UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended March 31, 1995 Commission File Number 1-4083
Incorporated in DelawareI.R.S. Employer Identification
No. 95-0684440
THE WALT DISNEY COMPANY
500 South Buena Vista Street, Burbank, California 91521
(818) 560-1000
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days.
YES..X..... NO............
There were 521,901,222 shares of common stock outstanding as of May 5,
1995.
<PAGE>
PART I. FINANCIAL INFORMATION
THE WALT DISNEY COMPANY
CONDENSED CONSOLIDATED STATEMENT OF INCOME
In millions, except per share data (unaudited)
<TABLE>
<CAPTION>
Six Months Ended Three Months Ended
March 31 March 31
1995 1994 1995 1994
<S> <C> <C> <C> <C>
REVENUES
Filmed entertainment $ 3,325.2 $ 2,531.0 $ 1,557.7 $ 1,104.6
Theme parks and resorts 1,745.2 1,571.4 891.9 802.4
Consumer products 1,154.1 900.7 473.2 368.8
6,224.5 5,003.1 2,922.8 2,275.8
COSTS AND EXPENSES
Filmed entertainment 2,570.0 2,030.8 1,250.7 944.6
Theme parks and resorts 1,395.9 1,281.0 709.7 650.1
Consumer products 861.2 656.9 355.8 271.1
4,827.1 3,968.7 2,316.2 1,865.8
OPERATING INCOME
Filmed entertainment 755.2 500.2 307.0 160.0
Theme parks and resorts 349.3 290.4 182.2 152.3
Consumer products 292.9 243.8 117.4 97.7
1,397.4 1,034.4 606.6 410.0
CORPORATE ACTIVITIES
General and administrative 88.1 80.9 45.8 37.4
expenses
Net investment and interest
expense (income) 80.3 (12.6) 43.8 (8.4)
168.4 68.3 89.6 29.0
LOSS FROM INVESTMENT IN EURO DISNEY (5.2) (33.1)
INCOME BEFORE INCOME TAXES 1,223.8 966.1 483.9 381.0
Income taxes 425.9 349.1 168.4 132.6
NET INCOME $ 797.9 $ 617.0 $ 315.5 $ 248.4
EARNINGS PER SHARE $ 1.51 $ 1.13 $ 0.60 $ 0.45
AVERAGE NUMBER OF COMMON AND
COMMON EQUIVALENT SHARES
OUTSTANDING 528.9 546.4 529.2 547.5
</TABLE>
<PAGE>
THE WALT DISNEY COMPANY
CONDENSED CONSOLIDATED BALANCE SHEET
In millions
<TABLE>
<CAPTION>
March 31, September 30,
1995 1994
(unaudited)
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 882.3 $ 186.9
Investments 1,091.5 1,323.2
Receivables 1,839.1 1,670.5
Merchandise inventories 624.9 668.3
Film and television costs 1,818.5 1,596.2
Theme parks, resorts, and other property,
net of accumulated depreciation of
$2,830.4 and $2,627.1 6,013.2 5,814.5
Investment in Euro Disney 575.4 629.9
Other assets 1,203.3 936.8
$14,048.2 $12,826.3
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts and taxes payable and other $ 3,233.4 $ 2,742.2
accrued liabilities
Borrowings 3,186.2 2,936.9
Unearned royalty and other advances 827.8 699.9
Deferred income taxes 748.6 939.0
Stockholders' equity
Preferred stock, $.10 par value
Authorized - 100.0 million shares
Issued - none
Common stock, $.025 par value
Authorized - 1.2 billion shares
Issued - 571.8 million shares and 1,099.0 945.3
567.0 million shares
Retained earnings 6,502.5 5,790.3
Cumulative translation and other 53.8 59.1
adjustments
7,655.3 6,794.7
Less treasury shares, at cost - 51.0 million
shares and 42.9 million shares 1,603.1 1,286.4
6,052.2 5,508.3
$14,048.2 $12,826.3
</TABLE>
<PAGE>
THE WALT DISNEY COMPANY
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
In millions (unaudited)
<TABLE>
<CAPTION>
Six Months Ended
March 31
1995 1994
<S> <C> <C>
CASH PROVIDED BY OPERATIONS BEFORE INCOME TAXES $ 2,041.2 $ 1,617.6
Income taxes paid (215.0) (242.5)
1,826.2 1,375.1
INVESTING ACTIVITIES
Film and television costs (929.1) (717.4)
Investments in theme parks, resorts, and (423.6) (492.8)
other property
Purchases of investments (383.4) (620.3)
Proceeds from sales of investments 611.2 464.1
Investment in Euro Disney 144.8
Other (28.0) (3.5)
(1,008.1) (1,369.9)
FINANCING ACTIVITIES
Borrowings 1,008.6 1,036.6
Reduction of borrowings (759.3) (704.6)
Repurchases of common stock (348.7)
Dividends (85.7) (73.8)
Other 62.4 47.2
(122.7) 305.4
Increase in Cash and Cash Equivalents 695.4 310.6
Cash and Cash Equivalents, Beginning of Period 186.9 363.0
Cash and Cash Equivalents, End of Period $ 882.3 $ 673.6
The difference between Income Before Income Taxes as shown on the
Condensed Consolidated Statement of Income and Cash Provided by
Operations Before Income Taxes is explained as follows:
INCOME BEFORE INCOME TAXES $ 1,223.8 $ 966.1
CHARGES TO INCOME NOT REQUIRING CASH OUTLAYS
Amortization of film and television costs 706.8 575.4
Depreciation 217.6 180.4
Euro Disney 5.2
Other 29.3 13.2
CHANGES IN
Investments in trading securities (33.7)
Receivables (168.6) (199.7)
Merchandise inventories 43.4 106.3
Other assets (250.8) (66.2)
Accounts payable and other accrued liabilities 140.3 45.4
Unearned royalty and other advances 127.9 (3.3)
817.4 651.5
CASH PROVIDED BY OPERATIONS BEFORE INCOME TAXES $ 2,041.2 $ 1,617.6
SUPPLEMENTAL CASH FLOW INFORMATION
Interest paid $ 94.6 $ 57.8
</TABLE>
<PAGE>
THE WALT DISNEY COMPANY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. These condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting
principles for interim financial information and with the
instructions to Rule 10-01 of Regulation S-X. Accordingly, they do
not include all of the information and footnotes required by
generally accepted accounting principles for complete financial
statements. In the opinion of management, all adjustments
(consisting only of normal recurring adjustments) considered
necessary for a fair presentation have been included. Operating
results for the quarter are not necessarily indicative of the
results that may be expected for the year ending September 30,
1995. Certain reclassifications have been made in the 1994
financial statements to conform to the 1995 presentation. For
further information, refer to the consolidated financial
statements and footnotes thereto included in the Company's Annual
Report on Form 10-K for the year ended September 30, 1994.
2. During February 1995, the Company issued $400 million of Senior
Participating Notes (the "Notes") in the Eurobond market and
through the private placement market in the United States. The
Notes are senior, unsecured debt obligations of the Company which
mature on March 1, 2000. Interest on the Notes is payable
semi-annually at a fixed rate of 2.0% per annum through maturity.
In addition, contingent interest payments will be made on the
Notes if revenues from a portfolio of eligible non-animated films
in which the Company invests exceed a specified threshold.
During April 1995, the Company increased its unsecured revolving
line of bank credit from $525 million to $1 billion. The credit
line is for general corporate purposes, including the support of
commercial paper borrowings, and expires during February, 2000.
The Company has the option to borrow at various interest rates.
3. Cash dividends per share for the quarters ended March 31, 1995 and
1994 were $.090 and $.075, respectively.
<PAGE>
THE WALT DISNEY COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The Company's businesses are subject to the effects of seasonality.
Consequently, the operating results for the quarter and six months
ended March 31, 1995 for each line of business, and for the Company as
a whole, will not necessarily be indicative of results for the full
year. The reader is encouraged to read the Company's 1994 Annual
Report on Form 10-K in conjunction with this interim report.
Filmed Entertainment operating results fluctuate based upon the timing
of theatrical and home video releases. Release dates are determined by
several factors, including timing of vacation and holiday periods and
competition in the market.
The Theme Parks and Resorts business experiences fluctuations in theme
park attendance and resort occupancy resulting from the nature of
vacation travel. Peak attendance and resort occupancy generally occur
during the summer months when school vacations occur and during early-
winter and spring holiday periods.
Operating results for Consumer Products are influenced by seasonal
consumer purchasing behavior and by the timing of animated theatrical
releases.
RESULTS OF OPERATIONS
For the Quarter and Six Months Ended March 31, 1995
Filmed Entertainment
Quarter
Revenues increased 41% or $453.1 million to $1.56 billion, driven by
growth of $396 million in home video revenues. Home video revenues
increased due to the strong performance of The Lion King in domestic
home video and the international release of The Aristocats and The
Return of Jafar, compared to the prior year performance of The Fox and
the Hound domestically and Bambi and The Jungle Book internationally.
Operating income increased 92% or $147.0 million to $307.0 million,
primarily due to the success of The Lion King. Costs and expenses,
which consist principally of film and television cost amortization,
and distribution and selling costs, increased 32% or $306.1 million,
primarily due to home video marketing and distribution and
amortization costs related to The Lion King.
<PAGE>
THE WALT DISNEY COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Filmed Entertainment (continued)
Six Months
Revenues increased 31% or $794.2 million to $3.33 billion, driven by
growth of $510 million in home video revenues, $129 million in
theatrical revenues, and $77 million in television revenues. Home
video revenues were driven by the worldwide release of Snow White and
the Seven Dwarfs, the domestic release of The Lion King, and the
international release of Aladdin and The Aristocats in the current
year, compared to the domestic release of Aladdin and The Fox and the
Hound and the international release of The Jungle Book, Bambi, and
Beauty and the Beast in the prior year. Theatrical revenues increased
due to the domestic rerelease and expanded international release of
The Lion King and the live-action release of The Santa Clause and Pulp
Fiction, compared to the expanded international theatrical release of
Aladdin in the prior year. Television revenues grew due to increased
title availabilities worldwide.
Operating income increased 51% or $255.0 million to $755.2 million,
primarily due to growth in home video and the current year theatrical
performance of The Lion King internationally. Costs and expenses
increased 27% or $539.2 million, primarily reflecting higher home
video marketing and distribution costs, principally due to the
worldwide release of Snow White and the Seven Dwarfs and the domestic
release of The Lion King, and increased film cost amortization and
distribution expenses associated with Miramax titles.
Theme Parks and Resorts
Quarter
Revenues increased 11% or $89.5 million to $891.9 million, driven by
growth of $52 million reflecting higher theme park attendance in
Florida and California, net of decreased guest spending at Disneyland,
and $42 million from an increase in occupied rooms at Florida resorts,
partially offset by lower real estate development revenues in Florida.
Higher theme park attendance primarily reflected increased domestic
visitation. The increase in occupied rooms reflected the openings of
Disney's Wilderness Lodge and All-Star Sports Resort in the third
quarter of the prior year and the phased opening of the All-Star Music
Resort during the current period. Lower guest spending was primarily
due to increased use of multi-day and annual passes by theme park
guests.
<PAGE>
THE WALT DISNEY COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Theme Parks and Resorts (continued)
Operating income increased 20% or $29.9 million to $182.2 million,
driven by higher theme park attendance and increased occupied rooms at
Florida resorts, partially offset by decreased guest spending at
Disneyland. Costs and expenses, which consist principally of labor,
costs of merchandise, food and beverages sold, depreciation, repairs
and maintenance, entertainment, and marketing and sales expenses,
increased 9% or $59.6 million, primarily due to expansion of theme
park attractions and resorts in Florida and increased marketing and
sales expenses, partially offset by the impact of ongoing cost
reduction initiatives.
Six Months
Revenues increased 11% or $173.8 million to $1.75 billion, driven by
growth of $94 million from higher theme park attendance in Florida and
California and $66 million from an increase in occupied rooms at
Florida resorts. Increased guest spending at Florida theme parks and
resorts was offset by lower spending at Disneyland. Higher theme park
attendance primarily reflected increased domestic visitation. The
increase in occupied rooms reflected the openings of Disney's
Wilderness Lodge and All-Star Sports Resort in the third quarter of
the prior year and the phased opening of the All-Star Music Resort
during the current period.
Operating income increased 20% or $58.9 million to $349.3 million,
driven by higher theme park attendance and increased occupied rooms at
Florida resorts. Costs and expenses increased 9% or $114.9 million,
primarily due to expansion of theme park attractions and resorts in
Florida and increased marketing and sales expenses, partially offset
by the impact of ongoing cost reduction initiatives.
Consumer Products
Quarter
Revenues increased 28% or $104.4 million to $473.2 million, driven by
growth of $53 million from worldwide character merchandise licensing,
audio entertainment, and publications and $47 million from the Disney
Stores. Worldwide merchandise licensing, audio entertainment, and
publications growth resulted primarily from increased demand for
animated film properties, particularly The Lion King. Full-quarter
operations at 85 stores opened during fiscal 1994 and 13% higher sales
at 239 existing stores generated 82% of Disney Stores' revenue growth;
sales from 38 new stores worldwide, 14 of which opened during the
quarter, contributed the remaining 18%.
<PAGE>
THE WALT DISNEY COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Consumer Products (continued)
Operating income increased 20% or $19.7 million to $117.4 million,
primarily due to growth of worldwide character merchandise licensing
and audio entertainment, partially offset by higher costs and
expenses. Costs and expenses, which consist principally of costs of
goods sold, labor, rent and occupancy, and publicity and promotion,
increased 31% or $84.7 million, primarily reflecting support of the
expansion and revenue growth of the Disney Stores.
Six Months
Revenues increased 28% or $253.4 million to $1.15 billion, driven by
growth of $157 million from the Disney Stores and $89 million from
worldwide character merchandise licensing, audio entertainment, and
publications. Full-period operations at 85 stores opened during fiscal
1994 and 15% higher sales at 239 existing stores generated 84% of
Disney Stores' revenue growth; sales from 38 new stores worldwide
contributed the remaining 16%. Worldwide merchandise licensing, audio
entertainment, and publications growth resulted primarily from
increased demand for animated film properties, particularly The Lion
King.
Operating income increased 20% or $49.1 million to $292.9 million,
primarily due to growth in worldwide character merchandise licensing,
audio entertainment, publications, and the Disney Stores, partially
offset by higher costs and expenses. Costs and expenses increased 31%
or $204.3 million, primarily reflecting support of the expansion and
revenue growth of the Disney Stores.
Corporate Activities
General and administrative expenses increased 22% or $8.4 million for
the quarter and 9% or $7.2 million for the six months, driven by
operating losses from Disney Sports Enterprises (The Mighty Ducks of
Anaheim) for both periods, and higher corporate general and
administrative expenses during the quarter.
Net investment and interest expense was $43.8 million and $80.3
million for the quarter and six months, respectively, primarily
reflecting the impact of higher net borrowings, due in part to
calendar 1994 common stock repurchases and prior-year Euro Disney
funding.
<PAGE>
THE WALT DISNEY COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Investment in Euro Disney
The Company's investment in Euro Disney resulted in losses of $33.1
million and $5.2 million for the quarter and six months, respectively.
Results for the six-month period include a gain of $55 million from
the sale of approximately 75 million shares, or 20% of the Company's
investment in Euro Disney, to Prince Alwaleed Bin Talal Bin Abdulaziz
Al Saud in the first quarter.
In the prior year, no activity was reported related to the Company's
investment in Euro Disney, pending the outcome of the financial
restructuring.
Income Taxes
The effective income tax rate was 34.8% for the quarter and six
months, compared to 34.8% and 36.1% for the prior-year quarter and six
months, respectively.
FINANCIAL CONDITION
For the six months ended March 31, 1995, cash provided by operations
increased 33% or $451.1 million to $1.83 billion, primarily due to
increased operating income in each business segment.
Net borrowings (the Company's borrowings less cash and liquid
investments) decreased $129 million to $1.6 billion. The decrease was
primarily due to payments of existing debt and an increase in cash and
cash equivalents, partially offset by the issuance of $400 million of
Senior Participating Notes in the current quarter and $300 million of
senior, unsecured debt obligations in the first quarter.
During the six months, the Company invested $929 million to develop
and produce film and television properties and $424 million to design
and develop new theme park attractions and resort properties.
The Company repurchased 8.9 million shares of common stock for $349
million under its share repurchase program during the first quarter.
The Company purchased 13.8 million shares during fiscal 1994, and is
authorized to purchase up to an additional 104 million shares under
the program.
The Company sold approximately 75 million, or 20% of its Euro Disney
shares to Prince Alwaleed Bin Talal Bin Abdulaziz Al Saud for
approximately $145 million in October 1994.
<PAGE>
THE WALT DISNEY COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
During April 1995, the Company entered into agreements with a shipyard
to build two cruise ships for its Disney Cruise Lines.
Also during April 1995, the Company increased its unsecured revolving
line of bank credit from $525 million to $1 billion.
The Company's financial condition remains strong. The Company believes
that its cash, other liquid assets, operating cash flows, access to
equity capital markets and borrowing capacity, taken together, provide
more than adequate resources to fund ongoing operating requirements
and future capital expenditures related to the expansion of existing
businesses and development of new projects.
<PAGE>
PART II. OTHER INFORMATION
THE WALT DISNEY COMPANY
Item 4. Submission of Matters to a Vote of Security Holders
The following matters were submitted to a vote of security holders
during the Company's Annual Meeting of Stockholders held February 21,
1995:
Description of Matter
<TABLE>
<CAPTION>
Authority
Votes Cast For Withheld
<S> <C> <C>
1. Election of directors:
Richard A. Nunis 441,902,906 3,202,223
Sidney Poitier 440,868,808 4,236,321
Robert A. M. Stern 441,574,165 3,530,964
E. Cardon Walker 441,649,698 3,455,431
</TABLE>
<TABLE>
<CAPTION>
Votes Cast Broker
For Against Abstentions Non-Votes
<S> <C> <C> <C> <C>
2. Ratification of
appointment of
independent
accountants 442,551,178 1,180,802 1,373,149 N/A
3. Approval of the 1995
stock option plan for
non-employee directors 412,576,083 28,723,642 3,805,404 N/A
4. Stockholder proposal
to adopt a dividend
reinvestment and
stock purchase plan 44,766,046 296,383,446 4,823,485 99,132,152
5. Stockholder proposal
adopt a stock purchase
plan 37,611,981 303,047,230 5,313,766 99,132,152
</TABLE>
<PAGE>
THE WALT DISNEY COMPANY
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
(10) Second Amended and Restated Credit Agreement, dated as of
April 12, 1995, among the Company, Citicorp USA, Inc.,
as Agent, and certain financial institutions.
(27) Financial Data Schedule (filed electronically only).
(b) Reports on Form 8-K
The Company did not file any reports on Form 8-K during the
quarter.
<PAGE>
THE WALT DISNEY COMPANY
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
THE WALT DISNEY COMPANY
(Registrant)
By /s/ Richard D. Nanula
Richard D. Nanula
Executive Vice President and
Chief Financial Officer
May 9, 1995
Burbank, California
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The schedule contains summary financial information extracted from the condensed
consolidated balance sheet and condensed consolidated statement of income found
on the Company's Form 10-Q for the six months ended March 31, 1995 and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-30-1994
<PERIOD-START> OCT-01-1994
<PERIOD-END> MAR-31-1995
<EXCHANGE-RATE> 1
<CASH> 882
<SECURITIES> 1092
<RECEIVABLES> 1839
<ALLOWANCES> 0
<INVENTORY> 625
<CURRENT-ASSETS> 0
<PP&E> 8844
<DEPRECIATION> 2830
<TOTAL-ASSETS> 14048
<CURRENT-LIABILITIES> 0
<BONDS> 3187
<COMMON> 1099
0
0
<OTHER-SE> 4953
<TOTAL-LIABILITY-AND-EQUITY> 14048
<SALES> 6225
<TOTAL-REVENUES> 6225
<CGS> 0
<TOTAL-COSTS> 4827
<OTHER-EXPENSES> 88
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 88
<INCOME-PRETAX> 1224
<INCOME-TAX> 426
<INCOME-CONTINUING> 798
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 798
<EPS-PRIMARY> 1.51
<EPS-DILUTED> 1.51
</TABLE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 12, 1995
Among
THE WALT DISNEY COMPANY
as Borrower
and
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as Lenders
and
CITICORP USA, INC.
as Agent
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms 1
1.02 Computation of Time Periods 8
1.03 Accounting Terms 8
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01 The Advances 9
2.02 Making the Advances 9
2.03 Facility Fee 10
2.04 Reduction of the Commitments 10
2.05 Repayment of Advances 10
2.06 Interest on Advances 10
2.07 Additional Interest on Eurodollar Rate
Advances 10
2.08 Interest Rate Determination 11
2.09 Voluntary Conversion of Advances 12
2.10 Prepayments of Advances 12
2.11 Increased Costs 12
2.12 Illegality 13
2.13 Payments and Computations 13
2.14 Taxes 14
2.15 Sharing of Payments, Etc. 15
2.16 Mandatory Assignment by a Lender; Mitigation 16
2.17 Evidence of Debt 16
2.18 Use of Proceeds 17
2.19 Extension of Termination Date 17
2.20 Withdrawing Lenders 17
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
3.01 Conditions Precedent to Effectiveness
of this Agreement 17
3.02 Conditions Precedent to Each
Borrowing 18
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 Representations and Warranties of the Borrower 18
4.02 Additional Representation and Warranty
of the Borrower 19
<PAGE>
Section Page
ARTICLE V
COVENANTS OF THE BORROWER
5.01 Affirmative Covenants 19
5.02 Negative Covenant 21
ARTICLE VI
EVENTS OF DEFAULT
6.01 Events of Default 21
ARTICLE VII
THE AGENT
7.01 Authorization and Action 22
7.02 Agent's Reliance, Etc 23
7.03 CUSA and Affiliates 23
7.04 Lender Credit Decision 23
7.05 Indemnification 23
7.06 Successor Agent 24
ARTICLE VIII
MISCELLANEOUS
8.01 Amendments, Etc. 24
8.02 Notices, Etc. 24
8.03 No Waiver; Remedies 25
8.04 Costs and Expenses 25
8.05 Right of Set-off 25
8.06 Binding Effect 25
8.07 Assignments and Participations 26
8.08 Indemnification 27
8.09 Confidentiality 28
8.10 Consent to Jurisdiction and Service of Process 28
8.11 Governing Law 29
8.12 Execution in Counterparts 29
SCHEDULES AND EXHIBITS
Schedule I - List of Applicable Lending Offices
Exhibit A - Notice of Borrowing
Exhibit B - Assignment and Acceptance
Exhibit C - Form of Opinion of Counsel for the Borrower
Exhibit D-1 - Form of Foreign Lender Certificate
Exhibit D-2 - Form of Foreign Lender Certificate
Exhibit E - Form of Withdrawal Agreement
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 12, 1995
THE WALT DISNEY COMPANY, a Delaware corporation (the
"Borrower"), the financial institutions (the "Initial Lenders")
listed on the signature pages hereof under the heading "Initial
Lenders", and CITICORP USA, INC., a Delaware corporation
("CUSA"), as agent (the "Agent") for the Lenders hereunder, agree
as follows:
PRELIMINARY STATEMENTS
The parties hereto are parties to an Amended and Restated
Credit Agreement dated as of October 3, 1994. The parties hereto
now wish to amend and restate such Amended and Restated Credit
Agreement in its entirety as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Advance" means an advance by a Lender to the Borrower
as part of a Borrowing and refers to a Base Rate Advance or
a Eurodollar Rate Advance, each of which shall be a "Type"
of Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director or
officer of such Person.
"Agent's Account" means such account of the Agent
maintained by the Agent at the office of Citibank at 399
Park Avenue, New York, New York, as the Agent shall notify
the Borrower and the Lenders from time to time.
"Agreement" means this Second Amended and Restated
Credit Agreement, as it may be amended from time to time in
accordance with Section 8.01 hereof.
"Anniversary Date" means February 15, 1996 and February
15 in each succeeding calendar year occurring during the
term of this Agreement.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of
a Base Rate Advance and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Agent, in substantially the
form of Exhibit B hereto.
"Base Rate" means, for each day in any period, a
fluctuating interest rate per annum as shall be in effect
from time to time which rate per annum shall at all times
for such day during such period be equal to the highest of:
(a) the rate of interest announced publicly
by Citibank in New York, New York, from time to time,
as Citibank's base rate as in effect for such day; or
(b) The sum (adjusted to the nearest 1/4 of
one percent or, if there is no nearest 1/4 of one
percent, to the next higher 1/4 of one percent) of (i)
1/2 of one percent per annum, plus (ii) the rate
obtained by dividing (A) the latest three-week moving
average of secondary market morning offering rates in
the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a
year of 365 or 366 days, as the case may be) being
determined weekly on each Monday (or, if any such day
is not a Business Day, on the next succeeding Business
Day) for the three-week period ending on the previous
Friday by Citibank on the basis of such rates reported
by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank
from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by
the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve
requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve
requirement) for Citibank in respect of liabilities
consisting of or including (among other liabilities)
three-month U.S. dollar nonpersonal time deposits in
the United States, plus (iii) the average during such
three-week period of the annual assessment rates
estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; or
(c) 0.50% per annum above the Federal Funds
Rate for such day.
"Base Rate Advance" means an Advance which bears
interest as provided in Section 2.06(a)(i).
"Borrowing" means a borrowing consisting of
simultaneous Advances of the same Type made by each of the
Lenders pursuant to Section 2.01.
"Business Day" means a day of the year on which banks
are not required or authorized to close in Los Angeles,
California, or New York City, New York, or San Francisco,
California, or, if the applicable Business Day relates to
any Eurodollar Rate Advances, on which dealings are carried
on in the London interbank market.
"Citibank" means Citibank, N.A., a national banking
association.
"Commitment" has the meaning specified in Section 2.01.
"Consolidated Adjusted Indebtedness" means, as of any
date of determination, all indebtedness of the Borrower and
its subsidiaries on a consolidated basis which would, in
accordance with GAAP be classified as a liability of the
Borrower and its subsidiaries, excluding, however (i) all
deferred income taxes and unearned deposits and advances,
(ii) subordinated indebtedness represented by the Borrower's
Liquid Yield Option Notes due 2005, (iii) other indebtedness
of the Borrower for borrowed money which is subordinated
upon and otherwise containing terms and conditions no less
favorable to the Lenders than the provisions contained in
the Borrower's Liquid Option Yield Notes due 2005, and (iv)
indebtedness for borrowed money which is secured by any Lien
upon any asset of the Borrower or its subsidiaries which
asset is not included in Consolidated Unencumbered Assets.
"Consolidated EBIT" means, for any accounting period,
net income (or net loss, as the case may be) of the Borrower
and its subsidiaries on a consolidated basis for such
period, as determined in accordance with GAAP, plus amounts
which, in the determination of such consolidated net income
(or net loss, as the case may be) for such period, have been
deducted for (i) Consolidated Interest Expense and (ii)
consolidated income tax expense.
"Consolidated Interest Expense" means, for any period,
total interest expense of the Borrower and its subsidiaries
on a consolidated basis for such period with respect to all
outstanding Debt of the Borrower and its subsidiaries, all
as determined in conformity with GAAP.
"Consolidated Unencumbered Assets" means, as of any
date of determination, the sum of all amounts which are, in
accordance with GAAP, included under "assets" on the
consolidated balance sheet of the Borrower and its
subsidiaries, provided, however, that such amounts shall be
net of all amounts attributable to (without duplication) (i)
accumulated depreciation, (ii) any asset or group of assets
that is subject to Liens securing obligations in aggregate
amount equal to more than 33 1/3% of the
aggregate net book value of such asset or group of assets,
(iii) any asset that is included under the consolidated
captions "Film Production Costs - In process" and "Projects
in Progress" (or alternative similar captions) on the
consolidated balance sheet of the Borrower and its
subsidiaries, (iv) goodwill, trademarks, tradenames, and all
other similar items which are treated as intangibles in
conformity with GAAP, (v) all prepaid expenses, deferred or
capitalized costs, unamortized debt discount and progress
payments, and work in process on the date hereof, and (vi)
any items not included in clauses (ii) through (v) which are
treated as intangibles in conformity with GAAP.
"Convert", "Conversion" and "Converted" each refers to
a conversion of Advances of one Type into Advances of
another Type pursuant to Section 2.08 or 2.09.
"Debt" means (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) obligations to pay the deferred
purchase price of property or services (other than trade
payables incurred in the ordinary course of business), (iv)
obligations as lessee under leases which shall have been or
should be, in accordance with GAAP, recorded as capital
leases, and (v) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness
or obligations of others of the kinds referred to in clauses
(i) through (iv) above.
"Domestic Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Agent.
"Effective Date" means April 12, 1995, or such later
date on or before May 1, 1995 as shall be agreed upon by the
Agent and the Borrower.
"Eligible Assignee" means (i) any Initial Lender or any
Affiliate of any Initial Lender and (ii) any bank or other
financial institution, or any other Person, which has been
approved in writing by the Borrower and the Agent as an
Eligible Assignee for purposes of this Agreement; provided,
however, that neither the Borrower's approval nor the
Agent's approval shall be unreasonably withheld; and
provided, further, however, that Borrower may withhold its
approval if Borrower reasonably believes that an assignment
to such Eligible Assignee pursuant to Section 8.07 will
result in the incurrence of increased costs payable by the
Borrower pursuant to Sections 2.11 or 2.14.
"Environmental Claim" means any administrative,
regulatory or judicial action, suit, demand, claim, lien,
notice or proceeding relating to any Environmental Law or
any Environmental Permit.
"Environmental Law" means any federal, state or local
statute, law, rule, regulation, ordinance, code, duly
promulgated policy or rule of common law now or hereafter in
effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any order,
consent decree or judgment, relating to the environment,
health, safety or any Hazardous Material.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization
required under any applicable Environmental Law.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person who for purposes of
Title IV of ERISA is a member of the Borrower's controlled
group, or under common control with the Borrower, within the
meaning of Section 414 of the Internal Revenue Code of 1986,
as amended.
"ERISA Event" means (a) the occurrence with respect to
a Plan of a reportable event, within the meaning of Section
4043 of ERISA, unless the 30-day notice requirement with
respect thereto has been waived by the Pension Benefit
Guaranty Corporation; (b) the provision by the administrator
of any Plan of a notice of intent to terminate such Plan,
pursuant to Section 4041(a) (2) of ERISA (including any such
notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (c) the cessation of operations
by the Borrower or any ERISA Affiliate at a facility in the
circumstances described in Section 4062(e) of ERISA; (d) the
withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was
a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (e) the failure by the Borrower or any ERISA
Affiliate to make a payment to a Plan described in Section
302(f)(1)(A) of ERISA; (f) the adoption of an amendment to
a Plan requiring the provision of security to such Plan,
pursuant to Section 307 of ERISA; or (g) the institution by
the Pension Benefit Guaranty Corporation of proceedings to
terminate a Plan, pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition which is reasonably
likely to constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for
each Eurodollar Rate Advance comprising part of the same
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered
by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period for a period equal to
such Interest Period and in an amount substantially equal to
such Reference Bank's (or in the case of Citibank, CUSA's)
Eurodollar Rate Advance comprising part of such Borrowing.
The Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same
Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from
the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions
of Section 2.08.
"Eurodollar Rate Advance" means an Advance which bears
interest as provided in Section 2.06(a)(ii).
"Eurodollar Rate Margin" means, for any day, the rate
per annum opposite the higher of the ratings of the
Borrower's long-term public senior debt securities as most
recently announced by S&P and Moody's:
<TABLE>
<CAPTION>
Rating Rate Per Annum
S&P Moody's
<S> <C> <C>
A+ or higher A1 or higher 0.125%
A/A- A2/A3 0.200%
BBB+/BBB Baa1/Baa2 0.250%
BBB- or lower Baa3 or lower 0.500%
or no rating or no rating
</TABLE>
"Eurodollar Rate Reserve Percentage" of any Lender for
any Interest Period for any Eurodollar Rate Advance means
the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those
days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Existing Credit Agreement" means the Amended and
Restated Credit Agreement dated as of October 3, 1994 among
the Borrower, the financial institutions party thereto and
Citicorp USA, Inc. as Agent, as amended to the date hereof.
"Facility Fee Percentage" means, for any day, the rate
per annum opposite the higher of the ratings of the
Borrower's long-term public senior debt securities as most
recently announced by S&P and Moody's:
<TABLE>
<CAPTION>
Rating Rate Per Annum
S&P Moody's
<S> <C> <C>
A+ or higher A1 or higher 0.070%
A/A- A2/A3 0.100%
BBB+/BBB Baa1/Baa2 0.150%
BBB- or lower Baa3 or lower 0.250%
or no rating or no rating
</TABLE>
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for such day on such transactions received
by the Agent from three Federal funds brokers of recognized
standing selected by the Agent.
"GAAP" means generally accepted accounting principles
consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(c) dated
September 30, 1994, subject, however, to the provisions of
Section 1.03.
"Hazardous Material" means (i) any petroleum or
petroleum product, natural or synthetic gas, asbestos in any
form that is or could become friable, urea formaldehyde foam
insulation, or radon gas; or (ii) any substance defined as
or included in the definition of "hazardous substances,"
hazardous wastes," hazardous materials," "toxic substances,"
"contaminants" or "pollutants," or words of similar import,
under any applicable Environmental Law; or (iii) any other
substance to which exposure is regulated by any governmental
activity.
"Interest Period" means, for each Eurodollar Rate
Advance comprising part of the same Borrowing, the period
commencing on the date of such Eurodollar Rate Advance or
the date of the Conversion of any Base Rate Advance into
such a Eurodollar Rate Advance and ending on the last day of
the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be one, two,
three, six or, if generally available, twelve months as the
Borrower may, upon notice received by the Agent not later
than 1:00 P.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) Interest Periods commencing on the same
date for Eurodollar Rate Advances comprising part of
the same Borrowing shall be of the same duration;
(ii) Whenever the last day of any Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding
Business Day, provided, that if such extension would
cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding
Business Day; and
(iii) The Borrower may not select for any
Advance any Interest Period which ends after the
Termination Date.
"Lenders" means the Initial Lenders listed on the
signature pages hereof and each Eligible Assignee that shall
become a party hereto pursuant to Section 8.07; provided,
however, that for purposes of any determination to be made
under Sections 2.07, 2.11, 2.12 or 8.04(b) with respect to
CUSA in its capacity as a Lender, "Lender" shall be deemed
to include Citibank.
"Lien" means any lien, security interest, or other
charge or encumbrance of any kind, or any other type of
preferential arrangement which has the same effect as a lien
or security interest, including, without limitation, any
conditional sale or title retention agreement, any
capitalized lease, and the filing of, or agreement to give,
any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction, but excluding, however,
(i) materialmen's, suppliers', tax and other similar liens
arising in the ordinary course of business and securing
obligations which are not overdue or are being contested in
good faith by appropriate proceedings, (ii) liens arising in
connection with workmen's compensation, unemployment
insurance, and appeal and release bonds, and (iii) liens
incurred in the ordinary course of business securing
obligations or claims aggregating at any time less than
$50,000,000.
"Majority Lenders" means at any time Lenders owed at
least 66 2/3% of the then aggregate unpaid principal amount
of the Advances owing to Lenders, or, if no such principal
amount is then outstanding, Lenders having at least 66 2/3%
of the Commitments (provided that, for purposes of this
definition, neither the Borrower, nor any of its Affiliates,
if a Lender, shall be included in the Majority Lenders).
"Material Subsidiary" means a subsidiary of the
Borrower whose total assets exceed $50,000,000.
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Multiemployer Plan" means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which the
Borrower or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (i) is
maintained for employees of the Borrower or any ERISA
Affiliate and at least one Person other than the Borrower
and its ERISA Affiliates or (ii) was so maintained and in
respect of which the Borrower or an ERISA Affiliate could
have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Notice of Borrowing" has the meaning specified in
Section 2.02(a).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, or other entity,
or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Reference Banks" means Bank of America NT & SA,
Bankers Trust Company, Citibank and Morgan Guaranty Trust
Company of New York.
"Register" has the meaning specified in Section
8.07(c).
"S&P" means Standard & Poor's Ratings Group and its
successors.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is
maintained for employees of the Borrower or an ERISA
Affiliate and no Person other than the Borrower and its
ERISA Affiliates or (ii) was so maintained and in respect of
which the Borrower or an ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"Termination Date" means, subject to Section 2.19,
February 15, 2000 or the earlier date of termination in
whole of the Commitments pursuant to Section 2.04 or 6.01.
"United States" or "U.S." each mean United States of
America.
"Withdrawal Agreement" means an agreement in
substantially the form of Exhibit E hereto.
"Withdrawing Lender" means each financial institution
which was a party to the Existing Credit Agreement
immediately prior to the effectiveness of this Agreement but
is not a party to this Agreement, as identified in Exhibit E
hereto.
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those
applied in the preparation of the financial statements referred
to in Section 4.01(c) dated September 30, 1994; provided,
however, that if any changes in accounting principles from those
used in the preparation of such financial statements hereafter
occur by reason of the promulgation of rules, regulations,
pronouncements, opinions or other requirements by the Financial
Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with
similar functions) and result in a change in the method of
calculation of financial covenants or the terms related thereto
contained in this Agreement, the Borrower shall, at Borrower's
option, (i) furnish to the Agent, together with each delivery of
the consolidated, financial statements of the Borrower and its
subsidiaries required to be delivered pursuant to Section
5.01(f), a written reconciliation setting forth the differences
that would have resulted if such financial statements had been
prepared utilizing accounting principles and policies in
conformity with those used to prepare the financial statements
referred to in Section 4.01(c) dated September 30, 1994 or (ii)
enter into negotiations with the Agent and the Lenders to amend
such financial covenants or terms equitably to reflect such
changes so that the criteria for evaluating the financial
condition of the Borrower and its subsidiaries shall be the same
after such changes as if such changes had not been made;
provided, however, that at all times in the case of clause (i)
above, and in the case of clause (ii) above until the amendment
referred to in such clause (ii) becomes effective, all covenants
and related calculations under this Agreement shall be performed,
observed and determined as though no such changes in accounting
principles had been made.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time to time on any Business Day
during the period from the date hereof until the Termination Date
in an aggregate amount not to exceed at any time outstanding the
amount set opposite such Lender's name on the signature pages
hereof or, if such Lender has entered into any Assignment and
Acceptance, set forth for such Lender in the Register maintained
by the Agent pursuant to Section 8.07(c), as such amount may be
reduced pursuant to Section 2.04 (such Lender's "Commitment").
Each Borrowing shall be in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof and shall consist of Advances of the same Type made on
the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the
Borrower may from time to time borrow, prepay pursuant to Section
2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing
shall be made on notice, given not later than 1:00 p.m. (New York
City time) on the Business Day prior to the date of a proposed
Borrowing comprised of Base Rate Advances and on the third
Business Day prior to the date of a proposed Borrowing comprised
of Eurodollar Rate Advances, by the Borrower to the Agent, which
shall give to each Lender prompt notice thereof by telecopier,
telex or cable. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be by telecopier, telex or cable, or by
telephone, confirmed immediately by telecopier, telex or cable,
in substantially the form of Exhibit A hereto, specifying therein
the requested (i) date of such Borrowing, (ii) Type of Advances
comprising such Borrowing, (iii) aggregate amount of such
Borrowing, and (iv) in the case of a Borrowing comprised of
Eurodollar Rate Advances, initial Interest Period for each such
Advance. Each Lender shall, before 1:00 p.m. (New York City
time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Agent at the
Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing. After the Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in
Article III, the Agent will make such funds available to the
Borrower at the office where the Agent's Account is maintained.
(b) Anything in subsection (a) above or Section 2.01 to the
contrary notwithstanding, the Borrower may not select Eurodollar
Rate Advances for any Borrowing if the aggregate amount of such
Borrowing is less than $20,000,000.
(c) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing which the
related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including,
without limitation, any loss, cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such
Lender as part of such Borrowing when such Advance, as a result
of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will
not make available to the Agent such Lender's ratable portion of
such Borrowing, the Agent may assume that such Lender has made
such portion available to the Agent on the date of such Borrowing
in accordance with subsection (a) of this Section 2.02 and the
Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable
portion available to the Agent, such Lender agrees to pay to the
Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is paid to
the Agent, at the Federal Funds Rate; provided, however, that (i)
within two Business Days after any Lender shall fail to make such
ratable portion available to the Agent, the Agent shall notify
the Borrower of such failure and (ii) if such Lender shall not
pay such corresponding amount to the Agent within two Business
Days after such demand by the Agent, the Borrower agrees to repay
to the Agent forthwith, upon demand by the Agent to the Borrower,
such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent, at
the interest rate applicable at the time to Advances comprising
such Borrowing. If and to the extent such corresponding amount
shall be paid by such Lender to the Agent in accordance with this
Section 2.02(d), such amount so paid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Advance to be
made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Advance
on the date of such Borrowing, but no Lender shall be responsible
for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 2.03. Facility Fee. The Borrower agrees to pay to
each Lender a facility fee on the amount (whether used or unused)
of such Lender's Commitment from the Effective Date in the case
of each Initial Lender and from the effective date specified in
the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination
Date, payable quarterly in arrears on the first Business Day of
each January, April, July and October during the term of such
Lender's Commitment, commencing on July 3, 1995, and on the
Termination Date, at the rate per annum equal to the Facility Fee
Percentage in effect from time to time.
SECTION 2.04. Reduction of the Commitments. The Borrower
shall have the right, upon at least three Business Days' notice
to the Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders,
provided that each partial reduction shall be in the aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof.
SECTION 2.05. Repayment of Advances. The Borrower shall
repay to each Lender on the Termination Date the aggregate
principal amount of the Advances then owing to such Lender.
SECTION 2.06. Interest on Advances. (a) Ordinary
Interest. The Borrower shall pay to each Lender interest on the
unpaid principal amount of each Advance owing to such Lender from
the date of such Advance until such principal amount shall be
paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at
all times to the remainder of (A) the Base Rate in effect
from time to time minus (B) the Facility Fee Percentage in
effect from time to time, payable quarterly in arrears on
the first Business Day of each January, April, July, and
October during such periods and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as
such Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such
Advance to the sum of the Eurodollar Rate for such Interest
Period plus the Eurodollar Rate Margin in effect from time
to time, payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more
than three months, on the date which occurs three months
and, if applicable, six months and nine months after the
first day of such Interest Period.
(b) Default Interest. The Borrower shall pay interest on
the unpaid principal amount of each Advance that is not paid when
due and on the unpaid amount of all interest, fees and other
amounts payable hereunder that is not paid when due, payable on
demand, at a rate per annum equal at all times to (i) in the case
of any amount of principal, the greater of (x) 2% per annum above
the rate per annum required to be paid on such Advance
immediately prior to the date on which such amount became due and
(y) 2% per annum above the Base Rate in effect from time to time
and (ii) in the case of all other amounts, 2% per annum above the
Base Rate in effect from time to time.
SECTION 2.07. Additional Interest on Eurodollar Rate
Advances. The Borrower shall pay to each Lender, so long as such
Lender shall be required under regulations of the Board of
Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurodollar Rate Advance of such Lender,
from the date of such Advance until such principal amount is paid
in full, at an interest rate per annum equal at all times to the
remainder obtained by subtracting (i) the Eurodollar Rate for the
Interest Period for such Advance from (ii) the rate obtained by
dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such
Interest Period, payable on each date on which interest is
payable on such Advance. Such additional interest shall be
determined by such Lender and notified in reasonable detail to
the Borrower through the Agent.
SECTION 2.08. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Agent timely information
for the purpose of determining each Eurodollar Rate. If any one
or more of the Reference Banks shall not furnish such timely
information to the Agent for the purpose of determining such
interest rate, the Agent shall determine such interest rate on
the basis of timely information furnished by the remaining
Reference Banks.
(b) The Agent shall give prompt notice to the Borrower and
the Lenders of the applicable interest rate determined by the
Agent for purposes of Section 2.06(a)(i) or (ii), and the
applicable rate, if any, furnished by each Reference Bank for the
purpose of determining the applicable interest rate under Section
2.06(a)(ii).
(c) If fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances, (i) the Agent shall forthwith
notify the Borrower and the Lenders that the interest rate cannot
be determined for such Eurodollar Rate Advances, (ii) each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if
such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and (iii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders notify the Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect
the cost to such Majority Lenders (which cost each such Majority
Lender reasonably determines in good faith is material) of
making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so
notify the Borrower and the Lenders, whereupon, unless the
Eurodollar Rate Margin shall be increased to reflect such costs
as determined by such Majority Lenders and as agreed by the
Borrower, (i) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Majority Lenders shall
notify the Agent, and the Agent shall notify the Borrower and the
Lenders, that the circumstances causing such suspension no longer
exist. The Agent shall use reasonable efforts to determine from
time to time whether the circumstances causing such suspension no
longer exist and, promptly after the Agent knows that the
circumstances causing such suspension no longer exist, the Agent
shall so notify the Borrower and the Lenders.
(e) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in
accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01, the Agent will forthwith so
notify the Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall
be reduced, by payment or prepayment or otherwise, to less than
$20,000,000, such Eurodollar Rate Advances shall automatically
Convert into Base Rate Advances, and on and after such date the
right of the Borrower to Convert such Advances into Eurodollar
Rate Advances shall terminate; provided, however, that if and so
long as each such Eurodollar Rate Advance shall have the same
Interest Period as Eurodollar Rate Advances comprising another
Borrowing or Borrowings, and the aggregate unpaid principal
amount of all such Eurodollar Rate Advances shall equal or exceed
$20,000,000, the Borrower shall have the right to continue all
such Eurodollar Rate Advances as, or to Convert all such Advances
into, Eurodollar Rate Advances having such Interest Period.
SECTION 2.09. Voluntary Conversion of Advances. The
Borrower may on any Business Day, upon notice given to the Agent
not later than 1:00 P.M. (New York City time) on the Business Day
prior to the date of the proposed Conversion in the case of a
Conversion of Eurodollar Rate Advances to Base Rate Advances, and
not later than 1:00 P.M. (New York City time) on the third
Business Day prior to the date of the proposed Conversion in the
case of a Conversion of Base Rate Advances to Eurodollar Rate
Advances, and subject to the provisions of Sections 2.08 and
2.12, Convert all Advances of one Type comprising the same
Borrowing into Advances of another Type; provided, however, that
any Conversion of any Eurodollar Rate Advances into Base Rate
Advances shall be made on, and only on, the last day of an
Interest Period for such Eurodollar Rate Advances. Promptly upon
receipt from the Borrower of a notice of a proposed Conversion
hereunder, the Agent shall give notice of such proposed
Conversion to each Lender. Each such notice of a Conversion
shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the Interest Period for each such Advance. The
Borrower may Convert all Eurodollar Rate Advances of any one
Lender into Base Rate Advances of such Lender in accordance with
the provisions of Section 2.12 by complying with the procedures
set forth in this Section 2.09 as though each reference in this
Section 2.09 to Advances of any Type was to such Advances of such
Lender.
SECTION 2.10. Prepayments of Advances. The Borrower may,
upon at least one Business Day's notice to the Agent in the case
of Borrowings consisting of Base Rate Advances and upon at least
three Business Days' notice to the Agent in the case of
Borrowings consisting of Eurodollar Rate Advances, stating the
proposed date and aggregate principal amount of the prepayment,
and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Advances constituting part
of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial
prepayment shall be in an aggregate principal amount not less
than $1,000,000 or an integral multiple of $1,000,000 in excess
thereof, and (y) in the case of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section
8.04(b).
SECTION 2.11. Increased Costs. (a) If after the date
hereof, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of
reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or regulation
or (ii) the compliance with any hereafter promulgated guideline
or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any
increase in the cost (excluding any allocation of corporate
overhead) to any Lender (which cost such Lender reasonably
determines in good faith is material) of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances, then
such Lender shall so notify the Borrower promptly after such
Lender knows of such increased cost and determines that such cost
is material and the Borrower shall from time to time, upon demand
by such Lender (with a copy of such demand to the Agent), pay to
the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A
certificate of such Lender as to the amount of such increased
cost in reasonable detail and stating the basis upon which such
amount has been calculated and certifying that such Lender's
method of allocating such costs is fair and reasonable and that
such Lender's demand for payment of such costs hereunder is not
inconsistent with its treatment of other borrowers which, as a
credit matter, are substantially similar to the Borrower and
which are subject to similar provisions, submitted to the
Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If, after the date hereof, either (i) the introduction
of or change in or in the interpretation of any law or regulation
or (ii) the compliance by any Lender with any hereafter
promulgated guideline or request from any central bank or other
governmental authority (whether or not having the force of law)
affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation
controlling such Lender and the amount of such capital is
materially increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of
this type, then, such Lender shall so notify the Borrower
promptly after such Lender makes such determination and, upon
demand by such Lender (with a copy of such demand to the Agent),
the Borrower shall pay to such Lender within five days from the
date of such demand, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender
or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in
capital to be allocable to the existence of such Lender's
commitment to lend hereunder. A certificate of such Lender as to
such amount in reasonable detail and stating the basis upon which
such amount has been calculated and certifying that such Lender's
method of allocating such increase of capital is fair and
reasonable and that such Lender's demand for payment of such
increase of capital hereunder is not inconsistent with its
treatment of other borrowers which, as a credit matter, are
substantially similar to the Borrower and which are subject to
similar provisions, submitted to the Borrower and the Agent by
such Lender, shall be conclusive and binding for all purposes,
absent manifest error.
(c) The Borrower shall not be obligated to pay under this
Section 2.11 any amounts which relate to costs or increases of
capital incurred prior to 12 months preceding the date of demand
for payment, unless the applicable law, regulation, guideline or
request resulting in such costs or increases of capital is
imposed retroactively. In the case of any law, regulation,
guideline or request which is imposed retroactively, the Lender
making demand for payment of any amount under this Section 2.11
shall notify the Borrower not later than 12 months from the date
that such Lender should reasonably have known of such law,
regulation, guideline or request and the Borrower's obligation to
compensate such Lender for such amount is contingent upon such
Lender's so notifying the Borrower, provided, however, that any
failure by such Lender to provide such notice shall not affect
the Borrower's obligations under this Section 2.11 with respect
to amounts resulting from costs or increases of capital incurred
after the date which occurs 12 months before the date on which
such Lender did notify the Borrower of such law, regulation,
guideline or request.
(d) If any Lender shall subsequently recoup costs (other
than from the Borrower) for which such Lender has theretofore
been compensated by the Borrower under this Section 2.11, such
Lender shall remit to the Borrower the amounts of such
recoupment. Amounts required to be paid by the Borrower pursuant
to this Section 2.11 shall be paid in addition to, and without
duplication of, any amounts required to be paid pursuant to
Section 2.14.
SECTION 2.12. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Agent
that the introduction of or any change in or in the
interpretation of any law or regulation after the date hereof
makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to fund or maintain Eurodollar
Rate Advances hereunder, (i) the obligation of such Lender to
make, or to Convert Base Rate Advances into, Eurodollar Rate
Advances shall be suspended until such Lender shall notify the
Agent, and the Agent shall notify the Borrower and the other
Lenders (which notice shall be given promptly after the Agent
knows that the circumstances causing such suspension no longer
exist), that the circumstances causing such suspension no longer
exist and (ii) the Borrower shall forthwith prepay in full all
Eurodollar Rate Advances of such Lender then outstanding,
together with interest accrued thereon, unless the Borrower,
within five Business Days of notice from the Agent or, if
permitted by law, on and as of the last day of the then existing
Interest Period for such Eurodollar Rate Advances, Converts all
Eurodollar Rate Advances of such Lender then outstanding into
Base Rate Advances in accordance with Section 2.09.
SECTION 2.13. Payments and Computations. (a) The Borrower
shall make each payment hereunder not later than 11:00 A.M. (New
York City time) on the day when due in U.S. dollars to the Agent
at the Agent's Account in same day funds. The Agent will
promptly thereafter cause to be distributed like funds relating
to the payment of principal or interest or facility fees ratably
(other than amounts payable pursuant to Section 2.07, 2.11 or
2.14) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender
for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon
its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in
such Assignment and Acceptance, the Agent shall make all payments
hereunder in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly
between themselves.
(b) All computations of interest based on the Base Rate
shall be made by the Agent on the basis of a year of 365 or 366
days, as the case may be, and all computations of interest based
on the Eurodollar Rate or the Federal Funds Rate and of facility
fees shall be made by the Agent, and all computations of interest
pursuant to Section 2.07 shall be made by a Lender, on the basis
of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in
the period for which such interest or facility fees are payable.
Each determination by the Agent (or, in the case of Section 2.07,
by a Lender) of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be
due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of payment
of interest or facility fee, as the case may be; provided,
however, if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next
preceding Business Day.
(d) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Lenders hereunder that the Borrower will not make such payment in
full, the Agent may assume that the Borrower has made such
payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to distributed to each
Lender on such due date an amount equal to the amount then due
such Lender. If and to the extent that the Borrower shall not
have so made such payment in full to the Agent, each Lender shall
repay to the Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date
such Lender repays such amount to the Agent, at the Federal Funds
Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the
Borrower hereunder shall be made, in accordance with Section
2.13, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the Agent (as
the case may be) is organized or any political subdivision
thereof and, in the case of each Lender, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction of
such Lender's Applicable Lending Office or any political
subdivision thereof or by any other jurisdiction in which such
Lender or the Agent is doing business that is unrelated to this
Agreement (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender or the Agent, (i) the sum payable
shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this Section 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement (hereinafter
referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Agent
for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction
on amounts payable under this Section 2.14) paid by such Lender
or the Agent (as the case may be) and any liability (including
penalties to the extent not imposed as a result of such Lender's
or the Agent's (as the case may be) gross negligence or willful
misconduct, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be
made within 30 days from the date such Lender or the Agent (as
the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
the Borrower will furnish to the Agent, at its address referred
to in Section 8.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Lender that is not created or organized under the
laws of the United States or a political subdivision thereof and
that was not a party to the Existing Credit Agreement shall
deliver to the Borrower and the Agent on or prior to the date of
its execution and delivery of this Agreement, and each Lender
that is not a party hereto on the date hereof shall deliver to
the Borrower and the Agent on or prior to the date on which such
Lender becomes a Lender pursuant to Section 8.07 hereof, a true
and accurate certificate executed in duplicate by a duly
authorized officer of such Lender in substantially the form set
out in Exhibit D-1 or D-2, as applicable, to the effect that such
Lender is eligible under the provisions of an applicable tax
treaty concluded by the United States (in which case the
certificate shall be accompanied by two executed copies of Form
1001 (or any successor or substitute form or forms) of the
Internal Revenue Service (the "IRS") of the United States), or
under Section 1441(c) or 1442 of the Internal Revenue Code (in
which case the certificate shall be accompanied by two copies of
Form 4224 (or any successor or substitute form or forms) of the
IRS) to receive, as of the date hereof or as of the date such
party becomes a Lender hereto pursuant to Section 8.07, as
appropriate, payments hereunder without deduction or withholding
of United States federal income tax. Each Lender further agrees
to deliver to the Borrower and the Agent from time to time, as
reasonably requested by the Borrower or the Agent, and in any
case before or promptly upon the occurrence of any events
requiring a change in the most recent certificate previously
delivered pursuant to this Section 2.14(e), a true and accurate
certificate executed in duplicate by a duly authorized officer of
such Lender in substantially the form set out in Exhibit D-1 or D-
2, as applicable. Further, each Lender which delivers Exhibit D-
1 agrees, to the extent permitted by law, to deliver to the
Borrower and the Agent within 15 days prior to every third
anniversary of the date of delivery of the initial Form 1001 by
such Lender (or more often if required by law) on which this
Agreement is still in effect, two accurate and complete original
signed copies of Form 1001 (or any successor or substitute form
or forms required under the Code or the applicable regulations
promulgated thereunder) and such Exhibit D-1 and each Lender that
delivers such Exhibit D-2 agrees to deliver to the Borrower and
the Agent, to the extent permitted by law, within 15 days prior
to the beginning of each subsequent taxable year of such Lender
(or more often if required by law) during which this Agreement is
still in effect, two accurate and complete original signed copies
of IRS Form 4224 (or any successor or substitute form or forms
required under the Internal Revenue Code or the applicable
regulations promulgated thereunder) and such Exhibit D-2. Each
such certificate shall certify as to one of the following:
(i) that such Lender is eligible to receive payments
hereunder without deduction or withholding of United States
federal income tax;
(ii) that such Lender is not eligible to receive
payments hereunder without deduction or withholding of
United States federal income tax as specified therein but
does not require additional payments therefor pursuant to
Section 2.14(a) or (c) because it is eligible and able to
recover the full amount of any such deduction or withholding
from a source other than the Borrower; or
(iii) that such Lender is not eligible to receive
payments hereunder without deduction or withholding of
United States federal income tax as specified therein and
that it is not eligible and able to recover the full amount
of the same from a source other than the Borrower.
If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information
necessary to compute the tax payable and information required on
the date hereof by IRS Form 1001 or 4224, that any Lender
reasonably considers to be confidential, such Lender promptly
shall give notice thereof to the Borrower and the Agent and shall
not be obligated to include in such form or document such
confidential information, provided that such Lender certifies to
the Borrower that the failure to disclose such confidential
information does not increase the obligations of the Borrower
under this Section 2.14.
(f) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in this Section 2.14 shall
survive the payment in full of principal and interest until such
date that all applicable statutes of limitations (including any
extensions thereof) have expired with respect to such agreements
and obligations of the Borrower contained in this Section 2.14.
SECTION 2.15. Sharing of Payments Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of the
Advances made by it (other than pursuant to Section 2.07, 2.11 or
2.14) in excess of its ratable share of payments on account of
the Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in
the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each
of them, provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
SECTION 2.16. Mandatory Assignment by a Lender; Mitigation.
If any Lender requests from the Borrower either payment of
additional interest on Eurodollar Rate Advances pursuant to
Section 2.07, or reimbursement for increased costs pursuant to
Section 2.11, or payment of or reimbursement for Taxes pursuant
to Section 2.14, or if any Lender notifies the Agent that it is
unlawful for such Lender or its Eurodollar Lending Office to
perform its obligations hereunder pursuant to Section 2.12, (i)
such Lender will, upon three Business Days' notice by the
Borrower to such Lender and the Agent, to the extent not
inconsistent with such Lender's internal policies, use reasonable
efforts to make, fund or maintain its Eurodollar Rate Advances
through another Eurodollar Lending Office of such Lender if (A)
as a result thereof the additional amounts required to be paid
pursuant to Section 2.07, 2.11 or 2.14, as applicable, in respect
of such Eurodollar Rate Advances would be materially reduced or
the provisions of Section 2.12 would not apply to such Lender, as
applicable) and (B) as determined by such Lender in good faith
but in its sole discretion, the making or maintaining of such
Eurodollar Rate Advances through such other Eurodollar Lending
Office would not otherwise materially adversely affect such
Eurodollar Rate Advances or such Lender and (ii) unless such
Lender has theretofore taken steps to remove or cure, and has
removed or cured, the conditions creating such obligation to pay
such additional amounts or the circumstances described in Section
2.12, the Borrower may designate an Eligible Assignee to purchase
for cash (pursuant to an Assignment and Acceptance) all, but not
less than all, of the Advances then owing to such Lender and such
Lender's rights and obligations hereunder related to such
Advances, without recourse to or warranty by, or expense to, such
Lender, for a purchase price equal to the outstanding principal
amount of each such Advance then owing to such Lender plus any
accrued but unpaid interest thereon, and a proportionate part of
accrued but unpaid facility fee, expense reimbursements and
indemnities in respect of that Lender's Commitment hereunder.
SECTION 2.17. Evidence of Debt. (a) Each Lender shall
maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Advance owing to such Lender from time
to time, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender to the Borrower
(with a copy of such notice to the Agent) to the effect that a
promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing
to, or to be made by, such Lender, the Borrower shall promptly
execute and deliver to such Lender a promissory note or other
evidence of indebtedness, in form and substance reasonably
satisfactory to the Borrower and such Lender, payable to the
order of such Lender in a principal amount equal to the aggregate
principal amount of the Advances then owing to such Lender;
provided, however, that the execution and delivery of such
promissory note or other evidence of indebtedness shall not be a
condition precedent to the making of any Advance under this
Agreement.
(b) The Register maintained by the Agent pursuant to
Section 8.07(c) shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall
be recorded (i) the date and amount of each Borrowing made
hereunder, the Type of Advances comprising such Borrowing and the
Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii)
the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender
hereunder, and (iv) the amount of any sum received by the Agent
from the Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender in its
account or accounts pursuant to subsection (a) above, shall be
prima facie evidence of the amount of principal and interest due
and payable or to become due and payable from the Borrower to, in
the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent
manifest error; provided, however, that the failure of the Agent
or such Lender to make an entry, or any finding that an entry is
incorrect, in the Register or such account or accounts shall not
limit or otherwise affect the obligations of the Borrower under
this Agreement.
SECTION 2.18. Use of Proceeds. The proceeds of the
Advances shall be available (and the Borrower agrees that it
shall use such proceeds) (i) to support the obligations of the
Borrower in respect of commercial paper issued by the Borrower
and (ii) for general corporate purposes of the Borrower.
SECTION 2.19. Extension of Termination Date. (a) At least
45 but not more than 75 days prior to the next Anniversary Date,
the Borrower, by written notice to the Agent, may request that
the Termination Date be extended one calendar year from its then
current scheduled expiration. The Agent shall promptly notify
each Lender of such request, and each Lender shall in turn, not
later than 15 days prior to such next Anniversary Date, notify
the Borrower and the Agent in writing as to whether such Lender
will consent to such extension.
(b) If any Lender shall fail to notify the Agent and the
Borrower in writing of its consent to such request at least 15
days prior to the next Anniversary Date, such Lender shall be
deemed to have not consented to such request. Any nonconsenting
Lender will, upon not less than three Business Days' prior
written notice by the Borrower to such Lender and the Agent,
assign to an Eligible Assignee which shall have been designated
by the Borrower in such notice and which shall have agreed to
accept such assignment and to consent to the requested extension
of the Termination Date, all of such Lender's rights and
obligations hereunder, without recourse to or warranty by, or
expense to, such Lender, for a cash purchase price equal to the
outstanding principal amount of each Advance then owing to such
Lender plus any accrued but unpaid interest thereon, plus a
proportionate part of any accrued but unpaid facility fee,
expense reimbursements and indemnities in respect of that
Lender's Commitment hereunder and any other amounts then due and
payable to such Lender hereunder.
(c) If all of the Lenders (after giving effect to any
assignments pursuant to subsection (b) above) consent in writing
to a requested extension not later than the Business Day
immediately preceding such Anniversary Date, the Agent shall so
advise the Borrower and the Lenders, the Termination Date shall
be so extended for such one calendar year, and all references
herein, and in any promissory note executed and delivered by the
Borrower pursuant to Section 2.17 hereof, to the "Termination
Date" shall refer to the Termination Date as so extended. If any
Lender (after giving effect to any assignments pursuant to
subsection (b) above) shall not so consent in writing, such
Lender shall be deemed not to have consented to such requested
extension and the Termination Date shall not be so extended.
SECTION 2.20. Withdrawing Lenders. Each Initial Lender
consents to the effectiveness of the Withdrawal Agreement in
accordance with the terms thereof.
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. Condition Precedent to Effectiveness of this
Agreement. This Agreement shall become effective as of the
Effective Date, subject to the satisfaction on or before such
date of the following conditions precedent:
(a) the Agent shall have received the following: (i)
counterparts of this Agreement executed by the Borrower and each
Lender (or, as to any of the Lenders, advice satisfactory to the
Agent that such Lenders have executed this Agreement); (ii)
certified copies of the resolutions of the Board of Directors of
the Borrower or the Executive Committee of such Board authorizing
the execution and delivery of this Agreement; (iii) a certificate
of the Secretary or an Assistant Secretary of the Borrower
certifying the name and true signature of the officer of the
Borrower executing this Agreement on its behalf; and (iv) an
opinion of counsel to the Borrower in substantially the form of
Exhibit C hereto;
(b) the Agent shall have received counterparts of the
Withdrawal Agreement executed by the Borrower and each
Withdrawing Lender;
(c) the Borrower shall have paid or prepaid any Advances
outstanding on the Effective Date under the Existing Credit
Agreement, together with accrued interest thereon and any amounts
payable in connection with such prepayment under Section 8.04(b)
thereof;
(d) the Borrower shall have paid all facility fees under
Section 2.03 of the Existing Credit Agreement to the extent
accrued and unpaid through the Effective Date.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make an Advance on the occasion of
each Borrowing (including the initial Borrowing) shall be subject
to the further conditions precedent that on the date of such
Borrowing the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing and the acceptance
by the Borrower of the proceeds of such Borrowing shall
constitute a representation and warranty by the Borrower that on
the date of such Borrowing such statements are true):
(a) The representations and warranties contained in Section
4.01 are correct in all material respects on and as of the date
of such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date (except to the extent that
such representations and warranties relate to an earlier date,
which representations and warranties were correct in all material
respects on and as of such earlier date), and
(b) No event has occurred and is continuing, or would
result from such Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or
would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and is duly qualified and in good standing as a foreign
corporation authorized to do business in each jurisdiction (other
than the jurisdiction of its incorporation) in which the nature
of its activities or the character of the properties it owns or
leases makes such qualification necessary and in which the
failure so to qualify would have a material adverse effect on the
financial condition or operations of the Borrower and its
subsidiaries taken as a whole.
(b) The execution, delivery and performance by the Borrower
of this Agreement are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and
do not contravene (i) the Borrower's charter or by-laws or (ii)
any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award or any contractual restriction
binding on or affecting the Borrower; no authorization or
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due
execution, delivery and performance by the Borrower of this
Agreement; and this Agreement is the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting
creditors' rights generally and general principles of equity.
(c) The Borrower's most recent annual report on Form 10-K
containing the consolidated balance sheet of the Borrower and its
subsidiaries, and the related consolidated statements of income
and of cash flows of the Borrower and its subsidiaries, copies of
which have been furnished to each Lender prior to the date hereof
or pursuant to Section 5.01(f), fairly present the consolidated
financial condition of the Borrower and its subsidiaries as at
the date of such balance sheet and the consolidated results of
operations of the Borrower and its subsidiaries for the fiscal
year ended on such date, all in accordance with generally
accepted accounting principles consistently applied.
(d) There is no pending or to the Borrower's knowledge,
threatened claim, action or proceeding affecting the Borrower or
any of its subsidiaries, which could reasonably be expected to
adversely affect the financial condition or operations of the
Borrower and its subsidiaries taken as a whole or which could
reasonably be expected to affect the legality, validity or
enforceability of this Agreement; and to the Borrower's
knowledge, the Borrower and each of its subsidiaries have
complied, and are in compliance, with all applicable laws, rules,
regulations, permits, orders, consent decrees and judgments,
except for matters which have not, and would not reasonably be
expected to have, a material adverse effect on the financial
condition or operations of the Borrower and its subsidiaries
taken as a whole.
(e) The Borrower and its ERISA Affiliates have not incurred
and are not reasonably expected to incur any material liability
in connection with their Single Employer or Multiple Employer
Plans, other than ordinary liabilities for benefits; neither the
Borrower nor any ERISA Affiliate has incurred or is reasonably
expected to incur any material withdrawal liability (as defined
in Part I of Subtitle E of Title IV of ERISA) to any
Multiemployer Plan; and no Multiemployer Plan of the Borrower or
any ERISA Affiliate is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title
IV of ERISA.
SECTION 4.02. Additional Representation and Warranty of the
Borrower. The Borrower represents and warrants solely on the
date of this Agreement (and at no subsequent time) that as of the
date of this Agreement, except as disclosed in periodic and other
reports filed by the Borrower and its subsidiaries during the
period from December 31, 1994 to and including the date hereof
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, copies of which have been furnished to the Agent, there
has been no material adverse change in the business, financial
condition, or operations of the Borrower since December 31, 1994.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will, unless the Majority
Lenders shall otherwise consent in writing:
(a) Compliance with Laws Etc. Comply, and cause each of
its subsidiaries to comply, in all material respects with all
applicable laws, rules, regulations, permits, orders, consent
decrees and judgments binding on the Borrower and its
subsidiaries the failure with which to comply would have a
material adverse effect on the financial condition or operations
of the Borrower and its subsidiaries taken as a whole.
(b) Payment of Taxes Etc. Pay and discharge, and cause
each of its subsidiaries to pay and discharge, before the same
shall become delinquent, if the failure to so pay and discharge
would have a material adverse effect on the financial condition
or operations of the Borrower and its subsidiaries taken as a
whole (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property, and (ii) all lawful
claims which, if unpaid, will by law become a Lien upon its
property; provided, however, that neither the Borrower nor any
subsidiary shall be required to pay or discharge any such tax,
assessment, charge or claim which is being contested in good
faith and by proper proceedings and as to which appropriate
reserves
are being maintained as may be required by GAAP.
(c) Preservation of Corporate Existence, Etc. Subject to
Section 5.02(a), preserve and maintain its corporate existence,
rights (charter and statutory) and franchises; provided, however,
that the Borrower shall not be required to preserve any right or
franchise if the loss thereof does not have a material adverse
effect on the financial condition or operations of the Borrower
and its subsidiaries taken as a whole.
(d) Maintenance of Interest Coverage Ratio. Maintain as of
the last day of each fiscal quarter of the Borrower a ratio of
(i) Consolidated EBIT for the period of four consecutive fiscal
quarters of the Borrower ending with such fiscal quarter to (ii)
Consolidated Interest Expense for such period, of not less than
3.0 to 1.0.
(e) Maintenance of Unencumbered Assets Coverage Ratio.
Maintain a ratio of Consolidated Unencumbered Assets to
Consolidated Adjusted Indebtedness of not less than 1.3 to 1.0.
(f) Reporting Requirements. Furnish to the Agent, which
shall furnish to the Lenders:
(i) as soon as available and in any event within 50
days after the end of each of the first three quarters of
each fiscal year of the Borrower, the Borrower's quarterly
report to shareholders on Form 10-Q as filed with the
Securities and Exchange Commission (the "SEC") containing a
consolidated balance sheet of the Borrower and its
subsidiaries as of the end of such quarter and consolidated
statements of income and of cash flows of the Borrower and
its subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such
quarter, and a certificate of any of the Borrower's Chairman
of the Board of Directors, President, Chief Financial
Officer, Treasurer, Assistant Treasurer or Controller (i)
stating that no Event of Default, or event which, with
notice or lapse of time, or both, would constitute an Event
of Default, has occurred and is continuing and (ii)
containing a schedule which shall set forth the computations
used by the Borrower in determining compliance with the
covenants contained in Sections 5.01(d) and 5.01(e);
(ii) as soon as soon as available and in any event
within 100 days after the end of each fiscal year of the
Borrower, a copy of the Borrower's annual report to
shareholders on Form 10-K as filed with the SEC, containing
consolidated financial statements for such year and a
certificate of any of the Borrower's Chairman of the Board
of Directors, President, Chief Financial Officer, Treasurer,
Assistant Treasurer or Controller (i) stating that no Event
of default, or event which, with notice or lapse of time, or
both, would constitute an Event of Default, has occurred and
is continuing and (ii) containing a schedule which shall set
forth the computations used by the Borrower in determining
compliance with the covenants contained in Sections 5.01(d)
and 5.01(e);
(iii) promptly after the Borrower obtains actual
knowledge of the occurrence of each Event of Default, and
each event which with the giving of notice or lapse of time
or both would constitute an Event of Default, a statement of
any of the Borrower's Chairman of the Board of Directors,
President, Chief Financial Officer, Treasurer, Assistant
Treasurer or Controller setting forth details of such Event
of Default or event continuing on the date of such
statement, and the action which the Borrower has taken and
proposes to take with respect thereto;
(iv) promptly after the commencement thereof, notice of
any actions, suits and proceedings before any court or
governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, affecting the
Borrower or any subsidiary of the type described in Section
4.01(d);
(v) promptly after the Borrower obtains actual
knowledge thereof, written notice of any pending or
threatened Environmental Claim against the Borrower or any
of its subsidiaries or any of their respective properties
which could reasonably be expected to materially adversely
affect the financial condition or operations of the Borrower
and its subsidiaries taken as a whole;
(vi) promptly after the Borrower obtains actual
knowledge of the occurrence of any ERISA Event which could
reasonably be expected to materially adversely affect the
financial condition or operations of the Borrower and its
subsidiaries taken as a whole, a statement of any of the
Borrower's Chairman of the Board of Directors, President,
Chief Financial Officer, Treasurer, Assistant Treasurer or
Controller describing such ERISA Event and the action, if
any, which the Borrower has taken and proposes to take with
respect thereto;
(vii) promptly after receipt thereof by the
Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the
Borrower or any ERISA Affiliate concerning (A) the
imposition of withdrawal liability (as defined in Part I of
Subtitle E of Title IV of ERISA) by a Multiemployer Plan,
which withdrawal liability could reasonably be expected to
materially adversely affect the financial condition or
operations of the Borrower and its subsidiaries taken as a
whole, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any Multiemployer Plan,
which reorganization or termination could reasonably be
expected to materially adversely affect the financial
condition or operations of the Borrower and its subsidiaries
taken as a whole or (C) the amount of liability incurred, or
which may be incurred, by the Borrower or any ERISA
Affiliate in connection with any event described in clause
(A) or (B) above; and
(viii) such other material information reasonably
related to any Lender's credit analysis of the Borrower or
any of its subsidiaries as any Lender through the Agent may
from time to time reasonably request.
SECTION 5.02. Negative Covenant. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will not, without the written consent of
the Majority Lenders:
(a) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially
all of the assets of the Borrower and its subsidiaries taken as a
whole (whether now owned or hereafter acquired) to, any Person,
or permit any of its subsidiaries to do so, unless immediately
after giving effect to such proposed transaction, no Event of
Default or event which, with the giving of notice or lapse of
time, or both, would constitute an Event of Default would exist
and in the case of any such merger to which the Borrower is a
party, the Borrower is the surviving corporation or the Person
into which the Borrower shall be merged or formed by any such
consolidation shall be a corporation organized and existing under
the laws of the United States or any State thereof and shall
assume the Borrower's obligations hereunder in an agreement or
instrument reasonably satisfactory in form and substance to the
Majority Lenders.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the Borrower
shall fail to pay any interest on any Advance or any fee or other
amount payable under this Agreement, in each case within three
Business Days after such interest, fee or other amount becomes
due and payable; or
(b) Any representation or warranty made by the Borrower
herein or by the Borrower (or any of its officers) delivered in
writing and identified as delivered in connection with this
Agreement shall prove to have been incorrect in any material
respect when made; or
(c) The Borrower shall fail to perform or observe any
covenant contained in Section 5.01(d) or Section 5.01(e) or
Section 5.01(f)(iii) or Section 5.02; or
(d) The Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its
part to be performed or observed if the failure to perform or
observe such other term, covenant or agreement shall remain
unremedied for 30 days after written notice thereof shall have
been given to the Borrower by the Agent or any Lender; or
(e) The Borrower or any of its subsidiaries shall fail to
pay any principal of or premium or interest on any Debt which is
outstanding in a principal amount of at least $100,000,000 in the
aggregate (but excluding Debt arising hereunder) of the Borrower
or such subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure
(i) shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt
and (ii) shall not have been cured or waived; or any other event
shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly
scheduled required prepayment), redeemed, purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated
maturity thereof; or
(f) The Borrower or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Borrower or
any of its Material Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or
for substantially all of its property and, in the case of any
such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or
any of its Material Subsidiaries shall take any corporate action
to authorize any of the actions set forth above in this
subsection (f); or
(g) Any money judgment, writ or warrant of attachment or
similar process against the Borrower, any of its Material
Subsidiaries or any of their respective assets involving in any
case an amount in excess of $50,000,000 is entered and shall
remain undischarged, unvacated, unbonded or unstayed for a period
of 30 days or in any case within five days of any pending sale or
disposition of any asset pursuant to any such process;
then, and in any such event, the Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to
the Borrower, declare the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Borrower,
declare the Advances, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts
shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an
order for relief with respect to the Borrower under the Federal
Bankruptcy Code, (A) the obligation of each Lender to make
Advances shall automatically be terminated and (B) the Advances,
all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as
are delegated to the Agent by the terms hereof, together with
such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including,
without limitation, enforcement of this Agreement or collection
of the Advances), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lenders;
provided, however, that the Agent shall not be required to take
any action which exposes the Agent to personal liability or which
is contrary to this Agreement or applicable law. The Agent
agrees to give to each Lender prompt notice of each notice given
to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be
liable to any Lender for any action taken or omitted to be taken
by it or them under or in connection with this Agreement, except
for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent:
(i) may treat the Lender which made any Advance as the holder of
the Debt resulting therefrom until the Agent receives and accepts
an Assignment and Acceptance entered into by such Lender, as
assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and
other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made in
or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property
(including the books and records) of the Borrower; (v) shall not
be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of
this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION 7.03. CUSA and Affiliates. With respect to its
Commitment and the Advances made by it, CUSA shall have the same
rights and powers under this Agreement as any other Lender and
may exercise the same as though it were not the Agent; and the
term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include CUSA in its individual capacity. CUSA and its
Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, 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 were not the Agent and without
any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
the Agent or any other Lender and based on the financial
statements referred to in Section 4.01(c) and such other
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by the
Borrower), ratably according to the respective principal amounts
of Advances then owing to each of them (or if no Advances are at
the time outstanding or if any Advances are then owing to Persons
which are not Lenders, ratably according to the respective
amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by the Agent
under this Agreement, provided that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including reasonable
counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal or
bankruptcy proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to
the extent that the Agent is not reimbursed for such expenses by
the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the
Borrower and such resignation shall be effective upon the
appointment of a successor Agent as provided herein. Upon any
such resignation, the Majority Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been
so appointed by the Majority Lenders, and shall have accepted
such appointment, within 30 days after the retiring Agent's
giving of notice of resignation, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent. Any successor
Agent appointed hereunder shall be a commercial bank organized or
licensed under the laws of the United States or of any State
thereof, or an Affiliate of such bank, having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with
all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Agreement. After any
retiring Agent's resignation hereunder as Agent, the provisions
of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this
Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Majority Lenders,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the
following: (a) waive any of the conditions specified in Section
3.01 or 3.02, (b) increase the Commitments of the Lenders or
subject the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Advances or the facility fees
payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Advances, (e) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of Advances, or the number of Lenders, which
shall be required for the Lenders or any of them to take any
action hereunder or (f) amend this Section 8.01; and provided,
further, that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties
of the Agent under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopier, telegraphic, telex or cable communication)
and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to the Borrower, at its address at:
The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Mr. Edward Philip
Telecopy Number: (818) 563-1682
if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender;
if to the Agent, at its address at:
Citicorp USA, Inc.
One Court Square
Long Island City, New York 11120
Attention: Jeff Stern
Telecopy Number: (718) 248-4844
with a copy to:
Citicorp Securities, Inc.
One Sansome Street
San Francisco, CA 94104
Attention: Mark Wilson
Telecopy Number: (415) 433-0344
or, as to each party, at such other address as shall be
designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed,
telecopied, telegraphed, telexed or cabled, be effective when
deposited in the mails, telecopied, delivered to the telegraph
company, confirmed by telex answerback or delivered to the cable
company, respectively, except that notices and communications to
the Agent pursuant to Article II or VII shall not be effective
until received by the Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part
of any Lender or the Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees
to pay within five Business Days of demand all actual and
reasonable costs and expenses, if any (including, without
limitation, actual and reasonable counsel fees and expenses), of
the Agent and each Lender in connection with the enforcement
(whether through legal proceedings or otherwise) of this
Agreement and the other instruments and documents to be delivered
hereunder, including, without limitation, reasonable counsel fees
and expenses in connection with the enforcement of rights under
this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made other than on the last day of the
Interest Period for such Advance, as a result of a payment or
Conversion pursuant to Section 2.08(f) or acceleration of the
maturity of the Advances pursuant to Section 6.01 or for any
other reason (other than by reason of a payment pursuant to
Section 2.12), the Borrower shall, within five Business Days of
demand by any Lender (with a copy of such demand to the Agent),
pay to such Lender any amounts required to compensate such Lender
for any additional losses, costs or expenses which it may
reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund or maintain such Advance.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence
and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by
Section 6.01 to authorize the Agent to declare the Advances due
and payable pursuant to the provisions of Section 6.01, each
Lender (and, in the case of CUSA, Citibank) is hereby authorized
at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, but
excluding trust accounts) at any time held and other indebtedness
at any time owing by such Lender (and, in the case of CUSA,
Citibank) to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement, whether or not such
Lender shall have made any demand under this Agreement. Each
Lender agrees promptly to notify the Borrower after any such set-
off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which such Lender
may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective in accordance with the provisions of Section 3.01, and
thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective
successors and permitted assigns, except that the Borrower shall
not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each
Lender may and, if requested by the Borrower upon notice by the
Borrower delivered to such Lender and the Agent pursuant to
clause (ii) of Section 2.16, will, assign to one or more Eligible
Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion
of its Commitment and the Advances owing to it); provided,
however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under
this Agreement, (ii) the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than
$5,000,000, (iii) each such assignment shall be to an Eligible
Assignee, and (iv) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together
with a processing and recordation fee of $2,000. Upon such
execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights (other than any rights such
Lender assignor may have under Sections 2.14 and 8.08) and be
released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this
Agreement or any instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial
statements referred to in Section 4.01(c) and
such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently
and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be performed
by it as a Lender.
(c) The Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time
to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error,
and the Borrower, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that
it is an Eligible Assignee, the Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the
form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its rights
and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment and the Advances
owing to it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation,
its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the
Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and (iv)
such Lender shall not agree in any participation agreement with
any participant or proposed participant to obtain the consent of
such participant before agreeing to the amendment, modification
or waiver of any of the terms of this Agreement, consenting to
any action or failure to act by the Borrower or any other party,
or exercising any rights it may have in respect thereof, unless
such amendment, modification, waiver, consent or exercise would
(i) increase the amount of such participant's portion of such
Lender's Commitment, (ii) reduce the principal amount of or rate
of interest on the Advances or any fee or other amounts payable
hereunder to which such participant would be entitled to receive
a share under such participation agreement, or (iii) postpone any
date fixed for any payment of principal of or interest on the
Advances or any fee or other amounts payable hereunder to which
such participant would be entitled to receive a share under such
participation agreement payable under this Agreement.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower furnished to such Lender by or on behalf of the Borrower
in writing and directly related to the transactions contemplated
hereunder; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall
agree to preserve the confidentiality of any confidential
information relating to the Borrower received by it from such
Lender.
(g) No participation or assignment hereunder shall be made
in violation of the Securities Act of 1933, as amended from time
to time, or any applicable state securities laws, and each Lender
hereby represents that it will make any Advance for its own
account in the ordinary course of its business and not with a
view to the public distribution or sale thereof.
(h) Anything in this Agreement to the contrary
notwithstanding, any Lender may at any time create a security
interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it) and any
promissory notes or other evidences of indebtedness issued to
such Lender hereunder in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the
Federal Reserve System (or any successor regulation) and the
applicable operating circular of such Federal Reserve Bank.
SECTION 8.08. Indemnification. The Borrower agrees to
indemnify and hold harmless the Agent and each Lender and each of
their Affiliates and their respective officers, directors,
employees, agents and advisors (each, an "Indemnified Party")
from and against any and all claims, damages, losses, liabilities
and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted against
any Indemnified Party, in each case arising out of or in
connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or
proceeding (whether or not an Indemnified Party is a party
thereto) arising out of, related to or in connection with the
Commitments hereunder or the Advances made pursuant hereto or any
transactions done in connection herewith, including, without
limitation, any transaction in which any proceeds of the Advances
are, or are proposed, to be applied (collectively, the
"Indemnified Matters"); provided that the Borrower shall have no
obligation to any Indemnified Party under this Section 8.08 with
respect to (i) matters for which such Indemnified Party has been
compensated pursuant to any other provision of this Agreement or
(ii) Indemnified Matters caused by or resulting from the
intentional wrongful act or gross negligence of such Indemnified
Party. If any action is brought against any Indemnified Party,
such Indemnified Party shall promptly notify the Borrower in
writing of the institution of such action and the Borrower shall
thereupon have the right, at its option, to elect to assume the
defense of such action. If the Borrower so elects, it shall
promptly assume the defense of such action, including the
employment of counsel (reasonably satisfactory to such
Indemnified Party) and payment of expenses. Such Indemnified
Party shall have the right to employ its or their own counsel in
any such case, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Party unless (i) the
employment of such counsel shall have been authorized in writing
by the Borrower in connection with the defense of such action or
(ii) the Borrower shall not have properly employed counsel
reasonably satisfactory to such Indemnified Party to have charge
of the defense of such action, in which case such fees and
expenses shall be paid by the Borrower. If such Indemnified
Party shall have reasonably concluded (based upon the advice of
counsel) that the representation by one counsel of the
Indemnified Party and the Borrower creates a conflict of interest
for such counsel, the reasonable fees and expenses of such
counsel shall be borne by the Borrower and the Borrower shall not
have the right to direct the defense of such action on behalf of
the Indemnified Party (but shall retain the right to direct the
defense of such action on behalf of the Borrower). Anything in
this Section 8.08 to the contrary notwithstanding, the Borrower
shall not be liable for the fees and expenses of more than one
counsel for any Indemnified Party in any jurisdiction as to any
Indemnified Matter or for any settlement of any Indemnified
Matter effected without its written consent. All Obligations of
the Borrower under this Section 8.08 shall survive the making and
repayment of the Advances and the termination of this Agreement.
SECTION 8.09. Confidentiality. Subject to the provisions
of Section 8.07(f), each Lender shall, and shall instruct its
Affiliates, successors, assigns, advisors, officers, employees,
directors, agents, legal counsel and other professional advisors
(the "Informed Parties") to, hold all nonpublic information
obtained pursuant to this Agreement in accordance with its
customary procedures for handling confidential information of
this nature and in accordance with safe and sound banking
practices and in any event may make disclosure reasonably
required by a bona fide transferee or participant in connection
with the contemplated transfer or participation or to an Informed
Party agreeing to hold such nonpublic information as confidential
or as required or requested by law or to any governmental
authority or representative thereof or pursuant to legal process;
provided that unless specifically prohibited by applicable law or
court order, each Lender shall notify the Borrower of any request
by any governmental authority or representative thereof (other
than any such request in connection with an examination of the
financial condition of such Lender by such governmental
authority) for disclosure of any such nonpublic information prior
to disclosure of such information; and further, provided, that in
no event shall any Lender be obligated or required to return any
materials furnished by the Borrower.
SECTION 8.10. Consent to Jurisdiction and Service of
Process. All judicial proceedings brought against the Borrower
with respect to this Agreement or any instrument or other
documents delivered hereunder may be brought in any state or
federal court in the Borough of Manhattan in the State of New
York, and by execution and delivery of this Agreement, the
Borrower accepts, for itself and in connection with its
properties, generally and unconditionally, the nonexclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to
be bound by any final judgment rendered thereby in connection
with this Agreement or any instrument or other document delivered
hereunder from which no appeal has been taken or is available.
The Borrower agrees to receive service of process in any such
proceeding in any such court at its office at 114 Fifth Avenue,
New York, New York 10011 (or at such other address in the Borough
of Manhattan in the State of New York as the Borrower shall
notify the Agent from time to time) and, if the Borrower ever
ceases to maintain such office in the Borough of Manhattan,
irrevocably designates and appoints CT Corporation System, 1633
Broadway, New York, New York 10019, or any other address in the
State of New York communicated by CT Corporation System to the
Agent, as its agent to receive on its behalf service of all
process in any such proceeding in any such court, such service
being hereby acknowledged by the Borrower to be effective and
binding service in every respect.
SECTION 8.11. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 8.12. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. A full set
of executed counterparts of this Agreement shall be lodged with
the Agent and the Borrower.
[the balance of this page is intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE WALT DISNEY COMPANY
By:
Title:
CITICORP USA, INC., as Agent
By:
Title:
Commitment Initial Lenders
$36,100,000 CITICORP USA, INC.
By:
Title:
$35,700,000 ABN AMRO BANK, N.V.
By:
Title:
By:
Title:
$35,700,000 BANK OF AMERICA NT & SA
By:
Title:
$35,700,000 THE MITSUBISHI BANK, LTD.
By:
Title:
$35,700,000 BANKERS TRUST COMPANY
By:
Title:
$35,700,000 BANQUE NATIONALE DE PARIS
By:
Title:
By:
Title:
$35,700,000 BARCLAYS BANK PLC
By:
Title:
$35,700,000 CHEMICAL BANK
By:
Title:
$35,700,000 CREDIT SUISSE
By:
Title:
By:
Title:
$35,700,000 THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY
By:
Title:
$35,700,000 DEUTSCHE BANK AG
LOS ANGELES AND CAYMAN ISLAND BRANCHES
By:
Title:
By:
Title:
$35,700,000 THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
$35,700,000 FIRST INTERSTATE BANK OF CALIFORNIA
By:
Title:
By:
Title:
$35,700,000 THE FUJI BANK LIMITED
LOS ANGELES AGENCY
By:
Title:
$35,700,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED
LOS ANGELES AGENCY
By:
Title:
$35,700,000 THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
LOS ANGELES AGENCY
By:
Title:
$35,700,000 MELLON BANK, N.A.
By:
Title:
$35,700,000 THE MITSUI TRUST & BANKING CO., LTD.
By:
Title:
$35,700,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:
Title:
$35,700,000 NATIONSBANK OF TEXAS, N.A.
By:
Title:
$35,700,000 THE SAKURA BANK, LTD.
LOS ANGELES AGENCY
By:
Title:
By:
Title:
$35,700,000 SOCIETE GENERALE
By:
Title:
$35,700,000 THE SUMITOMO BANK, LIMITED
By:
Title:
$35,700,000 THE SUMITOMO TRUST & BANKING
CO., LTD.
LOS ANGELES AGENCY
By:
Title:
$35,700,000 SUNBANK, NATIONAL ASSOCIATION
By:
Title:
$35,700,000 SWISS BANK CORPORATION
SAN FRANCISCO BRANCH
By:
Title:
By:
Title:
$35,700,000 TORONTO DOMINION (TEXAS), INC.
By:
Title:
$35,700,000 THE YASUDA TRUST & BANKING CO., LTD.
LOS ANGELES BRANCH
By:
Title:
$1,000,000,000
<PAGE>
SCHEDULE I
The Walt Disney Company
$1,000,000,000 Credit Agreement
<TABLE>
<CAPTION>
Domestic Eurodollar
Name of Bank Lending Office Lending Office
<S> <C> <C>
ABN AMR0 Bank, N.V. ABN AMR0 Bank, N.V. ABN AMR0 Bank, N.V.
Los Angeles/Int'l Branch Los Angeles/Int'l Branch
300 S. Grand Ave., #1115 300 S. Grand Ave., #1115
Los Angeles, CA 90071 Los Angeles, CA 90071
Bank of America Bank of America, NT & SA Bank of America, NT & SA
NT & SA PSO Acct. Admin. #5693 PSO Acct. Admin. #5693
1850 Gateway Bl., 4th Fl. 1850 Gateway Bl., 4th Fl.
Concord, CA 94520 Concord, CA 94520
Bankers Trust Bankers Trust Company Bankers Trust Company
Company 1 Bankers Trust Plaza 1 Bankers Trust Plaza
New York, NY 10006 New York, NY 10006
Banque Nationale Banque Nationale de Paris Banque Nationale de Paris
de Paris 725 S. Figueroa, #2090 725 S. Figueroa, #2090
Los Angeles, CA 90017 Los Angeles, CA 90017
Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC
New York, NY Nassau, Bahamas
Chemical Bank Chemical Bank Chemical Bank
52 Broadway 52 Broadway
New York, NY 10015 New York, NY 10015
Attn: Loan Services Dept. Attn: Loan Services Dept.
Pedro Valentin, A.T. Pedro Valentin, A.T.
Citicorp USA, Inc. Citicorp USA, Inc. Citicorp USA, Inc.
399 Park Avenue 399 Park Avenue
New York, New York 10043 New York, NY 10043
Credit Suisse Credit Suisse Credit Suisse
633 W. 5th Street 633 W. 5th Street
64th Floor 64th Floor
Los Angeles, CA 90071 Los Angeles, CA 90071
Deutsche Bank AG Deutsche Bank AG Deutsche Bank AG
300 S. Grand Avenue Cayman Islands Branch
Los Angeles, CA 90071 c/o New York Branch
31 W. 52nd St.
New York, NY 10019
The Dai-Ichi Kangyo The Dai-Ichi Kangyo Bank, The Dai-Ichi Kangyo Bank,
Bank, Ltd. Ltd., Los Angeles Agency Ltd., Los Angeles Agency
Los Angeles Agency 555 W. 5th Street 555 W. 5th Street
5th Floor 5th Floor
Los Angeles, CA 90013 Los Angeles, CA 90013
The First National The First National Bank The First National Bank
Bank of Chicago of Chicago of Chicago
One First National Plaza One First National Plaza
Suite 0324 Suite 0324
Chicago, Illinois 60670 Chicago, Illinois 60670
First Interstate First Interstate Bank of First Interstate Bank of
Bank of California California California
1200 W. 7th Street 1200 W. 7th Street
Los Angeles, CA 90017 Los Angeles, CA 90017
The Fuji Bank, The Fuji Bank, Limited The Fuji Bank, Limited
Limited Los Angeles Agency Los Angeles Agency
333 South Grand Avenue 333 South Grand Avenue
Suite 2500 Suite 2500
Los Angeles, CA 90071 Los Angeles, CA 90071
Lending Office Lending Office
The Industrial Bank The Industrial Bank of The Industrial Bank of
of Japan, Limited Japan, Limited Japan, Limited
Los Angeles Agency Los Angeles Agency Los Angeles Agency
350 South Grand Avenue 350 South Grand Avenue
Suite 1500 Suite 1500
Los Angeles, CA 90071 Los Angeles, CA 90071
The Long-Term Credit The Long Term Credit The Long Term Credit
Bank of Japan, Ltd. Bank of Japan, Ltd. Bank of Japan, Ltd.
Los Angeles Agency Los Angeles Agency Los Angeles Agency
444 S. Flower St., #3700 444 S. Flower St., #3700
Los Angeles, CA 90071 Los Angeles, CA 90071
Mellon Bank, N.A. Mellon Bank, N.A. Mellon Bank, N.A.
Mellon Bank Center 1 Mellon Bank Center
Pittsburgh, PA 15258 Pittsburgh, PA 15258
The Mitsubishi Bank The Mitsubishi Bank, Ltd. The Mitsubishi Bank, Ltd.
Los Angeles Agency Los Angeles Agency Los Angeles Agency
550 S. Hope St., 5th Fl. 550 S. Hope St., 5th Fl.
Los Angeles, CA 90071 Los Angeles, CA 90071
Attn: Anna Bagdasarian Attn: Anna Bagdasarian
The Mitsui Trust & The Mitsui Trust & The Mitsui Trust &
Banking Co., Ltd. Banking Co., Ltd. Banking Co., Ltd.
611 West 6th Street 611 West 6th Street
Los Angeles, CA 90017 Los Angeles, CA 90017
Morgan Guaranty Trust Morgan Guaranty Trust Morgan Guaranty Trust
Company of New York Company of New York Company of New York
60 Wall Street Nassau, Bahamas Office
New York, NY 10260-0060 c/o J.P. Morgan
Attention: Loan Department
Services, Inc.
Euro-Loan Servicing
902 Market Street
Wilmington, DE 19801
NationsBank of NationsBank of Texas, N.A. NationsBank of Texas, N.A.
Texas, N.A. 901 Main Street, 11th Fl. 901 Main Street, 11th
Dallas, Texas 75206 Dallas, Texas 75206
Attn: Commercial Loans Attn: Commercial Loans
The Sakura Bank, Ltd. The Sakura Bank, Ltd. The Sakura Bank, Ltd.
Los Angeles Agency Los Angeles Agency
515 S. Figueroa Street 515 S. Figueroa Street
Suite 400 Suite 400
Los Angeles, CA 90071 Los Angeles, CA 90071
Societe Generale Societe Generale Societe Generale
2029 Century Park East 2029 Century Park East
Suite 2900 Suite 2900
Los Angeles, CA 90067 Los Angeles, CA 90067
The Sumitomo Bank, The Sumitomo Bank, The Sumitomo Bank,
Limited Limited Limited
611 West 6th Street 611 West 6th Street
Los Angeles, CA 90017 Los Angeles, CA 90017
The Sumitomo Trust & The Sumitomo Trust & The Sumitomo Trust &
Banking Co., Ltd. Banking Co., Ltd. Banking Co., Ltd.
Los Angeles Agency Los Angeles Agency Los Angeles Agency
333 S. Grand Av., #5300 333 S. Grand Av. #5300
Los Angeles, CA 90071 Los Angeles, CA 90071
Sunbank, National Sunbank, National Sunbank, National
Association Association Association
P.0. Box 3833 P.0. Box 3833
200 S. Orange Avenue 200 S. Orange Avenue
Orlando, FL 32802 Orlando, FL 32802
Swiss Bank Corporation Swiss Bank Corporation Swiss Bank Corporation
San Francisco Branch San Francisco Branch San Francisco Branch
101 California Street 101 California Street
Suite 1700 Suite 1700
San Francisco, CA 94111 San Francisco, CA 94111
Toronto Dominion Toronto Dominion Toronto Dominion
Texas, Inc. Texas, Inc. Texas, Inc.
909 Fannin, Suite 1700 909 Fannin, Suite 1700
Houston, TX 77010 Houston, TX 77010
The Yasuda Trust & The Yasuda Trust & The Yasuda Trust &
Banking Co., Ltd. Banking Co., Ltd. Banking Co., Ltd.
Los Angeles Branch Los Angeles Branch Los Angeles Branch
725 S. Figueroa Street 725 S. Figueroa Street
Suite 3990 Suite 3990
Los Angeles, CA 90017 Los Angeles, CA 90017
</TABLE>
<PAGE>
EXHIBIT A
NOTICE OF BORROWING
[Date]
Citicorp USA, Inc., as Agent
for the Lenders party to the Second Amended and
Restated Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
Attention: ___________________
Ladies and Gentlemen:
The undersigned, The Walt Disney Company, refers to the Second
Amended and Restated Credit Agreement, dated as of April 12, 1995
(said Agreement as it may be amended, modified or supplemented from
time to time, being the "Credit Agreement", the terms defined therein
being used herein as therein defined), among the undersigned, the
financial institutions party thereto as Lenders and Citicorp USA,
Inc., as Agent for such Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that
the undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the information
relating to such Borrowing (the "Proposed Borrowing") as required by
Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_____________ 19___.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$___________.
*[(iv) The initial Interest Period for each Advance made as
part of the Proposed Borrowing is [one] [two] [three] [six]
[twelve] months.]
The undersigned hereby certifies that, pursuant to Section 3.02
of the Credit Agreement, each of the following statements is true,
and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01
of the Credit Agreement are correct in all material respects on and
as of the date of the Proposed Borrowing, before and after giving
effect to the Proposed Borrowing, and to the application of the
proceeds therefrom, as though made on and as of such date (except to
the extent that such representations and warranties relate to an
earlier date), which representations and warranties were correct in
all material respects on and as of such earlier date); and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute
an Event of Default but for the requirement that notice be given or
time elapse or both.
Very truly yours,
THE WALT DISNEY COMPANY
By:____________________
Title: ________________
* To be included for a Proposed Borrowing comprised of Eurodollar
Rate Advances.
<PAGE>
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Dated ___________________, 19___
Reference is made to the Second Amended and Restated Credit
Agreement dated as of April 12, 1995 (said Agreement as it may be
amended, modified or supplemented from time to time, being the
"Credit Agreement") among The Walt Disney Company, a Delaware
corporation (the "Borrower"), the financial institutions party
thereto as Lenders, and Citicorp USA, Inc., as Agent for the Lenders
(the "Agent"). Terms defined in the Credit Agreement are used herein
with the same meanings.
_______________(the "Assignor") and________________(the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that
interest in and to all of the Assignor's rights and obligations under
the Credit Agreement as of the date hereof which represents the
percentage interest specified on Schedule 1 of all outstanding rights
and obligations under the Credit Agreement (including, without
limitation, such interest in the Assignor's Commitment and the
Advances owing to the Assignor). After giving effect to such sale
and assignment, the Assignee's Commitment and the amount of the
Advances owing to the Assignee will be as set forth in Section 2 of
Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (ii)
makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in
or in connection with the Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition or
operations of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or any
instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements
referred to in Section 4.01(c) thereof, and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance;
(ii) agrees that it will, independently and without reliance upon the
Agent, the Assignor or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee;
(iv) appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under the Credit Agreement
as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be
performed by it as a Lender; (vi) specifies as its Domestic Lending
Office (and address for notices) and Eurodollar Lending Office the
offices set forth beneath its name on the signature pages hereof; and
(vii) if the Assignee is not created or organized under the laws of
the United States or a political subdivision thereof, attaches hereto
the certificates and forms required under Section 2.14(e) of the
Credit Agreement and represents that the information contained
therein is accurate and complete.
4. Following the execution of this Assignment and Acceptance by
the Assignor and the Assignee, it will be delivered to the Agent for
acceptance and recording by the Agent. The effective date of this
Assignment and Acceptance shall be the date of acceptance thereof by
the Agent, unless otherwise specified on Schedule l hereto (the
"Effective Date").
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder
and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights (other than any
rights the Assignor may have under Sections 2.14 and 8.08 of the
Credit Agreement) and be released from its obligations under the
Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the
Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest
and facility fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the Assignor and Assignee have caused this
Assignment and Acceptance to be executed by the respective officers
thereunto duly authorized, as of the date first above written.
[NAME OF ASSIGNOR]
By: ___________________
Title: ________________
[NAME OF ASSIGNEE]
By: ___________________
Title: ________________
Domestic Lending Office (and
address for notices):
____________________________
____________________________
____________________________
Eurodollar Lending Office
____________________________
____________________________
____________________________
Accepted this ____ day
of ______________, 19
CITICORP USA, INC.,
as Agent
By: __________________
Title:________________
<PAGE>
Schedule 1
to Assignment and Acceptance
Dated _____________, 19___ between
________________________, as Assignor, and
________________________, as Assignee
Section 1.
Percentage Interest
assigned: __________%
Section 2.
Assignee's Commitment: $__________
Aggregate Outstanding Principal
Amount of Advances owing to the
Assignee $__________
Section 3.
Effective Date*: ________________, 19___
* This date should be no earlier than the date of acceptance by the
Agent.
<PAGE>
EXHIBIT C
FORM OF OPINION OF
COUNSEL TO THE BORROWER
[Effective Date]
To each of the Lenders as defined in and party to the Second
Amended and Restated Credit Agreement referred to
below and to Citicorp USA, Inc., as Agent
c/o Citicorp USA, Inc.
399 Park Avenue
New York, New York 10043
Re: The Walt Disney Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(a)(iv) of
the Second Amended and Restated Credit Agreement dated as of April 12,
1995 (the "Credit Agreement") among The Walt Disney Company (the
"Borrower"), the Lenders party thereto, and Citicorp USA, Inc., as Agent
for such Lenders. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
I am Vice President - Assistant General Counsel of the Borrower and
in that capacity I have acted as counsel for the Borrower in connection
with the preparation, execution and delivery of the Credit Agreement.
In that connection, I have examined the Credit Agreement, the
documents furnished by the Borrower pursuant to Section 3.01(a) of the
Credit Agreement, the Certificate of Incorporation of the Borrower (the
"Charter"), and the by-laws of the Borrower (the "By-laws"). In
addition, I have examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Borrower,
certificates of public officials and of officers of the Borrower, and
agreements, instruments and other documents, as I have deemed necessary
as a basis for the opinions expressed below. As to questions of fact
material to such opinions, I have, when relevant facts were not
independently established by me, relied upon certificates of the
Borrower or its officers or of public officials. I have assumed the due
execution and delivery, pursuant to due authorization, of the Credit
Agreement by the Lenders and the Agent.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and is duly
qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction (other than the jurisdiction of its
incorporation) in which the nature of its activities or the character of
the properties it owns or leases makes such qualification necessary and
in which the failure to so qualify would have a material adverse effect
on the financial condition or operations of the Borrower and its
subsidiaries taken as a whole.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene
(i) the Charter or the By-laws or (ii) any applicable law, rule or
regulation or (iii) to the best of my knowledge, any contractual or
legal restriction contained in any agreement or instrument, or any
order, judgment or decree, binding on or affecting the Borrower. The
Credit Agreement has been duly executed and delivered on behalf of the
Borrower.
3. No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower
of the Credit Agreement.
4. The Credit Agreement is the legal, valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with its
terms.
The opinions set forth in paragraph 4 above are subject to the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and to
the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or
at law).
My opinions expressed above are limited to the law of the State of
New York and the Federal law of the United States, and I do not express
any opinion herein concerning any other law. Without limiting the
generality of the foregoing, I express no opinion as to the effect of
the law of any jurisdiction other than the State of New York, wherein
any Lender may be located or wherein enforcement of the Credit Agreement
may be sought which limits the rates of interest legally chargeable or
collectible. This opinion is rendered to you in connection with the
execution and delivery of the Credit Agreement; this opinion is solely
for your benefit and is not to be used, circulated, quoted or otherwise
referred to for any other purpose without, in each instance, my prior
written consent.
Very truly yours,
<PAGE>
EXHIBIT D-1
FORM OF
FOREIGN LENDER CERTIFICATE
To: The Walt Disney Company
Reference is made to the Second Amended and Restated Credit
Agreement dated as of April 12, 1995 (said Agreement, as it may be
amended, supplemented or otherwise modified from time to time being the
"Credit Agreement"), among The Walt Disney Company, as Borrower (the
"Borrower"), the financial institutions from time to time party thereto
as Lenders (the "Lenders") and Citicorp USA, Inc., as agent for the
Lenders (the "Agent"). Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
Pursuant to Section 2.14(e) of the Credit Agreement, the undersigned
Lender hereby certifies to the Borrower and the Agent that under the
provisions of the income tax convention between the United States and
[Name of Country] the undersigned Lender
* [is eligible to receive payments under the Credit Agreement
without deduction or withholding of the United States federal income
tax]
* [is not eligible to receive payments under the Credit Agreement
without deduction or withholding of United States federal income tax but
does not require additional payments therefor pursuant to Section
2.14(a) or (c) of the Credit Agreement because it is eligible and able
to recover the full amount of any such deduction or withholding from a
source other than the Borrower.]
[or]
* [is not eligible to receive payments under the Agreement without
deduction or withholding of United States federal income tax and is not
eligible and able to recover the full amount of the same from a source
other than the Borrower.]
The undersigned Lender is a corporation organized under the laws of
[Name of Country] and [is not acting through a branch, agency or office
in the United States] [has a branch, agency or office in the United
States but its activities in connection with the Credit Agreement are
not connected effectively with such branch, agency, or office.]
Accompanying this Certificate are two copies of Form 1001 (or any
successor or substitute form) of the United States Internal Revenue
Service, properly completed and duly executed by an appropriate
representative of the undersigned Lender.
Dated: _____________, 19
[NAME OF LENDER]
By: __________________
Title: _______________
* Insert applicable statement.
<PAGE>
EXHIBIT D-2
FORM OF
FOREIGN LENDER CERTIFICATE
To: The Walt Disney Company
Reference is made to the Second Amended and Restated Credit
Agreement dated as of April 12, 1995 (said Agreement, as it may be
amended, supplemented or otherwise modified from time to time, being
the "Credit Agreement"), among The Walt Disney Company, as Borrower
(the "Borrower"), the financial institutions from time to time party
thereto as Lenders (the "Lenders") and Citicorp USA, Inc., as agent
for the Lenders (the "Agent"). Terms defined in the Credit Agreement
and not otherwise defined herein are used herein as therein defined.
Pursuant to Section 2.14(e) of the Credit Agreement, the
undersigned Lender hereby certifies to the Borrower and the Agent
that under the provisions of Sections 1441(c) or 1442 of the Internal
Revenue Code of 1986 of the United States, as amended, and Treasury
Regulation 1.1441-4, as amended, the undersigned Lender
* [is eligible to receive payments under the Credit Agreement
without deduction or withholding of the United States federal income
tax.]
* [is not eligible to receive payments under the Credit Agreement
without deduction or withholding of United States federal income tax
as specified therein but does not require additional payments
therefor pursuant to Section 2.14(a) or (c) of the Credit Agreement
because it is eligible and able to recover the full amount of any
such deduction or withholding from a source other than the Borrower.
[or]
* [is not eligible to receive payments under the Credit Agreement
without deduction or withholding of United States federal income tax
and is not eligible and able to recover the full amount of the same
from a source other than the Borrower.]
The undersigned Lender is a corporation organized under the laws
of [Name of Country] and is acting through a branch, agency or office
operating in the United States in respect of the Credit Agreement and
any payment received or to be received by it in connection with the
Credit Agreement is effectively connected with its conduct of a trade
or business in the United States.
Accompanying this Certificate are two copies of Form 4224 (or any
successor or substitute form) of the United States Internal Revenue
Service, properly completed and duly executed by an appropriate
representative of the undersigned Lender.
Dated: _____________, 19
[NAME OF LENDER]
By: __________________
Title: ________________
* Insert applicable statement.
<PAGE>
EXHIBIT E
FORM OF
WITHDRAWAL AGREEMENT
This Agreement is executed by__________________________
and ______________________________ (each a "Withdrawing Lender"),
THE WALT DISNEY COMPANY (the "Borrower") and CITICORP USA, INC., as
Agent for the financial institutions party to the Existing Credit
Agreement referred to below (in such capacity, the "Agent").
PRELIMINARY STATEMENTS. The Borrower, the Withdrawing Lenders,
certain other financial institutions and the Agent are parties to an
Amended and Restated Credit Agreement dated as of October 3, 1994 (as
amended, the "Existing Credit Agreement"). The parties hereto wish
to terminate the Commitments of the Withdrawing Lenders as
hereinafter set forth in connection with the effectiveness of that
certain Second Amended and Restated Credit Agreement dated as of
April 12, 1995 (the "Amended and Restated Credit Agreement") among
the Borrower, the financial institutions party thereto and Citicorp
USA, Inc. as Agent for such financial institutions. Terms defined in
the Existing Credit Agreement are used in this Agreement as defined
in the Existing Credit Agreement and, except as otherwise indicated,
all references to Sections and Articles refer to the corresponding
Sections and Articles of the Existing Credit Agreement.
The parties hereto therefore agree as follows:
SECTION 1. Termination of Commitments of the Withdrawing
Lenders. Effective on the Agreement Effective Date (as defined in
Section 2 hereof) and subject to the satisfaction of the conditions
precedent set forth in Section 2 hereof, the Commitment of each
Withdrawing Lender is reduced to zero, and each Withdrawing Lender
shall relinquish its rights and be released from its obligations
under the Existing Credit Agreement and shall cease to be a party
thereto, provided that each Withdrawing Lender shall continue to
enjoy the benefits of Sections 2.14 and 8.08 with respect to any
period ending on or prior to the Agreement Effective Date.
SECTION 2. Conditions to Effectiveness. This Agreement shall be
effective as of the date on which the Amended and Restated Credit
Agreement becomes effective in accordance with its terms (the
"Agreement Effective Date") subject to the satisfaction of the
following conditions precedent:
(a) the Borrower shall have paid all facility fees under Section
2.03 to the extent accrued and unpaid through the Agreement Effective
Date;
(b) the Borrower shall have paid or prepaid any Advances
outstanding on the Agreement Effective Date, together with accrued
interest thereon and any amounts payable in connection with such
prepayment under Section 8.04(b); and
(c) all other conditions to the effectiveness of the Amended and
Restated Credit Agreement (except for the condition under Section
3.01(b)) shall have been satisfied or waived.
SECTION 3. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by any combination of the
parties hereto in separate counterparts, each of which counterparts
shall be an original and all of which taken together shall constitute
one and the same Agreement.
SECTION 4. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE WALT DISNEY COMPANY
By: __________________
Title: _______________
CITICORP USA, INC., as Agent
By: __________________
Vice President
Withdrawing Lenders:
_______________________
By: ___________________
Title: ________________
_______________________
By: ___________________
Title: ________________
_______________________
By: ___________________
Title: ________________
