\nLevel 1
\n——-
\nAA-\/Aa3 or above 0.060%
\n—————————————————————————–
\nLevel 2
\n——-
\nLower than AA-\/Aa3 but 0.070%
\nat least A\/A2
\n—————————————————————————–
\nLevel 3
\n——-
\nLower than A\/A2 but 0.085%
\nat least A-\/A3
\n—————————————————————————–
\nLevel 4
\n——-
\nLower than A-\/A3 but 0.110%
\nat least BBB+\/Baa1
\n—————————————————————————–
\nLevel 5
\n——-
\nLower than BBB+\/Baa1 or 0.150%
\nno Public Debt Rating in effect
\n—————————————————————————–
\n<\/c><\/s><\/caption>\n<\/table>\n “Federal Funds Rate” means, for any period, a fluctuating interest
\n rate per annum equal for each day during such period to the weighted
\n average of the rates on overnight federal funds transactions with members
\n of the Federal Reserve System arranged by federal funds brokers, as
\n published for such day (or, if such day is not a Business Day, for the
\n immediately preceding Business Day) by the Federal Reserve Bank of New
\n York, or, if such rate is not so published for any day which is a Business
\n Day, the average of the quotations for such day on such transactions
\n received by the Administrative Agent from three federal funds brokers of
\n recognized standing selected by the Administrative Agent.<\/p>\n
“GAAP” means generally accepted accounting principles consistent with
\n those applied in the preparation of the audited financial statements
\n referred to in Section 4.01(c) dated September 30, 1999, subject, however,
\n to the provisions of Section 1.03.<\/p>\n
“Hazardous Material” means (a) any petroleum or petroleum product,
\n natural or synthetic gas, asbestos in any form that is or could become
\n friable, urea formaldehyde foam insulation, or radon gas, (b) any substance
\n defined as or included in the definition of “hazardous substances”,
\n hazardous wastes”, hazardous materials”, “toxic substances”, “contaminants”
\n or “pollutants”, or words of similar import, under any applicable
\n Environmental Law or (c) any other substance exposure to which is regulated
\n by any governmental or regulatory authority.<\/p>\n
“HSBC” has the meaning specified in the recital of parties to this
\n Agreement.<\/p>\n
“Increase Date” has the meaning specified in Section 2.19(a).<\/p>\n
“Increasing Lender” has the meaning specified in Section 2.19(b).<\/p>\n
“Indemnified Matters” has the meaning specified in Section 8.08.<\/p>\n
“Indemnified Party” has the meaning specified in Section 8.08.<\/p>\n
“Informed Parties” has the meaning specified in Section 8.09.<\/p>\n
“Initial Lender” has the meaning specified in the recital of parties
\n to this Agreement.<\/p>\n
7<\/p>\n
“Interest Period” means, for each Eurocurrency Rate Advance comprising
\n part of the same Borrowing, the period commencing on the date of such
\n Eurocurrency Rate Advance or on the date of the Conversion of any Base Rate
\n Advance into such Eurocurrency Rate Advance and ending on the last day of
\n the period selected by the Borrower pursuant to the provisions below and,
\n thereafter, each subsequent period commencing on the last day of the
\n immediately preceding Interest Period and ending on the last day of the
\n period selected by the Borrower pursuant to the provisions below. The
\n duration of each such Interest Period shall be one, two, three, six or, if
\n generally available to all of the Lenders, twelve months as the Borrower
\n may, upon notice received by the Administrative Agent not later than (x)
\n 11:00 A.M. (New York City time) on the third Business Day prior to the
\n first day of such Interest Period for each Eurocurrency Rate Advance
\n denominated in any Committed Currency, or (y) 1:00 P.M. (New York City
\n time) on the third Business Day prior to the first day of such Interest
\n Period for each Eurocurrency Rate Advance denominated in Dollars, select;
\n provided, however, that:<\/p>\n
(i) Interest Periods commencing on the same date for
\n Eurocurrency Rate Advances comprising part of the same Borrowing shall
\n be of the same duration;<\/p>\n
(ii) whenever the last day of any Interest Period would
\n otherwise occur on a day other than a Business Day, the last day of
\n such Interest Period shall be extended to occur on the next succeeding
\n Business Day, provided, however, that if such extension would cause
\n the last day of such Interest Period to occur in the next succeeding
\n calendar month, the last day of such Interest Period shall occur on
\n the immediately preceding Business Day;<\/p>\n
(iii) whenever the first day of any Interest Period occurs on a
\n day of an initial calendar month for which there is no numerically
\n corresponding day in the calendar month that succeeds such initial
\n calendar month by the number of months equal to the number of months
\n in such Interest Period, such Interest Period shall end on the last
\n Business Day of such succeeding calendar month; and<\/p>\n
(iv) the Borrower may not select for any Advance any Interest
\n Period which ends after the scheduled Termination Date then in effect.<\/p>\n
“IRS” has the meaning specified in Section 2.14(e).<\/p>\n
“Lenders” means, collectively, each Initial Lender, each Assuming
\n Lender that shall become a party hereto pursuant to Section 2.19 or 2.20
\n and each Eligible Assignee that shall become a party hereto pursuant to
\n Section 8.07; provided, however, that for purposes of any determination to
\n be made under Section 2.07, 2.11, 2.12 or 8.04(b) with respect to CUSA, in
\n its capacity as a Lender, the term “Lenders” shall be deemed to include
\n Citibank.<\/p>\n
“Lien” means any lien, security interest or other charge or
\n encumbrance of any kind, or any other type of preferential arrangement
\n which has the same effect as a lien or security interest.<\/p>\n
“Majority Lenders” means, at any time, Lenders owed at least a
\n majority in interest of the aggregate unpaid principal amount of the
\n Advances owing to the Lenders at such time, or, if no such principal amount
\n is outstanding at such time, Lenders having at least a majority in interest
\n of the Commitments at such time; provided, however, that neither the
\n Borrower nor any of its Affiliates, if a Lender, shall be included in the
\n determination of the Majority Lenders at any time.<\/p>\n
8<\/p>\n
“Material Subsidiary” means, at any date of determination, a
\n subsidiary of the Borrower that, either individually or together with its
\n subsidiaries, taken as a whole, has total assets exceeding $100,000,000 on
\n such date.<\/p>\n
“Measurement Period” means, at any date of determination, the most
\n recently completed four consecutive fiscal quarters of the Borrower on or
\n immediately prior to such date.<\/p>\n
“Moody’s” means Moody’s Investors Service, Inc. or any successor
\n thereto.<\/p>\n
“Multiemployer Plan” means a multiemployer plan, as defined in Section
\n 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making
\n or accruing an obligation to make contributions, or has within any of the
\n preceding five plan years made or accrued an obligation to make
\n contributions.<\/p>\n
“Multiple Employer Plan” means a single employer plan, as defined in
\n Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the
\n Borrower or any ERISA Affiliate and at least one Person other than the
\n Borrower and the ERISA Affiliates or (ii) was so maintained and in respect
\n of which the Borrower or an ERISA Affiliate could have liability under
\n Section 4064 or 4069 of ERISA in the event such plan has been or were to be
\n terminated.<\/p>\n
“Note” has the meaning specified in Section 2.17.<\/p>\n
“Notice of Borrowing” has the meaning specified in Section 2.02(a).<\/p>\n
“Other Taxes” has the meaning specified in Section 2.14(b).<\/p>\n
“Payment Office” means, for any Committed Currency, such office of
\n Citibank as shall be from time to time selected by the Administrative Agent
\n and notified by the Administrative Agent to the Borrower and the Lenders.<\/p>\n
“Person” means an individual, partnership, corporation (including a
\n business trust), joint stock company, trust, unincorporated association,
\n joint venture or other entity, or a government or any political subdivision
\n or agency thereof.<\/p>\n
“Plan” means a Single Employer Plan or a Multiple Employer Plan.<\/p>\n
“Public Debt Rating” means, as of any date of determination, the
\n higher rating that has been most recently announced by either S&P or
\n Moody’s, as the case may be, for any class of non-credit enhanced long-term
\n senior unsecured public debt issued by the Borrower. For purposes of the
\n foregoing, (a) if only one of S&P and Moody’s shall have in effect a Public
\n Debt Rating, the Eurocurrency Rate Margin and the Facility Fee Percentage
\n shall be determined by reference to the available rating; (b) if neither
\n S&P nor Moody’s shall have in effect a Public Debt Rating, the Eurocurrency
\n Rate Margin and the Facility Fee Percentage will be set in accordance with
\n Level 5 under the definition of “Eurocurrency Rate Margin” or “Facility Fee
\n Percentage”, as the case may be; (c) if the ratings established by S&P and
\n Moody’s shall fall within different levels, the Eurocurrency Rate Margin
\n and the Facility Fee Percentage shall be based upon the higher rating; (d)
\n if any rating established by S&P or Moody’s shall be changed, such change
\n shall be effective as of the date on which such change is first announced
\n publicly by the rating agency making such change; and (e) if S&P or Moody’s
\n shall change the basis on which ratings are established, each reference to
\n the Public Debt Rating announced by S&P or <\/p>\n
9<\/p>\n
Moody’s, as the case may be, shall refer to the then equivalent rating by
\n S&P or Moody’s, as the case may be.<\/p>\n
“Reference Banks” means Citibank, Bank One and HSBC or, in the event
\n that less than two of such banks remain Lenders hereunder at any time, any
\n other commercial bank designated by the Borrower and approved by the
\n Majority Lenders as constituting a “Reference Bank” hereunder.<\/p>\n
“Register” has the meaning specified in Section 8.07(c).<\/p>\n
“S&P” means Standard & Poor’s, a division of The McGraw-Hill
\n Companies, Inc., or any successor thereto.<\/p>\n
“SEC” has the meaning specified in Section 5.01(e)(i).<\/p>\n
“Significant Subsidiary” means any subsidiary of the Borrower or any
\n of its subsidiaries that constitutes a “significant subsidiary” under Rule
\n 405 promulgated by the SEC under the Securities Act of 1933, as amended.<\/p>\n
“Single Employer Plan” means a single employer plan, as defined in
\n Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the
\n Borrower or an ERISA Affiliate and no Person other than the Borrower and
\n the ERISA Affiliates or (ii) was so maintained and in respect of which the
\n Borrower or an ERISA Affiliate could have liability under Section 4069 of
\n ERISA in the event such plan has been or were to be terminated.<\/p>\n
“Sub-Agent” means Citibank International plc.<\/p>\n
“Taxes” has the meaning specified in Section 2.14(a).<\/p>\n
“Termination Date” means the earlier of (a) March 7, 2005, subject to
\n the extension thereof pursuant to Section 2.20, and (b) the date of
\n termination in whole of the aggregate Commitments pursuant to Section 2.04
\n or 6.01; provided, however, that the Termination Date of any Lender that is
\n a Declining Lender in connection with any requested extension pursuant to
\n Section 2.20 shall be the Termination Date in effect immediately prior to
\n the applicable Extension Date for all purposes of this Agreement.<\/p>\n
“364-Day Credit Agreement” means the 364-Day Credit Agreement dated as
\n of March 1, 2000 among the Borrower, the banks, financial institutions and
\n other institutional lenders party thereto, CUSA, as administrative agent
\n thereunder, Bank of America, N.A., a national banking corporation, as
\n syndication agent, and The Chase Manhattan Bank, a national banking
\n corporation, and Credit Suisse First Boston, a Swiss banking corporation,
\n as co-documentation agents thereunder, as such agreement may be amended,
\n supplemented or otherwise modified hereafter from time to time.<\/p>\n
“Type” has the meaning specified in the definition of “Advance”.<\/p>\n
“United States” and “U.S.” each means the United States of America.<\/p>\n
“Utilization Fee” has the meaning specified in Section 2.03(b).<\/p>\n
10<\/p>\n
SECTION 1.02. Computation of Time Periods. In this Agreement in the
\n —————————
\ncomputation of periods of time from a specified date to a later specified date,
\nthe word “from” means “from and including” and the words “to” and “until” each
\nmeans “to but excluding”.<\/p>\n
SECTION 1.03. Accounting Terms. All accounting terms not
\n —————-
\nspecifically defined herein shall be construed in accordance with GAAP;
\nprovided, however, that if any changes in accounting principles from those used
\nin the preparation of the financial statements referred to in Section 4.01(c)
\ndated September 30, 1999 hereafter occur by reason of the promulgation of rules,
\nregulations, pronouncements, opinions or other requirements of the Financial
\nAccounting Standards Board or the American Institute of Certified Public
\nAccountants (or successors thereto or agencies with similar functions) and
\nresult in a change in the method of calculation of financial covenants or the
\nterms related thereto contained in this Agreement, the Borrower shall, at its
\noption, (i) furnish to the Administrative Agent, together with each delivery of
\nthe consolidated financial statements of the Borrower and its subsidiaries
\nrequired to be delivered pursuant to Section 5.01(e), a written reconciliation
\nsetting forth the differences that would have resulted if such financial
\nstatements had been prepared utilizing accounting principles and policies in
\nconformity with those used to prepare the financial statements referred to in
\nSection 4.01(c) dated September 30, 1999 or (ii) enter into negotiations with
\nthe Administrative Agent and the Lenders to amend such financial covenants or
\nterms equitably to reflect such changes so that the criteria for evaluating the
\nfinancial condition of the Borrower and its subsidiaries shall be the same after
\nsuch changes as if such changes had not been made; provided, however, that at
\nall times in the case of clause (i) above, and in the case of clause (ii) above
\nuntil the amendment referred to in such clause (ii) becomes effective, all
\ncovenants and related calculations under this Agreement shall be performed,
\nobserved and determined as though no such changes in accounting principles had
\nbeen made.<\/p>\n
ARTICLE II
\n AMOUNTS AND TERMS OF THE ADVANCES<\/p>\n
SECTION 2.01. The Advances. Each Lender severally agrees, on the
\n ————
\nterms and conditions hereinafter set forth, to make Advances to the Borrower
\nfrom time to time on any Business Day during the period from the Effective Date
\nuntil the Termination Date in an aggregate amount (based in respect of any
\nAdvances denominated in a Committed Currency on the Equivalent in Dollars
\ndetermined on the date of delivery of the applicable Notice of Borrowing) not to
\nexceed at any time outstanding the Dollar amount set forth opposite such
\nLender’s name on the signature pages hereof or, if such Lender has become a
\nLender hereunder pursuant to an Assumption Agreement, the Dollar amount set
\nforth as the Commitment of such Lender in such Assumption Agreement or, if such
\nLender has entered into an Assignment and Acceptance, the Dollar amount set
\nforth for such Lender in the Register maintained by the Administrative Agent
\npursuant to Section 8.07(c), as such amount may be reduced pursuant to Section
\n2.04 or increased pursuant to Section 2.19 (such Lender’s “Commitment”). Each
\nBorrowing shall be in an aggregate amount of $5,000,000 or an integral multiple
\nof $1,000,000 in excess thereof (or the Equivalent thereof in any Committed
\nCurrency determined on the date of delivery of the applicable Notice of
\nBorrowing) and shall consist of Advances of the same Type made on the same day
\nby the Lenders ratably according to their respective Commitments. Within the
\nlimits of each Lender’s Commitment, the Borrower from time to time may borrow
\nunder this Section 2.01, prepay pursuant to Section 2.10 and reborrow under this
\nSection 2.01.<\/p>\n
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be made
\n ——————-
\non notice, given not later than (x) 11:00 A.M. (New York City time) on the same
\nBusiness Day as the date of a proposed Borrowing comprised of Base Rate
\nAdvances, (y) 11:00 A.M. (New York City time) on the third Business Day prior to
\nthe date of a proposed Borrowing comprised of Eurocurrency Rate Advances
\ndenominated in any Committed Currency, or (z) 1:00 P.M. (New York City time) on
\nthe third Business Day prior to the date of a proposed Borrowing comprised of
\nEurocurrency Rate Advances denominated in <\/p>\n
11<\/p>\n
Dollars, by the Borrower to the Administrative Agent (and, in the case of a
\nBorrowing consisting in Eurocurrency Rate Advances denominated in any Committed
\nCurrency, simultaneously to the Sub-Agent), which shall give to each Lender
\nprompt notice thereof by telecopier or telex. Each such notice of a Borrowing (a
\n“Notice of Borrowing”) shall be by telecopier or telex, or by telephone,
\nconfirmed immediately by telecopier or telex, in substantially the form of
\nExhibit A hereto, specifying therein the requested (i) date of such Borrowing
\n(which shall be a Business Day), (ii) Type of Advances comprising such
\nBorrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a
\nBorrowing comprised of Eurocurrency Rate Advances, initial Interest Period and
\ncurrency for each such Advance. Each Lender shall, before (A) 11:00 A.M. (New
\nYork City time) on the date of such Borrowing consisting of Advances denominated
\nin Dollars or (B) 11:00 A.M. (London time) on the date of such Borrowing
\nconsisting of Advances denominated in any Committed Currency, make available for
\nthe account of its Applicable Lending Office to the Administrative Agent at the
\nAdministrative Agent’s (or the Sub-Agent’s, as the case may be) Account, in same
\nday funds, such Lender’s ratable portion of such Borrowing. After the
\nAdministrative Agent’s receipt of such funds and upon fulfillment of the
\napplicable conditions set forth in Article III, the Administrative Agent will
\nmake such funds available to the Borrower at the office where the Administrative
\nAgent’s (or Sub-Agent’s, as the case may be) Account is maintained.<\/p>\n
(b) Anything in subsection (a) above or Section 2.01 to the contrary
\nnotwithstanding, the Borrower may not select Eurocurrency Rate Advances for any
\nBorrowing if the aggregate amount of such Borrowing is less than $20,000,000 (or
\nthe Equivalent thereof in any Committed Currency determined on the date of
\ndelivery of the applicable Notice of Borrowing) or if the obligation of the
\nLenders to make Eurocurrency Rate Advances shall be suspended at such time
\npursuant to Section 2.08.<\/p>\n
(c) Each Notice of Borrowing shall be irrevocable and binding on the
\nBorrower. In the case of any Borrowing which the related Notice of Borrowing
\nspecifies as to be comprised of Eurocurrency Rate Advances, the Borrower shall
\nindemnify each Lender against any loss, cost or expense incurred by such Lender
\nas a result of any failure to fulfill on or before the date specified in such
\nNotice of Borrowing for such Borrowing the applicable conditions set forth in
\nArticle III, including, without limitation, any loss, cost or expense incurred
\nby reason of the liquidation or redeployment of deposits or other funds acquired
\nby such Lender to fund the Advance to be made by such Lender as part of such
\nBorrowing when such Advance, as a result of such failure, is not made on such
\ndate.<\/p>\n
(d) Unless the Administrative Agent shall have received notice from a
\nLender prior to the date of any Borrowing that such Lender will not make
\navailable to the Administrative Agent such Lender’s ratable portion of such
\nBorrowing, the Administrative Agent may assume that such Lender has made such
\nportion available to the Administrative Agent on the date of such Borrowing in
\naccordance with subsection (a) of this Section 2.02 and the Administrative Agent
\nmay, in reliance upon such assumption, make available to the Borrower on such
\ndate a corresponding amount. If and to the extent that any Lender shall not
\nhave so made such ratable portion available to the Administrative Agent, such
\nLender agrees to pay to the Administrative Agent forthwith on demand such
\ncorresponding amount together with interest thereon, for each day from the date
\nsuch amount is made available to the Borrower until the date such amount is paid
\nto the Administrative Agent, at (A) the Federal Funds Rate in the case of
\nAdvances denominated in Dollars or (B) the cost of funds incurred by the
\nAdministrative Agent in respect of such amount in the case of Advances
\ndenominated in Committed Currencies; provided, however, that (i) within two
\nBusiness Days after any Lender shall fail to make such ratable portion available
\nto the Administrative Agent, the Administrative Agent shall notify the Borrower
\nof such failure and (ii) if such Lender shall not have paid such corresponding
\namount to the Administrative Agent within two Business Days after such demand is
\nmade of such Lender by the Administrative Agent, the Borrower agrees to repay to
\nthe Administrative Agent forthwith, upon demand by the Administrative Agent to
\nthe Borrower, such corresponding amount together with interest thereon, for each
\nday from the date such <\/p>\n
12<\/p>\n
amount is made available to the Borrower until the date such amount is repaid to
\nthe Administrative Agent, at the interest rate applicable at the time to
\nAdvances comprising such Borrowing. If and to the extent such corresponding
\namount shall be paid by such Lender to the Administrative Agent in accordance
\nwith this Section 2.02(d), such amount so paid shall constitute such Lender’s
\nAdvance as part of such Borrowing for all purposes of this Agreement.<\/p>\n
(e) The failure of any Lender to make the Advance to be made by it as
\npart of any Borrowing shall not relieve any other Lender of its obligation, if
\nany, hereunder to make its Advance on the date of such Borrowing, but no Lender
\nshall be responsible for the failure of any other Lender to make the Advance to
\nbe made by such other Lender on the date of any Borrowing.<\/p>\n
SECTION 2.03. Fees. (a) The Borrower agrees to pay to each Lender a
\n —-
\nfacility fee on the average daily amount (whether used or unused) of such
\nLender’s Commitment from the Effective Date, in the case of each Initial Lender,
\nand from the later of (a) the Effective Date and (b) the effective date
\nspecified in the Assumption Agreement or the Assignment and Acceptance pursuant
\nto which it became a Lender, in the case of each other Lender, until, in each
\ncase, the Termination Date, payable quarterly in arrears on the first Business
\nDay of each January, April, July and October during the term of such Lender’s
\nCommitment, commencing April 3, 2000, and on the Termination Date, at the rate
\nper annum equal to the Facility Fee Percentage in effect from time to time.<\/p>\n
(b) Utilization Fee. With respect to every day on which the sum of
\n —————
\nall outstanding Advances is equal to or greater than 50% of the aggregate amount
\nof all Commitments, the Borrower agrees to pay to the Agent for the account of
\neach Lender a utilization fee based on the daily aggregate amount of such
\nLender’s Commitment, calculated on a daily basis and payable quarterly in
\narrears at a rate per annum (the “Utilization Fee Rate”) equal at all times to
\n ——————–
\n.05%.<\/p>\n
SECTION 2.04. Reduction of the Commitments. The Borrower shall have
\n —————————-
\nthe right, upon at least three Business Days’ notice to the Administrative
\nAgent, to terminate in whole or reduce ratably in part the unused portions of
\nthe respective Commitments of the Lenders, provided that each partial reduction
\nshall be in the aggregate amount of $5,000,000 or an integral multiple of
\n$1,000,000 in excess thereof. Once terminated, such Commitments may not be
\nreinstated.<\/p>\n
SECTION 2.05. Repayment of Advances. The Borrower shall repay to
\n ———————
\neach Lender on the Termination Date the aggregate principal amount of the
\nAdvances owing to such Lender on such date.<\/p>\n
SECTION 2.06. Interest on Advances. (a) Scheduled Interest. The
\n ——————– ——————
\nBorrower shall pay to each Lender interest on the unpaid principal amount of
\neach Advance owing to such Lender from the date of such Advance until such
\nprincipal amount shall be paid in full, at the following rates per annum:<\/p>\n
(i) Base Rate Advances. During such periods as such Advance is a Base
\n ——————
\n Rate Advance, a rate per annum equal at all times to the remainder of (A)
\n the Base Rate in effect from time to time minus (B) the Facility Fee
\n Percentage in effect from time to time minus (C) the Utilization Fee Rate,
\n to the extent that any Utilization Fee is payable pursuant to Section
\n 2.03(b) during such period, payable quarterly in arrears on the first
\n Business Day of each January, April, July and October and during such
\n periods and on the date such Base Rate Advance shall be Converted or paid
\n in full.<\/p>\n
(ii) Eurocurrency Rate Advances. During such periods as such Advance
\n ————————–
\n is a Eurocurrency Rate Advance, a rate per annum equal at all times during
\n each Interest Period for such Advance to the sum of (A) the Eurocurrency
\n Rate for such Interest Period for such Advance and (B) the Eurocurrency
\n Rate Margin in effect from time to time, payable in arrears on the last<\/p>\n
13<\/p>\n
day of such Interest Period and, if such Interest Period has a duration of
\n more than three months, on the date which occurs three months and, if
\n applicable, six months, nine months and twelve months after the first day
\n of such Interest Period and on the date such Eurocurrency Rate Advance
\n shall be Converted or paid in full.<\/p>\n
(b) Default Interest. The Borrower shall pay interest on the unpaid
\n —————-
\nprincipal amount of each Advance that is not paid when due and on the unpaid
\namount of all interest, fees and other amounts payable hereunder that is not
\npaid when due, payable on demand, at a rate per annum equal at all times to (i)
\nin the case of any amount of principal, the greater of (x) 2% per annum above
\nthe rate per annum required to be paid on such Advance immediately prior to the
\ndate on which such amount became due and (y) 2% per annum above the Base Rate in
\neffect from time to time and (ii) to the fullest extent permitted by law, in the
\ncase of all other amounts, 2% per annum above the Base Rate in effect from time
\nto time.<\/p>\n
SECTION 2.07. Additional Interest on Eurocurrency Rate Advances. The
\n ————————————————-
\nBorrower shall pay to each Lender, so long as such Lender shall be required
\nunder regulations of the Board of Governors of the Federal Reserve System to
\nmaintain reserves with respect to liabilities or assets consisting of or
\nincluding Eurocurrency Liabilities, additional interest on the unpaid principal
\namount of each Eurocurrency Rate Advance of such Lender, from the date of such
\nAdvance until such principal amount is paid in full, at an interest rate per
\nannum equal at all times to the remainder obtained by subtracting (i) the
\nEurocurrency Rate for the applicable Interest Period for such Advance from (ii)
\nthe rate obtained by dividing such Eurocurrency Rate by a percentage equal to
\n100% minus the Eurocurrency Rate Reserve Percentage of such Lender for such
\nInterest Period, payable on each date on which interest is payable on such
\nAdvance. Such additional interest shall be determined by such Lender and
\nnotified in reasonable detail to the Borrower through the Administrative Agent.<\/p>\n
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
\n —————————
\nagrees to furnish to the Administrative Agent timely information for the purpose
\nof determining each Eurocurrency Rate. If any one or more of the Reference
\nBanks shall not furnish such timely information to the Administrative Agent for
\nthe purpose of determining such interest rate, the Administrative Agent shall
\ndetermine such interest rate on the basis of timely information furnished by the
\nremaining Reference Banks.<\/p>\n
(b) The Administrative Agent shall give prompt notice to the Borrower
\nand the Lenders of the applicable interest rate determined by the Administrative
\nAgent for purposes of Section 2.06(a)(i) or (a)(ii), and the rate, if any,
\nfurnished by each Reference Bank for the purpose of determining the applicable
\ninterest rate under Section 2.06(a)(ii).<\/p>\n
(c) If fewer than two Reference Banks furnish timely information to
\nthe Administrative Agent for purposes of determining the Eurocurrency Rate for
\nany Eurocurrency Rate Advances, (i) the Administrative Agent shall forthwith
\nnotify the Borrower and the Lenders that the interest rate cannot be determined
\nfor such Eurocurrency Rate Advances, (ii) each such Advance will automatically,
\non the last day of the then existing Interest Period therefor, Convert into a
\nBase Rate Advance (or, if such Advance is then a Base Rate Advance, will
\ncontinue as a Base Rate Advance), and (iii) the obligation of the Lenders to
\nmake, or to Convert Advances into, Eurocurrency Rate Advances shall be suspended
\nuntil the Administrative Agent shall notify the Borrower and the Lenders that
\nthe circumstances causing such suspension no longer exist.<\/p>\n
(d) If, with respect to any Eurocurrency Rate Advances, the Majority
\nLenders notify the Administrative Agent that (i) they are unable to obtain
\nmatching deposits in the London inter-bank market at or about 11:00 A.M. (London
\ntime) on the second Business Day before the making of a <\/p>\n
14<\/p>\n
Borrowing in sufficient amounts to fund their respective Eurocurrency Rate
\nAdvances as a part of such Borrowing during its Interest Period or (ii) the
\nEurocurrency Rate for any Interest Period for such Advances will not adequately
\nreflect the cost to such Majority Lenders (which cost each such Majority Lender
\nreasonably determines in good faith is material) of making, funding or
\nmaintaining their respective Eurocurrency Rate Advances for such Interest
\nPeriod, the Administrative Agent shall forthwith so notify the Borrower and the
\nLenders, whereupon, unless the Eurocurrency Rate Margin shall be increased to
\nreflect such costs as determined by such Majority Lenders and as agreed by the
\nBorrower, (A) the obligation of the Lenders to make, or to Convert Base Rate
\nAdvances into, Eurocurrency Rate Advances shall be suspended until the
\nAdministrative Agent shall notify the Borrower and the Lenders that the
\ncircumstances causing such suspension no longer exist, and (B) the Borrower
\nwill, on the last day of the then existing Interest Period therefor, (1) if such
\nEurocurrency Rate Advances are denominated in Dollars, either (x) prepay such
\nAdvances or (y) Convert such Advances into Base Rate Advances and (2) if such
\nEurocurrency Rate Advances are denominated in any Committed Currency, either (x)
\nprepay such Advances or (y) redenominate such Advances into an Equivalent amount
\nof Dollars and Convert such Advances into Base Rate Advances. The Administrative
\nAgent shall use reasonable efforts to determine from time to time whether the
\ncircumstances causing such suspension no longer exist and, promptly after the
\nAdministrative Agent knows that the circumstances causing such suspension no
\nlonger exist, the Administrative Agent shall so notify the Borrower and the
\nLenders.<\/p>\n
(e) If the Borrower shall fail to select the duration of any Interest
\nPeriod for any Eurocurrency Rate Advances in accordance with the provisions
\ncontained in the definition of “Interest Period” in Section 1.01, the
\nAdministrative Agent will forthwith so notify the Borrower and the Lenders and
\nsuch Advances will automatically, on the last day of the then existing Interest
\nPeriod therefor, (i) if such Eurocurrency Rate Advances are denominated in
\nDollars, be Converted into Base Rate Advances and (ii) if such Eurocurrency Rate
\nAdvances are denominated in a Committed Currency, be redenominated into an
\nEquivalent amount of Dollars and be Converted into Base Rate Advances.<\/p>\n
(f) On the date on which the aggregate unpaid principal amount of
\nEurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
\nor prepayment or otherwise, to less than $20,000,000, such Eurocurrency Rate
\nAdvances shall automatically Convert into Base Rate Advances and, on and after
\nsuch date, the right of the Borrower to Convert such Advances into Eurocurrency
\nRate Advances shall terminate; provided, however, that if and so long as each
\nsuch Eurocurrency Rate Advance shall have the same Interest Period as
\nEurocurrency Rate Advances comprising another Borrowing or Borrowings, and the
\naggregate unpaid principal amount of all such Eurocurrency Rate Advances shall
\nequal or exceed $20,000,000, the Borrower shall have the right to continue all
\nsuch Eurocurrency Rate Advances as, or to Convert all such Advances into,
\nEurocurrency Rate Advances having such Interest Period.<\/p>\n
(g) Upon the occurrence and during the continuance of any Event of
\nDefault under Section 6.01(a), (i) each Eurocurrency Rate Advance will
\nautomatically, on the last day of the then existing Interest Period therefor,
\n(A) if such Eurocurrency Rate Advances are denominated in Dollars, be Converted
\ninto Base Rate Advances and (B) if such Eurocurrency Rate Advances are
\ndenominated in any Committed Currency, be redenominated into an Equivalent
\namount of Dollars and be Converted into Base Rate Advances and (ii) the
\nobligation of the Lenders to make, or to Convert Advances into, Eurocurrency
\nRate Advances shall be suspended.<\/p>\n
SECTION 2.09. Optional Conversion of Advances. The Borrower may on
\n ——————————-
\nany Business Day, upon notice given to the Administrative Agent not later than
\n(i) 11:00 A.M. (New York City time) on the same Business Day as the date of the
\nproposed Conversion in the case of a Conversion of Eurocurrency Rate Advances
\ninto Base Rate Advances, and (ii) 1:00 P.M. (New York City time) on the third
\nBusiness Day prior to the date of the proposed Conversion in the case of a
\nConversion of Base Rate <\/p>\n
15<\/p>\n
Advances into Eurocurrency Rate Advances or Eurocurrency Rate Advances of one
\nInterest Period into Eurocurrency Rate Advances of another Interest Period, as
\nthe case may be, and subject to the provisions of Sections 2.08, 2.09 and 2.12,
\nConvert all Advances denominated in Dollars of one Type comprising the same
\nBorrowing into Advances denominated in Dollars of the other Type; provided,
\nhowever, that any Conversion of any Eurocurrency Rate Advances into Base Rate
\nAdvances or into Eurocurrency Rate Advances of another Interest Period shall be
\nmade on, and only on, the last day of an Interest Period for such Eurocurrency
\nRate Advances. Promptly upon receipt from the Borrower of a notice of a proposed
\nConversion hereunder, the Administrative Agent shall give notice of such
\nproposed Conversion to each Lender. Each such notice of a Conversion shall,
\nwithin the restrictions set forth above, specify (x) the date of such Conversion
\n(which shall be a Business Day), (y) the Advances to be Converted, and (z) if
\nsuch Conversion is into Eurocurrency Rate Advances, the duration of the initial
\nInterest Period for each such Advance. The Borrower may Convert all Eurocurrency
\nRate Advances of any one Lender into Base Rate Advances of such Lender in
\naccordance with the provisions of Section 2.12 by complying with the procedures
\nset forth therein and in this Section 2.09 as though each reference in this
\nSection 2.09 to Advances denominated in Dollars of any Type was to such Advances
\nof such Lender. Each such notice of Conversion shall, subject to the provisions
\nof Sections 2.08 and 2.12, be irrevocable and binding on the Borrower.<\/p>\n
SECTION 2.10. Prepayments of Advances. (a) Optional. The Borrower
\n ———————– ——–
\nmay, upon not less than (i) the same Business Day’s notice to the Administrative
\nAgent received not later than 11:00 A.M. (New York City time) in the case of
\nBorrowings consisting of Base Rate Advances, (ii) three Business Days’ notice to
\nthe Administrative Agent received not later than 11:00 A.M. (New York City time)
\nin the case of Borrowings consisting of Eurocurrency Rate Advances denominated
\nin any Committed Currency, or (iii) three Business Days’ notice to the
\nAdministrative Agent received not later than 1:00 P.M. (New York City time) in
\nthe case of Borrowings consisting of Eurocurrency Rate Advances denominated in
\nDollars, stating the proposed date and aggregate principal amount of the
\nprepayment, and if such notice is given the Borrower shall, prepay the
\noutstanding principal amounts of the Advances constituting part of the same
\nBorrowings in whole or ratably in part, together with accrued interest to the
\ndate of such prepayment on the principal amount prepaid; provided, however, that
\n(x) each partial prepayment shall be in an aggregate principal amount of
\n$1,000,000 or an integral multiple of $1,000,000 in excess thereof (or the
\nEquivalent thereof in a Committed Currency determined on the date notice of
\nprepayment is given), and (y) in the case of any such prepayment of Eurocurrency
\nRate Advances, the Borrower shall be obligated to reimburse the Lenders in
\nrespect thereof pursuant to Section 8.04(b).<\/p>\n
(b) Mandatory. (i) If, the Administrative Agent notifies the
\n ———
\nBorrower in writing that, on any date, the sum of (A) the aggregate principal
\namount of all Advances denominated in Dollars then outstanding and (B) the
\nEquivalent in Dollars (determined on the third Business Day prior to such date)
\nof the aggregate principal amount of all Advances denominated in Committed
\nCurrencies then outstanding exceeds 102% of the aggregate Commitments of the
\nLenders on such date, the Borrower shall, within two Business Days after receipt
\nof such notice, prepay the outstanding principal amount of any Advances owing by
\nthe Borrower in an aggregate amount sufficient to reduce such sum to an amount
\nnot to exceed 100% of the aggregate Commitments of the Lenders on such date as
\nset forth in written notice from the Administrative Agent to the Borrower
\npursuant to the terms hereof.<\/p>\n
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be
\nmade together with any interest accrued to the date of such prepayment on the
\nprincipal amounts prepaid and, in the case of any prepayment of a Eurocurrency
\nRate Advance on a date other than the last day of an Interest Period, with any
\nadditional amounts which the Borrower shall be obligated to reimburse to the
\nLenders in respect thereof pursuant to Section 8.04(b). The Administrative
\nAgent shall give prompt notice of any prepayment required under this Section
\n2.10(b) to the Borrower and the Lenders.<\/p>\n
16<\/p>\n
SECTION 2.11. Increased Costs. (a) If after the date hereof, due to
\n —————
\neither (i) the introduction of or any change (other than any change by way of
\nimposition or increase of reserve requirements included in the Eurocurrency Rate
\nReserve Percentage) in or in the interpretation of any law or regulation or (ii)
\nthe compliance with any hereafter promulgated guideline or request from any
\ncentral bank or other governmental authority, including, without limitation, any
\nagency of the European Union or similar monetary or multinational authority
\n(whether or not having the force of law), there shall be any increase in the
\ncost (excluding any allocation of corporate overhead) to any Lender (which cost
\nsuch Lender reasonably determines in good faith is material) of agreeing to make
\nor making, funding or maintaining Eurocurrency Rate Advances, then such Lender
\nshall so notify the Borrower promptly after such Lender knows of such increased
\ncost and determines that such cost is material and the Borrower shall from time
\nto time, upon demand by such Lender (with a copy of such demand to the
\nAdministrative Agent), pay to the Administrative Agent for the account of such
\nLender additional amounts sufficient to compensate such Lender for such
\nincreased cost. A certificate of such Lender as to the amount of such increased
\ncost in reasonable detail and stating the basis upon which such amount has been
\ncalculated and certifying that such Lender’s method of allocating such costs is
\nfair and reasonable and that such Lender’s demand for payment of such costs
\nhereunder is not inconsistent with its treatment of other borrowers which, as a
\ncredit matter, are substantially similar to the Borrower and which are subject
\nto similar provisions, submitted to the Borrower and the Administrative Agent by
\nsuch Lender, shall be conclusive and binding for all purposes, absent manifest
\nerror.<\/p>\n
(b) If, after the date hereof, either (i) the introduction of or
\nchange in or in the interpretation of any law or regulation or (ii) the
\ncompliance by any Lender with any hereafter promulgated guideline or request
\nfrom any central bank or other governmental authority, including, without
\nlimitation, any agency of the European Union or similar monetary or
\nmultinational authority (whether or not having the force of law), affects or
\nwould affect the amount of capital required or expected to be maintained by such
\nLender or any corporation controlling such Lender and the amount of such capital
\nis materially increased by or based upon the existence of such Lender’s
\ncommitment to lend hereunder and other commitments of this type, then such
\nLender shall so notify the Borrower promptly after such Lender makes such
\ndetermination and, upon demand by such Lender (with a copy of such demand to the
\nAdministrative Agent), the Borrower shall pay to such Lender within five days
\nfrom the date of such demand, from time to time as specified by such Lender,
\nadditional amounts sufficient to compensate such Lender or such corporation in
\nthe light of such circumstances, to the extent that such Lender reasonably
\ndetermines such increase in capital to be allocable to the existence of such
\nLender’s commitment to lend hereunder. A certificate of such Lender as to such
\namount in reasonable detail and stating the basis upon which such amount has
\nbeen calculated and certifying that such Lender’s method of allocating such
\nincrease of capital is fair and reasonable and that such Lender’s demand for
\npayment of such increase of capital hereunder is not inconsistent with its
\ntreatment of other borrowers which, as a credit matter, are substantially
\nsimilar to the Borrower and which are subject to similar provisions, submitted
\nto the Borrower and the Administrative Agent by such Lender, shall be conclusive
\nand binding for all purposes, absent manifest error.<\/p>\n
(c) The Borrower shall not be obligated to pay under this Section 2.11
\nany amounts which relate to costs or increases of capital incurred prior to the
\n12 months immediately preceding the date of demand for payment of such amounts,
\nunless the applicable law, regulation, guideline or request resulting in such
\ncosts or increases of capital is imposed retroactively. In the case of any law,
\nregulation, guideline or request which is imposed retroactively, the Lender
\nmaking demand for payment of any amount under this Section 2.11 shall notify the
\nBorrower not later than 12 months from the date that such Lender should
\nreasonably have known of such law, regulation, guideline or request and the
\nBorrower’s obligation to compensate such Lender for such amount is contingent
\nupon such Lender’s so notifying the Borrower; provided, however, that any
\nfailure by such Lender to provide such notice shall not affect the Borrower’s
\nobligations under this Section 2.11 with respect to amounts resulting from costs
\nor increases <\/p>\n
17<\/p>\n
of capital incurred after the date which occurs 12 months immediately preceding
\nthe date on which such Lender notified the Borrower of such law, regulation,
\nguideline or request.<\/p>\n
(d) If any Lender shall subsequently recoup any costs (other than from
\nthe Borrower) for which such Lender has theretofore been compensated by the
\nBorrower under this Section 2.11, such Lender shall remit to the Borrower an
\namount equal to the amount of such recoupment. Amounts required to be paid by
\nthe Borrower pursuant to this Section 2.11 shall be paid in addition to, and
\nwithout duplication of, any amounts required to be paid pursuant to Section
\n2.14.<\/p>\n
SECTION 2.12. Illegality. Notwithstanding any other provision of this
\n ———-
\nAgreement, if any Lender shall notify the Administrative Agent that the
\nintroduction of or any change in or in the interpretation of any law or
\nregulation after the date hereof makes it unlawful, or any central bank or other
\ngovernmental authority asserts that it is unlawful, for any Lender or its
\nEurocurrency Lending Office to perform its obligations hereunder to make
\nEurocurrency Rate Advances in Dollars or any Committed Currency or to fund or
\nmaintain Eurocurrency Rate Advances in Dollars or any Committed Currency, (a)
\nthe obligation of such Lender to make, or to Convert Base Rate Advances into,
\nEurocurrency Rate Advances shall be suspended until such Lender shall notify the
\nAdministrative Agent, and the Administrative Agent shall notify the Borrower and
\nthe other Lenders (which notice shall be given promptly after the Administrative
\nAgent knows that the circumstances causing such suspension no longer exist) that
\nthe circumstances causing such suspension no longer exist, and (b) the Borrower
\nshall forthwith prepay in full all Eurocurrency Rate Advances of such Lender
\nthen outstanding, together with interest accrued thereon, unless the Borrower,
\nwithin five Business Days of notice from the Administrative Agent or, if
\npermitted by law, on and as of the last day of the then existing Interest Period
\nfor such Eurocurrency Rate Advances, (i) if such Eurocurrency Rate Advance is
\ndenominated in Dollars, Converts it into a Base Rate Advance or an Advance that
\nbears interest at the rate set forth in Section 2.06(a)(i), and (ii) if such
\nEurocurrency Rate Advance is denominated in any Committed Currency,
\nredenominates it into an Equivalent amount of Dollars and Converts it into a
\nBase Rate Advance or an Advance that bears interest at the rate set forth in
\nSection 2.06(a)(i).<\/p>\n
SECTION 2.13. Payments and Computations. (a) The Borrower shall
\n ————————-
\nmake each payment hereunder (and under the Notes, if any), except with respect
\nto principal of, interest on, and other amounts relating to, Advances
\ndenominated in a Committed Currency, not later than 11:00 A.M. (New York City
\ntime) on the day when due, in Dollars to the Administrative Agent at the
\nAdministrative Agent’s (or Sub-Agent’s) Account in same day funds. The Borrower
\nshall make each payment hereunder with respect to principal of, interest on, and
\nother amounts relating to, Advances denominated in a Committed Currency, not
\nlater than 11:00 A.M. (at the Payment Office for such Committed Currency) on the
\nday when due, in such Committed Currency to the Administrative Agent, by deposit
\nof such funds to the Administrative Agent’s (or Sub-Agent’s) Account in same day
\nfunds. The Administrative Agent will promptly thereafter cause to be
\ndistributed like funds relating to the payment of principal or interest or fees
\nratably (other than amounts payable pursuant to Sections 2.07, 2.11, 2.14, 8.04
\nand 8.08) to the Lenders for the account of their respective Applicable Lending
\nOffices, and like funds relating to the payment of any other amount payable to
\nany Lender to such Lender for the account of its Applicable Lending Office, in
\neach case to be applied in accordance with the terms of this Agreement. Upon
\nany Assuming Lender becoming a Lender hereunder as a result of a Commitment
\nIncrease pursuant to Section 2.19 or an extension of the Termination Date
\npursuant to Section 2.20, and upon the Administrative Agent’s receipt of such
\nLender’s Assumption Agreement and recording of the information contained therein
\nin the Register, from and after the applicable Increase Date or Extension Date,
\nas the case may be, the Administrative Agent shall make all payments hereunder
\nand under any Notes issued in connection therewith in respect of the interest
\nassumed thereby to the Assuming Lender. Upon its acceptance of an Assignment
\nand Acceptance and recording of the information contained therein in the
\nRegister pursuant to Section 8.07(d), from and after the effective date
\nspecified in such Assignment and Acceptance, the <\/p>\n
18<\/p>\n
Administrative Agent shall make all payments hereunder and under the Notes, if
\nany, issued in connection therewith in respect of the interest assigned thereby
\nto the Lender assignee thereunder, and the parties to such Assignment and
\nAcceptance shall make all appropriate adjustments in such payments for periods
\nprior to such effective date directly between themselves.<\/p>\n
(b) All computations of interest based on clause (a) or (b) of the
\ndefinition of “Base Rate” shall be made by the Administrative Agent on the basis
\nof a year of 365 or 366 days, as the case may be, and all computations of
\ninterest based on the Eurocurrency Rate or the Federal Funds Rate and of fees
\nshall be made by the Administrative Agent, and all computations of additional
\ninterest pursuant to Section 2.07 shall be made by a Lender, on the basis of a
\nyear of 360 days (or, in each case of Advances denominated in Committed
\nCurrencies where market practice differs, in accordance with such market
\npractice after notification of the Borrower), in each case for the actual number
\nof days (including the first day but excluding the last day) occurring in the
\nperiod for which such interest or fees are payable. Each determination by the
\nAdministrative Agent (or, in the case of Section 2.07, by a Lender) of an
\ninterest rate hereunder shall be conclusive and binding for all purposes, absent
\nmanifest error.<\/p>\n
(c) Whenever any payment hereunder or under the Notes, if any, shall
\nbe stated to be due on a day other than a Business Day, such payment shall be
\nmade on the next succeeding Business Day, and such extension of time shall in
\nsuch case be included in the computation of payment of interest or fees, as the
\ncase may be; provided, however, that if such extension would cause payment of
\ninterest on or principal of Eurocurrency Rate Advances to be made in the next
\nfollowing calendar month, such payment shall be made on the immediately
\npreceding Business Day.<\/p>\n
(d) Unless the Administrative Agent shall have received notice from
\nthe Borrower prior to the date on which any payment is due to the Lenders
\nhereunder that the Borrower will not make such payment in full, the
\nAdministrative Agent may assume that the Borrower has made such payment in full
\nto the Administrative Agent on such date and the Administrative Agent may, in
\nreliance upon such assumption, cause to be distributed to each Lender on such
\ndue date an amount equal to the amount then due such Lender. If and to the
\nextent that the Borrower shall not have so made such payment in full to the
\nAdministrative Agent, each Lender shall repay to the Administrative Agent
\nforthwith on demand such amount distributed to such Lender together with
\ninterest thereon, for each day from the date such amount is distributed to such
\nLender until the date such Lender repays such amount to the Administrative
\nAgent, at (i) the Federal Funds Rate in the case of Advances denominated in
\nDollars or (ii) the cost of funds incurred by the Administrative Agent in
\nrespect of such amount in the case of Advances denominated in Committed
\nCurrencies.<\/p>\n
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
\n —–
\nhereunder or under the Notes, if any, shall be made, in accordance with Section
\n2.13, free and clear of and without deduction for any and all present or future
\ntaxes, levies, imposts, deductions, charges or withholdings, and all liabilities
\nwith respect thereto, excluding, in the case of each Lender and the
\nAdministrative Agent, taxes imposed on its income, and franchise taxes imposed
\non it, by the jurisdiction under the laws of which such Lender or the
\nAdministrative Agent (as the case may be) is organized or any political
\nsubdivision thereof and, in the case of each Lender, taxes imposed on its
\nincome, and franchise taxes imposed on it, by the jurisdiction of such Lender’s
\nApplicable Lending Office or any political subdivision thereof or by any other
\njurisdiction in which such Lender or the Administrative Agent is doing business
\nthat is unrelated to this Agreement (all such non-excluded taxes, levies,
\nimposts, deductions, charges, withholdings and liabilities being hereinafter
\nreferred to as “Taxes”). If the Borrower shall be required by law to deduct any
\nTaxes from or in respect of any sum payable hereunder to any Lender or the
\nAdministrative Agent, (i) the sum payable shall be increased as may be necessary
\nso that after making all required deductions (including deductions applicable to
\nadditional sums payable under this Section 2.14) such Lender or the
\nAdministrative Agent (as the case may be) receives an amount equal to the sum it<\/p>\n
19<\/p>\n
would have received had no such deductions been made, (ii) the Borrower shall
\nmake such deductions and (iii) the Borrower shall pay the full amount deducted
\nto the relevant taxation authority or other authority in accordance with
\napplicable law.<\/p>\n
(b) In addition, the Borrower agrees to pay any present or future
\nstamp or documentary taxes or any other excise or property taxes, charges or
\nsimilar levies which arise from any payment made hereunder or under the Notes,
\nif any, or from the execution, delivery or registration of, or otherwise with
\nrespect to, this Agreement or the Notes, if any (hereinafter referred to as
\n“Other Taxes”).<\/p>\n
(c) The Borrower will indemnify each Lender and the Administrative
\nAgent for the full amount of Taxes or Other Taxes (including, without
\nlimitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
\npayable under this Section 2.14) paid by such Lender or the Administrative Agent
\n(as the case may be) and any liability (including penalties to the extent not
\nimposed as a result of such Lender’s or the Administrative Agent’s (as the case
\nmay be) gross negligence or willful misconduct, interest and expenses) arising
\ntherefrom or with respect thereto, whether or not such Taxes or Other Taxes were
\ncorrectly or legally asserted. This indemnification shall be made within 30
\ndays from the date such Lender or the Administrative Agent (as the case may be)
\nmakes written demand therefor.<\/p>\n
(d) Within 30 days after the date of any payment of Taxes, the
\nBorrower will furnish to the Administrative Agent, at its address referred to in
\nSection 8.02, the original or a certified copy of a receipt evidencing payment
\nthereof.<\/p>\n
(e) Each Lender that is not created or organized under the laws of the
\nUnited States or a political subdivision thereof shall deliver to the Borrower
\nand the Administrative Agent on or prior to the date of its execution and
\ndelivery of this Agreement, and each such Lender that is not a party hereto on
\nthe date hereof shall deliver to the Borrower and the Administrative Agent on or
\nprior to the date on which such Lender becomes a Lender pursuant to Section
\n2.19, 2.20 or 8.07 (as the case may be), a true and accurate certificate
\nexecuted in duplicate by a duly authorized officer of such Lender in
\nsubstantially the form set out in Exhibit D-1 or D-2 hereto, as applicable, to
\nthe effect that such Lender is eligible under the provisions of an applicable
\ntax treaty concluded by the United States (in which case the certificate shall
\nbe accompanied by two executed copies of IRS Form 1001 or W-8BEN (or any
\nsuccessor or substitute form or forms) of the Internal Revenue Service of the
\nUnited States (the “IRS”), or under Section 1441(c) or 1442 of the Internal
\nRevenue Code (in which case the certificate shall be accompanied by two copies
\nof IRS Form 4224 or W-8ECI (or any successor or substitute form or forms) of the
\nIRS, to receive, as of the date hereof or as of the date such party becomes a
\nLender hereto pursuant to Section 2.19, 2.20 or 8.07 (as the case may be), as
\nappropriate, payments hereunder without deduction or withholding of United
\nStates federal income tax. In addition, (1) each such Lender that provided a
\nForm 1001 or Form 4224 in accordance with the preceding sentence shall deliver
\nto the Borrower and the Administrative Agent a Form W-8BEN or Form W-8ECI,
\nrespectively, on or before December 31, 2000 to replace such Form 1001 or Form
\n4224 and (2) each such Lender that becomes a Lender hereunder after December 31,
\n2000 shall deliver to the Borrower and the Administrative Agent a Form W-8BEN or
\nForm W-8ECI, as applicable. Each such Lender further agrees to deliver to the
\nBorrower and the Administrative Agent from time to time, as reasonably requested
\nby the Borrower or the Administrative Agent, and in any case before or promptly
\nupon the occurrence of any events requiring a change in the most recent
\ncertificate previously delivered pursuant to this Section 2.14(e), a true and
\naccurate certificate executed in duplicate by a duly authorized officer of such
\nLender in substantially the form set out in Exhibit D-1 or D-2 hereto, as
\napplicable. Further, each Lender that delivers a certificate in the form set
\nout in Exhibit D-1 hereto agrees, to the extent permitted by law, to deliver to
\nthe Borrower and the Administrative Agent within 15 days prior to every third
\nanniversary of the date of delivery of the initial IRS Form 1001 or W-8BEN by
\nsuch Lender (or more often if required by law) on which this Agreement is still
\nin effect, two accurate and complete original signed copies of IRS Form W-8BEN
\n(or any <\/p>\n
20<\/p>\n
successor or substitute form or forms required under the Internal Revenue Code
\nor the applicable regulations promulgated thereunder) and a certificate in the
\nform set out in such Exhibit D-1, and each Lender that delivers a certificate in
\nthe form set out in Exhibit D-2 hereto agrees to deliver to the Borrower and the
\nAdministrative Agent, to the extent permitted by law, within 15 days prior to
\nevery third anniversary of the date of delivery of the initial IRS Form 4224 or
\nW-8ECI by such Lender (or more often if required by law) on which this Agreement
\nis still in effect, two accurate and complete original signed copies of IRS Form
\nW-ECI (or any successor or substitute form or forms required under the Internal
\nRevenue Code or the applicable regulations promulgated thereunder) and a
\ncertificate in the form of such Exhibit D-2. Each such certificate shall certify
\nas to one of the following:<\/p>\n
(i) that such Lender is eligible to receive payments hereunder
\n without deduction or withholding of United States federal income tax;<\/p>\n
(ii) that such Lender is not eligible to receive payments hereunder
\n without deduction or withholding of United States federal income tax as
\n specified therein but does not require additional payments therefor
\n pursuant to Section 2.14(a) or (c) because it is eligible and able to
\n recover the full amount of any such deduction or withholding from a source
\n other than the Borrower; or<\/p>\n
(iii) that such Lender is not eligible to receive payments hereunder
\n without deduction or withholding of United States federal income tax as
\n specified therein and that it is not eligible and able to recover the full
\n amount of the same from a source other than the Borrower.<\/p>\n
If any form or document referred to in this subsection (e) requires the
\ndisclosure of information, other than information necessary to compute the tax
\npayable and information required on the date hereof by IRS Form 1001(or W-8BEN)
\nor 4224 (or W-8ECI), that any Lender reasonably considers to be confidential,
\nsuch Lender promptly shall give notice thereof to the Borrower and the
\nAdministrative Agent and shall not be obligated to include in such form or
\ndocument such confidential information; provided that such Lender certifies to
\nthe Borrower that the failure to disclose such confidential information does not
\nincrease the obligations of the Borrower under this Section 2.14.<\/p>\n
(f) Without prejudice to the survival of any other agreement of the
\nBorrower hereunder, the agreements and obligations of the Borrower contained in
\nthis Section 2.14 shall survive the payment in full of principal and interest on
\nall Advances and the termination of this Agreement until such date as all
\napplicable statutes of limitations (including any extensions thereof) have
\nexpired with respect to such agreements and obligations of the Borrower
\ncontained in this Section 2.14.<\/p>\n
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
\n ————————
\nany payment (whether voluntary, involuntary, through the exercise of any right
\nof set-off, or otherwise) on account of the Advances made by it (other than
\npursuant to Section 2.07, 2.11, 2.14, 8.04 or 8.08) in excess of its ratable
\nshare of payments on account of the Advances obtained by all the Lenders, such
\nLender shall forthwith purchase from the other Lenders such participations in
\nthe Advances made by them as shall be necessary to cause such purchasing Lender
\nto share the excess payment ratably with each of them, provided, however, that
\nif all or any portion of such excess payment is thereafter recovered from such
\npurchasing Lender, such purchase from each Lender shall be rescinded and such
\nLender shall repay to the purchasing Lender the purchase price to the extent of
\nsuch recovery, together with an amount equal to such Lender’s ratable share
\n(according to the proportion of (i) the amount of such Lender’s required
\nrepayment to (ii) the total amount so recovered from the purchasing Lender) of
\nany interest or other amount paid or payable by the purchasing Lender in respect
\nof the total amount so recovered. The Borrower agrees that any Lender so
\npurchasing a participation from another Lender pursuant to this <\/p>\n
21<\/p>\n
Section 2.15 may, to the fullest extent permitted by law, exercise all its
\nrights of payment (including the right of set-off) with respect to such
\nparticipation as fully as if such Lender were the direct creditor of the
\nBorrower in the amount of such participation.<\/p>\n
SECTION 2.16. Mandatory Assignment by a Lender; Mitigation. If any
\n ——————————————–
\nLender requests from the Borrower either payment of additional interest on
\nEurocurrency Rate Advances pursuant to Section 2.07, or reimbursement for
\nincreased costs pursuant to Section 2.11, or payment of or reimbursement for
\nTaxes pursuant to Section 2.14, or if any Lender notifies the Administrative
\nAgent that it is unlawful for such Lender or its Eurocurrency Lending Office to
\nperform its obligations hereunder pursuant to Section 2.12, (i) such Lender
\nwill, upon three Business Days’ notice by the Borrower to such Lender and the
\nAdministrative Agent, to the extent not inconsistent with such Lender’s internal
\npolicies and applicable legal and regulatory restrictions, use reasonable
\nefforts to make, fund or maintain its Eurocurrency Rate Advances through another
\nEurocurrency Lending Office of such Lender if (A) as a result thereof the
\nadditional amounts required to be paid pursuant to Section 2.07, 2.11 or 2.14,
\nas applicable, in respect of such Eurocurrency Rate Advances would be materially
\nreduced or the provisions of Section 2.12 would not apply to such Lender, as
\napplicable, and (B) as determined by such Lender in good faith but in its sole
\ndiscretion, the making or maintaining of such Eurocurrency Rate Advances through
\nsuch other Eurocurrency Lending Office would not otherwise materially and
\nadversely affect such Eurocurrency Rate Advances or such Lender and (ii) unless
\nsuch Lender has theretofore taken steps to remove or cure, and has removed or
\ncured, the conditions creating such obligation to pay such additional amounts or
\nthe circumstances described in Section 2.12, the Borrower may designate an
\nEligible Assignee to purchase for cash (pursuant to an Assignment and
\nAcceptance) all, but not less than all, of the Advances then owing to such
\nLender and all, but not less than all, of such Lender’s rights and obligations
\nhereunder, without recourse to or warranty by, or expense to, such Lender, for a
\npurchase price equal to the outstanding principal amount of each such Advance
\nthen owing to such Lender plus any accrued but unpaid interest thereon and any
\naccrued but unpaid fees owing thereto and, in addition, (A) all additional cost
\nreimbursements, expense reimbursements and indemnities, if any, owing in respect
\nof such Lender’s Commitment hereunder, and all other accrued and unpaid amounts
\nowing to such Lender hereunder, at such time shall be paid to such Lender and
\n(B) if such Eligible Assignee is not otherwise a Lender at such time, the
\napplicable processing and recordation fee under Section 8.07(a) for such
\nassignment shall have been paid.<\/p>\n
SECTION 2.17. Evidence of Debt. (a) Each Lender shall maintain in
\n —————-
\naccordance with its usual practice an account or accounts evidencing the
\nindebtedness of the Borrower to such Lender resulting from each Advance owing to
\nsuch Lender from time to time, including the amounts of principal and interest
\npayable and paid to such Lender from time to time hereunder. The Borrower
\nagrees that upon notice by any Lender to the Borrower (with a copy of such
\nnotice to the Administrative Agent) to the effect that a promissory note or
\nother evidence of indebtedness is required or appropriate in order for such
\nLender to evidence (whether for purposes of pledge, enforcement or otherwise)
\nthe Advances owing to, or to be made by, such Lender, the Borrower shall
\npromptly execute and deliver to such Lender a promissory note or other evidence
\nof indebtedness, in form and substance reasonably satisfactory to the Borrower
\nand such Lender (each a “Note”), payable to the order of such Lender in a
\nprincipal amount equal to the Commitment of such Lender; provided, however, that
\nthe execution and delivery of such promissory note or other evidence of
\nindebtedness shall not be a condition precedent to the making of any Advance
\nunder this Agreement.<\/p>\n
(b) The Register maintained by the Administrative Agent pursuant to
\nSection 8.07(c) shall include a control account, and a subsidiary account for
\neach Lender, in which accounts (taken together) shall be recorded (i) the date
\nand amount of each Borrowing made hereunder, the Type of Advances and currencies
\ncomprising such Borrowing and, if appropriate, the Interest Period applicable
\nthereto, (ii) the terms of each Assumption Agreement and each Assignment and
\nAcceptance delivered to <\/p>\n
22<\/p>\n
and accepted by it, (iii) the amount of any principal or interest due and
\npayable or to become due and payable from the Borrower to each Lender hereunder,
\nand (iv) the amount of any sum received by the Administrative Agent from the
\nBorrower hereunder and each Lender’s share thereof.<\/p>\n
(c) Entries made in good faith by the Administrative Agent in the
\nRegister pursuant to subsection (b) above, and by each Lender in its account or
\naccounts pursuant to subsection (a) above, shall be prima facie evidence of the
\namount of principal and interest due and payable or to become due and payable
\nfrom the Borrower to, in the case of the Register, each Lender and, in the case
\nof such account or accounts, such Lender, under this Agreement, absent manifest
\nerror; provided, however, that the failure of the Administrative Agent or such
\nLender to make an entry, or any finding that an entry is incorrect, in the
\nRegister or such account or accounts shall not limit or otherwise affect the
\nobligations of the Borrower under this Agreement.<\/p>\n
SECTION 2.18. Use of Proceeds. The proceeds of the Advances shall be
\n —————
\navailable (and the Borrower agrees that it shall use such proceeds) to support
\nthe obligations of the Borrower in respect of commercial paper issued by the
\nBorrower and\/or for other general corporate purposes of the Borrower and its
\nsubsidiaries.<\/p>\n
SECTION 2.19. Increase in the Aggregate Commitments. (a) The
\n ————————————-
\nBorrower may, at any time but in any event not more than once in any calendar
\nyear prior to the Termination Date, by notice to the Administrative Agent,
\nrequest that the aggregate amount of the Commitments be increased by an amount
\nof $100,000,000 or an integral multiple of $5,000,000 in excess thereof (each a
\n“Commitment Increase”) to be effective as of a date that is at least 90 days
\nprior to the scheduled Termination Date then in effect (the “Increase Date”) as
\nspecified in the related notice to the Administrative Agent; provided, however,
\nthat (i) in no event shall the aggregate amount of the Commitments at any time
\nexceed $5,000,000,000, (ii) on the date of any request by the Borrower for a
\nCommitment Increase and at all times thereafter to and including the related
\nIncrease Date, the Public Debt Rating shall be at least A- by S&P and at least
\nA3 by Moody’s and (iii) no Event of Default, or event that with the giving of
\nnotice or passage of time or both would constitute an Event of Default, shall
\nhave occurred and be continuing as of the date of such request or as of the
\napplicable Increase Date, or shall occur as a result thereof.<\/p>\n
(b) The Administrative Agent shall promptly notify the Lenders of a
\nrequest by the Borrower for a Commitment Increase, which notice shall include
\n(i) the proposed amount of such requested Commitment Increase, (ii) the proposed
\nIncrease Date and (iii) the date by which Lenders wishing to participate in the
\nCommitment Increase must commit to an increase in the amount of their respective
\nCommitments (the “Commitment Date”). Each Lender that is willing to participate
\nin such requested Commitment Increase (each an “Increasing Lender”) shall give
\nwritten notice to the Administrative Agent on or prior to the Commitment Date of
\nthe amount by which it is willing to increase its Commitment. If the Lenders
\nnotify the Administrative Agent that they are willing to increase the amount of
\ntheir respective Commitments by an aggregate amount that exceeds the amount of
\nthe requested Commitment Increase, the requested Commitment Increase shall be
\nallocated among the Lenders willing to participate therein in such amounts as
\nare agreed between the Borrower and the Administrative Agent.<\/p>\n
(c) Promptly following each Commitment Date, the Administrative Agent
\nshall notify the Borrower as to the amount, if any, by which the Lenders are
\nwilling to participate in the requested Commitment Increase. If the aggregate
\namount by which the Lenders are willing to participate in any requested
\nCommitment Increase on any such Commitment Date is less than the requested
\nCommitment Increase, then the Borrower may extend offers to one or more Eligible
\nAssignees to participate in any portion of the requested Commitment Increase
\nthat has not been committed to by the <\/p>\n
23<\/p>\n
Lenders as of the applicable Commitment Date; provided, however, that the
\nCommitment of each such Eligible Assignee shall be in an amount of $25,000,000
\nor an integral multiple of $1,000,000 in excess thereof.<\/p>\n
(d) On each Increase Date, each Eligible Assignee that accepts an
\noffer to participate in a requested Commitment Increase in accordance with
\nSection 2.19(c) (each such Eligible Assignee and each Eligible Assignee that
\nagrees to an extension of the Termination Date in accordance with Section
\n2.20(c), an “Assuming Lender”) shall become a Lender party to this Agreement as
\nof such Increase Date and the Commitment of each Increasing Lender for such
\nrequested Commitment Increase shall be so increased by such amount (or by the
\namount allocated to such Lender pursuant to the last sentence of Section
\n2.19(b)) as of such Increase Date; provided, however, that the Administrative
\nAgent shall have received on or before such Increase Date the following, each
\ndated such date:<\/p>\n
(i) (A) certified copies of resolutions of the Board of Directors of
\n the Borrower or the Executive Committee of such Board approving the
\n Commitment Increase and the corresponding modifications to this Agreement
\n and (B) an opinion of counsel for the Borrower (which may be in-house
\n counsel), in substantially the form of Exhibit C hereto;<\/p>\n
(ii) an assumption agreement from each Assuming Lender, if any, in
\n form and substance satisfactory to the Borrower and the Administrative
\n Agent (each an “Assumption Agreement”), duly executed by such Eligible
\n Assignee, the Administrative Agent and the Borrower; and<\/p>\n
(iii) confirmation from each Increasing Lender of the increase in
\n the amount of its Commitment in a writing satisfactory to the Borrower and
\n the Administrative Agent.<\/p>\n
On each Increase Date, upon fulfillment of the conditions set forth in the
\nimmediately preceding sentence of this Section 2.19(d), the Administrative Agent
\nshall notify the Lenders (including, without limitation, each Assuming Lender)
\nand the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or
\ntelex, of the occurrence of the Commitment Increase to be effected on such
\nIncrease Date and shall record in the Register the relevant information with
\nrespect to each Increasing Lender and each Assuming Lender on such date.<\/p>\n
SECTION 2.20. Extension of Termination Date. (a) At least 45 days
\n —————————–
\nbut not more than 75 days prior to the next Anniversary Date, the Borrower, by
\nwritten notice to the Administrative Agent, may request an extension of the
\nTermination Date in effect at such time by one calendar year from its then
\nscheduled expiration; provided, however, that, if the Borrower does not request
\nan extension of the Termination Date in a timely manner prior to any Anniversary
\nDate it may, but shall not be obligated to, request that the Termination Date be
\nextended for two consecutive calendar years from its then scheduled expiration
\nby making a request therefor in a timely manner prior to the next succeeding
\nAnniversary Date. The Administrative Agent shall promptly notify each Lender of
\nsuch request, and each Lender shall in turn, in its sole discretion, not later
\nthan 30 days prior to such next Anniversary Date, notify the Borrower and the
\nAdministrative Agent in writing as to whether such Lender will consent to such
\nextension. If any Lender shall fail to notify the Administrative Agent and the
\nBorrower in writing of its consent to any such request for extension of the
\nTermination Date at least 30 days prior to the next Anniversary Date, such
\nLender shall be deemed to be a Declining Lender with respect to such request.
\nThe Administrative Agent shall notify the Borrower not later than 25 days prior
\nto such next Anniversary Date of the decision of the Lenders regarding the
\nBorrower’s request for an extension of the Termination Date.<\/p>\n
(b) If all of the Lenders consent in writing to any such request in
\naccordance with subsection (a) of this Section 2.20, the Termination Date in
\neffect at such time shall, effective as at such <\/p>\n
24<\/p>\n
next Anniversary Date (the “Extension Date”), be extended for one calendar year
\nor two calendar years, as properly requested; provided that on each Extension
\nDate, no Event of Default, or event that with the giving of notice or passage of
\ntime or both would constitute an Event of Default, shall have occurred and be
\ncontinuing, or shall occur as a consequence thereof. If less than all of the
\nLenders consent in writing to any such request in accordance with subsection (a)
\nof this Section 2.20, the Termination Date in effect at such time shall,
\neffective as at the applicable Extension Date, be extended as to those Lenders
\nthat so consented (each an “Extending Lender”) but shall not be extended as to
\nany other Lender (each a “Declining Lender”). To the extent that the Termination
\nDate is not extended as to any Lender pursuant to this Section 2.20 and the
\nCommitment of such Lender is not assumed in accordance with subsection (c) of
\nthis Section 2.20 on or prior to the applicable Extension Date, the Commitment
\nof such Declining Lender shall automatically terminate in whole on such
\nunextended Termination Date without any further notice or other action by the
\nBorrower, such Lender or any other Person; provided that such Declining Lender’s
\nrights under Sections 2.11, 2.14, 8.04 and 8.08, and its obligations under
\nSection 7.05, shall survive the Termination Date for such Lender as to matters
\noccurring prior to such date. It is understood and agreed that no Lender shall
\nhave any obligation whatsoever to agree to any request made by the Borrower for
\nany requested extension of the Termination Date.<\/p>\n
(c) If less than all of the Lenders consent to any such request
\npursuant to subsection (a) of this Section 2.20, the Borrower may arrange for
\none or more Extending Lenders or other Eligible Assignees as Assuming Lenders to
\nassume, effective as of the Extension Date, any Declining Lender’s Commitment
\nand all of the obligations of such Declining Lender under this Agreement
\nthereafter arising, without recourse to or warranty by, or expense to, such
\nDeclining Lender; provided, however, that the amount of the Commitment of any
\nsuch Assuming Lender as a result of such substitution shall in no event be less
\nthan $25,000,000 unless the amount of the Commitment of such Declining Lender is
\nless than $25,000,000, in which case such Assuming Lender shall assume all of
\nsuch lesser amount; and provided further that:<\/p>\n
(i) any such Extending Lender or Assuming Lender shall have paid to
\n such Declining Lender (A) the aggregate principal amount of, and any
\n interest accrued and unpaid to the effective date of the assignment on, the
\n outstanding Advances, if any, of such Declining Lender plus (B) any accrued
\n but unpaid fees owing to such Declining Lender as of the effective date of
\n such assignment;<\/p>\n
(ii) all additional costs reimbursements, expense reimbursements and
\n indemnities payable to such Declining Lender, and all other accrued and
\n unpaid amounts owing to such Declining Lender hereunder, as of the
\n effective date of such assignment shall have been paid to such Declining
\n Lender; and<\/p>\n
(iii) with respect to any such Assuming Lender, the applicable
\n processing and recordation fee required under Section 8.07(a) for such
\n assignment shall have been paid;<\/p>\n
provided further that such Declining Lender’s rights under Sections 2.11, 2.14,
\n8.04 and 8.08, and its obligations under Section 7.05, shall survive such
\nsubstitution as to matters occurring prior to the date of substitution. At
\nleast three Business Days prior to any Extension Date, (A) each such Assuming
\nLender, if any, shall have delivered to the Borrower and the Administrative
\nAgent an Assumption Agreement, duly executed by such Assuming Lender, such
\nDeclining Lender, the Borrower and the Administrative Agent, (B) any such
\nExtending Lender shall have delivered confirmation in writing satisfactory to
\nthe Borrower and the Administrative Agent as to the increase in the amount of
\nits Commitment and (C) each Declining Lender being replaced pursuant to this
\nSection 2.20 shall have delivered to the Administrative Agent any Note or Notes
\nheld by such Declining Lender. Upon the payment or prepayment of all amounts
\nreferred to in clauses (i), (ii) and (iii) of the immediately preceding
\nsentence, each such <\/p>\n
25<\/p>\n
Extending Lender or Assuming Lender, as of the Extension Date, will be
\nsubstituted for such Declining Lender under this Agreement and shall be a Lender
\nfor all purposes of this Agreement, without any further acknowledgment by or the
\nconsent of the other Lenders, and the obligations of each such Declining Lender
\nhereunder shall, by the provisions hereof, be released and discharged.<\/p>\n
(d) If all of the Extending and Assuming Lenders (after giving effect
\nto any assignments and assumptions pursuant to subsection (c) of this Section
\n2.20) consent in writing to a requested extension (whether by written consent
\npursuant to subsection (a) of this Section 2.20, by execution and delivery of an
\nAssumption Agreement or otherwise) not later than one Business Day prior to such
\nExtension Date, the Administrative Agent shall so notify the Borrower, and, so
\nlong as no Event of Default, or event that with the giving of notice or passage
\nof time or both would constitute an Event of Default, shall have occurred and be
\ncontinuing as of such Extension Date, or shall occur as a consequence thereof,
\nthe Termination Date then in effect shall be extended for the additional one-
\nyear period or two-year period, as the case may be, as described in subsection
\n(a) of this Section 2.20, and all references in this Agreement, and in the
\nNotes, if any, to the “Termination Date” shall, with respect to each Extending
\nLender and each Assuming Lender for such Extension Date, refer to the
\nTermination Date as so extended. Promptly following each Extension Date, the
\nAdministrative Agent shall notify the Lenders (including, without limitation,
\neach Assuming Lender) of the extension of the scheduled Termination Date in
\neffect immediately prior thereto and shall thereupon record in the Register the
\nrelevant information with respect to each such Extending Lender and each such
\nAssuming Lender.<\/p>\n
ARTICLE III
\n CONDITIONS OF EFFECTIVENESS AND LENDING<\/p>\n
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
\n —————————————————–
\nSection 2.01 of this Agreement shall become effective on and as of the first
\ndate (the “Effective Date”) on which all of the following conditions precedent
\nhave been satisfied or waived in accordance with Section 8.01:<\/p>\n
(a) the Administrative Agent shall have received on or before the
\n Effective Date the following, each dated the Effective Date, in form and
\n substance satisfactory to the Administrative Agent: (i) certified copies
\n of the resolutions of the Board of Directors of the Borrower or the
\n Executive Committee of such Board authorizing the execution and delivery of
\n this Agreement, and approving all documents evidencing other necessary
\n corporate action and governmental approvals, if any, with respect to this
\n Agreement; (ii) a certificate of the Secretary or an Assistant Secretary of
\n the Borrower certifying the name and true signature of the officer of the
\n Borrower executing this Agreement on its behalf; (iii) an opinion of David
\n K. Thompson, Esq., Senior Vice President-Assistant General Counsel of the
\n Borrower, in substantially the form of Exhibit C hereto; and (iv) an
\n opinion of Shearman & Sterling, counsel for the Administrative Agent.<\/p>\n
(b) all consents and approvals of any governmental or regulatory
\n authority and any other third party necessary in connection with this
\n Agreement or the consummation of the transactions contemplated hereby shall
\n have been obtained and shall remain in effect.<\/p>\n
(c) there shall have occurred no material adverse change in the
\n business, financial condition or operations of the Borrower and its
\n subsidiaries, taken as a whole, since September 30, 1999, except as
\n disclosed in reports filed by the Borrower and its subsidiaries, if any,
\n during the period from September 30, 1999 to the date of this Agreement
\n pursuant to Section 13 of the Securities Exchange Act of 1934, as amended,
\n copies of which have been furnished to the Initial Lenders prior to the
\n date of this Agreement.<\/p>\n
26<\/p>\n
(d) the Borrower shall have paid or prepaid all amounts owing under
\n the Existing Credit Agreement, and all commitments of the lenders
\n thereunder shall have been terminated.<\/p>\n
(e) the Borrower shall have notified each Lender and the
\n Administrative Agent in writing as to the proposed Effective Date at least
\n three Business Days prior to the occurrence thereof.<\/p>\n
(f) all of the representations and warranties contained in Section
\n 4.01 shall be correct in all material respects on and as of the Effective
\n Date, before and after giving effect to such date, as though made on and as
\n of the Effective Date (except to the extent that such representations and
\n warranties relate to an earlier date, in which case such representations
\n and warranties shall have been correct in all material respects on and as
\n of such earlier date).<\/p>\n
(g) no event shall have occurred and be continuing, or shall result
\n from the occurrence of the Effective Date, that constitutes an Event of
\n Default or would constitute an Event of Default but for the requirement
\n that notice be given or time elapse or both.<\/p>\n
SECTION 3.02. Conditions Precedent to Each Borrowing. The obligation
\n ————————————–
\nof each Lender to make an Advance on the occasion of each Borrowing (including
\nthe initial Borrowing) shall be subject to the further conditions precedent that
\nthe Effective Date shall have occurred and on the date of such Borrowing the
\nfollowing statements shall be true (and each of the giving of the applicable
\nNotice of Borrowing and the acceptance by the Borrower of the proceeds of such
\nBorrowing shall constitute a representation and warranty by the Borrower that on
\nthe date of such Borrowing such statements are true):<\/p>\n
(a) the representations and warranties contained in Section 4.01 are
\n true and correct in all material respects on and as of the date of such
\n Borrowing, before and after giving effect to such Borrowing and to the
\n application of the proceeds therefrom, as though made on and as of such
\n date (except to the extent that such representations and warranties relate
\n to an earlier date, in which case such representations and warranties shall
\n have been correct in all material respects on and as of such earlier date);
\n and<\/p>\n
(b) no event has occurred and is continuing, or would result from such
\n Borrowing or from the application of the proceeds therefrom, which
\n constitutes an Event of Default or would constitute an Event of Default but
\n for the requirement that notice be given or time elapse or both.<\/p>\n
SECTION 3.03. Determinations Under Section 3.01. For purposes of
\n ———————————
\ndetermining compliance with the conditions specified in Section 3.01, each
\nLender shall be deemed to have consented to, approved or accepted or to be
\nsatisfied with each document or other matter required thereunder to be consented
\nto or approved by or acceptable or satisfactory to the Lenders unless an officer
\nof the Administrative Agent responsible for the transactions contemplated by
\nthis Agreement shall have received notice from such Lender prior to the date
\nthat the Borrower, by notice to the Lenders, designates as the proposed
\nEffective Date, specifying its objection thereto. The Administrative Agent
\nshall promptly notify the Lenders of the occurrence of the Effective Date.<\/p>\n
ARTICLE IV
\n REPRESENTATIONS AND WARRANTIES<\/p>\n
SECTION 4.01. Representations and Warranties of the Borrower. The
\n ———————————————-
\nBorrower represents and warrants as of the Effective Date and from time to time
\nthereafter as required under this Agreement as follows:<\/p>\n
27<\/p>\n
(a) The Borrower is a corporation duly organized, validly existing and
\n in good standing under the laws of the State of Delaware. The Borrower and
\n each of the Significant Subsidiaries are duly qualified and in good
\n standing as foreign corporations authorized to do business in each
\n jurisdiction (other than the respective jurisdictions of their
\n incorporation) in which the nature of their respective activities or the
\n character of the properties they own or lease make such qualification
\n necessary and in which the failure so to qualify would have a material
\n adverse effect on the financial condition or operations of the Borrower and
\n its subsidiaries, taken as a whole.<\/p>\n
(b) The execution, delivery and performance by the Borrower of this
\n Agreement and each of the Notes, if any, delivered hereunder are within the
\n Borrower’s corporate powers, have been duly authorized by all necessary
\n corporate action, and do not contravene (i) the Borrower’s charter or by-
\n laws or (ii) any law, rule, regulation, order, writ, judgment, injunction,
\n decree, determination or award or any material contractual restriction
\n binding on or affecting the Borrower, Disney or ABC; no authorization or
\n approval or other action by, and no notice to or filing with, any
\n governmental authority or regulatory body is required for the due
\n execution, delivery and performance by the Borrower of this Agreement or
\n the Notes, if any; and this Agreement is and each of the Notes, when
\n delivered hereunder, will be the legal, valid and binding obligation of the
\n Borrower, enforceable against the Borrower in accordance with their
\n respective terms, subject to applicable bankruptcy, reorganization,
\n insolvency, moratorium or similar laws affecting creditors’ rights
\n generally and general principles of equity.<\/p>\n
(c) The Borrower’s most recent annual report on Form 10-K containing
\n the consolidated balance sheet of the Borrower and its subsidiaries, and
\n the related consolidated statements of income and of cash flows of the
\n Borrower and its subsidiaries, copies of which have been furnished to each
\n Lender pursuant to Section 5.01(e)(ii), fairly present the consolidated
\n financial condition of the Borrower and its subsidiaries as at the date of
\n such balance sheet and the consolidated results of operations of the
\n Borrower and its subsidiaries for the fiscal year ended on such date, all
\n in accordance with generally accepted accounting principles consistently
\n applied.<\/p>\n
(d) There is no pending or, to the Borrower’s knowledge, threatened
\n claim, action or proceeding affecting the Borrower or any of its
\n subsidiaries which could reasonably be expected to adversely affect the
\n financial condition or operations of the Borrower and its subsidiaries,
\n taken as a whole, or which could reasonably be expected to affect the
\n legality, validity or enforceability of this Agreement; and to the
\n Borrower’s knowledge, the Borrower and each of its subsidiaries have
\n complied, and are in compliance, with all applicable laws, rules,
\n regulations, permits, orders, consent decrees and judgments, except for any
\n such matters which have not had, and would not reasonably be expected to
\n have, a material adverse effect on the financial condition or operations of
\n the Borrower and its subsidiaries, taken as a whole.<\/p>\n
(e) The Borrower and the ERISA Affiliates have not incurred and are
\n not reasonably expected to incur any material liability in connection with
\n their Single Employer Plans or Multiple Employer Plans, other than ordinary
\n liabilities for benefits; neither the Borrower nor any ERISA Affiliate has
\n incurred or is reasonably expected to incur any material withdrawal
\n liability (as defined in Part I of Subtitle E of Title IV of ERISA) to any
\n Multiemployer Plan; and no Multiemployer Plan of the Borrower or any ERISA
\n Affiliate is reasonably expected to be in reorganization or to be
\n terminated, within the meaning of Title IV of ERISA.<\/p>\n
SECTION 4.02. Additional Representations and Warranties of the
\nBorrower as of Each Increase Date and Each Extension Date. The Borrower
\nrepresents and warrants on each Increase Date <\/p>\n
28<\/p>\n
and each Extension Date (and at no other time) that, as of each such date, the
\nfollowing statements shall be true:<\/p>\n
(a) there has been no material adverse change in the business,
\n financial condition or operations of the Borrower and its subsidiaries,
\n taken as a whole, since the date of the audited financial statements of the
\n Borrower and its subsidiaries most recently delivered to the Lenders
\n pursuant to Section 5.01(e)(ii) prior to the applicable Increase Date or
\n Extension Date, as the case may be (except as disclosed in periodic or
\n other reports filed by the Borrower and its subsidiaries pursuant to
\n Section 13 of the Securities Exchange Act of 1934, as amended, during the
\n period from the date of the most recently delivered audited financial
\n statements of the Borrower and its subsidiaries pursuant to Section
\n 5.01(e)(ii) to the date of the request for an increase in the aggregate
\n Commitments related to such Increase Date or for an extension of the
\n Termination Date then in effect related to such Extension Date, as the case
\n may be); and<\/p>\n
(b) the representations and warranties contained in Section 4.01 are
\n correct in all material respects on and as of such date, as though made on
\n and as of such date (except to the extent that such representations and
\n warranties relate to an earlier date, in which case such representations
\n and warranties shall have been correct in all material respects on and as
\n of such earlier date).<\/p>\n
ARTICLE V
\n COVENANTS OF THE BORROWER<\/p>\n
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
\n ———————
\nremain unpaid or any Lender shall have any Commitment hereunder, the Borrower
\nwill, unless the Majority Lenders shall otherwise consent in writing:<\/p>\n
(a) Compliance with Laws, Etc. Comply, and cause each of its
\n ————————-
\n subsidiaries to comply, in all material respects with all applicable laws,
\n rules, regulations, permits, orders, consent decrees and judgments binding
\n on the Borrower and its subsidiaries the failure with which to comply would
\n have a material adverse effect on the financial condition or operations of
\n the Borrower and its subsidiaries, taken as a whole.<\/p>\n
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
\n ———————
\n subsidiaries to pay and discharge, before the same shall become delinquent,
\n if the failure to so pay and discharge would have a material adverse effect
\n on the financial condition or operations of the Borrower and its
\n subsidiaries, taken as a whole, (i) all taxes, assessments and governmental
\n charges or levies imposed upon it or upon its property, and (ii) all lawful
\n claims which, if unpaid, will by law become a Lien upon its property;
\n provided, however, that neither the Borrower nor any of its subsidiaries
\n shall be required to pay or discharge any such tax, assessment, charge,
\n levy or claim which is being contested in good faith and by proper
\n proceedings and as to which appropriate reserves are being maintained in
\n accordance with GAAP.<\/p>\n
(c) Preservation of Corporate Existence, Etc. Subject to Section
\n —————————————-
\n 5.02(a), preserve and maintain, and cause each of Disney and ABC to
\n preserve and maintain, its corporate existence, rights (charter and
\n statutory) and franchises; provided, however, that none of the Borrower,
\n Disney or ABC shall be required to preserve any right or franchise if the
\n loss thereof would not have a material adverse effect on the business,
\n financial condition or operations of the Borrower and its subsidiaries,
\n taken as a whole; and provided further, however, that neither Disney nor
\n ABC shall be required to preserve its corporate existence if the loss
\n thereof would not <\/p>\n
29<\/p>\n
have a material adverse effect on the business, financial condition or
\n operations of the Borrower and its subsidiaries, taken as a whole.<\/p>\n
(d) Maintenance of Interest Coverage Ratio. Maintain as of the last
\n ————————————–
\n day of each fiscal quarter of the Borrower, commencing with the first
\n fiscal quarter of the Borrower following the Effective Date, a ratio of (i)
\n Consolidated EBITDA for the Measurement Period ending on such day to (ii)
\n Consolidated Interest Expense for the Measurement Period ending on such
\n day, of not less than 3 to 1.<\/p>\n
(e) Reporting Requirements. Furnish to the Administrative Agent, on
\n ———————-
\n behalf of the Lenders:<\/p>\n
(i) as soon as available and in any event within 50 days after
\n the end of each of the first three quarters of each fiscal year of the
\n Borrower, a copy of the Borrower’s quarterly report to shareholders on
\n Form 10-Q as filed with the Securities and Exchange Commission (the
\n “SEC”), in each case containing a consolidated balance sheet of the
\n Borrower and its subsidiaries as of the end of such quarter and
\n consolidated statements of income and of cash flows of the Borrower
\n and its subsidiaries for the period commencing at the end of the
\n previous fiscal year and ending with the end of such quarter, and a
\n certificate of any of the Borrower’s Chairman of the Board of
\n Directors, President, Chief Financial Officer, Treasurer, Assistant
\n Treasurer or Controller (A) stating that no Event of Default, or event
\n that with the giving of notice or passage of time or both would
\n constitute an Event of Default, has occurred and is continuing and (B)
\n containing a schedule which shall set forth the computations used by
\n the Borrower in determining compliance with the covenant contained in
\n Section 5.01(d);<\/p>\n
(ii) as soon as soon as available and in any event within 100
\n days after the end of each fiscal year of the Borrower, a copy of the
\n Borrower’s annual report to shareholders on Form 10-K as filed with
\n the SEC, in each case containing consolidated financial statements of
\n the Borrower and its subsidiaries for such year and a certificate of
\n any of the Borrower’s Chairman of the Board of Directors, President,
\n Chief Financial Officer, Treasurer, Assistant Treasurer or Controller
\n (A) stating that no Event of Default, or event that with the giving of
\n notice or passage of time or both would constitute an Event of
\n Default, has occurred and is continuing and (B) containing a schedule
\n which shall set forth the computations used by the Borrower in
\n determining compliance with the covenant contained in Section 5.01(d);<\/p>\n
(iii) promptly after the Borrower obtains actual knowledge of
\n the occurrence of each Event of Default, and each event that with the
\n giving of notice or passage of time or both would constitute an Event
\n of Default, a statement of any of the Borrower’s Chairman of the Board
\n of Directors, President, Chief Financial Officer, Treasurer, Assistant
\n Treasurer or Controller setting forth details of such Event of Default
\n or event continuing on the date of such statement, and the action
\n which the Borrower has taken and proposes to take with respect
\n thereto;<\/p>\n
(iv) promptly after the commencement thereof, notice of any
\n actions, suits and proceedings before any court or governmental
\n department, commission, board, bureau, agency or instrumentality,
\n domestic or foreign, affecting the Borrower or any of its subsidiaries
\n of the type described in Section 4.01(d);<\/p>\n
30<\/p>\n
(v) promptly after the Borrower obtains actual knowledge
\n thereof, written notice of any pending or threatened Environmental
\n Claim against the Borrower or any of its subsidiaries or any of their
\n respective properties which could reasonably be expected to materially
\n and adversely affect the financial condition or operations of the
\n Borrower and its subsidiaries, taken as a whole;<\/p>\n
(vi) promptly after the Borrower obtains actual knowledge of
\n the occurrence of any ERISA Event which could reasonably be expected
\n to materially and adversely affect the financial condition or
\n operations of the Borrower and its subsidiaries, taken as a whole, a
\n statement of any of the Borrower’s Chairman of the Board of Directors,
\n President, Chief Financial Officer, Treasurer, Assistant Treasurer or
\n Controller describing such ERISA Event and the action, if any, which
\n the Borrower has taken and proposes to take with respect thereto;<\/p>\n
(vii) promptly after receipt thereof by the Borrower or any
\n ERISA Affiliate from the sponsor of a Multiemployer Plan, a copy of
\n each notice received by the Borrower or any ERISA Affiliate concerning
\n (A) the imposition of withdrawal liability (as defined in Part I of
\n Subtitle E of Title IV of ERISA) by a Multiemployer Plan, which
\n withdrawal liability could reasonably be expected to materially and
\n adversely affect the financial condition or operations of the Borrower
\n and its subsidiaries, taken as a whole, (B) the reorganization or
\n termination, within the meaning of Title IV of ERISA, of any
\n Multiemployer Plan, which reorganization or termination could
\n reasonably be expected to materially adversely affect the financial
\n condition or operations of the Borrower and its subsidiaries, taken as
\n a whole, or (C) the amount of liability incurred, or which may be
\n incurred, by the Borrower or any ERISA Affiliate in connection with
\n any event described in subclause (vii)(A) or (vii)(B) above; and<\/p>\n
(viii) such other material information reasonably related to
\n any Lender’s credit analysis of the Borrower or any of its
\n subsidiaries as any Lender through the Administrative Agent may from
\n time to time reasonably request.<\/p>\n
SECTION 5.02. Negative Covenant. So long as any Advance shall remain
\n —————–
\nunpaid or any Lender shall have any Commitment hereunder, the Borrower will not,
\nwithout the written consent of the Majority Lenders:<\/p>\n
(a) Mergers, Etc. Merge or consolidate with or into, or convey,
\n ————
\n transfer, lease or otherwise dispose of (whether in one transaction or in a
\n series of transactions) all or substantially all of the assets of the
\n Borrower and its subsidiaries, taken as a whole (whether now owned or
\n hereafter acquired), to, any Person, or permit any of its subsidiaries to
\n do so, unless (i) immediately after giving effect to such proposed
\n transaction, no Event of Default or event which, with the giving of notice
\n or lapse of time, or both, would constitute an Event of Default would exist
\n and (ii) in the case of any such merger to which the Borrower is a party,
\n the Borrower is the surviving corporation or the Person into which the
\n Borrower shall be merged or formed by any such consolidation shall be a
\n corporation organized and existing under the laws of the United States or
\n any State thereof and shall assume the Borrower’s obligations hereunder and
\n under the Notes, if any, in an agreement or instrument reasonably
\n satisfactory in form and substance to the Majority Lenders.<\/p>\n
ARTICLE VI
\n EVENTS OF DEFAULT<\/p>\n
31<\/p>\n
SECTION 6.01. Events of Default. If any of the following events
\n —————–
\n(“Events of Default”) shall occur and be continuing:<\/p>\n
(a) The Borrower shall fail to pay any principal of any Advance when
\n the same becomes due and payable; or the Borrower shall fail to pay any
\n interest on any Advance or any fee or other amount payable under this
\n Agreement, in each case within three Business Days after such interest, fee
\n or other amount becomes due and payable; or<\/p>\n
(b) Any representation or warranty made by the Borrower herein or by
\n the Borrower (or any of its officers) delivered in writing and identified
\n as delivered in connection with this Agreement shall prove to have been
\n incorrect in any material respect when made; or<\/p>\n
(c) The Borrower shall fail to perform or observe any covenant
\n contained in Section 5.01(d), Section 5.01(e)(iii) or Section 5.02; or<\/p>\n
(d) The Borrower shall fail to perform or observe any other term,
\n covenant or agreement contained in this Agreement on its part to be
\n performed or observed if the failure to perform or observe such other term,
\n covenant or agreement shall remain unremedied for 30 days after written
\n notice thereof shall have been given to the Borrower by the Administrative
\n Agent or any Lender; or<\/p>\n
(e) The Borrower or any of its subsidiaries shall fail to pay any
\n principal of or premium or interest on any Debt which is outstanding in a
\n principal amount of at least $250,000,000 in the aggregate (but excluding
\n Debt arising hereunder) of the Borrower or such subsidiary (as the case may
\n be), when the same becomes due and payable (whether by scheduled maturity,
\n required prepayment, acceleration, demand or otherwise), and such failure
\n (i) shall continue after the applicable grace period, if any, specified in
\n the agreement or instrument relating to such Debt and (ii) shall not have
\n been cured or waived; or any other event shall occur or condition shall
\n exist under any agreement or instrument relating to any such Debt and shall
\n continue after the applicable grace period, if any, specified in such
\n agreement or instrument, if the effect of such event or condition is to
\n accelerate, or to permit the acceleration of, the maturity of such Debt; or
\n any such Debt shall be declared to be due and payable, or required to be
\n prepaid (other than by a regularly scheduled required prepayment),
\n redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or
\n defease such Debt shall be required to be made, in each case prior to the
\n stated maturity thereof; or<\/p>\n
(f) The Borrower or any Material Subsidiary shall generally not pay
\n its debts as such debts become due, or shall admit in writing its inability
\n to pay its debts generally, or shall make a general assignment for the
\n benefit of creditors; or any proceeding shall be instituted by or against
\n the Borrower or any Material Subsidiary seeking to adjudicate it a bankrupt
\n or insolvent, or seeking liquidation, winding up, reorganization,
\n arrangement, adjustment, protection, relief, or composition of it or its
\n debts under any law relating to bankruptcy, insolvency or reorganization or
\n relief of debtors, or seeking the entry of an order for relief or the
\n appointment of a receiver, trustee, custodian or other similar official for
\n it or for substantially all of its property and, in the case of any such
\n proceeding instituted against it (but not instituted by it), either such
\n proceeding shall remain undismissed or unstayed for a period of 60 days or
\n any of the actions sought in such proceeding (including, without
\n limitation, the entry of an order for relief against, or the appointment of
\n a receiver, trustee, custodian or other similar official for, it or for any
\n substantial part of its property) shall occur; or the Borrower or any
\n Material Subsidiary shall take any corporate action to authorize any of the
\n actions set forth above in this subsection (f); or<\/p>\n
32<\/p>\n
(g) Any money judgment, writ or warrant of attachment or similar
\n process against the Borrower, any Material Subsidiary or any of their
\n respective assets involving in any case an amount in excess of $100,000,000
\n is entered and shall remain undischarged, unvacated, unbonded or unstayed
\n for a period of 30 days or, in any case, within five days of any pending
\n sale or disposition of any asset pursuant to any such process;<\/p>\n
then, and in any such event, the Administrative Agent (i) shall at the request,
\nor may with the consent, of the Majority Lenders, by notice to the Borrower,
\ndeclare the obligation of each Lender to make Advances to be terminated,
\nwhereupon the same shall forthwith terminate, and (ii) shall at the request, or
\nmay with the consent, of the Majority Lenders, by notice to the Borrower,
\ndeclare the Advances, all interest thereon and all other amounts payable under
\nthis Agreement to be forthwith due and payable, whereupon the Advances, all such
\ninterest and all such amounts shall become and be forthwith due and payable,
\nwithout presentment, demand, protest or further notice of any kind, all of which
\nare hereby expressly waived by the Borrower; provided, however, that in the
\nevent of an actual or deemed entry of an order for relief with respect to the
\nBorrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
\nmake Advances shall automatically be terminated and (B) the Advances, all such
\ninterest and all such amounts shall automatically become and be due and payable,
\nwithout presentment, demand, protest or notice of any kind, all of which are
\nhereby expressly waived by the Borrower.<\/p>\n
ARTICLE VII
\n THE ADMINISTRATIVE AGENT<\/p>\n
SECTION 7.01. Authorization and Action. (a) Each Lender hereby
\n ————————
\nappoints and authorizes the Administrative Agent to take such action as agent on
\nits behalf and to exercise such powers under this Agreement as are delegated to
\nthe Administrative Agent by the terms hereof, together with such powers as are
\nreasonably incidental thereto. As to any matters not expressly provided for by
\nthis Agreement (including, without limitation, enforcement of this Agreement or
\ncollection of the Advances), the Administrative Agent shall not be required to
\nexercise any discretion or take any action, but shall be required to act or to
\nrefrain from acting (and shall be fully protected in so acting or refraining
\nfrom acting) upon the instructions of the Majority Lenders, and such
\ninstructions shall be binding upon all Lenders and all holders of Notes;
\nprovided, however, that the Administrative Agent shall not be required to take
\nany action which exposes the Administrative Agent to personal liability or which
\nis contrary to this Agreement or applicable law. The Administrative Agent
\nagrees to give to each Lender prompt notice of each notice given to it by the
\nBorrower pursuant to the terms of this Agreement.<\/p>\n
(b) The Co-Documentation Agents shall have no duties under this
\nAgreement other than those afforded to them in their capacities as Lenders, and
\neach Lender hereby acknowledges that the Co-Documentation Agents have no
\nliability under this Agreement other than those assumed by them in their
\ncapacities as Lenders.<\/p>\n
SECTION 7.02. Administrative Agent’s Reliance, Etc. Neither the
\n ————————————
\nAdministrative Agent nor any of its directors, officers, agents or employees
\nshall be liable to any Lender for any action taken or omitted to be taken by it
\nor them under or in connection with this Agreement, except for its or their own
\ngross negligence or willful misconduct. Without limitation of the generality of
\nthe foregoing, the Administrative Agent: (i) may treat the Lender which made
\nany Advance as the holder of the Debt resulting therefrom until the
\nAdministrative Agent receives and accepts an Assumption Agreement entered into
\nby an Assuming Lender as provided in Section 2.19 or 2.20, as the case may be,
\nor an Assignment and Acceptance entered into by such Lender, as assignor, and an
\nEligible Assignee, as assignee, as provided in Section 8.07; (ii) may consult
\nwith legal counsel (including counsel for the Borrower), independent public
\naccountants and other experts selected by it and shall not be liable for any
\naction taken or omitted to be taken in good faith by it in accordance with the
\nadvice of such counsel, <\/p>\n
33<\/p>\n
accountants or experts; (iii) makes no warranty or representation to any Lender
\nand shall not be responsible to any Lender for any statements, warranties or
\nrepresentations (whether written or oral) made in or in connection with this
\nAgreement; (iv) shall not have any duty to ascertain or to inquire as to the
\nperformance or observance of any of the terms, covenants or conditions of this
\nAgreement on the part of the Borrower or to inspect the property (including the
\nbooks and records) of the Borrower; (v) shall not be responsible to any Lender
\nfor the due execution, legality, validity, enforceability, genuineness,
\nsufficiency or value of this Agreement or any instrument or document furnished
\npursuant hereto; and (vi) shall incur no liability under or in respect of this
\nAgreement by acting upon any notice, consent, certificate or other instrument or
\nwriting (which may be by telecopier, telegram or telex) believed by it to be
\ngenuine and signed or sent by the proper party or parties.<\/p>\n
SECTION 7.03. CUSA and Affiliates. With respect to its Commitment
\n ——————-
\nand the Advances made by it and any Note or Notes issued to it, CUSA shall have
\nthe same rights and powers under this Agreement as any other Lender and may
\nexercise the same as though it were not the Administrative Agent; and the term
\n“Lender” or “Lenders” shall, unless otherwise expressly indicated, include CUSA
\nin its individual capacity. CUSA and its respective Affiliates may accept
\ndeposits from, lend money to, act as trustee under indentures of, accept
\ninvestment banking engagements from, and generally engage in any kind of
\nbusiness with, the Borrower, any of its subsidiaries and any Person who may do
\nbusiness with or own securities of the Borrower or any such subsidiary, all as
\nif CUSA was not the Administrative Agent and without any duty to account
\ntherefor to the Lenders.<\/p>\n
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
\n ———————-
\nit has, independently and without reliance upon the Administrative Agent or any
\nother Lender and based on the financial statements referred to in Section
\n4.01(c) and such other documents and information as it has deemed appropriate,
\nmade its own credit analysis and decision to enter into this Agreement. Each
\nLender also acknowledges that it will, independently and without reliance upon
\nthe Administrative Agent or any other Lender and based on such documents and
\ninformation as it shall deem appropriate at the time, continue to make its own
\ncredit decisions in taking or not taking action under this Agreement.<\/p>\n
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
\n —————
\nAdministrative Agent (to the extent not reimbursed by the Borrower), ratably
\naccording to the respective principal amounts of Advances then owing to each of
\nthem (or, if no Advances are at the time outstanding or if any Advances are then
\nowing to Persons which are not Lenders, ratably according to the respective
\namounts of their Commitments), from and against any and all liabilities,
\nobligations, losses, damages, penalties, actions, judgments, suits, costs,
\nexpenses or disbursements of any kind or nature whatsoever which may be imposed
\non, incurred by, or asserted against the Administrative Agent in any way
\nrelating to or arising out of this Agreement or any action taken or omitted by
\nthe Administrative Agent under this Agreement; provided that no Lender shall be
\nliable for any portion of such liabilities, obligations, losses, damages,
\npenalties, actions, judgments, suits, costs, expenses or disbursements resulting
\nfrom the Administrative Agent’s gross negligence or willful misconduct. Without
\nlimitation of the foregoing, each Lender agrees to reimburse the Administrative
\nAgent promptly upon demand for its ratable share of any out-of-pocket expenses
\n(including reasonable counsel fees) incurred by the Administrative Agent in
\nconnection with the preparation, execution, delivery, administration,
\nmodification, amendment or enforcement (whether through negotiations, legal or
\nbankruptcy proceedings or otherwise) of, or legal advice in respect of rights or
\nresponsibilities under, this Agreement, to the extent that the Administrative
\nAgent is not reimbursed for such expenses by the Borrower.<\/p>\n
SECTION 7.06. Successor Administrative Agent. The Administrative
\n ——————————
\nAgent may resign at any time by giving written notice thereof to the Lenders and
\nthe Borrower and such resignation shall be effective upon the appointment of a
\nsuccessor Administrative Agent as provided herein. Upon any such resignation,
\nthe Majority Lenders shall have the right to appoint a successor Administrative<\/p>\n
34<\/p>\n
Agent. If no successor Administrative Agent shall have been so appointed by the
\nMajority Lenders, and shall have accepted such appointment, within 30 days after
\nthe retiring Administrative Agent’s giving of notice of resignation, then the
\nretiring Administrative Agent may, on behalf of the Lenders, appoint a successor
\nAdministrative Agent. Any successor Administrative Agent appointed hereunder
\nshall be a commercial bank organized or licensed under the laws of the United
\nStates or of any State thereof, or an Affiliate of any such commercial bank,
\nhaving a combined capital and surplus of at least $500,000,000. Upon the
\nacceptance of any appointment as Administrative Agent hereunder by a successor
\nAdministrative Agent, such successor Administrative Agent shall thereupon
\nsucceed to and become vested with all the rights, powers, discretion, privileges
\nand duties of the retiring Administrative Agent, and the retiring Administrative
\nAgent shall be discharged from its duties and obligations under this Agreement.
\nAfter any retiring Administrative Agent’s resignation hereunder as
\nAdministrative Agent, the provisions of this Article VII shall inure to its
\nbenefit as to any actions taken or omitted to be taken by it while it was
\nAdministrative Agent under this Agreement.<\/p>\n
SECTION 7.07. Sub-Agent. The Borrower and the Lenders hereby
\n ———
\nacknowledge that the Administrative Agent may, in its sole discretion, delegate
\nany of its obligations hereunder to the Sub-Agent, provided that it has
\n ——–
\nobtained prior consent to such delegation from the Sub-Agent. The Borrower and
\nthe Lenders further agree that the Sub-Agent shall be entitled to exercise each
\nof the rights and to enjoy each of the benefits of the Administrative Agent
\nunder this Agreement as related to the performance of its obligations hereunder.<\/p>\n
ARTICLE VIII
\n MISCELLANEOUS<\/p>\n
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
\n —————
\nprovision of this Agreement, nor consent to any departure by the Borrower
\ntherefrom, shall in any event be effective unless the same shall be in writing
\nand signed by the Majority Lenders, and then such waiver or consent shall be
\neffective only in the specific instance and for the specific purpose for which
\ngiven; provided, however, that no amendment, waiver or consent shall, unless in
\nwriting and signed by all the Lenders (other than the Borrower or any of its
\nAffiliates, if a Lender, at the time of any such amendment, waiver or consent),
\ndo any of the following: (a) waive any of the conditions specified in Section
\n3.01 or 3.02, (b) increase the Commitments of the Lenders (other than as
\nprovided in Section 2.19) or subject the Lenders to any additional obligations,
\n(c) reduce the principal of, or interest on, the Advances or the fees payable
\nhereunder, (d) postpone any date fixed for any payment of principal of, or
\ninterest on, the Advances (other than as provided in Section 2.20), (e) change
\nthe percentage of the Commitments or of the aggregate unpaid principal amount of
\nAdvances, or the number of Lenders, which shall be required for the Lenders or
\nany of them to take any action hereunder or (f) amend this Section 8.01; and
\nprovided further that no amendment, waiver or consent shall, unless in writing
\nand signed by the Administrative Agent in addition to the Lenders required above
\nto take such action, affect the rights or duties of the Administrative Agent
\nunder this Agreement or any Note.<\/p>\n
SECTION 8.02. Notices, Etc. (a) All notices and other
\n ————
\n communications provided for hereunder shall, except as
\n otherwise expressly provided for herein, be in writing
\n (including telecopier, telegraphic or telex communication)
\n and mailed, telecopied, telegraphed, telexed or delivered,
\n if to the Borrower, at its address at:<\/p>\n
The Walt Disney Company
\n 500 South Buena Vista Street
\n Burbank, California 91521
\n Attention: Jeff Speed and Steve Flynn<\/p>\n
35<\/p>\n
Telecopier Number: (818) 563-1682;<\/p>\n
with a copy to:<\/p>\n
The Walt Disney Company
\n 500 South Buena Vista Street
\n Burbank, California 91521
\n Attention: Corporate Legal Department
\n Telecopier Number: (818) 563-4160;<\/p>\n
if to any Initial Lender, at its Domestic Lending Office specified opposite its
\nname on Schedule I hereto; if to any other Lender, at its Domestic Lending
\nOffice specified in the Assumption Agreement or the Assignment and Acceptance
\npursuant to which it became a Lender, as the case may be; and if to the
\nAdministrative Agent, at its address at:<\/p>\n
Citicorp USA, Inc.
\n Two Penns Way, Second Floor
\n New Castle, Delaware 19720
\n Attention: Pamela Cole
\n Phone Number: (302) 894-6003
\n Telecopy Number: (302) 894-6120;<\/p>\n
with a copy to:<\/p>\n
Citicorp USA, Inc.
\n 787 West Fifth Street, 29th Floor
\n Los Angeles, California 90071
\n Attention: Deborah Ironson
\n Phone Number: (213) 239-1424
\n Telecopier Number: (213) 623-3592;<\/p>\n
or, as to each party, at such other address as shall be designated by such party
\nin a written notice to the other parties. All such notices and communications
\nshall, when mailed, telecopied, telegraphed or telexed, be effective when
\ndeposited in the mails, telecopied, delivered to the telegraph company or
\nconfirmed by telex answerback, respectively, except that notices and
\ncommunications to the Administrative Agent pursuant to Article II or VII shall
\nnot be effective until received by the Administrative Agent. Delivery by
\ntelecopier of an executed counterpart of any amendment or waiver of any
\nprovision of this Agreement or of any Exhibit hereto to be executed and
\ndelivered hereunder shall be effective as delivery of an original executed
\ncounterpart thereof.<\/p>\n
(b) If any notice required under this Agreement is permitted to be
\nmade, and is made, by telephone, actions taken or omitted to be taken in
\nreliance thereon by the Administrative Agent or any Lender shall be binding upon
\nthe Borrower notwithstanding any inconsistency between the notice provided by
\ntelephone and any subsequent writing in confirmation thereof provided to the
\nAdministrative Agent or such Lender; provided that any such action taken or
\nomitted to be taken by the Administrative Agent or such Lender shall have been
\nin good faith and in accordance with the terms of this Agreement.<\/p>\n
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
\n ——————-
\nLender or the Administrative Agent to exercise, and no delay in exercising, any
\nright hereunder shall operate as a waiver thereof; nor shall any single or
\npartial exercise of any such right preclude any other or further <\/p>\n
36<\/p>\n
exercise thereof or the exercise of any other right. The remedies herein
\nprovided are cumulative and not exclusive of any remedies provided by law.<\/p>\n
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay,
\n ——————
\nwithin five Business Days of demand, all actual and reasonable costs and
\nexpenses, if any (including, without limitation, actual and reasonable counsel
\nfees and expenses), of the Administrative Agent and each Lender in connection
\nwith the enforcement (whether through legal proceedings or otherwise) of this
\nAgreement and the other instruments and documents to be delivered hereunder,
\nincluding, without limitation, reasonable counsel fees and expenses in
\nconnection with the enforcement of rights under this Section 8.04(a).<\/p>\n
(b) If any payment of principal of, or Conversion of, any Eurocurrency
\nRate Advance is made other than on the last day of the Interest Period for such
\nAdvance, as a result of a payment or Conversion pursuant to Section 2.08(f) or
\n2.10 or acceleration of the maturity of the Advances pursuant to Section 6.01 or
\nfor any other reason (other than by reason of a payment pursuant to Section
\n2.12), the Borrower shall, within five Business Days of demand by any Lender
\n(with a copy of such demand to the Administrative Agent), pay to such Lender any
\namounts required to compensate such Lender for any additional losses, costs or
\nexpenses which it may reasonably incur as a result of such payment or
\nConversion, including, without limitation, any loss, cost or expense incurred by
\nreason of the liquidation or redeployment of deposits or other funds acquired by
\nsuch Lender to fund or maintain such Advance.<\/p>\n
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during
\n —————-
\nthe continuance of any Event of Default and (ii) the making of the request or
\nthe granting of the consent specified by Section 6.01 to authorize the
\nAdministrative Agent to declare the Advances due and payable pursuant to the
\nprovisions of Section 6.01, each Lender (and, in the case of CUSA, Citibank) is
\nhereby authorized at any time and from time to time, to the fullest extent
\npermitted by law, to set off and apply any and all deposits (general or special,
\ntime or demand, provisional or final, but excluding trust accounts) at any time
\nheld and other indebtedness at any time owing by such Lender (and, in the case
\nof CUSA, Citibank) to or for the credit or the account of the Borrower against
\nany and all of the obligations of the Borrower now or hereafter existing under
\nthis Agreement, whether or not such Lender shall have made any demand under this
\nAgreement. Each Lender agrees promptly to notify the Borrower after any such
\nset-off and application made by such Lender (and, in the case of CUSA,
\nCitibank); provided that the failure to give such notice shall not affect the
\nvalidity of such set-off and application. The rights of each Lender (and, in
\nthe case of CUSA, Citibank) under this Section are in addition to other rights
\nand remedies (including, without limitation, other rights of set-off) which such
\nLender may have.<\/p>\n
SECTION 8.06. Binding Effect. This Agreement shall become effective
\n ————–
\n(other than Section 2.01, which shall only become effective upon satisfaction of
\nthe conditions precedent set forth in Section 3.01) when it shall have been
\nexecuted by the Borrower, the Administrative Agent and each Co-Documentation
\nAgent and when the Administrative Agent shall have been notified by each Initial
\nLender that such Initial Lender has executed it and, thereafter, shall be
\nbinding upon and inure to the benefit of the Borrower, the Administrative Agent,
\neach Co-Documentation Agent and each Lender and their respective successors and
\npermitted assigns, except that the Borrower shall not have the right to assign
\nits rights hereunder or any interest herein without the prior written consent of
\nthe Lenders.<\/p>\n
SECTION 8.07. Assignments and Participations. (a) Each Lender may
\n ——————————
\nand, if requested by the Borrower upon notice by the Borrower delivered to such
\nLender and the Administrative Agent pursuant to clause (ii) of Section 2.16,
\nwill, assign to one or more Eligible Assignees all or a portion of its rights
\nand obligations under this Agreement (including, without limitation, all or a
\nportion of its Commitment, the Advances owing to it and any Note or Notes held
\nby it); provided, however, that <\/p>\n
37<\/p>\n
(i) each such assignment shall be of a constant, and not a varying, percentage
\nof all rights and obligations under this Agreement, (ii) the sum of (A) the
\namount of the Commitment of the assigning Lender being assigned pursuant to each
\nsuch assignment and (B) the amount of the commitment being contemporaneously
\nassigned under the 364-Day Credit Agreement by the Person that is such assigning
\nLender (in both cases determined as of the date of the Assignment and Acceptance
\nor similar agreement with respect to such assignments) shall not be less than
\n$25,000,000 in the aggregate (unless such lesser amount is previously agreed
\namong such assigning Lender, the Administrative Agent and the Borrower) or an
\nintegral multiple of $1,000,000 in excess thereof, provided, however, that if
\nthe aggregate amount of the Commitment of such assigning Lender hereunder and
\nits commitment under the 364-Day Credit Agreement is less than $25,000,000 on
\nthe date of such proposed assignments, such assigning Lender may assign all, but
\nnot less than all, of its remaining rights and obligations under this Agreement
\nand the 364-Day Credit Agreement (unless an assignment of a portion of such
\nassigning Lender’s obligations hereunder and thereunder is otherwise previously
\nagreed among such assigning Lender, the Administrative Agent and the Borrower),
\n(iii) each such assignment shall be to an Eligible Assignee, and (iv) the
\nparties to each such assignment (other than the Borrower) shall execute and
\ndeliver to the Administrative Agent, for its acceptance and recording in the
\nRegister, an Assignment and Acceptance, together with a processing and
\nrecordation fee of $3,000. Upon such execution, delivery, acceptance and
\nrecording, from and after the effective date specified in each Assignment and
\nAcceptance, (x) the assignee thereunder shall be a party hereto and, to the
\nextent that rights and obligations hereunder have been assigned to it pursuant
\nto such Assignment and Acceptance, have the rights and obligations of a Lender
\nhereunder and (y) the Lender assignor thereunder shall, to the extent that
\nrights and obligations hereunder have been assigned by it pursuant to such
\nAssignment and Acceptance, relinquish its rights (other than any rights such
\nLender assignor may have under Sections 2.11, 2.14 and 8.08) and be released
\nfrom its obligations under this Agreement (and, in the case of an Assignment and
\nAcceptance covering all or the remaining portion of an assigning Lender’s rights
\nand obligations under this Agreement, such Lender shall cease to be a party
\nhereto).<\/p>\n
(b) By executing and delivering an Assignment and Acceptance, the
\nLender assignor thereunder and the assignee thereunder confirm to and agree with
\neach other and the other parties hereto as follows: (i) other than as provided
\nin such Assignment and Acceptance, such assigning Lender makes no representation
\nor warranty and assumes no responsibility with respect to any statements,
\nwarranties or representations made in or in connection with this Agreement or
\nthe execution, legality, validity, enforceability, genuineness, sufficiency or
\nvalue of this Agreement or any instrument or document furnished pursuant hereto;
\n(ii) such assigning Lender makes no representation or warranty and assumes no
\nresponsibility with respect to the financial condition of the Borrower or any of
\nits subsidiaries or the performance or observance by the Borrower of any of its
\nobligations under this Agreement or any instrument or document furnished
\npursuant hereto; (iii) such assignee confirms that it has received a copy of
\nthis Agreement, together with copies of the financial statements referred to in
\nSection 4.01(c) and such other documents and information as it has deemed
\nappropriate to make its own credit analysis and decision to enter into such
\nAssignment and Acceptance; (iv) such assignee will, independently and without
\nreliance upon the Administrative Agent, such assigning Lender or any other
\nLender and based on such documents and information as it shall deem appropriate
\nat the time, continue to make its own credit decisions in taking or not taking
\naction under this Agreement; (v) such assignee confirms that it is an Eligible
\nAssignee; (vi) such assignee appoints and authorizes the Administrative Agent to
\ntake such action as agent on its behalf and to exercise such powers under this
\nAgreement as are delegated to the Administrative Agent by the terms hereof,
\ntogether with such powers as are reasonably incidental thereto; and (vii) such
\nassignee agrees that it will perform in accordance with their terms all of the
\nobligations which by the terms of this Agreement are required to be performed by
\nit as a Lender.<\/p>\n
(c) The Administrative Agent shall maintain at its address referred to
\nin Section 8.02 a copy of each Assignment and Acceptance and each Assumption
\nAgreement delivered to and accepted <\/p>\n
38<\/p>\n
by it and a register for the recordation of the names and addresses of the
\nLenders and the Commitment of, and principal amount of the Advances owing to,
\neach Lender from time to time (the “Register”). The entries in the Register
\nshall be conclusive and binding for all purposes, absent manifest error, and the
\nBorrower, the Administrative Agent and the Lenders may treat each Person whose
\nname is recorded in the Register as a Lender hereunder for all purposes of this
\nAgreement. The Register shall be available for inspection by the Borrower or any
\nLender at any reasonable time and from time to time upon reasonable prior
\nnotice.<\/p>\n
(d) Upon its receipt of an Assignment and Acceptance executed by an
\nassigning Lender and an assignee representing that it is an Eligible Assignee
\nand, if applicable, the Borrower, together with any Note subject to such
\nassignment, the Administrative Agent shall, if such Assignment and Acceptance
\nhas been completed and is in substantially the form of Exhibit B hereto, (i)
\naccept such Assignment and Acceptance, (ii) record the information contained
\ntherein in the Register and (iii) give prompt notice thereof to the Borrower.<\/p>\n
(e) Each Lender may sell participations to one or more banks or other
\nentities in or to all or a portion of its rights and obligations under this
\nAgreement (including, without limitation, all or a portion of its Commitment and
\nthe Advances owing to it and any Note issued to it hereunder); provided,
\nhowever, that (i) such Lender’s obligations under this Agreement (including,
\nwithout limitation, its Commitment hereunder) shall remain unchanged, (ii) such
\nLender shall remain solely responsible to the other parties hereto for the
\nperformance of such obligations, (iii) the Borrower, the Administrative Agent
\nand the other Lenders shall continue to deal solely and directly with such
\nLender in connection with such Lender’s rights and obligations under this
\nAgreement, and (iv) such Lender shall not agree in any participation agreement
\nwith any participant or proposed participant to obtain the consent of such
\nparticipant before agreeing to the amendment, modification or waiver of any of
\nthe terms of this Agreement or any Note, before consenting to any action or
\nfailure to act by the Borrower or any other party hereunder or under any Note,
\nor before exercising any rights it may have in respect thereof, unless such
\namendment, modification, waiver, consent or exercise would (A) increase the
\namount of such participant’s portion of such Lender’s Commitment, (B) reduce the
\nprincipal amount of or rate of interest on the Advances or any fee or other
\namounts payable hereunder to which such participant would be entitled to receive
\na share under such participation agreement, or (C) postpone any date fixed for
\nany payment of principal of or interest on the Advances or any fee or other
\namounts payable hereunder to which such participant would be entitled to receive
\na share under such participation agreement.<\/p>\n
(f) Any Lender may, in connection with any assignment or participation
\nor proposed assignment or participation pursuant to this Section 8.07, disclose
\nto the assignee or participant or proposed assignee or participant any
\ninformation relating to the Borrower furnished to such Lender by or on behalf of
\nthe Borrower in writing and directly related to the transactions contemplated
\nhereunder; provided that, prior to any such disclosure, the assignee or
\nparticipant or proposed assignee or participant shall agree to preserve the
\nconfidentiality of any confidential information relating to the Borrower
\nreceived by it from such Lender in accordance with the terms of Section 8.09.<\/p>\n
(g) No participation or assignment hereunder shall be made in
\nviolation of the Securities Act of 1933, as amended from time to time, or any
\napplicable state securities laws, and each Lender hereby represents that it will
\nmake any Advance for its own account in the ordinary course of its business and
\nnot with a view to the public distribution or sale thereof.<\/p>\n
(h) Anything in this Agreement to the contrary notwithstanding, any
\nLender may at any time create a security interest in all or any portion of its
\nrights under this Agreement (including, without limitation, the Advances owing
\nto it and any Note issued to it hereunder) in favor of any Federal <\/p>\n
39<\/p>\n
Reserve Bank in accordance with Regulation A of the Board of Governors of the
\nFederal Reserve System (or any successor regulation thereto) and the applicable
\noperating circular of such Federal Reserve Bank.<\/p>\n
SECTION 8.08. Indemnification. The Borrower agrees to indemnify and
\n —————
\nhold harmless the Administrative Agent, each Co-Documentation Agent and each
\nLender and each of their Affiliates and their respective officers, directors,
\nemployees, agents and advisors (each an “Indemnified Party”) from and against
\nany and all claims, damages, losses, liabilities and expenses (including,
\nwithout limitation, reasonable fees and expenses of counsel) that may be
\nincurred by or asserted against any Indemnified Party, in each case arising out
\nof or in connection with or by reason of, or in connection with the preparation
\nfor a defense of, any investigation, litigation or proceeding (whether or not an
\nIndemnified Party is a party thereto) arising out of, related to or in
\nconnection with the Commitments hereunder or the Advances made pursuant hereto
\nor any transactions done in connection herewith, including, without limitation,
\nany transaction in which any proceeds of the Advances are, or are proposed, to
\nbe applied (collectively, the “Indemnified Matters”); provided that the Borrower
\nshall have no obligation to any Indemnified Party under this Section 8.08 with
\nrespect to (i) matters for which such Indemnified Party has been reimbursed by
\nor on behalf of the Borrower pursuant to any other provision of this Agreement,
\nbut only to the extent of such reimbursement, or (ii) Indemnified Matters found
\nby a court of competent jurisdiction to have resulted from the willful
\nmisconduct or gross negligence of such Indemnified Party. If any action is
\nbrought against any Indemnified Party, such Indemnified Party shall promptly
\nnotify the Borrower in writing of the institution of such action and the
\nBorrower shall thereupon have the right, at its option, to elect to assume the
\ndefense of such action; provided, however, that the Borrower shall not, in
\nassuming the defense of any Indemnified Party in any Indemnified Matter, agree
\nto any dismissal or settlement of such Indemnified Matter without the prior
\nwritten consent of such Indemnified Party, which consent shall not be
\nunreasonably withheld, if such dismissal or settlement (A) would require any
\nadmission or acknowledgment of culpability or wrongdoing by such Indemnified
\nParty or (B) would provide for any nonmonetary relief to any Person to be
\nperformed by such Indemnified Party. If the Borrower so elects, it shall
\npromptly assume the defense of such action, including the employment of counsel
\n(reasonably satisfactory to such Indemnified Party) and payment of expenses.
\nSuch Indemnified Party shall have the right to employ its or their own counsel
\nin any such case, but the fees and expenses of such counsel shall be at the
\nexpense of such Indemnified Party unless (1) the employment of such counsel
\nshall have been authorized in writing by the Borrower in connection with the
\ndefense of such action or (2) the Borrower shall not have properly employed
\ncounsel reasonably satisfactory to such Indemnified Party to have charge of the
\ndefense of such action, in which case such fees and expenses shall be paid by
\nthe Borrower. If an Indemnified Party shall have reasonably concluded (based
\nupon the advice of counsel) that the representation by one counsel of such
\nIndemnified Party and the Borrower creates a conflict of interest for such
\ncounsel, the reasonable fees and expenses of such counsel shall be borne by the
\nBorrower and the Borrower shall not have the right to direct the defense of such
\naction on behalf of such Indemnified Party (but shall retain the right to direct
\nthe defense of such action on behalf of the Borrower). Anything in this Section
\n8.08 to the contrary notwithstanding, the Borrower shall not be liable for the
\nfees and expenses of more than one counsel for any Indemnified Party in any
\njurisdiction as to any Indemnified Matter or for any settlement of any
\nIndemnified Matter effected without its written consent. All obligations of the
\nBorrower under this Section 8.08 shall survive the making and repayment of the
\nAdvances and the termination of this Agreement.<\/p>\n
SECTION 8.09. Confidentiality. Subject to the provisions of Section
\n —————
\n8.07(f), each Lender shall, and shall instruct its Affiliates, successors,
\nassigns, advisors, officers, employees, directors, agents, legal counsel and
\nother professional advisors (the “Informed Parties”) to, hold all nonpublic
\ninformation obtained pursuant to this Agreement in accordance with its customary
\nprocedures for handling confidential information of this nature and in
\naccordance with safe and sound banking practices and in any event may make
\ndisclosure reasonably required by a bona fide transferee or participant in
\nconnection with the contemplated transfer or participation or to another Lender
\nor an Informed Party <\/p>\n
40<\/p>\n
agreeing to hold such nonpublic information as confidential or as required or
\nrequested by law or to any governmental authority or representative thereof or
\npursuant to legal process; provided that unless specifically prohibited by
\napplicable law or court order, each Lender shall notify the Borrower of any
\nrequest by any governmental authority or representative thereof (other than any
\nsuch request in connection with an examination of the financial condition of
\nsuch Lender by such governmental authority) for disclosure of any such nonpublic
\ninformation prior to disclosure of such information; and provided further that
\nin no event shall any Lender be obligated or required to return any materials
\nfurnished by the Borrower.<\/p>\n
SECTION 8.10. Judgment. (a) If for the purposes of obtaining
\n ——–
\njudgment in any court it is necessary to convert a sum due hereunder in Dollars
\ninto another currency, the parties hereto agree, to the fullest extent that they
\nmay effectively do so, that the rate of exchange used shall be that at which in
\naccordance with normal banking procedures the Administrative Agent could
\npurchase Dollars with such other currency at Citibank’s principal office in
\nLondon at 11:00 A.M. (London time) on the Business Day preceding that on which
\nfinal judgment is given.<\/p>\n
(b) If for the purposes of obtaining judgment in any court it is
\nnecessary to convert a sum due hereunder in a Committed Currency into Dollars,
\nthe parties agree to the fullest extent that they may effectively do so, that
\nthe rate of exchange used shall be that at which in accordance with normal
\nbanking procedures the Administrative Agent could purchase such Committed
\nCurrency with Dollars at Citibank’s principal office in London at 11:00 A.M.
\n(London time) on the Business Day preceding that on which final judgment is
\ngiven.<\/p>\n
(c) The obligation of the Borrower in respect of any sum due from it
\nin any currency (the “Primary Currency”) to any Lender or the Administrative
\n —————-
\nAgent hereunder shall, notwithstanding any judgment in any other currency, be
\ndischarged only to the extent that on the Business Day following receipt by such
\nLender or the Administrative Agent (as the case may be), of any sum adjudged to
\nbe so due in such other currency, such Lender or the Administrative Agent (as
\nthe case may be) may in accordance with normal banking procedures purchase the
\napplicable Primary Currency with such other currency; if the amount of the
\napplicable Primary Currency so purchased is less than such sum due to such
\nLender or the Administrative Agent (as the case may be) in the applicable
\nPrimary Currency, the Borrower agrees, as a separate obligation and
\nnotwithstanding any such judgment, to indemnify such Lender or the
\nAdministrative Agent (as the case may be) against such loss, and if the amount
\nof the applicable Primary Currency so purchased exceeds such sum due to any
\nLender or the Administrative Agent (as the case may be) in the applicable
\nPrimary Currency, such Lender or the Administrative Agent (as the case may be)
\nagrees to remit to the Borrower such excess.<\/p>\n
SECTION 8.11. Consent to Jurisdiction and Service of Process. All
\n ———————————————-
\njudicial proceedings brought against the Borrower with respect to this Agreement
\nor any instrument or other documents delivered hereunder may be brought in any
\nstate or federal court in the Borough of Manhattan in the State of New York, and
\nby execution and delivery of this Agreement, the Borrower accepts, for itself
\nand in connection with its properties, generally and unconditionally, the
\nnonexclusive jurisdiction of the aforesaid courts, and irrevocably agrees to be
\nbound by any final judgment rendered thereby in connection with this Agreement
\nor any instrument or other document delivered hereunder from which no appeal has
\nbeen taken or is available. The Borrower agrees to receive service of process
\nin any such proceeding in any such court at its office at 500 Park Avenue, New
\nYork, New York 10022, Attention: Kenneth E. Newman (or at such other address in
\nthe Borough of Manhattan in the State of New York as the Borrower shall notify
\nthe Administrative Agent from time to time) and, if the Borrower ever ceases to
\nmaintain such office in the Borough of Manhattan, irrevocably designates and
\nappoints CT Corporation System, 1633 Broadway, New York, New York 10019, or any
\nother address in the State of New York communicated by CT Corporation System to
\nthe Administrative Agent, as its agent to receive on its <\/p>\n
41<\/p>\n
behalf service of all process in any such proceeding in any such court, such
\nservice being hereby acknowledged by the Borrower to be effective and binding
\nservice in every respect.<\/p>\n
SECTION 8.12. Substitution of Currency. If a change in any Committed
\n ————————
\nCurrency occurs pursuant to any applicable law, rule or regulation of any
\ngovernmental, monetary or multi-national authority, this Agreement (including,
\nwithout limitation, the definition of Eurocurrency Rate) will be amended to the
\nextent determined by the Administrative Agent (acting reasonably, in
\nconsultation with the Borrower and in accordance with the terms of Section 8.01
\nhereof) to be necessary to reflect the change in currency and to put the Lenders
\nand the Borrower in the same position, so far as possible, that they would have
\nbeen in if no change in such Committed Currency had occurred.<\/p>\n
SECTION 8.13. Governing Law. This Agreement shall be governed by,
\n ————-
\nand construed in accordance with, the laws of the State of New York.<\/p>\n
SECTION 8.14. Execution in Counterparts. This Agreement may be
\n ————————-
\nexecuted in any number of counterparts and by different parties hereto in
\nseparate counterparts, each of which when so executed shall be deemed to be an
\noriginal and all of which taken together shall constitute one and the same
\nagreement. Delivery of an executed counterpart of a signature page to this
\nAgreement by telecopier shall be effective as delivery of an original executed
\ncounterpart of this Agreement. A full set of executed counterparts of this
\nAgreement shall be lodged with the Administrative Agent and the Borrower.<\/p>\n
SECTION 8.15. Severability. Any provision of this Agreement that is
\n ————
\nprohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
\nbe ineffective to the extent of such prohibition or unenforceability without
\ninvalidating the remaining provisions hereof, and any such prohibition or
\nunenforceablity in any jurisdiction shall not invalidate or render unenforceable
\nsuch provision in any other jurisdiction.<\/p>\n
42<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this
\nAgreement to be executed by their respective officers thereunto duly authorized,
\nas of the date first above written.<\/p>\n
THE BORROWER
\n ————<\/p>\n
THE WALT DISNEY COMPANY<\/p>\n
By:
\n ———————-
\n Title:
\n ——————-<\/p>\n
THE ADMINISTRATIVE AGENT
\n ————————<\/p>\n
CITICORP USA, INC.,
\n as Administrative Agent<\/p>\n
By:
\n ———————-
\n Title:
\n ——————-<\/p>\n
THE SYNDICATION AGENT
\n ———————<\/p>\n
BANK ONE, NA
\n as Syndication Agent<\/p>\n
By:
\n ——————————————<\/p>\n
Title:
\n ———————————–<\/p>\n
43<\/p>\n
THE CO-DOCUMENTATION AGENTS
\n —————————<\/p>\n
HSBC BANK USA,
\n as Co-Documentation Agent<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
SUNTRUST BANK,
\n as Co-Documentation Agent<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
44<\/p>\n
INITIAL LENDERS
\n —————<\/p>\n
Commitment
\n———-<\/p>\n
$187,500,000.00 CITICORP USA, INC.<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
45<\/p>\n
$137,500,000.00 BANK ONE, NA<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
46<\/p>\n
$137,500,000.00 HSBC BANK USA<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
47<\/p>\n
$137,500,000.00 SUNTRUST BANK<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
48<\/p>\n
$137,500,000.00 BANK OF AMERICA, N.A.<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
49<\/p>\n
$137,500,000.00 CREDIT SUISSE FIRST BOSTON<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
50<\/p>\n
$137,500,000.00 THE CHASE MANHATTAN BANK<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
51<\/p>\n
$92,500,000.00 BANCA COMMERCIALE ITALIANA,<\/p>\n
LOS ANGELES FOREIGN BRANCH<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
52<\/p>\n
$92,500,000.00 BANQUE NATIONALE DE PARIS<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
53<\/p>\n
$92,500,000.00 BARCLAYS BANK PLC<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
54<\/p>\n
$92,500,000.00 DEUTSCHE BANK AG NEW YORK<\/p>\n
AND\/OR CAYMAN ISLANDS BRANCHES<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
55<\/p>\n
$92,500,000.00 STANDARD CHARTERED BANK<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
56<\/p>\n
$75,000,000.00 BANK OF MONTREAL<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
57<\/p>\n
$75,000,000.00 THE BANK OF NEW YORK<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
58<\/p>\n
$75,000,000.00 FLEET NATIONAL BANK<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
59<\/p>\n
$62,500,000.00 BANCA DI ROMA – SAN FRANCISCO<\/p>\n
BRANCH<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
60<\/p>\n
$62,500,000.00 THE FUJI BANK, LIMITED<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
61<\/p>\n
$62,500,000.00 THE SANWA BANK, LIMITED<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
62<\/p>\n
$62,500,000.00 WELLS FARGO BANK, N.A.<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
63<\/p>\n
$37,500,000.00 FIRST UNION NATIONAL BANK<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
64<\/p>\n
$37,500,000.00 ING BANK N.V.<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
65<\/p>\n
$37,500,000.00 LEHMAN COMMERCIAL PAPER, INC.<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
66<\/p>\n
$37,500,000.00 MORGAN GUARANTY TRUST COMPANY<\/p>\n
OF NEW YORK<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
67<\/p>\n
$37,500,000.00 NATIONAL AUSTRALIA BANK LIMITED<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
68<\/p>\n
$37,500,000.00 THE NORTHERN TRUST COMPANY<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
69<\/p>\n
$37,500,000.00 UNION BANK OF CALIFORNIA, N.A.<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
70<\/p>\n
$37,500,000.00 WACHOVIA BANK, N.A.<\/p>\n
By:
\n ———————–
\n Title:
\n ——————-<\/p>\n
$2,250,000,000.00 TOTAL COMMITMENTS<\/p>\n
71<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6850,7104,7331,8973],"corporate_contracts_industries":[9532,9415],"corporate_contracts_types":[9561,9560],"class_list":["post-41025","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-one-corp","corporate_contracts_companies-citigroup-inc","corporate_contracts_companies-disney-walt-co","corporate_contracts_companies-suntrust-banks-inc","corporate_contracts_industries-travel__services","corporate_contracts_industries-financial__banks","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41025","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41025"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41025"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41025"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41025"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}