of, interest on, and other amounts relating to, Advances denominated in a
Committed Currency, not later than 11:00 A.M. (at the Payment Office for such
Committed Currency) on the day when due, in such Committed Currency to the
Administrative Agent, by deposit of such funds to 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 fees ratably (other than amounts payable pursuant to Sections 2.07,
2.11, 2.14, 8.04 and 8.08) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon any Assuming Lender becoming a Lender hereunder as a result of a
Commitment Increase pursuant to Section 2.19 or an extension of the Termination
Date pursuant to Section 2.20, and upon the Administrative Agent's receipt of
such Lender's Assumption Agreement and recording of the information contained
therein in the Register, from and after the applicable Increase Date or
Extension Date, the Administrative Agent shall make all payments hereunder and
under any Notes issued in connection therewith in respect of the interest
assumed thereby to the Assuming Lender. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 8.07(d), from and after the effective date specified in such
Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes, if any, issued in connection therewith in respect
of the interest assigned thereby to the Lender assignee thereunder, and the
parties to such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between
themselves.
(b) All computations of interest based on clause (a) of the
definition of "Base Rate" shall be made by the Administrative Agent on the
basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Eurocurrency Rate or the Federal
Funds Rate and of 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 (or, in each case of
Advances denominated in Committed Currencies where market practice
differs, in accordance with such market practice after notification of the
Borrower), 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 fees are payable. Each determination by the Administrative
Agent (or, in the case of Section 2.07, by a Lender) of an interest rate
hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes, if any, shall
be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest
or fees, as the case may be; provided, however, that if such extension
would cause payment of interest on or principal of Eurocurrency 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,
20
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 (i) the Federal Funds Rate in
the case of Advances denominated in Dollars or (ii) the cost of funds
incurred by the Administrative Agent in respect of such amount in the case
of Advances denominated in Committed Currencies.
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, as the case may
be, 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, as the case may be, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.14) such Lender or the Administrative Agent, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or under the
Notes, if any, or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the Notes, if any
(hereinafter referred to as "OTHER TAXES").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.14) paid by such Lender or the
Administrative Agent, as the case may be, and any liability (including
penalties to the extent not imposed as a result of such Lender's or the
Administrative Agent's 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, to the extent that such a receipt is issued,
or if such receipt is not issued, other evidence of payment thereof that
is reasonably satisfactory to the Administrative Agent.
21
(e) Each Lender that is not created or organized under the laws of
the United States or a political subdivision thereof shall deliver to the
Borrower and the Administrative Agent on or prior to the date of its
execution and delivery of this Agreement, and each such Lender that is not
a party hereto on the date hereof shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes
a Lender pursuant to Section 2.19, 2.20 or 8.07 (as the case may be), a
true and accurate certificate executed in duplicate by a duly authorized
officer of such Lender in substantially the form set out in Exhibit D-1 or
D-2 hereto, as applicable, to the effect that such Lender is eligible
under the provisions of an applicable tax treaty concluded by the United
States (in which case the certificate shall be accompanied by two executed
copies of Form W-8BEN (or any successor or substitute form or forms) of
the Internal Revenue Service of the United States (the "IRS"), 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 W-8ECI (or any
successor or substitute form or forms) of the IRS, to receive, as of the
date hereof or as of the date such party becomes a Lender hereto pursuant
to Section 2.19, 2.20 or 8.07 (as the case may be), as appropriate,
payments hereunder without deduction or withholding of United States
federal income tax. Each such Lender further agrees to deliver to the
Borrower and the Administrative Agent from time to time, as reasonably
requested by the Borrower or the Administrative Agent, and in any case
before or promptly upon the occurrence of any events requiring a change in
the most recent certificate previously delivered pursuant to this Section
2.14(e), a true and accurate certificate executed in duplicate by a duly
authorized officer of such Lender in substantially the form set out in
Exhibit D-1 or D-2 hereto, as applicable. Further, each Lender that
delivers a certificate in the form set out in Exhibit D-1 hereto agrees,
to the extent permitted by law, to deliver to the Borrower and the
Administrative Agent within 15 days prior to every third anniversary of
the date of delivery of the initial IRS Form W-8BEN 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 W-8BEN (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 every third anniversary of the
date of delivery of the initial IRS Form W-8ECI 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 W-8ECI (or any
successor or substitute form or forms required under the Internal Revenue
Code or the applicable regulations promulgated thereunder) and a
certificate in the form of such Exhibit D-2. Each such certificate shall
certify as to one of the following:
(i) that such Lender is eligible to receive payments hereunder
without deduction or withholding of United States federal income tax;
(ii) that such Lender is not eligible to receive payments
hereunder without deduction or withholding of United States federal income
tax as specified therein but does not require additional payments therefor
pursuant to Section 2.14(a) or (c) because it is eligible and able to
recover the full amount of any such deduction or withholding from a source
other than the Borrower; or
(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
22
IRS Forms W-8BEN or W-8ECI, 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) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section
2.14(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under the first two
sentences of subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.14(c) with respect to Taxes imposed by any
jurisdiction (including, without limitation, the United States); provided,
however, that should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall take such
steps as the Lender shall reasonably request to assist the Lender to
recover such Taxes.
(g) Without affecting its rights under this Section 2.14 or any
provision of this Agreement, each Lender agrees that if any Taxes or Other
Taxes are imposed and required by law to be paid or to be withheld from
any amount payable to any Lender or its Applicable Lending Office with
respect to which the Borrower would be obligated pursuant to this Section
2.14 to increase any amounts payable to such Lender or to pay any such
Taxes or Other Taxes, such Lender shall use reasonable efforts to select
an alternative Applicable Lending Office which would not result in the
imposition of such Taxes or Other Taxes; provided, however, that no Lender
shall be obligated to select an alternative Applicable Lending Office if
such Lender determines that (i) as a result of such selection such Lender
would be in violation of an applicable law, regulation, or treaty, or
would incur unreasonable additional costs or expenses or (ii) such
selection would be inadvisable for regulatory reasons or inconsistent with
the interests of such Lender.
(h) Each Lender agrees with the Borrower that it will take all
reasonable actions by all usual means (i) to secure and maintain the
benefit of all benefits available to it under the provisions of any
applicable double tax treaty concluded by the United States of America to
which it may be entitled by reason of the location of such Lender's
Applicable Lending Office or place of incorporation or its status as an
enterprise of any jurisdiction having any such applicable double tax
treaty, if such benefit would reduce the amount payable by the Borrower in
accordance with this Section 2.14 and (ii) otherwise to cooperate with the
Borrower to minimize the amount payable by the Borrower pursuant to this
Section 2.14; provided, however, that no Lender shall be obliged to
disclose to the Borrower any information regarding its tax affairs or tax
computations nor to reorder its tax affairs or tax planning pursuant
hereto.
(i) 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
23
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
Eurocurrency Rate Advances pursuant to Section 2.07, or reimbursement for
increased costs pursuant to Section 2.11, or payment of or reimbursement for
Taxes pursuant to Section 2.14, or if any Lender notifies the Administrative
Agent that it is unlawful for such Lender or its Eurocurrency 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 Eurocurrency Rate Advances through another
Eurocurrency 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 Eurocurrency 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 Eurocurrency Rate Advances through
such other Eurocurrency Lending Office would not otherwise materially and
adversely affect such Eurocurrency 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 fees owing thereto and, in addition, (A) all additional cost
reimbursements, expense reimbursements and indemnities, if any, owing in respect
of such Lender's Commitment hereunder, and all other accrued and unpaid amounts
owing to such Lender hereunder, at such time shall be paid to such Lender and
(B) if such Eligible Assignee is not otherwise a Lender at such time, the
applicable processing and recordation fee under Section 8.07(a) for such
assignment shall have been paid.
SECTION 2.17 Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder. The Borrower agrees
that upon notice by any Lender to the Borrower (with a copy of such notice to
the Administrative Agent) to the effect that a promissory note or other evidence
of indebtedness is required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the Advances owing
to, or to be made by, such Lender, the Borrower shall promptly execute and
deliver to such Lender a promissory note or other evidence of indebtedness, in
form and substance reasonably satisfactory to the Borrower and such Lender (each
a "NOTE"), payable to the order of such Lender in a principal amount
24
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
and currencies comprising such Borrowing and, if appropriate, the Interest
Period applicable thereto, (ii) the terms of each Assumption Agreement and
each Assignment and Acceptance delivered to and accepted by it, (iii) the
amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder, and (iv) the amount of
any sum received by the Administrative Agent from the Borrower hereunder
and each Lender's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender in its
account or accounts pursuant to subsection (a) above, shall be prima facie
evidence of the amount of principal and interest due and payable or to
become due and payable from the Borrower to, in the case of the Register,
each Lender and, in the case of such account or accounts, such Lender,
under this Agreement, absent manifest error; provided, however, that the
failure of the Administrative Agent or such Lender to make an entry, or
any finding that an entry is incorrect, in the Register or such account or
accounts shall not limit or otherwise affect the obligations of the
Borrower under this Agreement.
SECTION 2.18 Use of Proceeds.The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) to support
the obligations of the Borrower in respect of commercial paper issued by the
Borrower and/or for other general corporate purposes of the Borrower and its
Subsidiaries, including, but not limited to, the payment in full on the
Effective Date of all amounts due under the Replaced Loan Agreement.
Notwithstanding the foregoing provisions of this Section 2.18, the Borrower will
not use the proceeds of any Advance to purchase the capital stock of any
corporation in a transaction, or as part of a series of transactions, (i) the
purpose of which is, at the time of any such purchase, to acquire control of
such corporation or (ii) the result of which is the ownership by the Borrower
and its Subsidiaries of 10% or more of the capital stock of such corporation, in
either case if the board of directors of such corporation has publicly announced
its opposition to such transaction.
SECTION 2.19 Increase in the Aggregate Commitments. (a) The Borrower
may, at any time, by notice to the Administrative Agent, request that the
aggregate amount of the Commitments be increased by an amount of $25,000,000 or
an integral multiple of $5,000,000 in excess thereof (each a "COMMITMENT
INCREASE") to be effective as of a date that is at least 90 days prior to the
scheduled Termination Date then in effect (the "INCREASE DATE") as specified in
the related notice to the Administrative Agent; provided, however, that (i) in
no event shall the aggregate amount of the Commitments hereunder and the
aggregate amount of the commitments under the Existing Five-Year Credit
Agreement at any time exceed $7,500,000,000, and (ii) no Event of Default, or
event that with the giving of notice or passage of time or both would constitute
an Event of Default, shall have occurred and be continuing as of the date of
such request or as of the applicable Increase Date, or shall occur as a result
thereof.
(b) The Administrative Agent shall promptly notify the Lenders of a
request by the Borrower for a Commitment Increase, which notice shall
include (i) the proposed amount of such requested Commitment Increase,
(ii) the proposed Increase Date and (iii) the date by which Lenders
wishing to participate in the Commitment Increase must commit to an
increase in the amount of their respective Commitments (the "COMMITMENT
DATE"). Each Lender that is willing
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to participate in such requested Commitment Increase (each an "INCREASING
LENDER") shall give written notice to the Administrative Agent on or prior
to the Commitment Date of the amount by which it is willing to increase
its Commitment. If the Lenders notify the Administrative Agent that they
are willing to increase the amount of their respective Commitments by an
aggregate amount that exceeds the amount of the requested Commitment
Increase, the requested Commitment Increase shall be allocated among the
Lenders willing to participate therein in such amounts as are agreed
between the Borrower and the Administrative Agent.
(c) Promptly following each Commitment Date, the Administrative
Agent shall notify the Borrower as to the amount, if any, by which the
Lenders are willing to participate in the requested Commitment Increase.
If the aggregate amount by which the Lenders are willing to participate in
any requested Commitment Increase on any such Commitment Date is less than
the requested Commitment Increase, then the Borrower may extend offers to
one or more Eligible Assignees to participate in any portion of the
requested Commitment Increase that has not been committed to by the
Lenders as of the applicable Commitment Date; provided, however, that the
Commitment of each such Eligible Assignee shall be in an amount of
$25,000,000 or an integral multiple of $1,000,000 in excess thereof.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.19(c) (each such Eligible Assignee and each Eligible Assignee
that agrees to an extension of the Termination Date in accordance with
Section 2.20(c), an "ASSUMING LENDER") shall become a Lender party to this
Agreement as of such Increase Date and the Commitment of each Increasing
Lender for such requested Commitment Increase shall be so increased by
such amount (or by the amount allocated to such Lender pursuant to the
last sentence of Section 2.19(b)) as of such Increase Date; provided,
however, that the Administrative Agent shall have received on or before
such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of
Directors of the Borrower or the Executive Committee of such Board
approving the Commitment Increase and the corresponding modifications to
this Agreement and (B) an opinion of counsel for the Borrower (which may
be in-house counsel), in substantially the form of Exhibit C hereto;
(ii) an assumption agreement from each Assuming Lender, if
any, in form and substance satisfactory to the Borrower and the
Administrative Agent (each an "ASSUMPTION AGREEMENT"), duly executed by
such Eligible Assignee, the Administrative Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the increase
in the amount of its Commitment in a writing satisfactory to the Borrower
and the Administrative Agent.
(e) On each Increase Date, upon fulfillment of the conditions set
forth in the immediately preceding sentence of this Section 2.19(d), the
Administrative Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M.
(New York City time), by telecopier, of the occurrence of the Commitment
Increase to be effected on such Increase Date and shall record in the
Register the relevant information with respect to each Increasing Lender
and each Assuming Lender on such date.
SECTION 2.20 Extension of Termination Date. (a) At least 45 days but
not more than 75 days prior to the next Anniversary Date, the Borrower, by
written notice to the Administrative Agent, may request an extension of the
Termination Date in effect at such time by one calendar year from its
26
then scheduled expiration; provided, however, that, if the Borrower does not
request an extension of the Termination Date in a timely manner prior to any
Anniversary Date it may, but shall not be obligated to, request that the
Termination Date be extended for two consecutive calendar years from its then
scheduled expiration by making a request therefor in a timely manner prior to
the next succeeding Anniversary Date. The Administrative Agent shall promptly
notify each Lender of such request, and each Lender shall in turn, in its sole
discretion, not later than 30 days prior to such next Anniversary Date, notify
the Borrower and the Administrative Agent in writing as to whether such Lender
will consent to such extension. If any Lender shall fail to notify the
Administrative Agent and the Borrower in writing of its consent to any such
request for extension of the Termination Date at least 30 days prior to the next
Anniversary Date, such Lender shall be deemed to be a Declining Lender with
respect to such request. The Administrative Agent shall notify the Borrower not
later than 25 days prior to such next Anniversary Date of the decision of the
Lenders regarding the Borrower's request for an extension of the Termination
Date.
(b) If all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.20, the Termination Date
in effect at such time shall, effective as at such next Anniversary Date
(the "EXTENSION DATE"), be extended for one calendar year or two calendar
years, as properly requested; provided that on each Extension Date, no
Event of Default, or event that with the giving of notice or passage of
time or both would constitute an Event of Default, shall have occurred and
be continuing, or shall occur as a consequence thereof. If less than all
of the Lenders consent in writing to any such request in accordance with
subsection (a) of this Section 2.20, the Termination Date in effect at
such time shall, effective as at the applicable Extension Date, be
extended as to those Lenders that so consented (each an "EXTENDING
LENDER") but shall not be extended as to any other Lender (each a
"DECLINING LENDER"). To the extent that the Termination Date is not
extended as to any Lender pursuant to this Section 2.20 and the Commitment
of such Lender is not assumed in accordance with subsection (c) of this
Section 2.20 on or prior to the applicable Extension Date, the Commitment
of such Declining Lender shall automatically terminate in whole on such
unextended Termination Date without any further notice or other action by
the Borrower, such Lender or any other Person and any outstanding Advances
due to such Declining Lender shall be paid in full on such unextended
Termination Date unless assumed pursuant to Section 2.20(c); provided that
such Declining Lender's rights under Sections 2.11, 2.14, 8.04 and 8.08,
and its obligations under Section 7.05, shall survive the Termination Date
for such Lender as to matters occurring prior to such date. It is
understood and agreed that no Lender shall have any obligation whatsoever
to agree to any request made by the Borrower for any requested extension
of the Termination Date.
(c) If there are any Declining Lenders, the Borrower may arrange for
one or more Extending Lenders or other Eligible Assignees (each such
Eligible Assignee that accepts an offer to assume a Declining Lender's
Commitment as of the applicable Extension Date being an "ASSUMING LENDER")
to assume, effective as of the Extension Date, any Declining Lender's
Commitment and all of the obligations of such Declining Lender under this
Agreement thereafter arising, without recourse to or warranty by, or
expense to, such Declining 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 Declining 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 Extending Lender or Assuming Lender shall have
paid to such Declining 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 Declining Lender plus (B)
any accrued but unpaid fees owing to such Declining Lender as of the
effective date of such assignment;
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(ii) all additional costs reimbursements, expense
reimbursements and indemnities payable to such Declining Lender, and all
other accrued and unpaid amounts owing to such Declining Lender hereunder,
as of the effective date of such assignment shall have been paid to such
Declining 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 Declining 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 Declining Lender, the Borrower and the Administrative Agent, (B)
any such Extending 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 Declining Lender being replaced
pursuant to this Section 2.20 shall have delivered to the Administrative Agent
any Note or Notes held by such Declining Lender. Upon the payment or prepayment
of all amounts referred to in clauses (i), (ii) and (iii) of the immediately
preceding sentence, each such Extending Lender or Assuming Lender, as of the
Extension Date, will be substituted for such Declining Lender under this
Agreement and shall be a Lender for all purposes of this Agreement, without any
further acknowledgment by or the consent of the other Lenders, and the
obligations of each such Declining Lender hereunder shall, by the provisions
hereof, be released and discharged.
(d) If all of the Extending and Assuming Lenders (after giving
effect to any assignments and assumptions pursuant to subsection (c) of
this Section 2.20) consent in writing to a requested extension (whether by
written consent pursuant to subsection (a) of this Section 2.20, by
execution and delivery of an Assumption Agreement or otherwise) not later
than one Business Day prior to such Extension Date, the Administrative
Agent shall so notify the Borrower, and, so long as no Event of Default,
or event that with the giving of notice or passage of time or both would
constitute an Event of Default, shall have occurred and be continuing as
of such Extension Date, or shall occur as a consequence thereof, the
Termination Date then in effect shall be extended for the additional
one-year period or two-year period, as the case may be, as described in
subsection (a) of this Section 2.20, and all references in this Agreement,
and in the Notes, if any, to the "Termination Date" shall, with respect to
each Extending Lender and each Assuming Lender for such Extension Date,
refer to the Termination Date as so extended. Promptly following each
Extension Date, the Administrative Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) of the extension of
the scheduled Termination Date in effect immediately prior thereto and
shall thereupon record in the Register the relevant information with
respect to each such Extending Lender and each such Assuming Lender.
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01 Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "EFFECTIVE DATE") on which all of the following conditions precedent
have been satisfied or waived in accordance with Section 8.01:
(a) the Administrative Agent shall have received on or before the
Effective Date the following, each dated as of 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
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Borrower or the Executive Committee of such Board authorizing the
execution and delivery of this Agreement, and approving all documents
evidencing other necessary corporate action and governmental approvals, if
any, with respect to this Agreement; (ii) a certificate of the Secretary
or an Assistant Secretary of the Borrower certifying the name and true
signature of the officer of the Borrower executing this Agreement on its
behalf; and (iii) an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Senior Vice
President, Deputy General Counsel-Corporate and Corporate Secretary of the
Borrower, in substantially the form of Exhibit C hereto;
(b) all consents and approvals of any governmental or regulatory
authority and any other third party necessary in connection with this
Agreement or the consummation of the transactions contemplated hereby
shall have been obtained and shall remain in effect;
(c) there shall have occurred no material adverse change in the
business, financial condition or operations of the Borrower and its
Subsidiaries, taken as a whole, since September 30, 2004, except as
disclosed in reports filed by the Borrower and its Subsidiaries, if any,
during the period from September 30, 2004 to the date of this Agreement
pursuant to Section 13 of the Securities Exchange Act of 1934, as amended,
copies of which have been furnished to the Initial Lenders prior to the
date of this Agreement;
(d) the Borrower shall have notified each Lender and the
Administrative Agent in writing as to the proposed Effective Date at least
three Business Days prior to the occurrence thereof;
(e) all of the representations and warranties contained in Section
4.01 shall be correct in all material respects on and as of the Effective
Date, before and after giving effect to such date, as though made on and
as of the Effective Date (except to the extent that such representations
and warranties relate to an earlier date, in which case such
representations and warranties shall have been correct in all material
respects on and as of such earlier date);
(f) 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; and
(g) the Administrative Agent shall have received a letter from an
authorized officer of the administrative agent under the Replaced Loan
Agreement to the effect that (i) all obligations under the Replaced Loan
Agreement will be paid and satisfied in full (other than any obligations
which, pursuant to the terms of the Replaced Loan Agreement, shall survive
the termination of such Agreement), and (ii) there will be no commitments
outstanding under the Replaced Loan Agreement.
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
true and correct in all material respects on and as of the date of such
Borrowing, before and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date (except to the extent that such representations and warranties relate
to an earlier date, in
29
which case such representations and warranties shall have been correct in
all material respects on and as of such earlier date); and
(b) no event has occurred and is continuing, or would result from
such Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or would constitute an Event of Default
but for the requirement that notice be given or time elapse or both.
SECTION 3.03 Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Administrative Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrower. The
Borrower represents and warrants as of the Effective Date and from time to time
thereafter as required under this Agreement as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Borrower, Disney and ABC are duly qualified and in good standing as
foreign corporations authorized to do business in each jurisdiction (other
than the respective jurisdictions of their incorporation) in which the
nature of their respective activities or the character of the properties
they own or lease make such qualification necessary and in which the
failure so to qualify would have a material adverse effect on the
financial condition or operations of the Borrower and its Subsidiaries,
taken as a whole.
(b) The execution, delivery and performance by the Borrower of this
Agreement and each of the Notes, if any, delivered hereunder are within
the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Borrower's
charter or by-laws or (ii) any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or any material
contractual restriction binding on or affecting the Borrower, Disney or
ABC; no authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Borrower of this
Agreement or the Notes, if any; and this Agreement is and each of the
Notes, when delivered hereunder, will be the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance
with their respective terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting
creditors' rights generally and general principles of equity.
(c) The Borrower's most recent annual report on Form 10-K containing
the consolidated balance sheet of the Borrower and its Subsidiaries, and
the related consolidated statements of income and of cash flows of the
Borrower and its Subsidiaries, copies of which have been furnished to each
Lender pursuant to Section 5.01(e)(ii) or as otherwise furnished to the
Lenders, 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
30
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 have a material adverse
effect on the financial condition or operations of the Borrower and its
Subsidiaries, taken as a whole, or which could reasonably be expected to
affect the legality, validity or enforceability of this Agreement; and to
the Borrower's knowledge, the Borrower and each of its Subsidiaries have
complied, and are in compliance, with all applicable laws, rules,
regulations, permits, orders, consent decrees and judgments, except for
any such matters which have not had, and would not reasonably be expected
to have, a material adverse effect on the financial condition or
operations of the Borrower and its Subsidiaries, taken as a whole.
(e) The Borrower and the ERISA Affiliates have not incurred and are
not reasonably expected to incur any material liability in connection with
their Single Employer Plans or Multiple Employer Plans, other than
ordinary liabilities for benefits; neither the Borrower nor any ERISA
Affiliate has incurred or is reasonably expected to incur any material
withdrawal liability (as defined in Part I of Subtitle E of Title IV of
ERISA) to any Multiemployer Plan; and no Multiemployer Plan of the
Borrower or any ERISA Affiliate is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
SECTION 4.02 Additional Representations and Warranties of the
Borrower as of Each Increase Date and Each Extension Date. The Borrower
represents and warrants on each Increase Date and each Extension Date (and at no
other time) that, as of each such date, the following statements shall be true:
(a) there has been no material adverse change in the business,
financial condition or operations of the Borrower and its Subsidiaries,
taken as a whole, since the date of the audited financial statements of
the Borrower and its Subsidiaries most recently delivered to the Lenders
pursuant to Section 5.01(e)(ii) prior to the applicable Increase Date or
Extension Date, as the case may be (except as disclosed in periodic or
other reports filed by the Borrower and its Subsidiaries pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, during the
period from the date of the most recently delivered audited financial
statements of the Borrower and its Subsidiaries pursuant to Section
5.01(e)(ii) to the date of the request for an increase in the aggregate
Commitments related to such Increase Date or for an extension of the
Termination Date then in effect related to such Extension Date, as the
case may be); and
(b) the representations and warranties contained in Section 4.01 are
correct in all material respects on and as of such date, as though made on
and as of such date (except to the extent that such representations and
warranties relate to an earlier date, in which case such representations
and warranties shall have been correct in all material respects on and as
of such earlier date).
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01 Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will, unless the Majority Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations, permits, orders, consent
31
decrees and judgments binding on the Borrower and its Subsidiaries,
including ERISA and the Patriot Act, the failure with which to comply
would have a material adverse effect on the financial condition or
operations of the Borrower and its Subsidiaries, taken as a whole.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, if the failure to so pay and discharge would have a material
adverse effect on the financial condition or operations of the Borrower
and its Subsidiaries, taken as a whole, (i) all taxes, assessments and
governmental charges or levies imposed upon it or upon its property, and
(ii) all lawful claims which, if unpaid, will by law become a Lien upon
its property; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge, levy or claim which is being contested in good faith
and by proper proceedings and as to which appropriate reserves are being
maintained in accordance with GAAP.
(c) Preservation of Corporate Existence, Etc. Subject to Section
5.02(a), preserve and maintain, and cause each of Disney and ABC to
preserve and maintain, its corporate existence, rights (charter and
statutory) and franchises; provided, however, that none of the Borrower,
Disney or ABC shall be required to preserve any right or franchise if the
loss thereof would not have a material adverse effect on the business,
financial condition or operations of the Borrower and its Subsidiaries,
taken as a whole; and provided further, however, that neither Disney nor
ABC shall be required to preserve its corporate existence if the loss
thereof would not have a material adverse effect on the business,
financial condition or operations of the Borrower and its Subsidiaries,
taken as a whole.
(d) Maintenance of Interest Coverage Ratio. Maintain as of the last
day of each fiscal quarter of the Borrower, commencing with the first
fiscal quarter of the Borrower following the Effective Date, a ratio of
(i) Consolidated EBITDA for the Measurement Period ending on such day to
(ii) Consolidated Interest Expense for the Measurement Period ending on
such day, of not less than 3 to 1.
(e) Reporting Requirements. Furnish to the Administrative Agent, on
behalf of the Lenders:
(i) as soon as available and in any event within 50 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a copy of the Borrower's quarterly report to shareholders on
Form 10-Q as filed with the Securities and Exchange Commission (the
"SEC"), in each case containing a consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such quarter and
consolidated statements of income and of cash flows of the Borrower and
its Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, and a certificate of
any of the Borrower's Chairman of the Board of Directors, President, Chief
Financial Officer, Treasurer, Assistant Treasurer or Controller (A)
stating that no Event of Default, or event that with the giving of notice
or passage of time or both would constitute an Event of Default, has
occurred and is continuing and (B) containing a schedule which shall set
forth the computations used by the Borrower in determining compliance with
the covenant contained in Section 5.01(d);
(ii) as soon as available and in any event within 100 days
after the end of each fiscal year of the Borrower, a copy of the
Borrower's annual report to shareholders on Form 10-K as filed with the
SEC, in each case containing consolidated financial statements of the
Borrower and its Subsidiaries for such year and a certificate of any of
the Borrower's Chairman of the Board of Directors, President, Chief
Financial Officer, Treasurer, Assistant Treasurer or
32
Controller (A) stating that no Event of Default, or event that with the
giving of notice or passage of time or both would constitute an Event of
Default, has occurred and is continuing and (B) containing a schedule
which shall set forth the computations used by the Borrower in determining
compliance with the covenant contained in Section 5.01(d);
(iii) promptly after the Borrower obtains actual knowledge of
the occurrence of each Event of Default, and each event that with the
giving of notice or passage of time or both would constitute an Event of
Default, a statement of any of the Borrower's Chairman of the Board of
Directors, President, Chief Financial Officer, Treasurer, Assistant
Treasurer or Controller setting forth details of such Event of Default or
event continuing on the date of such statement, and the action which the
Borrower has taken and proposes to take with respect thereto;
(iv) promptly after the commencement thereof, notice of any
actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, affecting the Borrower or any of its Subsidiaries of the type
described in Section 4.01(d);
(v) promptly after the Borrower obtains actual knowledge
thereof, written notice of any pending or threatened Environmental Claim
against the Borrower or any of its Subsidiaries or any of their respective
properties which could reasonably be expected to materially and adversely
affect the financial condition or operations of the Borrower and its
Subsidiaries, taken as a whole;
(vi) promptly after the Borrower obtains actual knowledge of
the occurrence of any ERISA Event which could reasonably be expected to
materially and adversely affect the financial condition or operations of
the Borrower and its Subsidiaries, taken as a whole, a statement of any of
the Borrower's Chairman of the Board of Directors, President, Chief
Financial Officer, Treasurer, Assistant Treasurer or Controller describing
such ERISA Event and the action, if any, which the Borrower has taken and
proposes to take with respect thereto;
(vii) promptly after receipt thereof by the Borrower or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, a copy of each
notice received by the Borrower or any ERISA Affiliate concerning (A) the
imposition of withdrawal liability (as defined in Part I of Subtitle E of
Title IV of ERISA) by a Multiemployer Plan, which withdrawal liability
could reasonably be expected to materially and adversely affect the
financial condition or operations of the Borrower and its Subsidiaries,
taken as a whole, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any Multiemployer Plan, which
reorganization or termination could reasonably be expected to materially
adversely affect the financial condition or operations of the Borrower and
its Subsidiaries, taken as a whole, or (C) the amount of liability
incurred, or which may be incurred, by the Borrower or any ERISA Affiliate
in connection with any event described in subclause (vii)(A) or (vii)(B)
above; and
(viii) such other material information reasonably related to
any Lender's credit analysis of the Borrower or any of its Subsidiaries as
any Lender through the Administrative Agent may from time to time
reasonably request.
SECTION 5.02 Negative Covenants. 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:
33
(a) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of the assets of the
Borrower and its Subsidiaries, taken as a whole (whether now owned or
hereafter acquired), to, any Person, or permit any of its Subsidiaries to
do so, unless (i) immediately after giving effect to such proposed
transaction, no Event of Default or event which, with the giving of notice
or lapse of time, or both, would constitute an Event of Default would
exist and (ii) in the case of any such merger to which the Borrower is a
party, the Borrower is the surviving corporation.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable; or the Borrower shall fail to pay any
interest on any Advance, or any fee or other amount payable under this
Agreement, in each case within three Business Days after such interest,
fee or other amount becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) delivered in writing and identified
as delivered in connection with this Agreement shall prove to have been
incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe any covenant
contained in Section 5.01(d), Section 5.01(e)(iii) or Section 5.02; or
(d) The Borrower shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed if the failure to perform or observe such other
term, covenant or agreement shall remain unremedied for 30 days after
written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(e) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt of the Borrower or such
Subsidiary which is outstanding in a principal amount of at least
$250,000,000 in the aggregate (but excluding Debt arising hereunder), 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
34
against the Borrower or any Material Subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official
for it or for substantially all of its 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 shall at the request, or
may with the consent, of the Majority Lenders, by notice to the Borrower, (A)
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (B) declare the Advances, all
interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower under the Federal Bankruptcy Code, (A)
the obligation of each Lender to make Advances shall automatically be
terminated, and (B) the Advances, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived by the
Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01 Authorization and Action. (a) Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement of this Agreement or
collection of the Advances), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action which exposes the Administrative Agent to personal liability or which
is contrary to this Agreement or applicable law. The Administrative Agent agrees
to give to each Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
(b) The Syndication Agent, the Co-Documentation Agents and the
Arrangers shall have no duties under this Agreement other than those
afforded to them in their capacities as Lenders, and each Lender hereby
acknowledges that the Syndication Agent, the Co-Documentation Agents and
the Arrangers have no liability under this Agreement other than those
assumed by them in their capacities as Lenders.
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SECTION 7.02 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to any Lender for any action taken or omitted to be taken by it
or them under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent: (i) may treat the Lender which made any
Advance as the holder of the Debt resulting therefrom until the Administrative
Agent receives and accepts an Assumption Agreement entered into by an Assuming
Lender as provided in Section 2.19 or 2.20, as the case may be, or an Assignment
and Acceptance entered into by such Lender, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 8.07; (ii) may consult with legal
counsel (including counsel for the Borrower), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (iii) makes no warranty or representation to
any Lender and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made in or in connection
with this Agreement; (iv) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions of
this Agreement on the part of the Borrower or to inspect the property (including
the books and records) of the Borrower; (v) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any instrument or document furnished
pursuant hereto; and (vi) shall incur no liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier) 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) and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of Advances then owing to each of
them (or, if no Advances are at the time outstanding or if any Advances are then
owing to Persons which are not Lenders, ratably according to the respective
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
36
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. (a) No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders (other than the Borrower or any of its
Affiliates, if a Lender, at the time of any such amendment, waiver or consent),
do any of the following: (a) waive any of the conditions specified in Section
3.01 or 3.02, (b) increase the Commitments of the Lenders (other than as
provided in Section 2.19) or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Advances or the fees payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the Advances (other than as provided in Section 2.20) or any fee,
(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.
(b) Limitation of Scope. All waivers and consents granted under this
Section 8.01 shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 8.02 SECTION 8.02. Notices, Etc. (a) All notices and other
communications provided for hereunder shall be either (x) in writing (including
telecopier, telegraphic or telex communication) and mailed, telecopied,
telegraphed, telexed or delivered or (y) as and to the extent
37
set forth in Section 8.02(b) and in the proviso to this Section 8.02(a), if to
the Borrower, at its address at The ▇▇▇▇ Disney Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President, Corporate Finance
and Assistant Treasurer, Telecopier number (▇▇▇) ▇▇▇ ▇▇▇▇, with a copy to: The
▇▇▇▇ Disney Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Vice President - Counsel, Corporate Legal Department, Telecopier
number (▇▇▇) ▇▇▇-▇▇▇▇; if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assumption Agreement or the Assignment
and Acceptance pursuant to which it became a Lender; and if to the
Administrative Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Global Loans Support - Agency Department, Telecopier number
(▇▇▇) ▇▇▇ ▇▇▇▇; or, as to the Borrower or the Administrative Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent, provided that materials required to be delivered pursuant
to Section 5.01(e)(i) or (ii) shall be delivered to the Administrative Agent as
specified in Section 8.02(b) or as otherwise specified to the Borrower by the
Agent. All such notices and communications shall, when mailed, telecopied,
telegraphed or e-mailed, be effective when deposited in the mails, telecopied,
delivered to the telegraph company or confirmed by e-mail, respectively, except
that notices and communications to the Administrative Agent pursuant to Article
II, III or VII shall not be effective until received by the Administrative
Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
(b) So long as Citibank or any of its Affiliates is the
Administrative Agent, materials required to be delivered pursuant to
Section 5.01(e)(i) and (ii) shall be delivered to the Administrative Agent
in an electronic medium in a format acceptable to the Administrative Agent
and the Lenders by e-mail at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. The Borrower
agrees that the Administrative Agent may make such materials, as well as
any other written information, documents, instruments and other material
relating to the Borrower, any of its Subsidiaries or any other materials
or matters relating to this Agreement, the Notes or any of the
transactions contemplated hereby (collectively, the "COMMUNICATIONS")
available to the Lenders by posting such notices on Intralinks,
"E-DISCLOSURE", the Administrative Agent's internet delivery system that
is part of Fixed Income Direct, Global Fixed Income's primary web portal,
or a substantially similar electronic system (the "PLATFORM"). The
Borrower acknowledges that (i) the distribution of material through an
electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii)
the Platform is provided "as is" and "as available" and (iii) neither the
Administrative Agent nor any of its Affiliates warrants the accuracy,
adequacy or completeness of the Communications or the Platform and each
expressly disclaims liability for errors or omissions in the
Communications or the Platform. No warranty of any kind, express, implied
or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of
third party rights or freedom from viruses or other code defects, is made
by the Administrative Agent or any of its Affiliates in connection with
the Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted
to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender for purposes of this
Agreement; provided that if requested by any Lender the Administrative
Agent shall deliver a copy of the Communications to such Lender by email
or telecopier. Each Lender agrees (i) to notify the Agent in writing of
such Lender's e-mail address to which a Notice may be sent by electronic
transmission (including by electronic communication) on or before the date
such Lender becomes a party to this Agreement (and from time to time
thereafter to ensure that the
38
Administrative Agent has on record an effective e-mail address for such
Lender) and (ii) that any Notice may be sent to such e-mail address.
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
Eurocurrency 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 redeployment 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
setoff and application made by such Lender (and, in the case of CUSA, Citibank);
provided, that, the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender (and, in the case of
CUSA, Citibank) under this Section are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such Lender may
have.
SECTION 8.06 Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Borrower, the Administrative Agent and each Co-Documentation
Agent and when the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and, thereafter, shall be
binding upon and inure to the benefit of the Borrower, the Administrative Agent,
each Co-Documentation 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.
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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 and 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 amount (without duplication) of the Commitment and pro-rata
share of outstanding Advances of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment and
Acceptance) shall not be less than $12,500,000 (unless such lesser amount is
previously agreed among such assigning Lender, the Administrative Agent and the
Borrower) or an integral multiple of $500,000 in excess thereof, (iii) the sum
of (A) the amount (without duplication) of the Commitment and pro-rata share of
outstanding Advances of the assigning Lender being assigned pursuant to each
such assignment and (B) the amount of the commitment and pro-rata share of
outstanding advances of the assigning Lender being contemporaneously assigned
under the Existing Five-Year Credit Agreement by the Person that is such
assigning Lender (in both cases determined as of the date of the Assignment and
Acceptance or similar agreement with respect to such assignments) shall not be
less than $25,000,000 in the aggregate (unless such lesser amount is previously
agreed among such assigning Lender, the Administrative Agent and the Borrower)
or an integral multiple of $1,000,000 in excess thereof, provided, however, that
if the aggregate amount of the Commitment of such assigning Lender hereunder and
its commitment under the Existing Five-Year Credit Agreement is less than
$25,000,000 on the date of such proposed assignments, such assigning Lender
shall assign all, but not less than all, of its remaining rights and obligations
under this Agreement and the Existing Five-Year Credit Agreement (unless an
assignment of a portion of such assigning Lender's obligations hereunder and
thereunder is otherwise previously agreed among such assigning Lender, the
Administrative Agent and the Borrower), (iv) each such assignment shall be to an
Eligible Assignee, and (v) 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 $3,500. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights (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,
enforceability, genuineness, sufficiency or value of this Agreement or any
instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or any of its
Subsidiaries or the performance or observance by the Borrower of any of
its obligations under this Agreement or any instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01(c) and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into such
40
Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender or
any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with such powers
as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be performed by it as
a Lender.
(c) The Administrative Agent shall maintain at its address referred
to in Section 8.02 a copy of each Assignment and Acceptance and each
Assumption Agreement delivered to and accepted by it and a register for
the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to, each Lender
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee and, if applicable, the Borrower, together with any Note subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit
B hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of
its Commitment and the Advances owing to it and any Note issued to it
hereunder); 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 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, for amounts due with respect to 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
41
proposed assignee or participant any information relating to the Borrower
furnished to such Lender by or on behalf of the Borrower in writing and
directly related to the transactions contemplated hereunder; provided
that, prior to any such disclosure, the assignee or participant or
proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from such Lender in accordance with the terms of Section
8.09.
(g) No participation or assignment hereunder shall be made in
violation of the Securities Act of 1933, as amended from time to time, or
any applicable state securities laws, and each Lender hereby represents
that it will make any Advance for its own account in the ordinary course
of its business and not with a view to the public distribution or sale
thereof.
(h) Anything in this Agreement to the contrary notwithstanding, any
Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note issued to it hereunder) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System (or any successor regulation
thereto) and the applicable operating circular of such Federal Reserve
Bank.
SECTION 8.08 Indemnification. The Borrower agrees to indemnify and
hold harmless the Administrative Agent, each Co-Documentation 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
admission or acknowledgment 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
42
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
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. None of the Administrative Agent or
Lenders may disclose to any Person any confidential, proprietary or non-public
information of the Borrower furnished to the Administrative Agent or the Lenders
by the Borrower or any of its Subsidiaries (such information being referred to
collectively herein as the "BORROWER INFORMATION"), except that each of the
Administrative Agent and each of the Lenders may disclose Borrower Information
(i) to its and its Affiliates' employees, officers, directors, agents, auditors
and advisors (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Borrower Information
and instructed to keep such Borrower Information confidential on substantially
the same terms as provided herein), (ii) to the extent requested by any
regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other party
to this Agreement, (v) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this Section 8.09 to any assignee of or
participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Agreement, (vii) to the extent such Borrower
Information (A) is or becomes generally available to the public on a
non-confidential basis other than as a result of a breach of this Section 8.09
by the Administrative Agent or such Lender, or (B) is or becomes available to
the Administrative Agent or such Lender on a non-confidential basis from a
source other than the Borrower, provided such source is not bound by a
confidentiality agreement or other legal or fiduciary obligations of secrecy
with the Borrower with respect to the Borrower Information, and (viii) with the
consent of the Borrower.
SECTION 8.10 Patriot Act. Each Lender and the Administrative Agent
hereby notifies the Borrower that, pursuant to the requirements of the Patriot
Act, it is required to obtain, verify and record information that identifies the
Borrower, which information includes names and addresses and other information
that will allow it to identify the Borrower in accordance with the Patriot Act.
SECTION 8.11 Judgment. (a) If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder in Dollars into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase Dollars with such other currency at Citibank's principal office in
London at 11:00 A.M. (London time) on the Business Day preceding that on which
final judgment is given.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Committed Currency into
Dollars, the parties agree to the fullest extent that they may effectively
do so, that the rate of exchange used shall be that at which in accordance
with normal banking procedures the Administrative Agent could purchase
such Committed Currency with Dollars at Citibank's principal office in
London at 11:00 A.M. (London time) on the Business Day preceding that on
which final judgment is given.
(c) The obligation of the Borrower in respect of any sum due from it
in any currency (the "PRIMARY CURRENCY") to any Lender or the
Administrative Agent hereunder shall,
43
notwithstanding any judgment in any other currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or
the Administrative Agent (as the case may be), of any sum adjudged to be
so due in such other currency, such Lender or the Administrative Agent (as
the case may be) may in accordance with normal banking procedures purchase
the applicable Primary Currency with such other currency; if the amount of
the applicable Primary Currency so purchased is less than such sum due to
such Lender or the Administrative Agent (as the case may be) in the
applicable Primary Currency, the Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent (as the case may be) against such loss, and if the
amount of the applicable Primary Currency so purchased exceeds such sum
due to any Lender or the Administrative Agent (as the case may be) in the
applicable Primary Currency, such Lender or the Administrative Agent (as
the case may be) agrees to remit to the Borrower such excess.
SECTION 8.12 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 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (or at such other
address in the Borough of Manhattan in the State of New York as the Borrower
shall notify the Administrative Agent from time to time) and, if the Borrower
ever ceases to maintain such office in the Borough of Manhattan, irrevocably
designates and appoints CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, 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 8.13 Substitution of Currency. If a change in any Committed
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or multi-national authority, this Agreement (including,
without limitation, the definition of Eurocurrency Rate) will be amended to the
extent determined by the Administrative Agent (acting reasonably, in
consultation with the Borrower and in accordance with the terms of Section 8.01
hereof) to be necessary to reflect the change in currency and to put the Lenders
and the Borrower in the same position, so far as possible, that they would have
been in if no change in such Committed Currency had occurred.
SECTION 8.14 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 8.15 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 an original executed
counterpart of this Agreement. A full set of executed counterparts of this
Agreement shall be lodged with the Administrative Agent and the Borrower.
SECTION 8.16 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
44
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
45
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE BORROWER
THE ▇▇▇▇ DISNEY COMPANY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Senior Vice President and Treasurer
THE ADMINISTRATIVE AGENT
CITICORP USA, INC.,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Vice President
THE JOINT LEAD ARRANGERS
AND JOINT BOOK MANAGERS
BANC OF AMERICA SECURITIES LLC
as Joint Lead Arranger and Joint Book Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------
Title: Managing Director
CITIGROUP GLOBAL MARKETS, INC.,
as Joint Lead Arranger and Joint Book Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Director
Five Year Credit Agreement
THE SYNDICATION AGENT
BANK OF AMERICA, N.A.
as Syndication Agent
By: /s/ ▇▇▇ ▇▇▇▇▇
------------------------------------------
Title: Vice President
THE CO-DOCUMENTATION AGENTS
BARCLAYS BANK PLC,
as Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------
Title: Director
BNP PARIBAS SA,
as Co-Documentation Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
HSBC BANK USA,
as Co-Documentation Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Senior Vice President
Five Year Credit Agreement
THE INITIAL LENDERS
Commitment
$200,000,000.00 CITICORP USA, INC., as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Vice President
Five Year Credit Agreement
$200,000,000.00 BANK OF AMERICA, N.A.,
as Lender
By: /s/ ▇▇▇ ▇▇▇▇▇
------------------------------------------
Title: Vice President
Five Year Credit Agreement
$150,000,000.00 BARCLAYS BANK PLC,
as Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------
Title: Director
Five Year Credit Agreement
$150,000,000.00 BNP PARIBAS SA,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
Five Year Credit Agreement
$150,000,000.00 HSBC BANK USA,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Senior Vice President
Five Year Credit Agreement
$95,500,000.00 CREDIT SUISSE FIRST BOSTON,
acting through its New York Branch, as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------
Title: Associate
Five Year Credit Agreement
$95,500,000.00 DEUTSCHE BANK AG,
New York Branch, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Title: Director
Five Year Credit Agreement
$95,500,000.00 JPMORGAN CHASE BANK, N.A.,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Title: Vice President
Five Year Credit Agreement
$95,500,000.00 MIZUHO CORPORATE BANK LIMITED, as
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: Senior Vice President
Five Year Credit Agreement
$95,500,000.00 STANDARD CHARTERED BANK,
as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Assistant Vice President
Five Year Credit Agreement
$95,500,000.00 THE ROYAL BANK OF SCOTLAND plc,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Senior Vice President
Five Year Credit Agreement
$95,500,000.00 UBS LOAN FINANCE LLC,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------
Title: Associate Director
Five Year Credit Agreement
$95,500,000.00 UFJ BANK LIMITED,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Title: Vice President
Five Year Credit Agreement
$54,500,000.00 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCING, INC.,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Vice President
Five Year Credit Agreement
$54,500,000.00 SOCIETE GENERALE,
as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Managing Director
Five Year Credit Agreement
$54,500,000.00 SUMITOMO MITSUI
BANKING CORPORATION,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Title: General Manager
Five Year Credit Agreement
$54,500,000.00 SUNTRUST BANK,
as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Managing Director
Five Year Credit Agreement
$54,500,000.00 ▇▇▇▇▇▇▇ STREET
COMMITMENT CORPORATION
(Recourse only to assets of
▇▇▇▇▇▇▇ Street Commitment
Corporation),
as Lender
By: /s/ Manda D'Agata
-----------------------------
Title: Assistant Vice President
Five Year Credit Agreement
$31,500,000.00 ABN AMRO BANK N.V.,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
-----------------------------
Title: Managing Director
Five Year Credit Agreement
$31,500,000.00 AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED,
as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Title: Director
Five Year Credit Agreement
$31,500,000.00 BANCA DI ROMA - SAN FRANCISCO,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Title: SVP and Manager
Five Year Credit Agreement
$31,500,000.00 BANCA INTESA, S.P.A.,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: First Vice President
Five Year Credit Agreement
$31,500,000.00 BEAR ▇▇▇▇▇▇▇
CORPORATE LENDING INC.,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: Executive Vice President
Five Year Credit Agreement
$31,500,000.00 ING BANK N.V.,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Vice President
Five Year Credit Agreement
$31,500,000.00 ▇▇▇▇▇▇ BROTHERS BANK, FSB,
as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Senior Vice President
Five Year Credit Agreement
$31,500,000.00 LLOYDS TSB BANK PLC,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: VP & Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: AVP Financial Institutions
Five Year Credit Agreement
$31,500,000.00 ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Director
Five Year Credit Agreement
$31,500,000.00 THE BANK OF NEW YORK,
as Lender
By: /s/ ▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: Assistant Vice President
Five Year Credit Agreement
$31,500,000.00 ▇▇▇▇▇ FARGO BANK, N.A.,
as Lender
By: /s/ Ling Li
-----------------------------
Title: Vice President
Five Year Credit Agreement
$17,000,000.00 STATE STREET BANK AND TRUST
COMPANY,
as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Assistant Vice President
Five Year Credit Agreement
