UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 
FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): March 15, 2019
 

TWDC Enterprises 18 Corp.
(Exact name of registrant as specified in its charter)
 

Delaware
 
1-11605
 
95-4545390
(State or other jurisdiction of incorporation)
 
 
(Commission
File Number)
 
 
(IRS Employer
Identification No.)
 
500 South Buena Vista Street Burbank, California
91521
(Address of principal executive offices)
(Zip Code)

(818) 560-1000
(Registrant’s telephone number, including area code)

The Walt Disney Company
(Former name or former address, if changed since last report)
 
 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).  Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐



 
EXPLANATORY NOTE

On March 20, 2019 (the “ Merger Effective Date ”), pursuant to the Amended and Restated Agreement and Plan of Merger (the “ Merger Agreement ”), dated as of June 20, 2018, among Twenty-First Century Fox, Inc. (“ 21CF ”), TWDC Enterprises 18 Corp. (formerly known as The Walt Disney Company) (“ Old Disney ”), The Walt Disney Company (formerly known as TWDC Holdco 613 Corp.) (“ Disney ”), WDC Merger Enterprises I, Inc. and WDC Merger Enterprises II, Inc., Disney acquired all of the outstanding shares of 21CF and Old Disney through a transaction in which: (i) WDC Merger Enterprises I, Inc. merged with and into Old Disney, with Old Disney surviving such merger as a wholly owned subsidiary of Disney (the “ Disney Merger ”) and (ii) WDC Merger Enterprises II, Inc. merged with and into 21CF, with 21CF surviving such merger as a wholly owned subsidiary of Disney (the “ 21CF Merger ” and, together with the Disney Merger, the “ Mergers ”).  As a result of the Mergers, among other things, Disney became the ultimate parent of Old Disney, 21CF and their respective subsidiaries. Effective as of the effective time of the Disney Merger, which occurred at 12:01 a.m. Eastern Time on the Merger Effective Date (the “ Disney Effective Time ”), Disney changed its name to “The Walt Disney Company” and Old Disney changed its name to “TWDC Enterprises 18 Corp.”.

Pursuant to the Merger Agreement, prior to the consummation of the Mergers, 21CF engaged in an internal restructuring whereby it transferred to Fox Corporation (“ FOX ”) a portfolio of 21CF’s news, sports and broadcast businesses, including the FOX News Channel, FOX Business Network, FOX Broadcasting Company, FOX Sports, FOX Television Stations Group, and sports cable networks FS1, FS2, FOX Deportes and Big Ten Network and certain other assets, and FOX assumed from 21CF certain liabilities associated with such businesses (the “ Separation ”). 21CF retained all assets and liabilities not transferred to FOX, including the 20th Century Fox Film and Television studios and certain cable and international television businesses. Following the Separation, effective at  7:25 a.m. Eastern Time on  March 19, 2019  (the “ Closing Date ”), 21CF distributed all of the issued and outstanding common stock of FOX to the holders of the outstanding shares of 21CF Common Stock (as defined below) (other than holders of the shares held by subsidiaries of 21CF (the “ Hook Stock Shares ”)) on a pro rata basis (the “ Distribution ”) pursuant to a recapitalization merger in accordance with the terms of the Amended and Restated Distribution Agreement and Plan of Merger, dated as of June 20, 2018, by and between 21CF and 21CF Distribution Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of 21CF. Because the Distribution Adjustment Multiple (as defined in the Merger Agreement) was calculated to be approximately 1.357190, 0.263183 of each share of 21CF Common Stock outstanding at the time of the Distribution was exchanged for 1/3 of one share of FOX common stock of the same class. Prior to the Distribution, FOX paid to 21CF a cash dividend in the amount of $8.5 billion.

The Merger Agreement and the transactions contemplated thereby, including the Mergers, the Separation and the Distribution, were previously described in the Registration Statement on Form S-4 (Registration No. 333-225850) filed by Disney (as amended, the “ Registration Statement ”) and the definitive joint proxy statement/prospectus of Old Disney and 21CF, dated June 28, 2018 (as supplemented, the “ Joint Proxy Statement/Prospectus ”).

This Current Report on Form 8-K is being filed for the purpose of disclosing certain events with respect to Old Disney in connection with the consummation of the Mergers.

Item 1.01.  Entry Into a Material Definitive Agreement.

Credit Agreements

On March 15, 2019, Disney entered into (a) a 364-Day Bridge Credit Agreement (the “ $20,700,000,000 Credit Agreement ”), among Disney, as the borrower, the lenders party thereto, Citibank, N.A., as a co-administrative agent, and JPMorgan Chase Bank, N.A., as a co-administrative agent and as the designated agent, which provides for advances to be made available to Disney in an aggregate principal amount of up to $20,700,000,000 (the “ $20,700,000,000 Credit Facility ”) and (b) a 364-Day Credit Agreement (the “ $15,000,000,000 Credit Agreement ” and, together with the $20,700,000,000 Credit Agreement, the “ Credit Agreements ”), among Disney, as the borrower, the lenders party thereto, Citibank, N.A., as a co-administrative agent, and JPMorgan Chase Bank, N.A., a co-administrative agent and as designated agent, which provides for advances to be made available to Disney in an aggregate principal amount of up to $15,000,000,000 (the “ $15,000,000,000 Credit Facility ” and, together with the $20,700,000,000 Credit Facility, the “ Credit Facilities ”).  On the Merger Effective Date, Disney borrowed loans under the $20,700,000,000 Credit Facility in an aggregate principal amount equal to $16,100,000,000, and Disney borrowed loans under the $15,000,000,000 Credit Facility in an aggregate principal amount equal to $15,000,000,000.  The proceeds of the Credit Facilities were used solely for purposes of financing the cash portion of the consideration payable in the 21CF Merger and paying fees, costs and expenses incurred in connection with the Mergers and the other transactions contemplated by the Merger Agreement.  As of the Merger Effective Date, each of the Credit Facilities is guaranteed by Old Disney and each of the Credit Facilities is unsecured.


 
The applicable interest rate for borrowings under the Credit Agreements includes interest rate spreads based on Disney’s public debt rating that range between 0.750% and 1.125% for Eurocurrency Rate (as defined in the Credit Agreements) borrowings and 0.000% and 0.125% for Base Rate (as defined in the Credit Agreements) borrowings.  Disney will also be required to pay a duration fee payable 90 days, 180 days and 270 days after the Merger Effective Date equal to 0.50%, 0.75% and 1.00%, respectively, of the aggregate principal amount of borrowings outstanding under the $20,700,000,000 Credit Facility on such date, as well as customary agency fees under each of the Credit Agreements.

The Credit Facilities will mature 364 calendar days following the Merger Effective Date. The advances may be voluntarily prepaid without penalty or premium, other than customary breakage costs related to prepayments of Eurocurrency Rate borrowings.

The Credit Agreements contain customary affirmative and negative covenants for facilities of this type, including, among others, covenants pertaining to the delivery of financial statements, notices of default and certain other information, payment of taxes, maintenance of existence, compliance with laws, and limitations on mergers.  The Credit Agreement also requires Disney to maintain a minimum ratio of Consolidated EBITDA to Consolidated Interest Expense (as each such term is defined in the Credit Agreements) of 3.00 to 1.00 as of the last day of each period of four consecutive fiscal quarters.

The Credit Agreements contain default provisions customary for facilities of this type, which are subject to customary grace periods and materiality thresholds, including, among others, defaults related to payment failures, failure to comply with covenants, material misrepresentations, defaults under other material indebtedness, bankruptcy and related events, material judgments and the failure of the guaranty to be in full force and effect. If an event of default occurs under either of the Credit Agreements, then the lenders under such Credit Agreement may, among other things, declare the applicable outstanding Credit Facility and all other amounts owing under such Credit Agreement immediately due and payable.

Certain lenders under the Credit Agreements have, from time to time, performed, are currently performing and may in the future perform, various financial advisory and commercial and investment banking services for Disney, for which they received or will receive customary fees and expenses.

The foregoing description of the Credit Agreements does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Credit Agreements, which are attached hereto as Exhibit 10.1 and Exhibit 10.2 and each is incorporated herein by reference.

Guarantees of Outstanding Old Disney Indebtedness by Disney

On the Merger Effective Date, Old Disney, as issuer, Disney, as guarantor, and Wells Fargo Bank, National Association, as trustee (the “ 2001 Indenture Trustee ”), entered into a first supplemental indenture (the “ First Supplemental Indenture to the 2001 Indenture ”) to the Indenture dated as of September 24, 2001 (the “ 2001 Indenture ”) between Old Disney and the 2001 Indenture Trustee, pursuant to which Disney fully and unconditionally guarantees, on a senior basis, the payment obligations of Old Disney with respect to all securities issued under the 2001 Indenture.


 
The foregoing summary is qualified in its entirety by reference to the text of the First Supplemental Indenture to the 2001 Indenture, a copy of which is attached as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.

On the Merger Effective Date, Disney executed a guarantee undertaking pursuant to which Disney fully and unconditionally guarantees, on a senior basis, all outstanding 2.125% Notes due 2022 issued by Old Disney under its U.S. $4,000,000,000 Programme for the Issuance of Debt Instruments established on February 15, 2017, as amended.

Item 2.01.  Completion of Acquisition or Disposition of Assets.

Pursuant to the Merger Agreement, the Disney Merger was consummated and became effective as of the Disney Effective Time, and the 21CF Merger was consummated and became effective as of 12:02 a.m. Eastern Time on the Merger Effective Date (the “ 21CF Effective Time ”) .  As a result of the Mergers, among other things, Disney became the ultimate parent of Old Disney, 21CF and their respective subsidiaries.  The Mergers and the Merger Agreement were previously described in the Registration Statement and the Joint Proxy Statement/Prospectus.

Pursuant to the Merger Agreement, at the Disney Effective Time, each share of Old Disney common stock, par value $0.01 per share (“ Old Disney Common Stock ”), and each share of Old Disney series A preferred stock, par value $0.01 per share (together, “ Old Disney Stock ”) issued and outstanding immediately prior to the Disney Merger was converted into one share of Disney stock of the same class.

Pursuant to the Merger Agreement, at the 21CF Effective Time, each share of 21CF class A common stock, par value $0.01 per share, and 21CF class B common stock, par value $0.01 per share (together, “ 21CF Common Stock ”) issued and outstanding immediately prior to the 21CF Effective Time (other than (i) shares held in treasury by 21CF that were not held on behalf of third parties and (ii) the Hook Stock Shares) was, subject to the proration procedures described below, exchanged for $51.572626 in cash (the “ Per Share Value, ” and such consideration, the “ Cash Consideration ”) or 0.4517 shares of common stock, par value $0.01 per share, of Disney (“ Disney Common Stock, ” and such consideration, the “ Stock Consideration, ” and together with the Cash Consideration, the “ Merger Consideration ”).  In accordance with the Merger Agreement, the Per Share Value was calculated as follows:

Per Share Value = {[50.0% * ($38.00 + (Equity Adjustment Amount ÷ 1,877,000,000)] + {50.0% * Average Parent Stock Price * [Base Exchange Ratio + (Equity Adjustment Amount ÷ $195,069,102,000.00)]}} * the Distribution Adjustment Multiple.

Based on the final estimate of the Transaction Tax (as defined in the Merger Agreement) of $6,500,000,000, the Equity Adjustment Amount was $0.  Because the Average Parent Stock Price (as defined in the Merger Agreement), which was determined based on the volume weighted average trading price of a share of Old Disney Common Stock on the New York Stock Exchange (the “ NYSE ”) over the fifteen consecutive trading day period ending on (and including) the trading day that was three trading days prior to the Merger Effective Date, was $114.1801, the Base Exchange Ratio (as defined in the Merger Agreement) was 0.3328. The number of shares of Disney Common Stock comprising the Stock Consideration was determined by dividing the Per Share Value by the Average Parent Stock Price.  Disney issued approximately 306,844,635 shares of Disney Common Stock to former holders of 21CF Common Stock. No fractional shares of Disney Common Stock are being issued and cash is being paid in lieu thereof.

The aggregate implied value of the consideration paid to former holders of 21CF Common Stock pursuant to the 21CF Merger was approximately $71 billion, including $35.7 billion in cash and approximately $35 billion in Disney Common Stock.

The election results with respect to the form of Merger Consideration were as follows:

 
·
Holders of approximately 499,851,490.660098 shares of 21CF Common Stock outstanding (or 36.44%) immediately prior to the 21CF Effective Time elected to receive the Stock Consideration.





 
·
Holders of approximately 704,595,899.751058 shares of 21CF Common Stock outstanding (or 51.37%) immediately prior to the 21CF Effective Time elected to receive the Cash Consideration.
     
 
·
Holders of approximately 167,141,699.891581 shares of 21CF Common Stock outstanding (or 12.19%) immediately prior to the 21CF Effective Time made no election.

The cash election was oversubscribed. Therefore, each share of 21CF Common Stock in respect of which a valid cash election was made by 5:00 p.m. New York City time on March 14, 2019 (the “ Election Deadline ”) was exchanged for 0.007929 shares of Disney Common Stock and $50.667340 in cash.  Shares of 21CF Common Stock with respect to which a valid stock election or no valid election was made by the Election Deadline were exchanged for 0.4517 shares of Disney Common Stock.

In addition, pursuant to the Merger Agreement, at the Disney Effective Time, Disney assumed any outstanding awards granted under the equity-based incentive plans of Old Disney (including the shares underlying such awards), the award agreements evidencing the grants of such awards and the remaining shares available for issuance under the applicable plan, subject to adjustments to such awards in the manner set forth in the Merger Agreement.

The shares of Old Disney Common Stock, which traded under the symbol “DIS” on the NYSE, were suspended from trading on the NYSE prior to the open of trading on the Merger Effective Date.  Shares of Disney Common Stock continued regular-way trading on the NYSE using Old Disney’s trading history under the ticker symbol “DIS” immediately following the suspension of trading of Old Disney Common Stock.

The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by the full text of the Merger Agreement, a copy of which was attached as Exhibit 2.1 to Old Disney’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 21, 2018, and is incorporated herein by reference.

The above description of the Merger Agreement has been included to provide investors with information regarding the terms of the Merger Agreement. It is not intended to provide any other factual information about Disney, Old Disney, 21CF, FOX or their respective subsidiaries or affiliates. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of the Merger Agreement and as of specific dates, were solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made by each party to the other for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third party beneficiaries under the Merger Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries, affiliates or businesses. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in Disney’s, Old Disney’s, 21CF’s or FOX’s public disclosures.

The information set forth in the “Explanatory Note” and Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.

 

 
Item 2.03.  Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth in the “Explanatory Note” and Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.

Item 3.01.  Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

Prior to the Mergers, shares of Old Disney Common Stock were registered pursuant to Section 12(b) of the Exchange Act and listed on the NYSE.  As a result of the Mergers, Old Disney has requested that the NYSE file a Form 25 to withdraw the shares of Old Disney Common Stock from listing on the NYSE.  The shares of Old Disney Common Stock were suspended from trading on the NYSE prior to the open of trading on the Merger Effective Date.  Old Disney expects to file a Form 15 with the SEC to terminate the registration under the Exchange Act of the shares of Old Disney Common Stock, and suspend the reporting obligations under Sections 12(g) and 15(d) of the Exchange Act of Old Disney.

The information set forth in the “Explanatory Note” and Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.

Item 3.03.  Material Modification to Rights of Security Holders.

The information set forth in the “Explanatory Note” and Items 1.01, 2.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.

Item 5.01.  Changes in Control of Registrant.

As a result of the consummation of the Disney Merger, a change of control of the registrant occurred and Old Disney became a wholly owned subsidiary of Disney.

The information set forth in the “Explanatory Note” and Items 2.01 and 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.

Item 5.02.  Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

In connection with the Mergers, on the Merger Effective Date, the directors of Old Disney immediately prior to the Disney Effective Time ceased to be directors of Old Disney pursuant to the terms of the Merger Agreement, and the directors of WDC Merger Enterprises I, Inc. immediately prior to the Disney Effective Time became the directors of Old Disney. The names of these directors are indicated below:

 
Linda Bagley
Steve Bardwil
James Kapenstein
Kevin Mayer
Jolene Negre
Ken Newman
Jeff Smith
John Stowell
Suzy Wilson
 

In connection with the Mergers, on the Merger Effective Date, the officers of WDC Merger Enterprises I, Inc. immediately prior to the Disney Effective Time became the officers of Old Disney. The names of the officers of Old Disney and their respective positions are indicated below:



 
 
Christine McCarthy
President and Chief Financial Officer
 
Alan Braverman
Senior Executive Vice President and General Counsel
 
James Kapenstein
Senior Vice President
 
Daniel Grossman
Vice President
 
Jonathan Headley
Treasurer
 
Gregory Belzer
Assistant Treasurer
 
Michael Salama
Assistant Treasurer
 
John Stowell
Assistant Treasurer
 
Marsha Reed
Secretary
 
Jolene Negre
Assistant Secretary
 
Roger Patterson
Assistant Secretary

In addition, in connection with the Mergers, on the Merger Effective Date, Disney assumed certain equity incentive plans and employment agreements maintained or entered into by Old Disney, including those plans in which directors or named executive officers of Old Disney were participants and agreements to which certain named executive officers of Old Disney were party, as well as any rights and obligations of Old Disney thereunder.

Item 5.03.  Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On the Closing Date, pursuant to the Disney Merger, Old Disney amended and restated its Certificate of Incorporation to read as the certificate of incorporation of Old Disney immediately prior to the Disney Effective Time, except that (i) the name of Old Disney has been changed from “The Walt Disney Company” to “TWDC Enterprises 18 Corp.,” (ii) a provision has been revised to provide that the total number of shares of capital stock that the Corporation shall have the authority to issue is 10,000, of which 9,000 shares shall be of common stock, par value $0.01 per share, and 1,000 shares shall be shares of preferred stock having a par value of $0.01 per share and issuable in one or more classes or series, (iii) a provision has been added to require that any act or transaction by or involving Old Disney, other than the election or removal of directors, that requires for its adoption under the Delaware General Corporation Law (the “ DGCL ”) or the organizational documents of Old Disney the approval of the stockholders of Old Disney shall, by specific reference to Section 251(g) of the DGCL, require, in addition, the approval of the stockholders of Disney (or any successor by merger), by the same vote as is required by the DGCL and/or by the organizational documents of Old Disney, and (iv) a section of the Certificate of Designation of Series A Voting Preferred Stock of Old Disney was revised to provide that the number of shares constituting Series A Voting Preferred Stock shall be 100, which number of shares constituting this class may be increased or decreased by a resolution of the board of directors of Old Disney.  The Amended and Restated Certificate of Incorporation of Old Disney is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated by reference into this Item 5.03.

On the Merger Effective Date, in connection with the Disney Merger, Old Disney amended and restated its Bylaws to read as the bylaws of Old Disney immediately prior to the Disney Effective Time, except that references to “The Walt Disney Company” were replaced by “TWDC Enterprises 18 Corp.”.  The Amended and Restated Bylaws of Old Disney are filed as Exhibit 3.2 to this Current Report on Form 8-K and are incorporated by reference into this Item 5.03.

Item 9.01.  Financial Statements and Exhibits.

Exhibit Number
 
 
Description of Exhibit
 
 



 
 
 
 
 
 


*Certain schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule or exhibit will be furnished supplementally to the SEC upon request.



 
SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

TWDC ENTERPRISES 18 CORP.
 
 
By:
/s/ James Kapenstein
 
Name:              James Kapenstein
 
Title:               Senior Vice President


Date: March 20, 2019





 
Exhibit 3.1
 
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

TWDC ENTERPRISES 18 CORP.

 
ARTICLE I

NAME

The name of the Corporation is TWDC Enterprises 18 Corp.

ARTICLE II

ADDRESS OF REGISTERED OFFICE;
NAME OF REGISTERED AGENT

The address of the registered office of the Corporation in the State of Delaware is 251 Little Falls Drive, City of Wilmington 19808, County of New Castle.  The name of its registered agent at that address is Corporation Service Company.

ARTICLE III

PURPOSE

The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may now or hereafter be organized under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code, as in effect from time to time (the “DGCL”).

ARTICLE IV

CAPITAL STOCK

1.                   Authorization.

The total number of shares of capital stock which the Corporation shall have the authority to issue is 10,000, of which 9,000 shares shall be shares of common stock having par value of $0.01 per share (“Common Stock”) and 1,000 shares shall be shares of preferred stock having a par value of $0.01 per share (“Preferred Stock”) and issuable in one or more classes or series as hereinafter provided.

The number of authorized shares of any class or classes of capital stock of the Corporation may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of the stock of the Corporation entitled to vote generally in the election of directors.

2.                   Common Stock.

The voting powers, preferences and relative, participating, optional or other special rights of the Common Stock, and the qualifications and restrictions thereon, shall be as follows in this Section 2.

2.1.
Dividends

Subject to any preferences and relative, participating, optional or other special rights of any outstanding series of Preferred Stock and any qualifications or restrictions on the Common Stock created thereby, dividends may be declared and paid upon Common Stock upon such terms as the Board of Directors may determine out of the funds of the Corporation legally available therefor.

2.2.
Voting Powers

Except as otherwise provided by law or by the terms of any outstanding series of Preferred Stock or any provision of the Restated Certificate of Incorporation or Bylaws of the Corporation, the entire voting power of the stockholders of the Corporation shall be vested in the holders of Common Stock of the Corporation, who shall be entitled to vote on any matter on which the holders of stock of the Corporation shall, by law or by the provisions of the Restated Certificate of Incorporation or Bylaws of the Corporation, be entitled to vote.  On each matter to be voted on by the holders of Common Stock each outstanding share of Common Stock shall have one vote.

2.3.
Liquidation Rights

In the event of the voluntary or involuntary dissolution of the Corporation or the liquidation and winding up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and the full preferential amounts (including any accumulated and unpaid dividends) to which the holders of Preferred Stock are entitled, unless otherwise provided in respect of a series of Preferred Stock by the resolution of the Board of Directors fixing the liquidation rights and preferences of such series of Preferred Stock, the holders of the outstanding shares of Common Stock shall be entitled to receive the remaining assets of the Corporation on a per share basis.  Neither the merger nor consolidation of the Corporation into or with any other company, nor the merger or consolidation of any other company into or with the Corporation, nor a sale, transfer or lese of all or any part of the assets of the Corporation, shall, alone, be deemed a liquidation or winding up of the Corporation, or cause the dissolution of the Corporation, for purposes of this subsection 2.3.

3.                   Preferred Stock.

Shares of the Preferred Stock of the Corporation may be issued from time to time in one or more classes or series, each of which class or series shall have such distinctive designation, number of shares, or title as shall be fixed by the Board of Directors prior to the issuance of any shares thereof.  Each such class or series of Preferred Stock shall consist of such number of shares, and have such voting powers, full
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or limited, or no voting powers, and such preferences and relative, participating, optional or other special rights and such qualifications, limitations, or restrictions thereof, as shall be stated in such resolution or resolutions providing for the issue of such series of Preferred Stock as may be adopted from time to time by the Board of Directors prior to the issuance of any shares thereof pursuant to the authority hereby expressly vested in it, all in accordance with the laws of the State of Delaware. By Certificate of Designations, the Corporation authorized the issuance of Series A Voting Preferred Stock, a copy of which Certificate of Designations is attached hereto as Exhibit A.

4.                   Additional Stockholder Approval.

Any act or transaction by or involving the Corporation, other than the election or removal of directors of the Corporation, that requires for its adoption under the DGCL or this Certificate of Incorporation the approval of the stockholders of the Corporation shall, in accordance with Section 251(g) of the DGCL, require, in addition, the approval of the stockholders of TWDC Holdco 613 Corp. (or any successor thereto by merger), by the same vote as is required by the DGCL and/or this Certificate of Incorporation.

ARTICLE V

BOARD OF DIRECTORS

1.                   Number of Directors.

The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors consisting of not less than nine directors or more than twenty-one (21) directors, the exact number of directors to be determined from time to time solely by resolution adopted by the Board of Directors.

2.                   Term of Office.

All directors shall be of one class and serve for a term ending at the annual meeting following the annual meeting at which the director was elected.  In no case shall a decrease in the number of directors shorten the term of any incumbent director.  Each director shall hold office after the annual meeting at which his or her term is scheduled to end until his or her successor shall be elected and shall qualify, subject, however, to prior death, resignation, disqualification or removal from office.

3.                   Vacancies.

Any newly created directorship resulting from an increase in the number of directors may be filled by a majority of the Board of Directors then in office, provided that a quorum is present, and any other vacancy on the Board of Directors may be filled by a majority of the directors then in office, even if less than a quorum, or by a sole remaining director.

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4.                   Special Voting Rights of Preferred Stock Holders.

Notwithstanding the foregoing provisions, whenever the holders of any one or more classes or series of Preferred Stock issued by the Corporation shall have the right, voting separately by class or series, to elect directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Restated Certificate of Incorporation or the resolution or resolutions adopted by the Board of Directors pursuant to Article IV applicable thereto.

5.                   Selection by Written Ballot.

Elections of directors at an annual or special meeting of stockholders shall be by written ballot unless the Bylaws of the Corporation shall otherwise provide.

ARTICLE VI

SPECIAL MEETINGS OF STOCKHOLDERS

A special meeting of the stockholders of the Corporation may be called only by (i) the Board of Directors, (ii) the Chairman of the Board of Directors, (iii) the Chief Executive Officer, or (iv) solely to the extent required by the Bylaws of the Corporation, the Secretary of the Corporation at the request in proper form of stockholders who have continuously held as stockholders of record a net long position in shares of Common Stock representing in the aggregate at least twenty-five percent (25%) of the outstanding shares of Common Stock for at least one year prior to the date such request is delivered to the Secretary.  Special meetings of the stockholders of the Corporation may not be called by any other person or persons.

ARTICLE VII

INDEMNIFICATION; LIMITATION ON LIABILITY OF DIRECTORS

1.                   Indemnification.

The Corporation shall indemnify to the full extent authorized or permitted by law (as now or hereinafter in effect) any person made, or threatened to be made, a defendant or witness to any action, suit or proceeding (whether civil or criminal or otherwise) by reason of the fact that he, his testator or intestate, is or was a director or officer of the Corporation or by reason of the fact that such director or officer, at the request of the Corporation, is or was serving any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, in any capacity.  Nothing contained herein shall affect any rights to indemnification to which employees other than directors and officers may be entitled by law.  No amendment or repeal of this subsection 1 of this Article VII shall apply to or have any effect on any right to indemnification provided hereunder with respect to any acts or omissions occurring prior to such amendment or repeal.

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2.                   Limitation of Liability.

A director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL.  Any repeal or modification of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation existing hereunder with respect to any act or omission occurring prior to such repeal or modification.

3.                   Insurance, Trust Funds.

In furtherance and not in limitation of the powers conferred by statute:

3.1              the Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of law; and

3.2              the Corporation may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds, and/or other similar arrangements), as well as enter into contracts providing indemnification to the full extent authorized or permitted by law and including as part thereof provisions with respect to any or all of the foregoing to ensure the payment of such amounts as may become necessary to effect indemnification as provided therein, or elsewhere.

ARTICLE VIII

BYLAWS

In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, repeal, alter, amend or rescind the Bylaws of the Corporation.  In addition, the Bylaws of the Corporation may be adopted, repealed, altered, amended or rescinded by the affirmative vote of a majority of the outstanding stock of the Corporation entitled to vote thereon.

ARTICLE IX

AMENDMENT OF CERTIFICATE OF INCORPORATION

The Corporation reserves the right to repeal, alter, amend or rescind any provision contained in this Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred on stockholders herein are granted subject to this reservation.
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Exhibit A

CERTIFICATE OF DESIGNATION

OF

SERIES A VOTING PREFERRED STOCK

OF

TWDC ENTERPRISES 18 CORP.

Designation and Amount .  The designation of the series of the preferred stock shall be “Series A Voting Preferred Stock” and the number of shares constituting the Series A Voting Preferred Stock shall be 100. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, however, that no decrease shall reduce the number of shares of Series A Voting Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series A Voting Preferred Stock.

Dividends .

(i)  Holders of outstanding shares of Series A Voting Preferred Stock shall be entitled to receive cumulative preferential cash dividends, if, as and when declared by the Board of Directors, out of funds legally available therefor, in an amount per annum equal to the product of the “Par Rate” and the Liquidation Preference (as defined below).  The “Par Rate,” which shall be determined before the closing date (the “Closing Date”) of the transactions contemplated by that certain Agreement and Plan of Reorganization, dated as of July 10, 1999 (the “Reorganization Agreement”), by and among Infoseek Corporation, the Corporation and Bingo Acquisition Corp., based on the advice of a reputable investment bank selected by the Corporation and shall be a single fixed rate equal to the highest end of the range of dividend rates at which the Series A Voting Preferred Stock would be expected to trade at its Liquidation Preference on or about the Closing Date.

(ii)  Dividends shall be payable semi-annually in arrears on or before June 30 and December 31 each year or, if not a day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York City are authorized or required by law, regulation or executive order to close (each, a “Business Day”), then the next succeeding Business Day (each, a “Dividend Payment Date”), commencing on first June 30 or December 31 following the Closing Date.  The amount of dividends payable on the Series A Voting Preferred Stock for each full semi-annual period from, and including the applicable Divided Payment Date to, but excluding the next succeeding Dividend Payment Date (each, a “Dividend Period”), shall be computed by dividing by two the annual dividend rate set forth in paragraph (i) above.  Dividends payable in respect of the period between the date the Corporation first issued shares of
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Series A Voting Preferred Stock (the “Initial Issue Date”) and the first Dividend Payment Date thereafter (the “Initial Dividend Period”) and any subsequent period between Dividend Payment Dates which is less than a full Dividend Period in length will be computed on the basis of a 360-day year consisting of twelve 30-day months.  Dividends shall be paid to holders of record as their names appear on the stock register of the Corporation at the close of business on the first day of the calendar month in which the applicable Dividend Payment Date falls or on such other date designated by the Board of Directors for the payment of dividends that is not more than 30 nor less than 10 days prior to such Dividend Payment Date (each, a “Record Date”).  Dividends in respect of any past Dividend Periods that are in arrears may be authorized and paid at any time to holders of record on the Record Date thereof.  Any dividend payment made to holders of Series A Voting Preferred Stock shall be first credited against the earliest accrued but unpaid dividend due which remains payable.

(iii)  Dividends shall be fully cumulative and shall accrue (whether or not declared), with additional payments thereon, from the first day of the Dividend Period in which such dividend may be payable as herein provided on all shares of Series A Voting Preferred Stock issued and outstanding on the first day of such Dividend Period, except that with respect to the Initial Dividend Period, such dividend shall accrue from the Initial Issue Date.

(iv)  All dividends paid with respect to shares of Series A Voting Preferred Stock pursuant to paragraph (ii) above shall be paid pro rata to the holders entitled thereto.

(v)  If at any time the Corporation shall have failed to pay all dividends which have accrued on any outstanding shares of any other class or series of preferred stock having cumulative dividend rights ranking on parity with the shares of Series A Voting Preferred Stock at the times such dividends are payable, no cash dividend shall be declared by the Board of Directors or paid or set apart for payment by the Corporation on shares of Series A Voting Preferred Stock unless prior to or concurrently with such declaration, payment, or setting apart for payment, all accrued and unpaid dividends on all outstanding shares of such other series of preferred stock shall have been or be declared, paid or set apart for payment with additional payments thereon, if any; provided , however , that in the event such failure to pay accrued dividends is with respect only to the outstanding shares of Series A Voting Preferred Stock and any outstanding shares of any other class or series of preferred stock having cumulative dividend rights on parity with the shares of Series A Voting Preferred Stock, cash dividends may be declared, paid or set apart for payment, with additional payments thereon, pro rata on shares of Series A Voting Preferred Stock and shares of such other class or series of preferred stock so that the amounts of any cash dividends declared, paid or set apart for payment on shares of Series A Voting Preferred Stock and shares of such other series of preferred stock shall in all cases bear to each other the same ratio that, at the time of such declaration, payment or setting apart for payment, all accrued but unpaid cash dividends on shares of Series A Voting Preferred Stock and shares of such other series of preferred stock bear to each other.  Any dividend not paid pursuant to paragraph (ii) above or this paragraph (v) shall be fully cumulative and shall accrue (whether or not declared), with
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additional payments thereon, as set forth in paragraph (iii) above, even if such dividend is not paid pursuant to paragraph (vii) below.

(vi)  (a) Holders of shares of Series A Voting Preferred Stock shall be entitled to receive dividends provided for herein in preference to and in priority over any dividends, other than dividends paid in stock ranking junior to Series A Voting Preferred Stock (the “Junior Stock”) upon any of the Junior Stock.

(b)  So long as any shares of Series A Voting Preferred Stock are outstanding, the Corporation shall not declare, pay or set apart for payment, any dividend on any of the Junior Stock (other than dividends paid in such Junior Stock) or make any payment on account of, or set apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any of the Junior Stock or any warrants, rights, calls or options exercisable for any of the Junior Stock, or make any distribution in respect thereof, either directly or indirectly, and whether in cash, obligations or shares of the capital stock of the Corporation or other property (other than distributions or dividends in stock to the holders of such stock), and shall not permit any corporation or other entity directly or indirectly controlled by the Corporation to purchase or redeem any of the Junior Stock or any warrants, rights, calls or options exercisable for any of the Junior Stock, unless prior to or concurrently with such declaration, payment, setting apart for payment, purchase or distribution, as the case may be, all accrued and unpaid cash dividends, including additional payments thereon, on shares of Series A Voting Preferred Stock not paid on the dates provided for in paragraph (ii) above shall have been or be paid; provided, however, that nothing contained herein shall prevent the Corporation from repurchasing shares of the Common Stock (as defined in the Restated Certificate of Incorporation) as required by law or by the terms of any employee stock ownership plan of the Corporation.

(vii)  Subject to the foregoing provisions of this section, the Board of Directors may declare and the Corporation may pay or set apart for payment dividends and other distributions on any of the Junior Stock, and may purchase or otherwise redeem any of the Junior Stock or any warrants, rights or options exercisable for any of the Junior Stock, and the holders of the shares of Series A Voting Preferred Stock shall not be entitled to share therein.

Liquidation Preference .

(i)  In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, the holders of shares of Series A Voting Preferred Stock then outstanding shall be entitled to be paid in cash out of the assets of the Corporation available for distribution to its stockholders (x) a fixed amount per share determined on the Closing Date equal to 100 multiplied by the higher of (a) the closing price of common stock, par value $.001 per share (“Infoseek Common Stock”), of Infoseek Corporation as quoted on the Nasdaq National Market (“Nasdaq”) on July 9, 1999 or (B) the closing price of Infoseek Common Stock as quoted on Nasdaq on the last trading date immediately prior to the Closing Date, plus (y) an amount equal to all accrued but unpaid dividends on the Series A Voting Preferred Stock to the date fixed for
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the liquidation (collectively, the “Liquidation Preference”), before any payment shall be made or any assets distributed to the holders of any of the Junior Stock.  If the assets of the Corporation are not sufficient to pay in full the liquidation payments payable to the holders of outstanding shares of Series A Voting Preferred Stock and any other class or series of preferred stock having liquidation rights on parity with the shares of Series A Voting Preferred Stock, then the holders of all such shares shall share ratably in such distribution of assets in accordance with the amount which would be payable on such distribution if the amounts to which the holders of outstanding shares of Series A Voting Preferred Stock and all the holders of outstanding shares of such other series of preferred stock are entitled were paid in full.

(ii)  For the purpose of this section, neither the voluntary sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all the property or assets of the Corporation, nor the consolidation or merger of the Corporation with one or more other corporations shall be deemed to be a liquidation, dissolution or winding up, voluntary or involuntary, unless such voluntary sale, conveyance, exchange or transfer shall be in connection with a dissolution or winding up of the business of the Corporation.

(iii)  The sale, lease or conveyance of all or substantially all of the Corporation’s assets or the merger or consolidation of the Corporation which results in the holders of the Common Stock receiving in exchange for such Common Stock either cash or notes, debentures or other evidences of indebtedness or obligations to pay cash or preferred stock of the surviving entity which ranks on parity with Series A Voting Preferred Stock in liquidation or dividends shall be deemed to be a liquidation, dissolution or winding up of the affairs of the Corporation within the meaning of this section.  In the cases of merger or consolidation of the Corporation where holders of the Common Stock receive, in exchange for such Common Stock, common stock or preferred stock which is junior in liquidation and dividends to Series A Voting Preferred Stock in the surviving entity (whether or not the surviving entity is the Corporation) of such merger or consolidation or preferred stock of another entity (in either case, such preferred stock to be received in exchange for Common Stock is herein referred to in this paragraph (iii) as “Exchanged Preferred Stock”) the Series A Voting Preferred Stock shall be deemed to be preferred stock of such surviving entity or other entity, as the case may be, with the same dividend rate and equivalent rights to the rights set forth herein.  In the event of a merger or consolidation of the Corporation where the consideration received by the holders of the Common Stock consists of two or more of the types of consideration set forth above, the holders of Series A Voting Preferred Stock shall be entitled to receive either cash or securities based upon the foregoing in the same proportion as the holders of the Common Stock of the Corporation are receiving cash or debt securities, or equity securities in the surviving entity or another entity.

Redemption .  The Series A Voting Preferred Stock shall not be subject to redemption.

Voting Rights .  Except as set forth herein and subject to applicable law, the holders of shares of Series A Voting Preferred Stock shall be entitled to vote together
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with the holders of Common Stock and any other class or series of stock entitled to vote with Common Stock as a single class on all matters to be voted upon by the Common Stock and shall not have any additional voting or veto rights.  Each holder of shares of Series A Voting Preferred Stock shall be entitled to one hundred (100) votes for each share of such stock held by such holder.

Consent .  No consent of holders of Series A Voting Preferred Stock shall be required for (i) the creation of any indebtedness of any kind of the Corporation, (ii) the creation of any class of stock of the Corporation ranking junior as to dividends and upon liquidation to the Series A Voting Preferred Stock, (iii) any increase or decrease in the amount of authorized Common Stock or any increase, decrease or change from par value to no par value or (iv) the taking of any other action of the Corporation, other than such action as is specifically described herein as requiring the consent of holders of Series A Voting Preferred Stock or as otherwise required by applicable law.

Transfer .  Disney Enterprises, Inc. (“DEI”) shall not transfer, convey or sell any shares of Series A Voting Preferred Stock to any “Related Person” (as hereinafter defined) and any purported transfer, conveyance or sale to any Related Person shall be null and void.  DEI may, however, transfer, convey or sell shares of Series A Voting Preferred Stock to any person that is not a Related Person.  For purposes of this section, “Related Person” shall mean the Corporation and any person that bears a relationship to the Corporation described in Section 267(b) or Section 707(b) of the Internal Revenue Code of 1986, as amended.

Rank .  The Series A Voting Preferred Stock shall, with respect to dividend rights and rights on liquidation, winding up or dissolution rank (i) on parity with any other class or series of preferred stock established by the Board of Directors, the terms of which shall specifically provide that such class or series shall rank on parity with the Series A Voting Preferred Stock with respect to dividend rights and rights on liquidation, winding up or dissolution, and (ii) prior to any other equity securities of the Corporation, including the Common Stock, with respect to dividend rights and rights on liquidation, winding up or dissolution.

Amendment .  The Restated Certificate of Incorporation of the Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Voting Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least a majority of the outstanding shares of Series A Voting Preferred Stock, voting together as a single class.



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Exhibit 3.2
 

AMENDED AND RESTATED BYLAWS

OF

TWDC ENTERPRISES 18 CORP.

(hereinafter called the “Corporation”)

ARTICLE I

OFFICES

Section 1.              Registered Office .  The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, Delaware.

Section 2.              Principal Place of Business .  The principal place of business of the Corporation is hereby fixed and located at 500 South Buena Vista Street, Burbank, California 91521.

Section 3.              Other Offices .  The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1.              Place of Meetings .  Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors (and in the case of a special meeting, by the Board of Directors or the person calling the special meeting as authorized by Section 3 of this Article II) and stated in the notice of the meeting or in a duly executed waiver of notice thereof.

Section 2.              Annual Meetings .  The Annual Meetings of Stockholders shall be held on such date and at such time and place as may be fixed by the Board of Directors and stated in the notice of the meeting, for the purpose of electing directors and for the transaction of such other business as is properly brought before the meeting in accordance with these Bylaws.

Section 3.              Special Meetings .

(a)              General .

A special meeting of stockholders of the Corporation may be called only by (i) the Board of Directors, (ii) the Chairman of the Board of Directors, or (iii) the Chief Executive Officer, and, subject to the provisions of Section 3(b) of this Article II and all other applicable sections of the Bylaws, shall be called by the Secretary of the Corporation at the written request in proper form of one or more stockholders (a “Stockholder Requested Special Meeting”) who have

continuously held as stockholders of record “Net Long Shares” (as defined below) representing in the aggregate at least twenty-five percent (25%) (the “Requisite Percentage”) of the outstanding shares of the Corporation’s common stock (“Common Stock”) for at least one year prior to the date such request is delivered to the Secretary (the “Request Date”).  Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting, and only such business as is stated in such notice shall be acted upon thereat.

(b)              Stockholder Requested Special Meetings .

(1)              For purposes of determining whether stockholders have held the Requisite Percentage of the outstanding shares of Common Stock for at least one year prior to the Request Date, “Net Long Shares” shall mean those shares of Common Stock as to which the stockholder in question possesses (x) the sole power to vote or direct the voting, (y) the sole economic incidents of ownership (including the sole right to profits and the sole risk of loss), and (z) the sole power to dispose of or direct the disposition.  The number of shares calculated in accordance with clauses (x), (y) and (z) shall not include any shares (1) sold by such stockholder in any transaction that has not been settled or closed, (2) borrowed by such stockholder for any purposes or purchased by such stockholder pursuant to an agreement to resell or (3) subject to any option, warrant, derivative or other agreement or understanding, whether any such arrangement is to be settled with shares of Common Stock or with cash based on the notional amount of shares subject thereto, in any such case which has, or is intended to have, the purpose or effect of (A) reducing in any manner, to any extent or at any time in the future, such stockholder’s rights to vote or direct the voting and full rights to dispose or direct the disposition of any of such shares or (B) offsetting to any degree gain or loss arising from the sole economic ownership of such shares by such stockholder.  Whether shares constitute “Net Long Shares” shall be decided by the Board of Directors in its reasonable determination.

(2)              A request for a Stockholder Requested Special Meeting must be signed by the holders of the Requisite Percentage (or their duly authorized agents) and be delivered to the Secretary at the principal executive offices of the Corporation by registered mail, return receipt requested or by a nationally recognized private overnight courier service, return receipt requested.

To be in proper form and valid, a request for a Stockholder Requested Special Meeting shall (A) set forth a statement of the specific purpose or purposes of the meeting and the matters proposed to be acted on at such special meeting (including the text of any resolutions  proposed for consideration and, if such business includes a proposal to amend the Bylaws, the language of the proposed amendment), (B) bear the date of signature of each stockholder (or duly authorized agent) signing the request, (C) set forth (w) the name and address, as they appear in the Corporation’s books, of each stockholder signing such request (or on whose behalf the request is signed), (x) the number of Net Long Shares held by such stockholder, (y) include documentary evidence that the stockholders held the Requisite Percentage as of the Request Date and for a minimum of one full year prior to the Request Date, provided that if any of the stockholders are not the beneficial owners of the shares representing the Requisite Percentage, then to be valid, the request must also include documentary evidence (or, if not simultaneously provided with the
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request, such documentary evidence must be delivered to the Secretary within ten (10) days after the Request Date) that the beneficial owners on whose behalf the request is made held, together with any requesting stockholders who are beneficial owners, the Requisite Percentage as of the Request Date and for a minimum of one full year prior to the Request Date and (z) a certification from the stockholder submitting the request that the stockholders signing the request in the aggregate satisfy the Requisite Percentage, (D) describe any material interest of each such stockholder in the specific purpose or purposes of the meeting, (E) contain any other information that would be required to be provided by a stockholder seeking to nominate directors or bring an item of business before an annual meeting of stockholders pursuant to Article II, Section 10 of these Bylaws, (F) include an acknowledgment by each stockholder and any duly authorized agent that any reduction in Net Long Shares owned by such stockholder as of the date of delivery of the special meeting request and prior to the record date for the proposed meeting requested by such stockholder shall constitute a revocation of such request to the extent of such reduction, and (G) include an agreement by each stockholder and any duly authorized agent to notify the Corporation promptly in the event of any decrease in Net Long Shares held by such stockholder following the delivery of the request and prior to the Stockholder Requested Special Meeting.  In addition, the stockholder and any duly authorized agent shall promptly provide any other information reasonably requested by the Corporation.

The Corporation will provide the requesting stockholders with notice of the record date for the determination of stockholders entitled to vote at the Stockholder Requested Special Meeting.  Each requesting stockholder is required to update the notice delivered pursuant to this Section 3(b) not later than ten (10) business days after such record date to provide any material changes in the foregoing information as of such record date and, with respect to the information required under clause (C)(y) of the previous paragraph, also as of a date not more than five (5) business days before the scheduled date of the Stockholder Requested Special Meeting as to which the request relates.

Any requesting stockholder may revoke a request for a special meeting at any time by written revocation delivered to the Secretary at the principal executive offices of the Corporation.  If, following such revocation (including any revocation resulting from a disposition of shares) at any time before the date of the Stockholder Requested Special Meeting, the remaining unrevoked requests are from stockholders holding in the aggregate less than the Requisite Percentage, the Board of Directors, in its discretion, may cancel the Stockholder Requested Special Meeting.

(3)              Notwithstanding the foregoing, a special meeting request shall not be valid, and the Secretary shall not be required to call the Stockholder Requested Special Meeting if (A) the request for such special meeting does not comply with this Section 3(b), (B) the Board of Directors, the Chairman of the Board of Directors or the Chief Executive Officer has called or calls an annual or special meeting of stockholders to be held not later than ninety (90) days after the date on which a valid request has been delivered to the Secretary (the “Delivery Date”) and the Board of Directors determines in good faith that the business of such meeting includes (among any other matters properly brought before the meeting) an identical or substantially similar item of business (a “Similar Item”) specified in the stockholder’s request, (C) the request is received by the Secretary during the period commencing ninety (90) days prior to the first anniversary of the date of the immediately preceding annual meeting and ending on the date of the next annual meeting, (D) if two or more special meetings have been called at the request of
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stockholders and convened within the 12-month period ending on the Delivery Date, (E) the request contains a Similar Item to an item that was presented at any meeting of stockholders held within one hundred and twenty (120) days prior to the Delivery Date (and, for purposes of this clause (E) the election of directors shall be deemed a “Similar Item” with respect to all items of business involving the election or removal of directors), (F) the request relates to an item of business that is not a proper subject for action by the stockholders of the Corporation under applicable law or (G) the request was made in a manner that involved a violation of Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable law.  The Board of Directors shall determine in good faith whether the requirements set forth in this Section 3(b) have been satisfied and such determination shall be binding on the Corporation and its stockholders.

(4)              If a valid special meeting request has been made, the Stockholder Requested Special Meeting shall be held at such date, time and place as the Board of Directors shall fix; provided, however, that the date of any such special meeting shall be not more than 90 days after the Special Meeting Request is delivered to the Secretary.

(5)              Business transacted at any Stockholder Requested Special Meeting shall be limited to the purpose(s) stated in a valid special meeting request for such meeting; provided, however, that nothing herein shall prohibit the Corporation from submitting matters to a vote of the stockholders at any Stockholder Requested Special Meeting.

(6)              If none of the stockholders who submitted the request for a Stockholder Requested Special Meeting appears or sends a qualified representative to present the matters to be presented for consideration that were specified in the special meeting request, the Corporation need not present such matters for a vote at such meeting, notwithstanding that proxies in respect of such matter may have been received by the Corporation.

Section 4.              Quorum .  Except as may be otherwise provided by law or by the Certificate of Incorporation, the holders of a majority in voting power of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business.  If, however, such quorum shall not be present or represented at any meeting of the stockholders, a minority of the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented.  At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed.  If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.

Section 5.              Voting .  Unless otherwise required by law, the Certificate of Incorporation or these Bylaws, (i) at all meetings of stockholders for the election of directors, a plurality of votes cast shall be sufficient to elect, and (ii) any other question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority in voting power of the stock represented and entitled to vote thereon.  Unless otherwise provided in the Certificate of
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Incorporation, each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat held by such stockholder.  The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by written ballot.

Section 6.              Organization .

(a)              All meetings of the stockholders shall be presided over by the Chairman of the Board of Directors and, if he is not present, by such officer or director as is designated by the Board of Directors.  The Secretary of the Corporation or, if he is not present, any Assistant Secretary or other person designated by the presiding officer shall act as secretary of the meeting.

(b)              The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting.  The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate.  Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting.  Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants.  Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

Section 7.              List of Stockholders Entitled to Vote .  The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.  Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting at the principal place of business of the Corporation.  The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation who is present.

Section 8.              Stock Ledger .  The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 7 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

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Section 9.              Inspectors of Election .  Before any meeting of stockholders, the Board of Directors shall appoint one or more inspectors to act at the meeting and make a written report thereof.  The Board of Directors may designate one or more persons as alternate inspectors to replace any inspector who fails to act.  If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting.  Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his ability.

The inspectors shall:

(a)              ascertain the number of shares outstanding and the voting power of each,

(b)              determine the shares represented at the meeting and the validity of proxies and ballots,

(c)              count all votes and ballots,

(d)              determine and retain for a reasonable period a record of the disposition of any challenges made to any determination made by the inspectors, and

(e)              certify their determination of the number of shares represented at the meeting and their count of all votes and ballots.

The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors.  In determining the validity and counting of proxies and ballots, the inspectors shall act in accordance with applicable law.

Section 10.           Notice of Stockholder Business and Nominations .

(a)              Annual Meetings of Stockholders .

(1)              Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders only (a) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (b) by or at the direction of the Board of Directors, (c) by any stockholder of the Corporation who was a stockholder of record of the Corporation at the time the notice provided for in this Section 10 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 10, or (d) with respect to nominations, by any Eligible Stockholder (as defined in Article II, Section 11 of these Bylaws) whose Stockholder Nominee (as defined in Article II, Section 11 of these Bylaws) is included in the Corporation’s proxy materials for the relevant annual meeting.

(2)              For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph (a)(1) of this Section 10, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and any such proposed business other than the nomination of persons for election to the Board of Directors must constitute a proper matter for stockholder action.  To be timely, a stockholder’s
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notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth day nor earlier than the close of business on the one hundred twentieth day prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the date of the annual meeting is more than thirty days before or more than seventy days after such anniversary date, notice by the stockholder must be so delivered not later than the close of business on the ninetieth day prior to such annual meeting or if later the tenth day following the day on which public announcement of the date of such meeting is first made by the Corporation).  In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.  Such stockholder’s notice shall set forth: (a) as to each person whom the stockholder proposes to nominate for election as a director all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act (and such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, (ii) the class and number of shares of capital stock of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, (iii) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and or by proxy at the meeting to propose such business or nomination, and (iv) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends (a) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (b) otherwise to solicit proxies from stockholders in support of such proposal or nomination.  The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation.

(3)              Notwithstanding anything in the second sentence of paragraph (a)(2) of this Section 10 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation at an annual meeting is increased and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 10 shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which such public announcement is first made by the Corporation.

(b)              Special Meetings of Stockholders .

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Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to   the Corporation’s notice of meeting.  Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board of Directors, or (2) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this Section 10 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in this Section 10.  In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stock- holder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph(a)(2) of this Section 10 shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth day prior to such special meeting and not later than the close of business on the later of the ninetieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting.  In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(c)              General .

(1)              Only such persons who are nominated in accordance with the procedures set forth in this Section 10 (in the case of an annual or special meeting) or in Article II.  Section 11 of these Bylaws (in the case of an annual meeting only) shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 10.  Except as otherwise provided by law, the chairman of the meeting shall have the power and duty (a) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 10 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by clause (a)(2)(c)(iv) of this Section 10) and, if applicable, Section 3(b) and (b) if any proposed nomination or business was not so made or proposed in compliance with this Section 10 and, if applicable, Section 3(b) to declare that such nomination shall be disregarded or that such proposed business shall not be transacted.

(2)              For purposes of this Section 10 and Section 11 of this Article II, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.

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(3)              Notwithstanding the foregoing provisions of this Section 10, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 10.  Nothing in this Section 10 shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.

Section 11.           Proxy Access .

(a)              Subject to the provisions of this Section 11, the Corporation shall include in its proxy statement (including its form of proxy) for an annual meeting of stockholders the name of any stockholder nominee for election to the Board of Directors submitted pursuant to this Section 11 (each a “Stockholder Nominee”) provided (i) timely written notice of such Stockholder Nominee satisfying this Section 11 (“Notice”) is delivered to the Corporation by or on behalf of a stockholder or stockholders that, at the time the Notice is delivered, satisfy the ownership and other requirements of this Section 11 (such stockholder or stockholders, and any person on whose behalf they are acting, the “Eligible Stockholder”), (ii) the Eligible Stockholder expressly elects in writing at the time of providing the Notice to have its nominee included in the Corporation’s proxy statement pursuant to this Section 11, and (iii) the Eligible Stockholder and the Stockholder Nominee otherwise satisfy the requirements of this Section 11 and the director qualifications requirements set forth in the Corporation’s Corporate Governance Guidelines and any other document setting forth qualifications for directors.

(b)              To be timely, an Eligible Stockholder’s notice must be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation, not later than the close of business on the one hundred twentieth day nor earlier than the close of business on the one hundred fiftieth day prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the date of the annual meeting is more than thirty days before or more than seventy days after such anniversary date, notice by the stockholder must be so delivered not later than the close of business on the one hundred twentieth day prior to such annual meeting or if later the tenth day following the day on which public announcement of the date of such meeting is first made by the Corporation).  In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of the Eligible Stockholder’s notice.

(c)              In addition to including the name of the Stockholder Nominee in the Corporation’s proxy statement for the annual meeting, the Corporation also shall include (i) the information concerning the Stockholder Nominee and the Eligible Stockholder that is required to be disclosed in the Corporation’s proxy statement pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder and (ii) if the Eligible Stockholder so elects, a Statement (defined below) (collectively, the “Required Information”).  Nothing in this Section 11 shall limit the Corporation’s ability to solicit against and include in its proxy statement its own statements relating to any Stockholder Nominee.

(d)              The number of Stockholder Nominees (including Stockholder Nominees that were submitted by an Eligible Stockholder for inclusion in the Corporation’s proxy statement
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pursuant to this Section 11 but either are subsequently withdrawn or that the Board of Directors decides to nominate (a “Board Nominee”)) appearing in the Corporation’s proxy statement with respect to a meeting of stockholders shall not exceed the greater of (x) two or (y) 20% of the number of directors in office as of the last day on which notice of a nomination may be delivered pursuant to this Section 11 (the “Final Proxy Access Nomination Date”) or, if such amount is not a whole number, the closest whole number below 20% (the “Permitted Number”); provided, however, that (i) the Permitted Number shall be reduced by the number of director candidates for which the Corporation shall have received one or more valid Notices that a stockholder intends to nominate director candidates at such annual meeting of stockholders pursuant to paragraph (a)(2) of Section 10 of this Article II, (ii) any director in office as of the nomination deadline who was included in the Corporation’s proxy statement as a Stockholder Nominee for any of the two preceding annual meetings and whom the Board of Directors decides to nominate for election to the Board of Directors also will be counted against the Permitted Number, and (iii) in the event that one or more vacancies for any reason occurs on the Board of Directors at any time after the Final Proxy Access Nomination Date and before the date of the applicable annual meeting of stockholders and the Board of Directors resolves to reduce the size of the Board of Directors in connection therewith, the Permitted Number shall be calculated based on the number of directors in office as so reduced.  In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section 11 exceeds the Permitted Number, each Eligible Stockholder shall select one Stockholder Nominee for inclusion in the Corporation’s proxy statement until the Permitted Number is reached, going in order of the amount (greatest to least) of voting power of the Corporation’s capital stock entitled to vote on the election of directors as disclosed in the Notice.  If the Permitted Number is not reached after each Eligible Stockholder has selected one Stockholder Nominee, this selection process shall continue as many times as necessary, following the same order each time, until the Permitted Number is reached.

(e)              An Eligible Stockholder must have owned (as defined below) continuously for at least three years a number of shares that represents 3% or more of the total voting power of the Corporation’s outstanding shares of capital stock entitled to vote in the election of directors (the “Required Shares”) as of both the date the Notice is delivered to or received by the Corporation in accordance with this Section 11 and the record date for determining stockholders entitled to vote at the meeting and must continue to own the Required Shares through the meeting date.  For purposes of satisfying the ownership requirement under this Section 11, the voting power represented by the shares of the Corporation’s capital stock owned by one or more stockholders, or by the person or persons who own shares of the Corporation’s capital stock and on whose behalf any stockholder is acting, may be aggregated, provided that (i) the number of stockholders and other persons whose ownership of shares is aggregated for such purpose shall not exceed 20, (ii) each stockholder or other person whose shares are aggregated shall have held such shares continuously for at least three years, and (iii) a group of two or more funds that are (A) under common management and investment control, (B) under common management and funded primarily by the same employer (or by a group of related employers that are under common control), or (C) a “group of investment companies,” as such term is defined in Section 12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended, shall be treated as one stockholder or person for this purpose.  Whenever an Eligible Stockholder consists of a group of stockholders and/or other persons, any and all requirements and obligations for an Eligible Stockholder set forth in this paragraph (e) must be satisfied by and as to each such stockholder or
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other person, except that shares may be aggregated to meet the Required Shares as provided in this paragraph (e).  With respect to any one particular annual meeting, no stockholder or other person may be a member of more than one group of persons constituting an Eligible Stockholder under this Section 11.

(f)              For purposes of this Section 11, an Eligible Stockholder shall be deemed to “own” only those outstanding shares of the Corporation’s capital stock as to which the person possesses both (i) the full voting and investment rights pertaining to the shares and (ii) the full economic interest in (including the opportunity for profit and risk of loss on) such shares; provided that the number of shares calculated in accordance with clauses (i) and (ii) shall not include any shares (x) sold by such person or any of its affiliates in any transaction that has not been settled or closed, (y) borrowed by such person or any of its affiliates for any purposes or purchased by such person or any of its affiliates pursuant to an agreement to resell, or (z) subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by such person or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of outstanding shares of the Corporation’s capital stock, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of (A) reducing in any manner, to any extent or at any time in the future, such person’s or affiliates’ full right to vote or direct the voting of any such shares, and/or (B) hedging, offsetting or altering to any degree gain or loss arising from the full economic ownership of such shares by such person or affiliate.  A person shall “own” shares held in the name of a nominee or other intermediary so long as the person retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares.  A person’s ownership of shares shall be deemed to continue during any period in which (i) the person has loaned such shares, provided that the person has the power to recall such loaned shares on five business days’ notice and recalls such loaned shares not more than five business days after being notified that any of its Stockholder Nominees will be included in the Corporation’s proxy statement, or (ii) the person has delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement that is revocable at any time by the person.  The terms “owned,” “owning” and other variations of the word “own” shall have correlative meanings.  For purposes of this Section 11, the term “affiliate” shall have the meaning ascribed thereto in the regulations promulgated under the Exchange Act.

(g)              An Eligible Stockholder must provide with its Notice the following information in writing to the Secretary: (i) one or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been held during the requisite three-year holding period) verifying that, as of a date within seven calendar days prior to the date the Notice is delivered to or received by the Corporation, the Eligible Stockholder owns, and has owned continuously for the preceding three years, the Required Shares, and the Eligible Stockholder’s agreement to provide (A) within five business days after the record date for the meeting, written statements from the record holder and intermediaries verifying the Eligible Stockholder’s continuous ownership of the Required Shares through the record date and (B) immediate notice if the Eligible Stockholder ceases to own any of the Required Shares prior to the date of the applicable annual meeting of stockholders; (ii) documentation satisfactory to the Corporation demonstrating that a group of funds qualifies to be treated as one stockholder or person for  purposes of this Section 11; (iii) a representation that the Eligible Stockholder
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(including each member of any group of stockholders that together is an Eligible Stockholder hereunder): (A) intends to continue to own the Required Shares through the date of the annual meeting, (B) acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control of the Corporation, and does not presently have such intent, (C) has not nominated and will not nominate for election to the Board of Directors at the meeting any person other than the Stockholder Nominee(s) being nominated pursuant to this Section 11, (D) has not engaged and will not engage in, and has not and will not be, a “participant” in another person’s “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the meeting other than its Stockholder Nominee(s) or a Board Nominee, (E) will not distribute to any stockholder any form of proxy for the meeting other than the form distributed by the Corporation, and (F) has provided and will provide facts, statements and other information in all communications with the Corporation and its stockholders that are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; (iv) the written consent of each Stockholder Nominee to be named in the Corporation’s proxy statement as a nominee and to serve as a director if elected; (v) a copy of the Schedule 14N that has been filed with the SEC as required by Rule 14a-18 under the Exchange Act; (vi) any other information that would be required to be provided by a stockholder seeking to nominate directors pursuant to paragraph (a)(2) of Section 10 of this Article II; (vii) in the case of a nomination by a group of stockholders that together is an Eligible Stockholder, the designation by all group members of one group member that is authorized to act on behalf of all members of the nominating stockholder group with respect to the nomination and matters related thereto, including withdrawal of the nomination; and (viii) an undertaking that the Eligible Stockholder agrees to (A) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder’s communications with the Corporation’s stockholders or out of the information that the Eligible Stockholder provides to the Corporation, (B) in a form satisfactory to the Corporation, indemnify and hold harmless the Corporation and each of its directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Corporation or any of its directors, officers or employees arising out of any nomination submitted by the Eligible Stockholder pursuant to this Section 11, (C) file with the SEC any solicitation or other communication with the Corporation’s stockholders relating to the meeting at which the Stockholder Nominee will be nominated, regardless of whether any such filing is required under Section 14 of the Exchange Act and the rules and regulations promulgated thereunder or whether any exemption from filing is available for such solicitation or other communication under Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (D) comply with all other applicable laws, rules, regulations and listing standards with respect to any solicitation in connection with the meeting.

(h)              The Eligible Stockholder may include with its Notice, a written statement for inclusion in the Corporation’s proxy statement for the meeting, not to exceed 500 words in support of each Stockholder Nominee, in support of the Stockholder Nominee’s candidacy (the “Statement”).  Notwithstanding anything to the contrary contained in this Article II, the Corporation may omit from its proxy statement any information or Statement that it believes would violate any applicable law, rule, regulation or listing standard.

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(i)              Each Stockholder Nominee must (i) provide within five business days of the Corporation’s request an executed agreement, in a form deemed satisfactory to the Corporation, that (A) the Stockholder Nominee has read and agrees to adhere to the Corporation’s Corporate Governance Guidelines, the Corporation’s Code of Business Conduct and Ethics for Directors and any other Corporation policies and guidelines applicable to directors, including with regard to securities trading, (B) the Stockholder Nominee is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a Director of the Corporation, with such person’s fiduciary duties under applicable law, (C) the Stockholder Nominee is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification (a “Compensation Arrangement”) in connection with such person’s nomination for director and/or service as a director that has not been disclosed to the Corporation; (ii) complete, sign and submit all questionnaires required of the Corporation’s Board of Directors within five business days of receipt of each such questionnaire from the Corporation; and (iii) provide within five business days of the Corporation’s request such additional information as the Corporation determines may be necessary to permit the Board of Directors to determine whether such Stockholder Nominee meets the requirements of this Section 11 and/or the Corporation’s requirements with regard to director qualifications and policies and guidelines applicable to directors, including whether (A) such Stockholder Nominee is independent under the committee independence requirements set forth in the rules of the principal U.S. exchange on which shares of the Corporation are listed, the listing standards of each U.S. exchange upon which the capital stock of the Corporation is listed, any applicable rules of the Securities and Exchange Commission, and any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the directors (the “Independence Standards”), (B) such Stockholder Nominee has any direct or indirect relationship with the Corporation that has not been deemed categorically immaterial pursuant to the Corporation’s Corporate Governance Guidelines, and (C) such Stockholder Nominee is not and has not been subject to (1) any event specified in Item 401(f) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”) or (2) any order of the type specified in Rule 506(d) of Regulation D under the Securities Act.

(j)              In the event that any information or communications provided by the Eligible Stockholder or Stockholder Nominee to the Corporation or its stockholders ceases to be true and correct in any respect or omits a fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Eligible Stockholder or Stockholder Nominee, as the case may be, shall promptly notify the Secretary of any such inaccuracy or omission in such previously provided information and of the information that is required to make such information or communication true and correct; it being understood that providing any such notification shall not be deemed to cure any defect or limit the Corporation’s right to omit a Stockholder Nominee from its proxy materials as provided in this Section 11.

(k)              The Corporation shall not be required to include, pursuant to this Section 11, a Stockholder Nominee in its proxy statement (or, if the proxy statement has already been filed, to
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allow the nomination of a Stockholder Nominee, notwithstanding that proxies in respect of such vote may have been received by the Corporation) (i) if the Eligible Stockholder who has nominated such Stockholder Nominee has nominated for election to the Board of Directors at the meeting any person other than pursuant to this Section 11, or has or is engaged in, or has been or is a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the meeting other than its Stockholder Nominee(s) or a Board Nominee, (ii) who is not independent under the Independence Standards, (iii) whose election as a member of the Board of Directors would violate or cause the Corporation to be in violation of these Bylaws, the Corporation’s certificate of incorporation, the Corporation’s Corporate Governance Guidelines, the Corporation’s Code of Business Conduct and Ethics for Directors or other document setting forth qualifications for directors, the listing standards of any exchange upon which the Corporation’s capital stock is listed, or any applicable state or federal law, rule or regulation, (iv) if the Stockholder Nominee is or becomes a party to any undisclosed Voting Commitment, (v) if the Stockholder Nominee is or becomes a party to any undisclosed Compensation Agreement, (vi) who is or has been, within the past three years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, (vii) whose then- current or within the preceding ten years’ business or personal interests place such Stockholder Nominee in a conflict of interest with the Corporation or any of its subsidiaries that would cause such Stockholder Nominee to violate any fiduciary duties of directors established pursuant to Delaware law, including but not limited to the duty of loyalty and duty of care, (viii) who is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past ten years, (ix) who is subject to any order of the type specified in Rule 506(d) of Regulation D under the Securities Act, or (x) if such Stockholder Nominee or the applicable Eligible Stockholder shall have provided information to the Corporation in respect of such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading or shall have breached its or their agreements, representations, undertakings and/or obligations pursuant to this Section 11.

(l)              Notwithstanding anything to the contrary set forth herein, if (i) the Stockholder Nominee and/or the applicable Eligible Stockholder shall have breached its or their agreements, representations, undertakings and/or obligations pursuant to this Section 11, as determined by the Board of Directors or the person presiding at the meeting, or (ii) the Eligible Stockholder (or a qualified representative thereof) does not appear at the meeting to present any nomination pursuant to this Section 11, (x) the Board of Directors or the person presiding at the meeting shall be entitled to declare a nomination by an Eligible Stockholder to be invalid, and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received by the Corporation and (y) the Corporation shall not be required to include in its proxy statement any successor or replacement nominee proposed by the applicable Eligible Stockholder or any other Eligible Stockholder.

(m)              Any Stockholder Nominee who is included in the Corporation’s proxy statement for a particular meeting of stockholders but either (i) withdraws from or becomes ineligible or unavailable for election at the meeting or (ii) does not receive a number of votes cast in favor of his or her election at least equal to 25% of the shares present in person or represented by proxy at the annual meeting and entitled to vote on the Stockholder Nominee’s election, shall be
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ineligible to be included in the Corporation’s proxy statement as a Stockholder Nominee pursuant to this Section 11 for the next two annual meetings of stockholders following the meeting for which the Stockholder Nominee has been nominated for election.

(n)              The Board of Directors (and any other person or body authorized by the Board of Directors) shall have the power and authority to interpret this Section 11 and to make any and all determinations necessary or advisable to apply this Section 11 to any persons, facts or circumstances, including the power to determine (i) whether a person or group of persons qualifies as an Eligible Stockholder, (ii) whether outstanding shares of the Corporation’s capital stock are “owned” for purposes of meeting the ownership requirements of this Section 11, (iii) whether a notice complies with the requirements of this Section 11, (iv) whether a person satisfies the qualifications and requirements to be a Stockholder Nominee, (v) whether inclusion of the Required Information in the Corporation’s proxy statement is consistent with all applicable laws, rules, regulations and listing standards, and (vi) whether any and all requirements of this Section 11 have been satisfied.  Any such interpretation or determination adopted in good faith by the Board of Directors (or any other person or body authorized by the Board of Directors) shall be conclusive and binding on all persons, including the Corporation and all record or beneficial owners of stock of the Corporation.

ARTICLE III

DIRECTORS

Section 1.              Number and Election of Directors .

(a)              Subject to the rights, if any, of the holders of preferred stock of the Corporation to elect directors of the Corporation, the Board of Directors shall consist of not less than nine nor more than 21 members with the exact number of directors to be determined from time to time solely by resolution duly adopted by the Board of Directors.  Except as provided in Section 3 of this Article, directors shall be elected by a “majority of votes cast” (as defined herein) at the Annual Meeting of stockholders to hold office as provided by Article FIFTH of the Certificate of Incorporation, unless the election is contested, in which case directors shall be elected by a plurality of votes cast.  An election shall be contested if, as determined by the Board of Directors, the number of nominees exceeds the number of directors to be elected.  For the purposes of this Section, a “majority of votes cast” means that the number of shares voted “for” a director exceeds the number of votes cast “against” that director.  Each director, including a director elected to fill a vacancy, shall hold office until his or her successor is elected and qualified or until his or her earlier death, resignation or removal.  Directors need not be stockholders.

(b)              If a Director in an uncontested election does not receive a majority of votes cast for his or her election, the director shall, within ten business days of certification of election results, submit to the Board a letter of resignation for consideration by the Governance and Nominating Committee.  The Governance and Nominating Committee shall promptly assess the appropriateness of such nominee continuing to serve as a director and recommend to the Board the action to be taken with respect to such tendered resignation.  The Board will determine
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whether to accept or reject such resignation, or what other action should be taken, within 90 days from the date of the certification of election results.

Section 2.              Resignation of Directors .  Any director may resign at any time effective upon giving written notice to the Corporation, unless the notice specifies a later time for the effectiveness of such resignation.

Section 3.              Vacancies .  Any vacancy on the Board of Directors, howsoever resulting may be filled by a majority of the directors then in office, even if less than a quorum, or by a sole remaining director.  Any director elected to fill a vacancy shall hold office for a term as specified in Article FIFTH of the Certificate of Incorporation.

Section 4.              Duties and Powers .  The business of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.

Section 5.              Chairman of the Board .  The Board of Directors shall annually elect one of its members to be Chairman of the Board and shall fill any vacancy in the position of Chairman of the Board at such time and in such manner as the Board of Directors shall determine.  The Chairman of the Board shall preside at all meetings of the Board of Directors and of stockholders.  The Chairman shall perform such other duties and services as shall be assigned to or required of the Chairman by the Board of Directors.

Section 6.              Meetings .  The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware.  Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors.  Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the Chief Executive Officer, the President or by a majority of the Board of Directors.  Notice thereof, stating the place, date and hour of the meeting, shall be given to each director either by mail not less than four days before the date of the meeting, or personally or by telephone, telegram, telex or similar means of communication on 12 hours’ notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.

Section 7.              Quorum; Action of Board of Directors .  Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors.  If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 8.              Action by Written Consen t.  Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a
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meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing, or by electronic transmission, and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the Board of Directors or committee.  Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

Section 9.              Meetings by Means of Conference Telephone .  Members of the Board of Directors of the Corporation, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 9 shall constitute presence in person at such meeting.

Section 10.           Committees .  The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation.  The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee.  In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member.  Any committee, to the extent allowed by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation.  The Board of Directors shall have the power to prescribe the manner in which proceedings of any such committee shall be conducted.  In the absence of any such prescription, such committee shall have the power to prescribe the manner in which its proceedings shall be conducted.  Unless the Board of Directors or such committee shall otherwise provide, regular and special meetings and other actions of any such committee shall be governed by the provisions of this Article III applicable to meetings and actions of the Board of Directors.  Each committee shall keep regular minutes and report to the Board of Directors when required.

Section 11.           Fees and Compensation .  Directors and members of committees may receive such compensation, if any, for their services, and such reimbursement for expenses, as may be fixed or determined by the Board of Directors.

ARTICLE IV

OFFICERS

Section 1.              Genera l.  The officers of the Corporation shall be chosen by the Board of Directors and shall be a Chief Executive Officer, a President, a Secretary and a Treasurer.  The Board of Directors, in its sole discretion, may also choose one or more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers
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and other officers.  Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws.

Section 2.              Election .  The Board of Directors at its first meeting held after each Annual Meeting of stockholders shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time solely by the Board of Directors, which determination may be by resolution of the Board of Directors or in any bylaw provision duly adopted or approved by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until their earlier resignation or removal.  Any officer elected by the Board of Directors may be removed at any time by the Board of Directors with or without cause.  Any vacancy occurring in any office of the Corporation may be filled only by the Board of Directors.

Section 3.              Chief Executive Officer .  The Chief Executive Officer of the Corporation shall, subject to the provisions of these Bylaws and the control of the Board of Directors, have general and active management, direction and supervision over the business of the Corporation and over its officers.  He shall perform all duties incident to the office of chief executive and such other duties as from time to time may be assigned to him by the Board of Directors.  The Chief Executive Officer shall report directly to the Board of Directors and shall have the right to delegate any of his powers to any other officer or employee.

Section 4.              Presiden t.  The President shall report and be responsible to the Chief Executive Officer.  The President shall have such powers and perform such duties as from time to time may be assigned or delegated to him by the Board of Directors or the Chief Executive Officer or are incident to the office of President.

Section 5.              Executive Vice Presidents .  The Executive Vice Presidents shall have such powers and perform such duties as from time to time may be prescribed for them respectively by the Board of Directors or are incident to the office of Executive Vice President.

Section 6.              Senior Vice Presidents .  The Senior Vice Presidents shall have such powers and perform such duties as from time to time may be prescribed for them respectively by the Board of Directors or are incident to the office of Senior Vice President.

Section 7.              Vice Presidents .  The Vice Presidents shall have such powers and perform such duties as from time to time may be prescribed for them respectively by the Board of Directors or are incident to the office of Vice President.

Section 8.              Secretary .  The Secretary shall keep or cause to be kept, at the principal executive office or such other place as the Board of Directors may order, a book of minutes of all meetings of stockholders, the Board of Directors and its committees, with the time and place of holding, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at Board of Directors and committee meetings, the number of shares present or represented at stockholders’ meetings, and the proceedings thereof.  The Secretary shall keep, or cause to be kept, a copy of the Bylaws of the Corporation at the principal executive office or business office of the Corporation.

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The Secretary shall keep, or cause to be kept, at the principal executive office or at the office of the Corporation’s transfer agent or registrar, if one be appointed, a stock register, or a duplicate stock register, showing the names of the stockholders and their addresses, the number and classes of shares held by each and, for holders of certificated shares, the number and date of certificates issued for the same and the number and date of cancellation of every certificate surrendered for cancellation.

The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors and any committees thereof required by these Bylaws or by law to be given, shall keep the seal of the Corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

Section 9.              Treasurer .  The Treasurer shall have the custody of the corporate funds and securities of the Corporation and shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the Corporation, and shall send or cause to be sent to the stockholders of the Corporation such financial statements and reports as are by law or these Bylaws required to be sent to them.

The Treasurer shall deposit all moneys and valuables in the name and to the credit of the Corporation with such depositaries as may be designated by the Board of Directors.  The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, shall render to the Chief Executive Officer, the President and directors, whenever they request it, an account of all transactions and of the financial condition of the Corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

Section 10.           Other Officers .  Such other officers or assistant officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors.  The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.

Section 11.           Execution of Contracts and Other Documents .  Each officer of the Corporation may execute, affix the corporate seal and/or deliver, in the name and on behalf of the Corporation, deeds, mortgages, notes, bonds, contracts, agreements, powers of attorney, guarantees, settlements, releases, evidences of indebtedness, conveyances, or any other document or instrument which is authorized by the Board of Directors or is required to be executed in the ordinary course of business, except in cases where the execution, affixation of the corporate seal and/or delivery thereof shall be expressly and exclusively delegated by the Board of Directors to some other officer or agent of the Corporation.

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ARTICLE V

STOCK

Section 1.              Stock Certificates .

(a)              From and after October 16, 2013, all shares of any or all of the Corporation’s classes or series of stock shall be issued, recorded and transferred exclusively in uncertificated book-entry form in accordance with a direct registration program operated by a clearing agency registered under Section 17A of the United States Securities and Exchange Act.  Any certificates for shares of the Corporation that were issued prior to October 16, 2013 shall continue to be certificated securities of the Corporation until the certificates therefor have been surrendered to the Corporation

(b)              Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to the Delaware General Corporation Law or a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

Section 2.              Signatures .

(a)              Any share represented by certificates shall be signed, in the name of the Corporation (i) by the Chairman of the Board of Directors, the President or any Executive Vice President, Senior Vice President or Vice President and (ii) by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation.

(b)              Where a certificate is countersigned by (i) a transfer agent or (ii) a registrar, any other signature on the certificate may be a facsimile.  In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.

Section 3.              Lost Certificates .  The Board of Directors may direct new uncertificated shares to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed.  When authorizing such issue of new uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such manner as the Board of Directors shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

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Section 4.              Transfers .  Transfers of shares of capital stock of the Corporation shall be made only on the stock record of the Corporation by the holder of record thereof or by his attorney thereunto authorized by the power of attorney duly executed and filed with the Secretary of the Corporation or the transfer agent thereof and upon receipt of proper transfer instructions from the registered owner of such shares, or from a duly authorized attorney or from an individual presenting proper evidence of succession, assignment or authority to transfer the stock or, in the case of certificated shares, only on surrender of any certificate or certificates representing such shares, properly endorsed or accompanied by a duly executed stock transfer power.

Section 5.              Record Date .

(a)              In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than 60 days nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action.  A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

(b)              Notwithstanding Section 5(a) of Article V of these Bylaws, the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall be as fixed by the Board of Directors or as otherwise established under this Section 5(b).  Any person seeking to have the stockholders authorize or take corporate action by written consent without a meeting shall, by written notice addressed to the Secretary and delivered to the Corporation, request that a record date be fixed for such purpose.  The Board of Directors may fix a record date for such purpose which shall be no more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board and shall not precede the date such resolution is adopted.  If the Board of Directors fails within 10 days after the Corporation receives such notice to fix a record date for such purpose, the record date shall be the day on which the first written consent is delivered to the Corporation in the manner described in Section 5(c) below unless prior action by the Board of Directors is required under the General Corporation Law of the State of Delaware, in which event the record date shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

(c)              Every written consent purporting to take or authorizing the taking of corporate action and/or related revocations (each such written consent and related revocation is referred to in this Section 5(c) of Article V of the Bylaws as a “Consent”) shall bear the date of signature of each stockholder who signs the Consent, and no Consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated Consent delivered in the manner required by this Section 5(c), Consents signed by a sufficient number of stockholders to take such action are so delivered to the Corporation.

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A Consent shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded.  Delivery to the Corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested.

In the event of the delivery to the Corporation of a Consent, the Secretary of the Corporation shall provide for the safe-keeping of such Consent and shall promptly conduct such ministerial review of the sufficiency of the Consents and of the validity of the action to be taken by stockholder consent as he deems necessary or appropriate, including, without limitation, whether the holders of a number of shares having the requisite voting power to authorize or take the action specified in the Consent have given consent; provided, however, that if the corporate action to which the Consent relates is the removal or replacement of one or more members of the Board of Directors, the Secretary of the Corporation shall promptly designate two persons, who shall not be members of the Board of Directors, to serve as inspectors with respect to such Consent and   such inspectors shall discharge the functions of the Secretary of the Corporation under this Section 5(c).  If after such investigation the Secretary or the inspectors (as the case may be) shall determine that the Consent is valid and that the action therein specified has been validly authorized, that fact shall forthwith be certified on the records of the Corporation kept for the purpose of recording the proceedings of meetings of stockholders, and the Consent shall be filed in such records, at which time the Consent shall become effective as stockholder action.  In conducting the investigation required by this Section 5(c), the Secretary or the inspectors (as the case may be) may, at the expense of the Corporation, retain special legal counsel and any other necessary or appropriate professional advisors, and such other personnel as they may deem necessary or appropriate to assist them, and shall be fully protected in relying in good faith upon the opinion of such counsel or advisors.

Section 6.              Beneficial Owners .  The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law.

Section 7.              Certain Security Repurchases .  The Corporation shall not acquire any of its voting equity securities at a price exceeding the greater of the then-current market price of such securities or the average market price of such securities for the preceding thirty trading days from any person or group who or that is the beneficial owner of more than 2% of the Corporation’s voting securities, unless the acquisition of such securities is (a) effected pursuant to the same offer and on terms extended to all holders of securities of such class and to all holders of any other class from or into which such securities may be converted, or (b) approved by a vote of a majority of the shares cast, excluding those owned by the beneficial owner whose shares are being acquired by the Corporation.  This provision shall not restrict the Corporation from acquiring shares in other circumstances, including: (i) reacquiring shares in the open market or in block trades pursuant to a stock repurchase program approved by the Board of Directors, in each case in accordance with the requirements of Securities and Exchange Commission Rule
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10b-18 or any successor rule, or (ii) reacquiring shares pursuant to the terms of a stock option plan that has been approved by a vote of a majority of the shares of common stock.

Section 8.              Stockholder Rights Plans .

(a)              Notwithstanding anything in these Bylaws to the contrary, the adoption of a stockholder rights plan, rights agreement or any other form of distribution to stockholders which is designed to or has the effect of making an acquisition of large holdings of the Corporation’s shares of common stock more difficult or expensive (“Stockholder Rights Plan”) shall require the affirmative vote of a majority of the members of the Board of Directors including a majority of members who have been determined by the Board of Directors to be independent pursuant to the requirements of any policy of the Corporation and any applicable regulatory listing requirement (“Independent Members”).

(b)              Any Stockholder Rights Plan adopted after the effective date of this Section shall expire no later than one year following the date of its adoption or the most recent extension pursuant to clause (2) below unless (1) a majority of the Board including a majority of the Independent Members determines to extend the term of the Stockholder Rights Plan or any rights or options provided thereunder, in which case the Stockholder Rights Plan will remain in effect until the completion of the next Annual Meeting of Stockholders or (2) the Board unanimously determines that it is in the best interest of stockholders to extend the term of the Stockholder Rights Plan or any rights or options provided thereunder notwithstanding any absence of stockholder ratification.

(c)              Paragraphs (a) and (b) of this Section shall not apply to any Stockholder Rights Plan ratified by the stockholders.

(d)              Any decision by the Board of Directors to repeal or amend this Section shall require the affirmative vote of a majority of the Board including a majority of the Independent Members of the Board of Directors.

ARTICLE VI

NOTICES

Section 1.              Notices .  Whenever written notice is required by law, the Certificate of Incorporation or these Bylaws, to be given to any director or stockholder, such notice may be given by mail, addressed to such director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail.  Written notice may also be given personally or by telegram, telex, cable or facsimile or (to the extent permitted by law) other electronic transmission followed, if required by law, by deposit in the United States mail, with postage prepaid.

Section 2.              Waivers of Notice .  Whenever any notice is required by law, the Certificate of Incorporation or these Bylaws, to be given to any director or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

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ARTICLE VII

GENERAL PROVISIONS

Section 1.              Disbursements .  All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

Section 2.              Fiscal Year .  The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

Section 3.              Voting Securities Owned by the Corporation .  Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairman of the Board of Directors, the Chief Executive Officer or the President or any other officer or officers authorized by the Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer or the President, and any such officer may, in the name of and on behalf of the Corporation, vote, represent and exercise on behalf of the Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of the Corporation and take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present.  The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.

Section 4.              Forum for Adjudication of Disputes .  Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if and only if the Court of Chancery of the State of Delaware lacks subject matter jurisdiction, any state court located within the State of Delaware or, if and only if all such state courts lack subject matter jurisdiction, the federal district court for the District of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action or proceeding asserting a claim of breach of a fiduciary duty owed by any current or former director, officer or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action or proceeding asserting a claim arising pursuant to, or seeking to enforce any right, obligation or remedy under, any provision of the General Corporation Law of the State of Delaware, the Certificate of Incorporation or these Bylaws (as each may be amended from time to time), (d) any action or proceeding as to which the General Corporation Law of the State of Delaware confers jurisdiction on the Court of Chancery of the State of Delaware, or (e) any action or proceeding asserting a claim governed by the internal affairs doctrine.  Any person or entity purchasing or otherwise acquiring or holding or owning (or continuing to hold or own) any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Bylaw.

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ARTICLE VIII

INDEMNIFICATION

Section 1.              Genera l.  The Corporation shall indemnify to the full extent authorized or permitted by law (as now or hereafter in effect) any person made, or threatened to be made, a defendant or witness to any action, suit or proceeding (whether civil or criminal or otherwise) by reason of the fact that he, his testator or intestate, is or was a director or officer of the Corporation or by reason of the fact that such director or officer, at the request of the Corporation, is or was serving any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, in any capacity.  Nothing contained herein shall affect any rights to indemnification to which employees other than directors and officers may be entitled by law.  No amendment or repeal of this Section 1 shall apply to or have any effect on any right to indemnification provided hereunder with respect to any acts or omissions occurring prior to such amendment or repeal.

Section 2.              Further Assurance .  In furtherance and not in limitation of the powers conferred by statute:

(a)              the Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of law; and the Corporation may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or other similar arrangements), as well as enter into contracts providing indemnification to the full extent authorized or permitted by law and including as part thereof provisions with respect to any or all of the foregoing to ensure the payment of such amounts as may become necessary to effect indemnification as provided therein, or elsewhere.

ARTICLE IX

AMENDMENTS

Section 1.              Genera l.  These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by the Board of Directors.

ARTICLE X

EMERGENCY PROVISIONS

Section 1.              Genera l.  The provisions of this Article X shall be operative only during a national emergency declared by the President of the United States or the person performing the President’s functions, or in the event of a nuclear, atomic or other attack on the United States or a
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disaster making it impossible or impracticable for the Corporation to conduct its business without recourse to the provisions of this Article X.  Said provisions in such event shall override all other Bylaws of the Corporation in conflict with any provisions of this Article X, and shall remain operative so long as it remains impossible or impracticable to continue the business of the Corporation otherwise, but thereafter shall be inoperative; provided that all actions taken in good faith pursuant to such provisions shall thereafter remain in full force and effect unless and until revoked by action taken pursuant to the provisions of the Bylaws other than those contained in this Article X.

Section 2.              Unavailable Directors .  All directors of the Corporation who are not available to perform their duties as directors by reason of physical or mental incapacity or for any other reason or who are unwilling to perform their duties or whose whereabouts are unknown shall automatically cease to be directors, with like effect as if such persons had resigned as directors, so long as such unavailability continues.

Section 3.              Authorized Number of Directors .  The authorized number of directors shall be the number of directors remaining after eliminating those who have ceased to be directors pursuant to Section 2 of this Article X, or the minimum number required by law, whichever number is greater.

Section 4.              Quorum .  The number of directors necessary to constitute a quorum shall be one-third of the authorized number of directors as specified in Section 3 of this Article X, or such other minimum number as, pursuant to the law or lawful decree then in force, it is possible for the Bylaws of a Corporation to specify.

Section 5.              Creation of Emergency Committee .  In the event the number of directors remaining after eliminating those who have ceased to be directors pursuant to Section 2 of this Article X is less than the minimum number of authorized directors required by law, then until the appointment of additional directors to make up such required minimum, all the powers and authorities which the Board of Directors could by law delegate including all powers and authorities which the Board of Directors could delegate to a committee, shall be automatically vested in an emergency committee, and the emergency committee shall thereafter manage the affairs of the Corporation pursuant to such powers and authorities and shall have all other powers and authorities as may by law or lawful decree be conferred on any person or body of persons during a period of emergency.

Section 6.              Constitution of Emergency Committee .  The emergency committee shall consist of all the directors remaining after eliminating those who have ceased to be directors pursuant to Section 2 of this Article X, provided that such remaining directors are not less than three in number.  In the event such remaining directors are less than three in number, the emergency committee shall consist of three persons, who shall be the remaining director or directors and either one or two officers or employees of the Corporation, as the remaining director or directors may in writing designate.  If there is no remaining director, the emergency committee shall consist of the three most senior officers of the Corporation who are available to serve, and if and to the extent that officers are not available, the most senior employees of the Corporation.  Seniority shall be determined in accordance with any designation of seniority in the minutes of the proceedings of the Board, and in the absence of such designation, shall be
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determined by rate of remuneration.  In the event that there are no remaining directors and no officers or employees of the Corporation available, the emergency committee shall consist of three persons designated in writing by the stockholder owning the largest number of shares of record as of the date of the last record date.

Section 7.              Powers of Emergency Committee .  The emergency committee, once appointed, shall govern its own procedures and shall have power to increase the number of members thereof beyond the original number, and in the event of a vacancy or vacancies therein, arising at any time, the remaining member or members of the emergency committee shall have the power to fill such vacancy or vacancies.  In the event at any time after its appointment all members of the emergency committee shall die or resign or become unavailable to act for any reason whatsoever, a new emergency committee shall be appointed in accordance with the foregoing provisions of this Article X.

Section 8.              Directors Becoming Available .  Any person who has ceased to be a director pursuant to the provisions of Section 2 of this Article X and who thereafter becomes available to serve as a director shall automatically become a member of the emergency committee.

Section 9.              Election of Board of Directors .  The emergency committee shall, as soon after its appointment as is practicable, take all requisite action to secure the election of a board of directors, and upon such election all the powers and authorities of the emergency committee shall cease.

Section 10.           Termination of Emergency Committee .  In the event, after the appointment of an emergency committee, a sufficient number of persons who ceased to be directors pursuant to Section 2 of this Article X become available to serve as directors, so that if they had not ceased to be directors as aforesaid, there would be enough directors to constitute the minimum number of directors required by law, then all such persons shall automatically be deemed to be reappointed as directors and the powers and authorities of the emergency committee shall be at an end.

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Exhibit 4.1
 






FIRST SUPPLEMENTAL INDENTURE
 
dated as of March 20, 2019
 
among
 
TWDC ENTERPRISES 18 CORP.
 
and

THE WALT DISNEY COMPANY
 
and
 
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
 
to the
 
INDENTURE
 
dated as of September 24, 2001
 
between
 
TWDC ENTERPRISES 18 CORP.
 
and  
 
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
 
 
This FIRST SUPPLEMENTAL INDENTURE (this “ First Supplemental Indenture ” ), dated as of March 20, 2019 among TWDC Enterprises 18 Corp. (formerly The Walt Disney Company), a Delaware corporation (the “ Company ” ), Wells Fargo Bank, National Association, as trustee (the “ Trustee ” ), and The Walt Disney Company (formerly TWDC Holdco 613 Corp.), a Delaware corporation (the “ Guarantor ”).

 
RECITALS

 WHEREAS the Company and the Trustee have duly executed and delivered an Indenture, dated as of September 24, 2001 (the “ Indenture ”), providing for the issuance from time to time of unsecured debentures, notes or other evidences of indebtedness (the “ Securities ”) to be issued in one or more series by the Company; 

WHEREAS the Company is a direct, wholly owned subsidiary of the Guarantor; 

WHEREAS, the Board of Directors of the Guarantor has determined it to be in the best interest of the Guarantor to guarantee, to the extent set forth herein, all of the Company’s Obligations (as defined below) under the Securities and the Indenture;

WHEREAS the Company desires to execute and deliver this First Supplemental Indenture in order to provide for the Guarantee (as defined below); 

WHEREAS in accordance with Section 9.1 of the Indenture, the Company and the Trustee may, without the consent of any Holders of Securities, make any change thereto that does not adversely affect the rights of any Securityholder in any material respect, and accordingly, the Company and the Trustee are permitted to enter into this First Supplemental Indenture; 
WHEREAS for the purposes hereinabove recited, and pursuant to due corporate action, the Company has duly determined to execute and deliver to the Trustee this First Supplemental Indenture; and 

WHEREAS all covenants and conditions necessary to make this First Supplemental Indenture a valid, legal and binding instrument in accordance with its terms have been done and performed, and the execution and delivery hereof have been in all respects duly authorized; 

NOW, THEREFORE, the parties hereto hereby agree as follows:

 
ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE

 Section 1.1. Definitions .

(a) All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Indenture.
 
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(b) For all purposes of this First Supplemental Indenture, except as otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and expressions used herein shall have the same meanings as corresponding terms and expressions used in the Indenture; and (ii) the words “herein,” “hereof” and “hereby” and other words of similar import used in this First Supplemental Indenture refer to this First Supplemental Indenture as a whole and not to any particular section hereof. 

(c) “Excluded Entity” means each of the Hong Kong Disneyland Entities, the Shanghai Project Entities and the Specified Project Entities.

(d) “Hong Kong Disneyland Entity” means any Subsidiary of the Company and any other Person whose equity securities or interests are owned, directly or indirectly, in whole or in part, by the Company or any of its Subsidiaries, the primary business of which is the direct or indirect ownership, management, operation, design, construction and/or financing of the recreational and commercial facilities and complex, or any part thereof or any addition thereto, commonly known as “Hong Kong Disney,” “Hong Kong Disneyland” or “Disneyland Resort Hong Kong,” located at Penny’s Bay on Lantau Island, Hong Kong, which Subsidiaries and other Persons include, without limitation, as of the date hereof, Hongkong International Theme Parks Limited, Hong Kong Disneyland Management Limited and Walt Disney Holdings (Hong Kong) Limited.

(e) “Measured Subsidiary” means, with respect to any Person, any (a) corporation (or foreign equivalent) other than an Excluded Entity or (b) general partnership, limited partnership or limited liability company (or foreign equivalent) other than an Excluded Entity (each, a “Non-Corporate Entity”), in either case, of which more than 50% of the outstanding capital stock (or comparable interest) having ordinary voting power (irrespective of whether at the time capital stock (or comparable interest) of any other class or classes of such corporation or Non-Corporate Entity shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly (through one or more Measured Subsidiaries) owned by such Person.  In the case of a Non-Corporate Entity, a Person shall be deemed to have more than 50% of interests having ordinary voting power only if such Person’s vote in respect of such interests comprises more than 50% of the total voting power of all such interests in such Non-Corporate Entity.  For purposes of this definition, any managerial powers or rights comparable to managerial powers afforded to a Person solely by reason of such Person’s ownership of general partner or comparable interests (or foreign equivalent) shall not be deemed to be “interests having ordinary voting power.”

(f) “Shanghai Project Entity” means any Subsidiary of the Company and any other Person whose equity securities or interests are owned, directly or indirectly, in whole or in part, by the Company or any of its Subsidiaries, the primary business of which is the direct or indirect ownership, management, operation, design, construction and/or financing of the recreational and commercial facilities and complex or any part thereof or any addition thereto, to be known as “Shanghai Disney”, “Shanghai Disneyland” or “Disneyland Resort Shanghai” or by any similar name, to be located in the Pudong New Area, Shanghai, People’s Republic of China, which Subsidiaries and other Persons include, without limitation, as of the date hereof, Shanghai International Theme Park Company Limited, Shanghai International Theme Park Associated Facilities Company Limited, Shanghai International Theme Park and Resort Management Company Limited and WD Holdings (Shanghai), LLC.
 
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(g) “Specified Project Entity” means:

(i) DVD Financing, Inc.;

(ii) each Affiliate of the Company organized after February 25, 2004 (the “Organization Date”) (or whose business commenced after the Organization Date) and any other Person organized after the Organization Date (or whose business commenced after the Organization Date) whose equity securities or interests are owned, directly or indirectly, in whole or in part, by the Company or any of its Subsidiaries, in each case, if:

(A) such Affiliate or other Person has incurred debt for the purpose of financing all or a part of the costs of the acquisition, construction, development or operation of a particular project (“Project Debt”);

(B) except for customary guarantees, keep-well agreements and similar credit and equity support arrangements in respect of Project Debt incurred by such Affiliate or other Person from the Company or any of its Subsidiaries not in excess of $150,000,000 or from third parties, the source of repayment of such Project Debt is limited to the assets and revenues of such particular project (or, if such particular project comprises all or substantially all of the assets of such Affiliate or other Person, the assets and revenues of such Affiliate or other Person); and

(C) the property over which liens are granted to secure such Project Debt, if any, consists solely of the assets and revenues of such particular project or the equity securities or interests of such Affiliate or other Person or a Subsidiary of the Company referred to in clause (iii) below; and

(iii) each Affiliate of the Company organized after the Organization Date (or whose business commenced after the Organization Date) whose equity securities or interests are owned, directly or indirectly, in whole or in part, by the Company or any of its Subsidiaries, the primary business of which is the direct or indirect ownership, management or operation of, or provision of services to, any Affiliate or other Person referred to in clause (ii) above.

ARTICLE 2

GUARANTEE

Section 2.1. Unconditional Guarantee.   (a) The Guarantor hereby fully and unconditionally guarantees (the “ Guarantee ”), to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture or the Securities or the obligations of the Company or any other guarantor to the Holders or the Trustee hereunder or thereunder, that: (1) the Principal of and interest on the Securities will be duly and promptly paid in full when due, whether at Stated Maturity, upon redemption, by acceleration or otherwise, and interest on the overdue Principal and (to the extent permitted by law) interest, if any, on the Securities and all other obligations of the Company or the Guarantor to the Holders or the Trustee hereunder or thereunder (including fees, expenses or others) (collectively, the “ Obligations ”) will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Obligations (with or without notice to the Guarantor), the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.  If the Company shall fail to pay when due, or to perform, any Obligations, for whatever reason, the Guarantor shall be jointly and severally obligated to pay in cash, or to perform or cause the performance of, the same promptly.  An Event of Default under the Indenture or the Securities of a particular series shall entitle the Holders of the Securities of such series to accelerate the Obligations of the Guarantor hereunder in the same manner and to the same extent as the Obligations of the Company.

 
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(b)              The Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions of the Indenture or the Securities, any release of any other guarantor, the recovery of any judgment against the Company, any action to enforce the same, whether or not the Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor.

(c)              The Guarantor further agrees that, as between it, on the one hand, and the Holders of the Securities and the Trustee, on the other hand, (1) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of the Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations and (2) in the event of any acceleration of such Obligations as provided in Article VI, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of the Guarantee.

Section 2.2. Waiver.   To the fullest extent permitted by applicable law, the Guarantor waives diligence, presentment, demand of, payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that the Guarantee will not be discharged except by complete performance of the Obligations contained in the Securities and the Indenture.

Section 2.3. Guarantee of Payment.   The Guarantor further agrees that the Guarantee constitutes a guarantee of payment, performance and compliance when due and not a guarantee of collection, and waives any right to require that any resort be had by the Trustee or any Holder of the Securities to the security, if any, held for payment of the Obligations.

Section 2.4. No Discharge or Diminishment of Guarantee.   Subject to Section 2.10 hereof, the obligations of the Guarantor hereunder shall not be subject to any reduction, limitation, termination, impairment or for any reason (other than the payment in full in cash of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise.  Without limiting the generality of the foregoing, the obligations of the Guarantor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Trustee or any Holder of the Securities to assert any claim or demand or to enforce any remedy under the Indenture or the Securities, any other guarantee or any other agreement, by any waiver or modification of any provision thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission or delay to do any other act that may or might in any manner or to any extent vary the risk of the Guarantor or that would otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than the payment in full in cash of all the Obligations).

 
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Section 2.5. Defenses of Company Waived.   To the extent permitted by applicable law, the Guarantor waives any defense based on or arising out of any defense of the Company or any other guarantor or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Company, other than complete performance of the Obligations contained in the Securities of the applicable series, the Indenture and in the Guarantee.  The Guarantor waives any defense arising out of any such election even though such election operates to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of the Guarantor against the Company or any security.

Section 2.6. Continued Effectiveness.   Subject to Section 2.10 hereof, the Guarantor further agrees that the Guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of Principal of or interest on any Obligation is rescinded or must otherwise be restored by the Trustee or any Holder of the Securities upon the bankruptcy or reorganization of the Company or otherwise.

Section 2.7. Subrogation.   In furtherance of the foregoing and not in limitation of any other right of the Guarantor by virtue hereof, upon the failure of the Company to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Guarantor hereby promises to and will, upon receipt of written demand by the Trustee or any Holder of the Securities, forthwith pay, or cause to be paid, to the Holders in cash the amount of such unpaid Obligations, and thereupon the Holders shall assign (except to the extent that such assignment would render the Guarantor a “creditor” of the Company within the meaning of Section 547 of Title 11 of the United States Code as now in effect or hereafter amended or any comparable provision of any successor statute) the amount of the Obligations owed to them and paid by the Guarantor pursuant to this Guarantee to the Guarantor, such assignment to be pro rata to the extent the Obligations in question were discharged by the Guarantor, or make such other disposition thereof as the Guarantor shall direct (all without recourse to the Holders, and without any representation or warranty by the Holders).  If (a) the Guarantor shall make payment to the Holders of all or any part of the Obligations and (b) all the Obligations and all other amounts payable under the Indenture shall be paid in full, the Trustee will, at the Guarantor’s request, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Obligations resulting from such payment by the Guarantor.

Section 2.8. Information.   The Guarantor assumes all responsibility for being and keeping itself informed of the Company’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that the Guarantor assumes and incurs hereunder, and agrees that the Trustee and the Holders of the Securities will have no duty to advise the Guarantor of information known to it or any of them regarding such circumstances or risks.

 
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Section 2.9. Subordination.   Upon payment by the Guarantor of any sums to the Holders, as provided above, all rights of the Guarantor against the Company, arising as a result thereof by way of right of subrogation or otherwise, shall in all respects be subordinated and junior in right of payment to the prior payment in full in cash of all the Obligations to the Trustee; provided, however, that any right of subrogation that the Guarantor may have pursuant to the Indenture is subject to Section 2.7 hereof.

Section 2.10. Release of Guarantor.   (a) The Guarantor shall, upon the occurrence of any of the following events, be automatically and unconditionally released and discharged from all obligations under the Indenture and the Guarantee without any action required on the part of the Trustee or any Holder:

(i)              upon notice to the Trustee, at any time the aggregate principal amount of indebtedness for borrowed money (without duplication) issued or borrowed by all Measured Subsidiaries of the Guarantor (collectively) (other than any indebtedness for borrowed money represented by guarantees of third party indebtedness) constitutes (or, as a result of any event or circumstance occurring or arising substantially concurrently therewith, will constitute) no more than 10.0% of the aggregate principal amount of indebtedness for borrowed money of the Guarantor and its Measured Subsidiaries (other than any indebtedness for borrowed money represented by guarantees of third party indebtedness), on a consolidated basis, as of such time;

(ii)            upon (A) the sale, transfer or disposition of all or substantially all of the equity interests of the Company to another Person (other than to any subsidiary of the Guarantor) or (B) the conveyance, transfer or lease (including by way of consolidation or merger) substantially as an entirety of the properties and assets of the Company to another Person (other than to any subsidiary of the Guarantor) in compliance with Article V of the Indenture; or

(iii)          upon the discharge of the Company’s obligations under the Indenture in accordance with its terms.

(b)              The Guarantor shall be automatically and unconditionally released and discharged from all obligations under the Indenture and the Guarantee without any action required on the part of the Trustee or any Holder upon any covenant defeasance or legal defeasance with respect to the Securities, or upon the satisfaction and discharge of the Indenture, in each case subject to reinstatement pursuant to Article VIII of the Indenture.

(c)              The Trustee shall deliver an appropriate instrument evidencing such release upon receipt of a request of the Company accompanied by an Officer’s Certificate certifying as to the compliance with this Section and that such release and discharge is authorized and permitted hereunder upon which the Trustee shall be entitled to fully rely without any obligation to verify, confirm or otherwise review and with no liability therefor.

 
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Section 2.11. Limitation of Guarantor’s Liability.   (a) The Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the Guarantee by the Guarantor not constitute a fraudulent transfer or conveyance for purposes of Title 11 of the United States Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantor.  To effectuate the foregoing intention, the Holders and the Guarantor hereby irrevocably agree that the obligations of the Guarantor under the Indenture and the Guarantee shall be limited to the maximum aggregate amount which, after giving effect to all other contingent and fixed liabilities of the Guarantor and after giving effect to any collections from or payments made by or on behalf of any other guarantor in respect of the obligations of such guarantor under its guarantee or pursuant to its contribution obligations under the Indenture, will result in the obligations of the Guarantor under the Guarantee not constituting such fraudulent transfer or conveyance.

(b) The Guarantee is expressly limited so that in no event, including the acceleration of the maturity of the Securities, shall the amount paid or agreed to be paid in respect of interest on the Securities (or fees or other amounts deemed payment for the use of funds) exceed the maximum permissible amount under applicable law, as in effect on the date hereof and as subsequently amended or modified to allow a greater amount of interest (or fees or other amounts deemed payment for the use of funds) to be paid under the Guarantee.  If for any reason the amount in respect of interest (or fees or other amounts deemed payment for the use of funds) required by the Guarantee exceeds such maximum permissible amount, the obligation to pay interest under the Guarantee (or fees or other amounts deemed payment for the use of funds) shall be automatically reduced to such maximum permissible amount and any amounts collected by any holder of any Security in excess of the permissible amount shall be automatically applied to reduce the outstanding principal on such Security.

Section 2.12. Contribution from Other Guarantors .  If the Guarantor makes a payment or distribution under its Guarantee, it shall be entitled to seek contribution from each other non-paying guarantor in a pro rata amount based on the net assets of each guarantor determined in accordance with generally accepted accounting principles in effect in the United States of America as of the date hereof so long as the existence of such right does not impair the rights of the Holders under the Guarantee.

Section 2.13. No Obligation to Take Action Against the Company .  Neither the Trustee, any Holder nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or take any other steps under any security for the Obligations or against the Company or any other Person or any Property of the Company or any other Person before the Trustee, such Holder or such other Person is entitled to demand payment and performance by the Guarantor of its liabilities and obligations under the Guarantee.
 
ARTICLE 3

MISCELLANEOUS
 
                 Section 3.1. Ratification of the Indenture.

This First Supplemental Indenture is executed and shall be constructed as an indenture supplement to the Indenture, and as supplemented and modified hereby, the Indenture is in all respects ratified and confirmed, and the Indenture and this First Supplemental Indenture shall be read, taken and constructed as one and the same instrument.

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 Section 3.2. Trust Indenture Act Controls.

 If and to the extent that any provision of this First Supplemental Indenture limits, qualifies or conflicts with the duties imposed by, or with another provision (an “incorporated provision”) included in this First Supplemental Indenture by operation of, Sections 310 to 318 of the TIA, inclusive, such imposed duties or incorporated provision shall control.

 Section 3.3. Notices.

 All notices and other communications shall be given as provided in the Indenture; provided that any notice or communication to the Guarantor shall be sufficiently given if in writing and delivered in person, sent by electronic delivery, or mailed by first-class mail addressed as follows:

one copy to:

The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Legal Department
Email: corp.legal.notices@disney.com

and the second copy to:

The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Corporate Treasurer
Email: corp.finance@disney.com
 
                                The Guarantor by notice to the Trustee may designate additional or different addresses for subsequent notices or communications.

Section 3.4. Governing Law.  

THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE COMPANY, THE GUARANTOR, THE TRUSTEE, AND EACH HOLDER OF A SECURITY (BY ACCEPTANCE THEREOF) THEREBY, (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS FIRST SUPPLEMENTAL INDENTURE, (II) IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION IN SUCH SUITS AND (III) IRREVOCABLY WAIVES TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK AND THAT SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

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Section 3.5. Successors.

All agreements of the Company and the Guarantor in this First Supplemental Indenture shall bind their successors. All agreements of the Trustee in this First Supplemental Indenture shall bind its successors.

 Section 3.6. Multiple Originals.

 The parties may sign any number of copies of this First Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this First Supplemental Indenture.

Section 3.7. Effect of Headings.

The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

Section 3.8. Trustee Not Responsible for Recitals.

The recitals contained herein shall be taken as statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or adequacy of this First Supplemental Indenture, except that the Trustee represents that it is duly authorized to execute and deliver this First Supplemental Indenture and perform its obligations hereunder.
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IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed as of the date first written above .  

 
 
COMPANY:
 
     
 
TWDC ENTERPRISES 18 CORP.
 
     
       
 
By:
/s/ Jonathan S. Headley   
    Name: Jonathan S. Headley   
    Title:  Treasurer   
 
       
 
By:
/s/ Daniel F. Grossman   
    Name: Daniel F. Grossman   
    Title:  Vice President   
 
 
 
GUARANTOR:
 
     
 
THE WALT DISNEY COMPANY
 
     
       
 
By:
/s/ Jonathan S. Headley  
    Name: Jonathan S. Headley   
    Title: 
Senior Vice President, Treasurer and
Corporate Real Estate
 
 
       
 
By:
/s/ Daniel F. Grossman   
    Name: Daniel F. Grossman   
    Title:  Vice President, Corporate Finance  
       
 
 
 
 
 
 
 
[ Signature Page to First Supplemental Indenture ]
 
 
 
TRUSTEE:
 
     
 
WELLS FARGO BANK, NATIONAL ASSOCIATION
 
     
       
 
By:
/s/ Michael Ty  
    Name: Michael Ty  
    Title:  Vice President  
 
       
 
By:
/s/ Casey A. Boyle  
    Name: Casey A. Boyle  
    Title:  Asst. Vice President   
 
 
 
 
 
 
 
[ Signature Page to First Supplemental Indenture ]
 
Exhibit 10.1
 
 
364-DAY BRIDGE CREDIT AGREEMENT
Dated as of March 15, 2019,

among

TWDC HOLDCO 613 CORP.
(TO BE RENAMED THE WALT DISNEY COMPANY),

as Borrower,


The Lenders Party Hereto,

JPMORGAN CHASE BANK, N.A.

and

CITIBANK, N.A.,
as Co-Administrative Agents,

and

JPMORGAN CHASE BANK, N.A.,
as Designated Agent
__________________________________________

BNP PARIBAS,
HSBC SECURITIES (USA) INC.
and
RBC CAPITAL MARKETS, LLC,
as Co-Syndication Agents

JPMORGAN CHASE BANK, N.A.,
CITIBANK, N.A.,
BNP PARIBAS SECURITIES CORP.,
HSBC SECURITIES (USA) INC.
and
RBC CAPITAL MARKETS, LLC,
as Joint Lead Arrangers

JPMORGAN CHASE BANK, N.A.,
and
CITIBANK, N.A.,
as Joint Bookrunners
 
 

TABLE OF CONTENTS

Page

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1
     
SECTION 1.01
Certain Defined Terms
1
SECTION 1.02
Computation of Time Periods
16
SECTION 1.03
Accounting Terms
16
     
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
16
     
SECTION 2.01
The Advances
16
SECTION 2.02
Making the Advances
16
SECTION 2.03
Fees
17
SECTION 2.04
Termination and Reduction of Commitments
18
SECTION 2.05
Repayment of Advances
20
SECTION 2.06
Interest on Advances
20
SECTION 2.07
[Intentionally Omitted.]
21
SECTION 2.08
Interest Rate Determination
21
SECTION 2.09
Optional Conversion of Advances
22
SECTION 2.10
Prepayments of Advances
23
SECTION 2.11
Increased Costs
23
SECTION 2.12
Illegality
25
SECTION 2.13
Payments and Computations
25
SECTION 2.14
Taxes
26
SECTION 2.15
Sharing of Payments, etc.
29
SECTION 2.16
Mandatory Assignment by a Lender; Mitigation
29
SECTION 2.17
Evidence of Debt
30
SECTION 2.18
Use of Proceeds
31
SECTION 2.19
[Intentionally Omitted]
31
SECTION 2.20
[Intentionally Omitted]
31
SECTION 2.21
Defaulting Lenders
31
     
ARTICLE III CONDITIONS OF LENDING
32
     
SECTION 3.01
Conditions Precedent to Effectiveness of Section 2.01
32
SECTION 3.02
Closing Date
33
SECTION 3.03
Determinations Under Sections 3.01 and 3.02
35
     
ARTICLE IV REPRESENTATIONS AND WARRANTIES
35
     
SECTION 4.01
Representations and Warranties of the Borrower
35
     
ARTICLE V COVENANTS OF THE BORROWER
37
     
SECTION 5.01
Affirmative Covenants
37
SECTION 5.02
Negative Covenants
39
     
i

ARTICLE VI EVENTS OF DEFAULT
39
     
SECTION 6.01
Events of Default
39
     
ARTICLE VII THE DESIGNATED AGENT
41
     
SECTION 7.01
Authorization and Action
41
SECTION 7.02
Designated Agent’s Reliance, etc.
42
SECTION 7.03
The Designated Agent and its Affiliates
42
SECTION 7.04
Lender Credit Decision
42
SECTION 7.05
Indemnification
43
SECTION 7.06
Successor Designated Agent
43
SECTION 7.07
Certain Lender Representations, etc.
43
     
ARTICLE VIII MISCELLANEOUS
45
     
SECTION 8.01
Amendments, etc.
45
SECTION 8.02
Notices, etc.
46
SECTION 8.03
No Waiver; Remedies
48
SECTION 8.04
Costs and Expenses
48
SECTION 8.05
Right of Set-off
48
SECTION 8.06
Binding Effect; Integration
49
SECTION 8.07
Assignments and Participations
49
SECTION 8.08
Indemnification
51
SECTION 8.09
Confidentiality
52
SECTION 8.10
Patriot Act
53
SECTION 8.11
Judgment
53
SECTION 8.12
Consent to Jurisdiction and Service of Process; WAIVER OF JURY TRIAL
53
SECTION 8.13
Intentionally Omitted
54
SECTION 8.14
Governing Law
54
SECTION 8.15
Execution in Counterparts
54
SECTION 8.16
Severability
54
SECTION 8.17
No Fiduciary Relationship
54
SECTION 8.18
Non-Public Information
55
SECTION 8.19
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
55


SCHEDULE

Schedule 1.01 – List of Applicable Lending Offices
Schedule 2.01 – Commitments

EXHIBITS

Exhibit A – Form of Notice of Borrowing
Exhibit B – Form of Assignment and Acceptance
Exhibit C – [Reserved]
Exhibit D – Form of Guaranty
Exhibit E – Form of Solvency Certificate
ii

364-DAY BRIDGE CREDIT AGREEMENT, dated as of March 15, 2019, among TWDC HOLDCO 613 CORP. (to be renamed THE WALT DISNEY COMPANY), a Delaware corporation (the “ Borrower ”), the banks, financial institutions and other institutional lenders party hereto and JPMORGAN CHASE BANK, N.A., as designated agent (together with any successor designated agent appointed pursuant to Article VII, the “ Designated Agent ”) for the Lenders hereunder.

IN CONSIDERATION of the agreements herein contained, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01  Certain Defined Terms .

As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“ 21CF ” means Twenty-First Century Fox, Inc., a Delaware corporation.

“ 21CF RSN Assets ” means those certain assets of 21CF and its Subsidiaries related to the regional sports networks of 21CF.

“ Advance ” means an advance by a Lender to the Borrower as part of a Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate Advance, each of which shall be a “ Type ” of Advance .

“ Affiliate ” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person.

“ Agreement ” means this 364-Day Bridge Credit Agreement, as it may be amended, supplemented or otherwise modified from time to time in accordance with Section 8.01.

“ Anti-Corruption Laws ” means the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010 and all other similar laws, rules, and regulations of any jurisdiction applicable to the Borrower and its Subsidiaries concerning or relating to bribery or corruption.

“ Applicable Lending Office ” means, with respect to each Lender, such Lender’s Domestic Lending Office, in the case of a Base Rate Advance, and such Lender’s Eurocurrency Lending Office, in the case of a Eurocurrency Rate Advance.

“ Applicable Margin ” means, as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such date as set forth below:


 
Public Debt Rating
S&P/Moody’s
Applicable Margin for
Eurocurrency Rate Advances
Applicable Margin for
Base Rate Advances
Level 1:
At least A+ by S&P /A1 by Moody’s
0.750%
0.00%

 
Public Debt Rating
S&P/Moody’s 
Applicable Margin for
Eurocurrency Rate Advances 
Applicable Margin for
Base Rate Advances
Level 2:
A by S&P/A2 by Moody’s
0.875%
0.00%
Level 3:
A- by S&P /A3 by Moody’s
1.00%
0.00%
Level 4:
Lower than A- by S&P /A3 by Moody’s or unrated
1.125%
0.125%

Notwithstanding anything to the contrary herein the Applicable Margin at each of the above Levels shall increase by 0.25% per annum on the date that is ninety days after the Closing Date and by an additional 0.25% per annum at the end of each ninety-day period thereafter (it being understood the Applicable Margin for Base Rate Advances shall at all times be 1.00% per annum less than the Applicable Margin for Eurocurrency Rate Advances (but in any case not less than zero)).

“ Asset Sale ” means the sale or other disposition by a member of the Consolidated Group of assets of the Consolidated Group (including the sale of capital stock or other equity interests of any Subsidiary of a member of the Consolidated Group or any sale or other disposition pursuant to any casualty or condemnation proceeding).

“ Assignment and Acceptance ” means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Designated Agent and the Borrower, in substantially the form of Exhibit B hereto.

“ Bail-In Action ” has the meaning specified in Section 8.19.

“ Bail-In Legislation ” has the meaning specified in Section 8.19.

“ Base Rate ” means, for each day in any period, a fluctuating interest rate per annum as shall be in effect from time to time, which rate per annum shall at all times for such day during such period be equal to the highest of:

(a)              the Prime Rate in effect for such day;

(b)              the NYFRB Rate in effect for such day plus 1/2 of 1.00%; and

(c)              the Eurocurrency Rate for a one-month Interest Period commencing on such date plus 1.00%.

“ Base Rate Advance ” means an Advance which bears interest as provided in Section 2.06(a)(i).

“ Borrowed Debt ” means any Debt for borrowed money or Debt incurred pursuant to debt securities issued or sold by any member of the Consolidated Group, including hybrid securities or debt securities convertible into capital stock.

“ Borrowing ” means a borrowing consisting of simultaneous Advances of the same Type made by each of the Lenders pursuant to Section 2.01.

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“ Business Day ” means a day of the year (a) on which banks are not required or authorized to close in Los Angeles, California, or New York City, New York and (b) if the applicable Business Day relates to Eurocurrency Rate Advances, on which dealings are carried on in the London interbank market.

“ Closing Date ” means the date on which the conditions specified in Section 3.02 are satisfied (or waived in accordance with Section 8.01) and the initial Advance is made.

“ Co-Administrative Agents ” means JPMorgan Chase Bank, N.A. and Citibank, N.A.

“ Co-Syndication Agents ” means BNP Paribas Securities Corp., HSBC Securities (USA) Inc. and Royal Bank of Canada, as co-syndication agents hereunder.

“ Code ” means the U.S. Internal Revenue Code of 1986, as amended.

“ Commitment ” means as to any Lender, the commitment of such Lender to make an Advance pursuant to Section 2.01, as such commitment may be reduced from time to time pursuant to the terms hereof or increased pursuant to an Assignment and Acceptance entered into by such Lender.  The initial amount of each Lender’s Commitment is (a) the amount set forth in the column labeled “Commitment” opposite such Lender’s name on Schedule 2.01 hereto, or (b) if such Lender has entered into any Assignment and Acceptance, the amount set forth for such Lender in the Register maintained by the Designated Agent pursuant to Section 8.07(c), as such amount may be reduced pursuant to Section 2.04.  As of the Effective Date, the aggregate amount of the Commitments is $20,700,000,000.

“ Commitment Letter ” means that certain Commitment Letter dated as of the Commitment Letter Date by and among the Borrower, the Guarantor, the Joint Lead Arrangers and the other Persons party thereto, as amended, restated, supplemented or otherwise modified from time to time.

“ Commitment Letter Date ” means June 20, 2018.

“ Consolidated EBITDA ” means, for any period, (a) net income or net loss, as the case may be, of the Consolidated Group on a consolidated basis for such period, as determined in accordance with GAAP for such period, plus (b) the sum of all amounts which, in the determination of such consolidated net income or net loss, as the case may be, for such period, have been deducted for (i) Consolidated Interest Expense, (ii) consolidated income tax expense, (iii) consolidated depreciation expense, (iv) consolidated amortization expense and (v) any non-cash goodwill impairment charges, in each case determined in accordance with GAAP for such period.

“ Consolidated Group ” means, prior to the Closing Date, the Guarantor and its Subsidiaries and on and after the Closing Date, the Borrower and its Subsidiaries.  It is understood that as of the Effective Date and at all times prior to the Closing Date, the Borrower shall be a wholly-owned Subsidiary of the Guarantor and as of the Closing Date and thereafter, the Guarantor shall be a wholly-owned Subsidiary of the Borrower.

“ Consolidated Interest Expense ” means, for any period, the total interest expense of the Consolidated Group with respect to all outstanding Debt of the Consolidated Group during such period, all as determined on a consolidated basis for such period and in accordance with GAAP for such period.

“ Convert ”, “ Conversion ” and “ Converted ” each refers to a conversion of Advances of one Type into Advances of another Type pursuant to Section 2.08 or 2.09.

“ Debt ” means, with respect to any Person:  (a) indebtedness for borrowed money, (b) obligations evidenced by bonds, debentures, notes or other similar instruments, (c) obligations to pay the
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deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business), (d) obligations as lessee under leases which shall have been or should be, in accordance with GAAP, recorded as capital leases and (e) obligations under direct or indirect guarantees in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of any other Person of the kinds referred to in clauses (a) through (d) above.

“ Defaulting Lender ” means any Lender, as reasonably determined by the Designated Agent (or by the Borrower in the case of clause (e) below; provided that in the absence of a concurring determination by the Designated Agent, without limiting any other rights of the parties vis-a-vis such Defaulting Lender, the sole consequence under Section 2.21(a) of such a determination by the Borrower shall be a mandatory assignment by such Lender pursuant to the terms of Section 2.16 hereof, if requested by the Borrower), that has (a) failed to fund any portion of its Advances within three Business Days of the date required to be funded by it hereunder, (b) notified the Borrower, the Designated Agent or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit, (c) failed, within three Business Days after written request by the Designated Agent (based upon the reasonable belief that such Lender may not fulfill its funding obligation), to confirm in writing that it will comply with the terms of this Agreement relating to its funding obligations under this Agreement, unless subject to a good faith dispute, provided that any such Lender shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Designated Agent, (d) otherwise failed to pay over to the Designated Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless subject to a good faith dispute, or (e) become the subject of (or is reasonably likely not to fund its obligations hereunder as a result of) a bankruptcy or insolvency proceeding or a Bail-In Action, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action indicating its consent to, approval of or acquiescence in any such proceeding or appointment, or has a parent company that has become the subject of a bankruptcy or insolvency proceeding or a Bail-In Action, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action indicating its consent to, approval of or acquiescence in any such proceeding, appointment or action, provided that for purposes of this clause (e), in the absence of a Bail-In Action, a Lender shall not qualify as a Defaulting Lender solely as a result of the acquisition or maintenance of an ownership interest in such Lender or its parent company, or of the exercise of control over such Lender or any Person controlling such Lender, by any Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permits such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Lender.

“ Defaulting Lender Notice ” has the meaning specified in Section 2.21(a).

“ Designated Agent ” has the meaning specified in the preamble to this Agreement.

“ Designated Agent’s Account ” means such account of the Designated Agent as the Designated Agent shall notify in writing to the Borrower and the Lenders from time to time.

“ Dollars ” and the “ $ ” sign each means lawful currency of the United States.

“ Domestic Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” opposite its name on Schedule 1.01 hereto or in the Assignment
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and Acceptance pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Designated Agent for such purpose.

“ Domestic Subsidiary ” means a Subsidiary organized under the laws of a jurisdiction located in the United States of America.

“ EEA Financial Institution ” has the meaning specified in Section 8.19.

“ EEA Member Country ” has the meaning specified in Section 8.19.

“ EEA Resolution Authority ” has the meaning specified in Section 8.19.

“ Effective Date ” has the meaning specified in Section 3.01.

“ Eligible Assignee ” means (a) a Lender or any Affiliate of a Lender or (b) any bank or other financial institution, or any other Person (other than a natural Person), which has been approved in writing by the Borrower and the Designated Agent as an Eligible Assignee for purposes of this Agreement; provided that neither the Borrower’s approval nor the Designated Agent’s approval shall be unreasonably withheld; and provided further that the Borrower may withhold its approval if the Borrower reasonably believes that an assignment to such Eligible Assignee pursuant to Section 8.07 would result in the incurrence of increased costs payable by the Borrower pursuant to Section 2.11 or 2.14.

“ Environmental Claim ” means any administrative, regulatory or judicial action, suit, demand, claim, lien, notice or proceeding relating to any Environmental Law or any Environmental Permit.

“ Environmental Law ” means any federal, state or local statute, law, rule, regulation, ordinance, code or duly promulgated policy or rule of common law, now or hereafter in effect, and in each case as amended, and any judicial or administrative interpretation thereof, including any order, consent decree or judgment, relating to the environment, health, safety or any Hazardous Material.

“ Environmental Permit ” means any permit, approval, identification number, license or other authorization required under any applicable Environmental Law.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and the rulings issued thereunder.

“ ERISA Affiliate ” means any Person that for purposes of Title IV of ERISA is a member of the Borrower’s (or, prior to the Closing Date, the Guarantor’s) controlled group, or under common control with the Borrower (or, prior to the Closing Date, the Guarantor), within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended.

“ ERISA Event ” means:  (a) (i) the occurrence with respect to a Plan of a reportable event, within the meaning of Section 4043 of ERISA, unless the 30-day notice requirement with respect thereto has been waived by the Pension Benefit Guaranty Corporation, or (ii) the provisions of subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2) of such Section) are applicable with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in subsection (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA could reasonably be expected to occur with respect to such Plan within the following 30 days; (b) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (c) the cessation of operations by the Borrower or the Guarantor, as applicable, or any ERISA Affiliate thereof at a facility in
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the circumstances described in Section 4062(e) of ERISA; (d) the withdrawal by the Borrower or the Guarantor, as applicable, or any ERISA Affiliate thereof from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (e) the failure by the Borrower or any ERISA Affiliate to make a payment to a Plan described in Section 303(f)(1)(A) of ERISA; or (f) the institution by the Pension Benefit Guaranty Corporation of proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence of any event or condition which is reasonably likely to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, a Plan.

“ EU Bail-In Legislation Schedule ” has the meaning specified in Section 8.19.

“ Eurocurrency Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Eurocurrency Lending Office” opposite its name on Schedule 1.01 hereto or in the Assignment and Acceptance pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Designated Agent for such purpose.

“ Eurocurrency Liabilities ” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“ Eurocurrency Rate ” means, with respect to any Eurocurrency Rate Advance for any Interest Period, the rate per annum equal to (a) the London interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period as displayed on the Reuters screen page that displays such rate (currently page LIBOR01) (or, in the event such rate does not appear on a page of the Reuters screen, on the appropriate page of such other information service or such other source that publishes such rate as shall be selected by the Designated Agent with the consent of the Borrower, not to be unreasonably withheld), at approximately 11:00 A.M. (London time) two Business Days prior to the commencement of such Interest Period (the “ Screen Rate ”) divided by (b) a percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for such Interest Period ( provided that, if for any reason a Screen Rate (including an Interpolated Screen Rate, as provided below) is not available, the term “Eurocurrency Rate” shall mean, for any Interest Period for each Eurocurrency Rate Advance comprising part of the same Borrowing, (i) an interest rate per annum equal to the average (rounded upward to the nearest whole multiple of 1/16 of 1.00% per annum, if such average is not such a multiple) of the rate per annum at which deposits in Dollars are offered by the principal office of each of the Reference Banks in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period for a period equal to such Interest Period and in an amount substantially equal to such Reference Bank’s Eurocurrency Rate Advance comprising part of such Borrowing divided by   (ii) a percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for such Interest Period).  In the event that the Eurocurrency Rate is to be determined by the Reference Banks, the Eurocurrency Rate for any Interest Period for each Eurocurrency Rate Advance comprising part of the same Borrowing shall be determined by the Designated Agent on the basis of applicable rates furnished to and received by the Designated Agent from the Reference Banks two Business Days before the first day of such Interest Period, subject, however, to the provisions of Section 2.08.  If, as to any currency, no Screen Rate shall be available for a particular Interest Period but Screen Rates shall be available for maturities both longer and shorter than such Interest Period, then the Screen Rate for such Interest Period shall be the Interpolated Screen Rate.  For the avoidance of doubt, nothing in this Agreement shall obligate any Reference Bank to provide the information referred to in clause (i) hereof.  Notwithstanding the foregoing, the Eurocurrency Rate shall in no event be less than zero.

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“ Eurocurrency Rate Advance ” means an Advance which bears interest as provided in Section 2.06(a)(ii).

“ Eurocurrency Rate Reserve Percentage ” means, with respect to any Lender for any Interest Period for any Eurocurrency Rate Advance, the reserve percentage applicable during such Interest Period (or, if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor thereto) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for such Lender with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurocurrency Rate Advances is determined) having a term equal to such Interest Period.

“ Events of Default ” has the meaning specified in Section 6.01.

“ Excluded Entity ” means each of the Hong Kong Disneyland Entities, the Shanghai Project Entities and the Specified Project Entities.

“ Excluded Taxes ” has the meaning specified in Section 2.14(a).

“ Existing Credit Agreements ” means, collectively (i) the Five-Year Credit Agreement dated as of March 9, 2018, among the Guarantor, the banks, financial institutions and other institutional lenders party thereto and JPMorgan Chase Bank, N.A., as designated agent for the lenders thereunder, (ii) the 364-Day Credit Agreement dated as of March 9, 2018, among the Guarantor, the banks, financial institutions and other institutional lenders party thereto and Citibank, N.A., as designated agent for the lenders thereunder and (iii) the Five-Year Credit Agreement dated as of March 11, 2016, among the Guarantor, the banks, financial institutions and other institutional lenders party thereto and JPMorgan Chase Bank, N.A., as designated agent for the lenders thereunder,  in each case, as such agreement may have been amended, supplemented or otherwise modified from time to time.

“ FATCA ” means Sections 1471 through 1474 of the Code, as in effect on the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among governmental authorities and implementing such Sections of the Code.

“ Federal Funds Rate ” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depository institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided that if such rate shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.

“ Federal Reserve Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

“ Foreign Subsidiary ” means any Subsidiary which is not a Domestic Subsidiary.

“ GAAP ” means generally accepted accounting principles in the United States.

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“ Governmental Authority ” means the government of the United States of America or any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“ Guaranty ” means a guaranty entered into by the Guarantor and the Administrative Agent, in substantially the form of Exhibit D hereto.

“ Guarantor ” means The Walt Disney Company (to be renamed TWDC Enterprises 18 Corp.), a Delaware corporation.

“ Hazardous Material ” means (a) any petroleum or petroleum product, natural or synthetic gas, asbestos in any form that is or could become friable, urea formaldehyde foam insulation or radon gas, (b) any substance defined as or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”, “toxic substances”, “contaminants” or “pollutants”, or words of similar import, under any applicable Environmental Law or (c) any other substance exposure to which is regulated by any governmental or regulatory authority.

“ Hong Kong Disneyland Entity ” means any Subsidiary of the Borrower (or, prior to the Closing Date, of the Guarantor) and any other Person whose equity securities or interests are owned, directly or indirectly, in whole or in part, by any member of the Consolidated Group, the primary business of which is the direct or indirect ownership, management, operation, design, construction and/or financing of the recreational and commercial facilities and complex, or any part thereof or any addition thereto, commonly known as “Hong Kong Disney”, “Hong Kong Disneyland” or “Disneyland Resort Hong Kong”, located at Penny’s Bay on Lantau Island, Hong Kong, which Subsidiaries and other Persons include, without limitation, as of the date hereof, Hongkong International Theme Parks Limited, Hong Kong Disneyland Management Limited and Walt Disney Holdings (Hong Kong) Limited.

“ Indemnified Matters ” has the meaning specified in Section 8.08.

“ Indemnified Party ” has the meaning specified in Section 8.08.

“Interest Period ”   means, for each Eurocurrency Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurocurrency Rate Advance or on the date of the Conversion of any Base Rate Advance into a Eurocurrency Rate Advance and ending on the last day of the period selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below.  The duration of each such Interest Period shall be one, two, three or six months (or, with respect to any Borrowing made less than one month prior to the Maturity Date, the period commencing on the date of such Borrowing and ending on the Maturity Date) as the Borrower may select, upon notice received by the Designated Agent not later than 1:00 P.M. (New York City time) on the third Business Day prior to the first day of such Interest Period for each Eurocurrency Rate Advance; provided, however, that:

(i)               Interest Periods commencing on the same date for Eurocurrency Rate Advances comprising part of the same Borrowing shall be of the same duration;

(ii)              whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next
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succeeding Business Day; provided, however, that if such extension would cause the last day of such Interest Period to occur in the next succeeding calendar month, the last day of such Interest Period shall occur on the immediately preceding Business Day;

(iii)             whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month; and

(iv)            the Borrower may not select for any Advance any Interest Period which ends after the Maturity Date.

“ Interpolated Screen Rate ” means, with respect to any Eurocurrency Rate Advance denominated in any currency for any Interest Period, a rate per annum which results from interpolating on a linear basis between (a) the applicable Screen Rate for the longest maturity for which a Screen Rate is available that is shorter than such Interest Period and (b) the applicable Screen Rate for the shortest maturity for which a Screen Rate is available that is longer than such Interest Period.

“ IRS ” means the U.S. Internal Revenue Service.

“ Joint Bookrunners ” means JPMorgan Chase Bank, N.A. and Citibank, N.A., as joint bookrunners hereunder.

“ Joint Lead Arrangers ” means JPMorgan Chase Bank, N.A., Citibank, N.A., BNP Paribas Securities Corp., HSBC Securities (USA) Inc. and RBC Capital Markets, LLC, as joint lead arrangers hereunder.

“ Lenders ” means, collectively, the Persons listed on Schedule 2.01 and each Eligible Assignee that shall become a party hereto pursuant to Section 8.07.

“ Lien ” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement which has the same effect as a lien or security interest.

“ Loan Documents ” means this Agreement, the Guaranty and each Note delivered pursuant to Section 2.17(a), in each case as amended, modified, supplemented or restated from time to time.

“ Majority Lenders ” means, at any time, Lenders owed at least a majority in interest of the aggregate unpaid principal amount of the Advances owing to the Lenders at such time, or, if no such principal amount is outstanding at such time, Lenders having at least a majority in interest of the Commitments at such time; provided,   however, that neither the Borrower nor any of its Affiliates, if a Lender, shall be included in the determination of the Majority Lenders at any time.

“ Margin Stock ” means margin stock within the meaning of Regulations T, U and X, as applicable.

“ Material Subsidiary ” means, at any date of determination, a Subsidiary of the Borrower (or, prior to the Closing Date, of the Guarantor) that, either individually or together with its Subsidiaries, taken as a whole, has total assets exceeding $250,000,000 on such date.

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“ Maturity Date ” means the date that is 364 calendar days following the Closing Date, or, if the date that is 364 calendar days following the Closing Date is not a Business Day, the Business Day immediately preceding the date that is 364 calendar days following the Closing Date.

“ Measurement Period ” means, at any date of determination, the most recently completed four consecutive fiscal quarters of the Borrower on or immediately prior to such date.

“ Moody’s ” means Moody’s Investors Service, Inc. or any successor thereto.

“ Multiemployer Plan ” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Borrower, the Guarantor or any ERISA Affiliate is making or accruing an obligation to make contributions or has within any of the preceding five plan years made or accrued an obligation to make contributions.

“ Multiple Employer Plan ” means a single‑employer plan, as defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the Borrower, the Guarantor or any ERISA Affiliate and at least one Person other than the Borrower, the Guarantor and the ERISA Affiliates or (ii) was so maintained and in respect of which the Borrower, the Guarantor or an ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

“ Net Cash Proceeds ” means:

(a)              with respect to any Asset Sale, the excess, if any, of (i) the cash received in connection therewith (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) payments (including, without limitation, any premium or penalty) made to retire any Debt that is required to be repaid in connection with the sale thereof (other than Advances) (it being understood that, for purposes of this clause (A), a permanent reduction of the amount of the commitments under the RSN Credit Agreement as a result of the receipt of Net Cash Proceeds from an Asset Sale in respect of 21CF RSN Assets shall be deemed to be a payment to retire Debt in an amount equal to the aggregate amount by which such commitments are so reduced), (B) the fees and expenses incurred by the Consolidated Group in connection therewith (or, if such fees or expenses have not yet then been incurred or invoiced, good faith estimates thereof), (C) taxes paid or reasonably estimated to be payable by the Consolidated Group in connection with such transaction, and (D) the amount of reserves established by the Consolidated Group in good faith and pursuant to commercially reasonable practices for adjustment in respect of the sale price of such asset or assets or, to the extent related to such transaction, against any liabilities under indemnification obligations, pension and other post-employment benefit liabilities and liabilities related to environmental matters, provided that if the amount of such reserves exceeds the amounts charged against such reserves, then such excess, upon the determination thereof, shall then constitute Net Cash Proceeds;

(b)              with respect to the incurrence, issuance, offering or placement of Borrowed Debt, the excess, if any, of (i) the cash received by the Consolidated Group in connection with such incurrence, issuance, offering or placement over (ii) the sum of (A) payments (including, without limitation, any premium or penalty) made to retire any Debt that is required to be repaid in connection with such issuance, offering or placement (other than Advances), and (B) the underwriting discounts and commissions and other fees and expenses incurred by the Consolidated
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Group in connection with such issuance, offering or placement (or, if such fees or expenses have not yet then been incurred or invoiced, good faith estimates thereof); and

(c)              with respect to the issuance of capital stock or other equity interests, the excess of (i) the cash received in connection with such issuance over (ii) the underwriting discounts and commissions and other fees and expenses incurred by the Consolidated Group in connection with such issuance (or, if such fees or expenses have not yet then been incurred or invoiced, good faith estimates thereof).

“ Non-Defaulting Lender ” means, at any time, any Lender that is not a Defaulting Lender at such time.

“ Note ”   has the meaning specified in Section 2.17(a).

“ Notice of Borrowing ” has the meaning specified in Section 2.02(a).

“ NYFRB ” means the Federal Reserve Bank of New York.

“ NYFRB Rate ” means, for any day, the greater of (a) the Federal Funds Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. (New York City time) on such day received by the Designated Agent from a Federal funds broker of recognized standing selected by it; provided , further , that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“ Other Taxes ” has the meaning specified in Section 2.14(b).

“ Overnight Bank Funding Rate ” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).

“ Participant Register ” has the meaning specified in Section 8.07(e).

“ Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56 and all other laws and regulations relating to money-laundering and terrorist activities.

“ Payment Office ” means such office of the Designated Agent as shall be from time to time selected by the Designated Agent and notified by the Designated Agent to the Borrower and the Lenders.

“ Person ” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.

“ Plan ” means a Single Employer Plan or a Multiple Employer Plan.

“ Prime Rate ” means the rate of interest publicly announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City; each change in the
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Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

“ Public Debt Rating ” means, as of any date of determination, the higher rating that has been most recently announced by either S&P or Moody’s, as the case may be, for any class of senior, unsecured, non-credit enhanced long-term public debt issued by the Borrower.  For purposes of the foregoing, (a) if only one of S&P and Moody’s shall have in effect a Public Debt Rating, the Applicable Margin and the Ticking Fee Percentage shall be determined by reference to the available rating; (b) if neither S&P nor Moody’s shall have in effect a Public Debt Rating, the Applicable Margin and the Ticking Fee Percentage will be set in accordance with Level 4 under the definition of “Applicable Margin” or “Ticking Fee Percentage”, as the case may be; (c) if the ratings established by S&P and Moody’s shall fall within different levels, the Applicable Margin and the Ticking Fee Percentage shall be based upon the higher rating; (d) if any rating established by S&P or Moody’s shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change; and (e) if S&P or Moody’s shall change the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P or Moody’s, as the case may be, shall refer to the then‑equivalent rating by S&P or Moody’s, as the case may be.

“ Purchase Agreement ” means that certain Agreement and Plan of Merger dated as of December 13, 2017, as amended and restated as of June 20, 2018 (together with all exhibits, schedules and disclosure letters thereto) among the Guarantor, 21CF, the Borrower and certain other parties thereto.

“ Purchase Agreement Representations ” means the representations made by or with respect to the Target and its subsidiaries in the Purchase Agreement as are material to the interests of the Lenders (including, without limitation, the representation in the first sentence of Section 3.06(a) of the Purchase Agreement), but only to the extent that the accuracy of any such representation is a condition to the Borrower’s (or any of its Affiliates’) obligation to close the Target Acquisition under the Purchase Agreement and the Borrower (or any of its Affiliates) have the right to terminate its (or such Affiliate’s) obligations under the Purchase Agreement as a result of the failure of such representations to be accurate or the failure of such representations to be accurate results in a failure of a condition precedent to the Borrower’s (or such Affiliate’s) obligations to consummate the Target Acquisition pursuant to the Purchase Agreement.

“ Reference Banks ” means each of Citibank, N.A. and JPMorgan Chase Bank, N.A., or, in the event that fewer than two of such banks remain Lenders hereunder at any time, any other commercial bank designated by the Borrower (with the consent of such bank) and approved by the Majority Lenders as constituting a “ Reference Bank ” hereunder, in each case, acting in its capacity as a “ Reference Bank ” hereunder.

“ Register ” has the meaning specified in Section 8.07(c).

“ Regulation D ” means Regulation D of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“ Regulation T ” means Regulation T of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“ Regulation U ” means Regulation U of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

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“ Regulation X ” means Regulation X of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“ Reinvestment Period ” means, with respect to any Net Cash Proceeds received in connection with any Asset Sale, the period of six months following the receipt of such Net Cash Proceeds; provided that, in the event that, during such six-month period, a member of the Consolidated Group enters into a binding commitment to reinvest all or any of such Net Cash Proceeds, the Reinvestment Period with respect to all or such portion of such Net Cash Proceeds, as the case may be, shall be extended such that it ends on the date that is 227 days following such six-month period.

“ Repayment Limitation ” has the meaning specified in Section 2.04.

“ Responsible Officer ” means the chief executive officer, the president, the chief financial officer, the treasurer or any assistant treasurer of the Borrower.

“ RSN Credit Agreement ” means that certain 364-Day Credit Agreement dated as of March 15, 2019, by and among the Borrower, JPMorgan Chase Bank, N.A., Citibank, N.A. and the lenders party thereto from time to time, as it may be amended, supplemented or otherwise modified from time to time.

“ RSN Facility Termination Time ” means the time that all of the Commitments (as defined in the RSN Credit Agreement) have been terminated, all of the Advances (as defined in the RSN Credit Agreement) have been repaid in full in cash and all other payment obligations of the Borrower under the RSN Credit Agreement ( other than contingent obligations that are not yet due and payable) have been paid in full in cash.

“ S&P ” means S&P Global Ratings, a business unit of Standard & Poor’s Financial Services LLC, and any successor to its rating agency business.

“ Sanctions Laws ” means trade or financial sanctions imposed, administered or enforced by the Office of Foreign Assets Control (“ OFAC ”) of the U.S. Department of the Treasury or similar trade or financial sanctions imposed, administered or enforced by (a) the U.S. Department of State pursuant to the International Emergency Economic Powers Act, Trading with the Enemy Act, United Nations Participation Act, Foreign Narcotics Kingpin Designation Act, Comprehensive Iran Sanctions, Accountability, and Divestment Act, Iran Threat Reduction and Syria Human Rights Act and related executive orders and regulations, (b) Her Majesty’s Treasury of the United Kingdom, (c) the European Union, or (d) United Nations Security Council.

“ Sanctioned Person ” means any Person currently named on OFAC’s List of Specially Designated Nationals and Blocked Persons or any entity that is 50% or more owned by such Person; the Sanctioned Entities List maintained by the U.S. Department of State; the Consolidated list of persons, groups and entities subject to European Union financial sanctions maintained by the European Union External Action Committee; the Consolidated List of Financial Sanctions Targets maintained by Her Majesty’s Treasury of the United Kingdom; the Compendium of United Nations Security Council Sanctions Lists.

“ Screen Rate ” has the meaning assigned to that term in the definition of “Eurocurrency Rate”.

“ SEC ” has the meaning specified in Section 5.01(e)(i).

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“ Shanghai Project Entity ” means any Subsidiary of the Borrower (or, prior to the Closing Date, of the Guarantor) and any other Person whose equity securities or interests are owned, directly or indirectly, in whole or in part, by any member of the Consolidated Group, the primary business of which is the direct or indirect ownership, management, operation, design, construction and/or financing of the recreational and commercial facilities and complex or any part thereof or any addition thereto, to be known as “Shanghai Disney”, “Shanghai Disneyland” or “Disneyland Resort Shanghai” or by any similar name, to be located in the Pudong New Area, Shanghai, People’s Republic of China, which Subsidiaries and other Persons include, without limitation, as of the date hereof, Shanghai International Theme Park Company Limited, Shanghai International Theme Park Associated Facilities Company Limited, Shanghai International Theme Park and Resort Management Company Limited and WD Holdings (Shanghai), LLC.

“ Single Employer Plan ” means a single-employer plan, as defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the Borrower, the Guarantor or an ERISA Affiliate and no Person other than the Borrower, the Guarantor and the ERISA Affiliates or (ii) was so maintained and in respect of which the Borrower, the Guarantor or an ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

“ Solvent ” means, with respect to any Person, (i) the sum of the liabilities of such Person does not exceed the present fair saleable value of the assets of such Person, (ii) the capital of such Person is not unreasonably small in relation to the business of such Person and (iii) such Person does not intend to incur, or believe that it will incur, debts including current obligations, beyond its ability to pay such debts as they mature in the ordinary course of business.

“ Specified Project Entity ” means:

(a)              DVD Financing, Inc.;

(b)              each Affiliate of the Guarantor organized after February 25, 2004 (the “ Organization Date ”) (or whose business commenced after the Organization Date) and any other Person organized after the Organization Date (or whose business commenced after the Organization Date) whose equity securities or interests are owned, directly or indirectly, in whole or in part, by any member of the Consolidated Group, in each case, if:

(i)               such Affiliate or other Person has incurred Debt for the purpose of financing all or a part of the costs of the acquisition, construction, development or operation of a particular project (“ Project Debt ”);

(ii)              except for customary guarantees, keep-well agreements and similar credit and equity support arrangements in respect of Project Debt incurred by such Affiliate or other Person from any member of the Consolidated Group not in excess of $150,000,000 or from third parties, the source of repayment of such Project Debt is limited to the assets and revenues of such particular project (or, if such particular project comprises all or substantially all of the assets of such Affiliate or other Person, the assets and revenues of such Affiliate or other Person); and

(iii)             the property over which Liens are granted to secure such Project Debt, if any, consists solely of the assets and revenues of such particular project or the equity securities or interests of such Affiliate or other Person or a Subsidiary of the Borrower (or, prior to the Closing Date, of the Guarantor) referred to in clause (c) below; and

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(c)              each Affiliate of the Guarantor organized after the Organization Date (or whose business commenced after the Organization Date) whose equity securities or interests are owned, directly or indirectly, in whole or in part, by any member of the Consolidated Group, the primary business of which is the direct or indirect ownership, management or operation of, or provision of services to, any Affiliate or other Person referred to in clause (b) above.

“ Specified Representations ” means the representations and warranties set forth in the first sentence of Section 4.01(a) (limited to the corporate existence of the Borrower and the Guarantor), Section 4.01(b) (other than clause (i)(x)(B), clause (i)(y)(B) and clause (ii) thereof), the third sentence appearing in Section 4.01(f), Section 4.01(h), Section 4.01(i) and Section 4.01(j).

“ Subsidiary ” means with respect to any Person, any (a) corporation (or foreign equivalent) other than an Excluded Entity or (b) general partnership, limited partnership or limited liability company (or foreign equivalent) other than an Excluded Entity (each, a “ Non-Corporate Entity ”), in either case, of which more than 50% of the outstanding capital stock (or comparable interest) having ordinary voting power (irrespective of whether at the time capital stock (or comparable interest) of any other class or classes of such corporation or Non-Corporate Entity shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly (through one or more Subsidiaries) owned by such Person.  In the case of a Non-Corporate Entity, a Person shall be deemed to have more than 50% of interests having ordinary voting power only if such Person’s vote in respect of such interests comprises more than 50% of the total voting power of all such interests in such Non-Corporate Entity.  For purposes of this definition, any managerial powers or rights comparable to managerial powers afforded to a Person solely by reason of such Person’s ownership of general partner or comparable interests (or foreign equivalent) shall not be deemed to be “interests having ordinary voting power”.

“ Target ” means 21CF.

“ Target Acquisition ” means the acquisition by the Borrower of the Target pursuant to the Purchase Agreement.

“ Taxes ” has the meaning specified in Section 2.14(a).

“ Ticking Fee Percentage ” means, as of any date, the applicable rate per annum under the caption “Ticking Fee Percentage” as determined by reference to the Public Debt Rating in effect on such date as set forth below:

Ratings
Level
Public Debt Rating
S&P/Moody’s
Ticking Fee
Percentage
Level 1:
At least A+ by S&P /A1 by Moody’s
0.05%
Level 2:
A by S&P/A2 by Moody’s
0.05%
Level 3:
A- by S&P /A3 by Moody’s
0.07%
Level 4:
Lower than A- by S&P /A3 by Moody’s or unrated
0.10%

“ Transactions ” means the entry into this Agreement and the transactions contemplated hereby, the borrowings by the Borrower under each the Commitments, and in each case, payment of related fees costs and expenses .

“ Type ” has the meaning specified in the definition of “ Advance ”.

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“ United States ” and “ U.S. ” each means the United States of America.

“ U.S. Person ” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

“ Write-Down and Conversion Powers ” has the meaning specified in Section 8.19.

SECTION 1.02  Computation of Time Periods .  In this Agreement, in the computation of periods of time from a specified date to a later specified date, the word “ from ” means “from and including” and the words “ to ” and “ until ” each means “to but excluding”.

SECTION 1.03  Accounting Terms .  All accounting terms not specifically defined herein shall be construed in accordance with GAAP as in effect from time to time; provided, however , that if any changes in accounting principles from those used in the preparation of the financial statements referred to in Section 4.01(c) dated September 30, 2017, hereafter occur by reason of the promulgation of rules, regulations, pronouncements, opinions or other requirements of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or successors thereto or agencies with similar functions) and result in a change in the method of calculation of any financial covenant or term related thereto contained in this Agreement, then upon the request of either the Borrower or the Designated Agent (acting at the instruction of the Majority Lenders), the Borrower and the Designated Agent shall enter into negotiations to amend such financial covenant or other relevant terms of this Agreement to eliminate the effect of any such change; provided further, however , that upon such request and until such amendment becomes effective, such financial covenant or other relevant terms shall be performed, observed and determined in accordance with GAAP as in effect immediately prior to such change.

ARTICLE II

AMOUNTS AND TERMS OF THE ADVANCES

                         SECTION 2.01  The Advances .  Each Lender severally and not jointly agrees, on the terms and conditions hereinafter set forth, to make an Advance to the Borrower in Dollars on the Closing Date in a principal amount not to exceed such Lender’s outstanding Commitment immediately prior to the making of the Advance.  Each Borrowing shall be in an aggregate amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except that any Borrowing may be in an amount equal to the remaining unused amount of the Commitments and shall consist of Advances of the same Type made on the same day by the Lenders ratably according to their respective Commitment.  Upon the fulfillment of any Lender’s obligation to make its Advance on the Closing Date in accordance with the terms of this Agreement, such Lender’s Commitment will be terminated.  The Borrower may prepay Advances pursuant to Section 2.04 or Section 2.10, provided that Advances may not be reborrowed once repaid.

                               SECTION 2.02  Making the Advances .  (a) Each Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (New York City time) on the same Business Day as the date of a proposed Borrowing comprised of Base Rate Advances or (y) 1:00 P.M. (New York City time) on the third Business Day prior to the date of a proposed Borrowing comprised of Eurocurrency Rate Advances, by the Borrower to the Designated Agent, which shall give to each Lender prompt notice thereof by telecopier.  Each such notice of a Borrowing (a “ Notice of Borrowing ”) shall be by telecopier, or by telephone confirmed immediately by telecopier, in substantially the form of Exhibit A hereto, specifying therein the requested (i) date of such Borrowing (which shall be a Business Day), (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing and (iv) in the case of a Borrowing comprised of Eurocurrency Rate Advances, initial Interest Period and currency for each such Advance.  Each Lender
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shall, before 1:00 P.M. (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Designated Agent at the Designated Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing.  After the Designated Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Designated Agent will make such funds available to the Borrower at the office where the Designated Agent’s Account is maintained (or to an account of the Borrower in the relevant jurisdiction and designated by the Borrower in the applicable Notice of Borrowing).

(b)              Each Notice of Borrowing shall be irrevocable and binding on the Borrower.  In the case of any Borrowing which the related Notice of Borrowing specifies as to be comprised of Eurocurrency Rate Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by such Lender to fund the Eurocurrency Rate Advance to be made by such Lender as part of such Borrowing when such Eurocurrency Rate Advance, as a result of such failure, is not made on such date.

(c)              Unless the Designated Agent shall have received notice from a Lender on or prior to the date of any Borrowing that such Lender will not make available to the Designated Agent such Lender’s ratable portion of such Borrowing, the Designated Agent may, but shall not be required to, assume that such Lender has made such portion available to the Designated Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Designated Agent may, but shall not be required to, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount.  If and to the extent that any Lender shall not have made such ratable portion available to the Designated Agent, such Lender agrees to pay to the Designated Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Designated Agent, at the Federal Funds Rate; provided, however, that (i) within two Business Days after any Lender shall fail to make such ratable portion available to the Designated Agent, the Designated Agent shall notify the Borrower of such failure and (ii) if such Lender shall not have paid such corresponding amount to the Designated Agent within two Business Days after such demand is made of such Lender by the Designated Agent, the Borrower agrees to repay to the Designated Agent forthwith upon demand by the Designated Agent to the Borrower such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Designated Agent, at the interest rate applicable at the time to Advances comprising such Borrowing.  If and to the extent such corresponding amount shall be paid by such Lender to the Designated Agent in accordance with this Section 2.02(c), such amount shall constitute such Lender’s Advance as part of such Borrowing for all purposes of this Agreement.

(d)              The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.

SECTION 2.03  Fees .

(a)              Ticking Fee .  The Borrower agrees to pay to each Lender, subject to Section 2.21(a)(i), a ticking fee, which shall commence accruing on September 18, 2018, at a rate per annum equal to the Ticking Fee Percentage on the aggregate daily amount of (i) for all periods prior to the
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Effective Date, such Lender’s undrawn Commitments (as defined in the Commitment Letter) (if any) and (ii) for all periods on and after the Effective Date, such Lender’s undrawn Commitments (if any), payable quarterly in arrears on the first Business Day of each January, April, July and October, and on the earlier of (x) the date the aggregate Commitments terminate in full or are otherwise reduced to zero and (y) the Closing Date.

(b)              Duration Fee .  As part of the consideration for each Lender’s Commitment hereunder, the Borrower shall pay to the Designated Agent for the account of each Lender a duration fee on each date set forth below in an amount equal to the percentage set forth opposite such date of the aggregate principal amount of Advances held by such Lender on such date:

DATE
 
PERCENTAGE
90 days after the Closing Date
 
0.50%
180 days after the Closing Date
 
0.75%
270 days after the Closing Date
 
1.00%

(c)              Additional Fees .  The Borrower shall pay to the Designated Agent and each Joint Lead Arranger for their account (or that of their applicable Affiliate) such fees as may from time to time be agreed between any of the Consolidated Group and the Designated Agent and/or such Joint Lead Arranger.

SECTION 2.04  Termination and Reduction of Commitments ; Mandatory Prepayments .

(a)              Unless previously terminated, the Commitments shall terminate in full at 5:00 p.m., New York City time, on the earliest of (i) the date that is five (5) business days after the “Termination Date” (as defined in the Purchase Agreement as in effect on the Commitment Letter Date, including as the same may be extended in accordance with the provisions of the Purchase Agreement as in effect on the Commitment Letter Date), (ii) the closing of the Target Acquisition with or without the use of the Advances or the Commitments (provided that the foregoing shall not prohibit the Borrower from drawing the Advances on the date on which the Target Acquisition so closes), (iii) written notice by the Borrower or the Guarantor to the Joint Lead Arrangers that it has abandoned the Target Acquisition and (iv) the termination of the Purchase Agreement prior to closing of the Target Acquisition or the termination of the Guarantor’s (or any of the Guarantor’s Affiliates’) obligations under the Purchase Agreement to consummate the Target Acquisition in accordance with the terms thereof.  Any termination of the Commitments shall be permanent.

(b)              Ratable Reduction or Termination . The Borrower may at any time terminate or reduce in whole or in part the unused portion of any Commitments of the Lenders without premium or penalty; provided that the aggregate reduction of any Commitments shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000 (or, if less, an aggregate amount that is equal to the entire unused balance of the Commitments).

(c)              The Borrower shall notify the Designated Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section 2.04 at least two Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Designated Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Borrower pursuant to this Section 2.04 shall be irrevocable; provided that any such notice delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, the consummation of any other financing, sale or other transaction, or the availability of a source of funds for the prepayment of Advances (if any), in which case such notice may be revoked by the Borrower (by notice to the Designated Agent on or prior to the specified effective
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date of such Commitment reduction or termination) if such condition is not satisfied. Any termination or reduction of Commitments shall be permanent. Each reduction of any Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.

(d)              Mandatory Prepayment .  Any outstanding Advances shall be prepaid or, prior to the Closing Date, the Commitments shall be reduced, in each case, on a dollar-for-dollar basis within three Business Days following (in the case of a prepayment of Advances) or at the time of (in the case of a reduction of Commitments) receipt by the Consolidated Group after the date hereof of any Net Cash Proceeds (or in the case of clause (i) below, commitments) referred to in this paragraph (d):

(i)                from 100.0% of the commitments (in the case of credit facilities, entered into for the purpose of financing the Target Acquisition, with conditions to funding no more onerous to the Borrower than the conditions set forth in Section 3.02) or the Net Cash Proceeds actually received by the Consolidated Group from the, in the case of commitments, establishment, and in the case of Net Cash Proceeds, incurrence of Borrowed Debt by such entity (excluding (A) intercompany debt of the Borrower or any of its Subsidiaries, (B) borrowings under the Existing Credit Agreements or any other revolving facility replacing or refinancing the Existing Credit Agreements, in an aggregate principal amount, when combined with the amount of Debt outstanding under clause (D) below, not to exceed $12,250,000,000, (C) any other ordinary course borrowings under working capital or overdraft facilities as in effect from time to time, (D) issuances of commercial paper and replacements or refinancings thereof (other than for purposes of financing the Target Acquisition), in an aggregate principal amount, when combined with the amount of Debt outstanding under clause (B) above, not to exceed $12,250,000,000, (E) purchase money Debt incurred in the ordinary course of business and any replacements or refinancings thereof, (F) Debt with respect to capital leases incurred in the ordinary course of business and any replacements and refinancings thereof, (G) borrowings under, or commitments in respect of, the RSN Credit Agreement and (H) other Debt in a principal amount at any time outstanding not to exceed $3,000,000,000 in the aggregate);

(ii)              from 100.0% of the Net Cash Proceeds actually received from the issuance of any capital stock or other equity interests by the Consolidated Group (other than (A) issuances pursuant to any employee equity compensation plan or agreement or other employee equity compensation arrangement, any employee benefit plan or agreement or other employee benefit arrangement, (B) issuances pursuant to The Walt Disney Company’s Investment Plan (or any successor plan), (C) issuances among the Consolidated Group, and (D) issuances of directors’ qualifying shares); and

(iii)             from 100.0% of the Net Cash Proceeds actually received by the Consolidated Group from Asset Sales outside the ordinary course of business (except for (A) Asset Sales between or among the Consolidated Group, (B) leases, licenses, subleases and sublicenses, (C) Asset Sales, the Net Cash Proceeds of which do not exceed $2,000,000,000 in the aggregate and (D) prior to the RSN Facility Termination Time, Asset Sales in respect of 21CF RSN Assets); provided that such Net Cash Proceeds shall not be required to be so applied on such date to the extent that such Net Cash Proceeds are used to acquire, maintain, develop, construct, improve, upgrade or repair tangible or intangible assets useful in the business of the Consolidated Group, in each case within the Reinvestment Period; provided , further , that if all or any portion of such Net Cash Proceeds are not so used within the Reinvestment Period, such remaining portion not so used shall be applied on the date that is 10 Business Days after the last day of the Reinvestment Period as a mandatory repayment of principal of outstanding Advances as provided above in this Section 2.04(d)(iii).

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All mandatory prepayments and Commitment reductions shall be applied without penalty or premium (except for breakage costs required pursuant to Section 8.04(b) and accrued interest, if any) and will be applied pro rata among the Lenders.  Mandatory prepayments of the Advances may not be reborrowed.

If the Net Cash Proceeds are received by a Foreign Subsidiary of the Borrower or any other Subsidiary of such Foreign Subsidiary, the Commitments shall only be reduced (or the Advances prepaid) to the extent that (i) such Net Cash Proceeds can be promptly transferred to the Borrower without adverse tax consequences to Borrower and any of its Subsidiaries and (ii) such transfer would not be prohibited or restricted by applicable law, rule or regulation or contract or the organizational documents of such Foreign Subsidiary (in the case of clauses (i) and (ii), as reasonably determined by the Borrower in good faith) (each, a “ Repayment Limitation ”); it being understood that if such Repayment Limitation exists, upon such Repayment Limitation ceasing to apply, the Commitments will be immediately reduced or, if applicable, the Advances will be repaid within three Business Days thereof, in the manner set forth above as if such Net Cash Proceeds were received by the Borrower on the date such Repayment Limitation ceased to exist.

The Borrower shall give the Designated Agent prompt written notice of any mandatory Commitment reduction or prepayment of Advances under this Section 2.04(d), which notice shall be accompanied by a reasonably detailed calculations of the applicable Net Cash Proceeds.

SECTION 2.05  Repayment of Advances .  The Borrower shall repay to each Lender on the Maturity Date the aggregate principal amount of the Advances owing to such Lender on such date.

SECTION 2.06  Interest on Advances .  (a) Scheduled Interest .  The Borrower shall pay to each Lender interest on the unpaid principal amount of each Advance owing to such Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:

(i)               Base Rate Advances .  During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (A) the Base Rate and (B) the Applicable Margin in effect from time to time, payable quarterly in arrears on the first Business Day of each January, April, July and October during such periods and on the date such Base Rate Advance shall be Converted or paid in full.

(ii)              Eurocurrency Rate Advances .  During such periods as such Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (A) the Eurocurrency Rate for such Interest Period for such Advance and (B) the Applicable Margin in effect from time to time, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on the date which occurs three months after the first day of such Interest Period and on the date such Eurocurrency Rate Advance shall be Converted or paid in full.

(b)              Default Interest .  The Borrower shall pay interest on the unpaid principal amount of each Advance that is not paid when due and on the unpaid amount of all interest, fees and other amounts payable hereunder that is not paid when due, payable on demand of the Designated Agent or the Majority Lenders, at a rate per annum equal at all times to (i) in the case of any amount of principal, 2.00% per annum above the rate per annum required to be paid on such Advance immediately prior to the date on which such amount became due and (ii) to the fullest extent permitted by law, in the case of all other amounts, 2.00% per annum above the rate of interest applicable to Base Rate Advances in effect from time to time.

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SECTION 2.07  [Intentionally Omitted.]
 
SECTION 2.08  Interest Rate Determination . (a)  If requested, each Reference Bank may, but shall not be required to, furnish to the Designated Agent timely information for the purpose of determining each Eurocurrency Rate.  Subject to clause (c) below, if any one or more of the Reference Banks shall not furnish such timely information to the Designated Agent for the purpose of determining such interest rate, the Designated Agent shall determine such interest rate on the basis of timely information furnished by the remaining Reference Banks.

(b)              The Designated Agent shall give prompt notice to the Borrower and the Lenders of (i) the applicable interest rate determined by the Designated Agent and (ii) subject to Section 2.13(b), the details of such determination for purposes of Sections 2.06(a)(i) and/or 2.06(a)(ii).

(c)              If at any time when the Eurocurrency Rate is being determined by reference to rates furnished by the Reference Banks in accordance with the definition of “Eurocurrency Rate”, fewer than two Reference Banks furnish timely information to the Designated Agent for purposes of determining the Eurocurrency Rate for any Eurocurrency Rate Advances, (i) the Designated Agent shall forthwith notify the Borrower and the Lenders that the interest rate cannot be determined for such Eurocurrency Rate Advances, (ii) each such Advance will automatically, on the last day of the then-existing Interest Period therefor, Convert into a Base Rate Advance (or, if such Advance is then a Base Rate Advance, will continue as a Base Rate Advance), and (iii) the obligation of the Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances shall be suspended until the Designated Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.

(d)              If, with respect to any Eurocurrency Rate Advances, (i) the Designated Agent shall be unable to determine the Eurocurrency Rate as contemplated hereby or (ii) the Majority Lenders notify the Designated Agent that (A) they are unable to obtain matching deposits in Dollars in the London interbank market at or about 11:00 A.M. (London time) on the second Business Day before the making of a Borrowing in sufficient amounts to fund their respective Eurocurrency Rate Advances as a part of such Borrowing during its Interest Period or (B) the Eurocurrency Rate for any Interest Period for such Advances will not adequately reflect the cost to such Majority Lenders (which cost each such Majority Lender reasonably determines in good faith is material) of making, funding or maintaining their respective Eurocurrency Rate Advances for such Interest Period, the Designated Agent shall forthwith so notify the Borrower and the Lenders, whereupon, unless, in the case of a development referred to in the preceding clause (ii)(B), the Applicable Margin shall be increased to reflect such costs as determined by such Majority Lenders and as agreed by the Borrower, and in any event subject to clause (e) below, (A) the obligation of the Lenders to make or continue at the end of the Interest Period, or to Convert Base Rate Advances into, Eurocurrency Rate Advances shall be suspended until the Designated Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist and (B) the Borrower will, on the last day of the then-existing Interest Period therefor, either (x) prepay such Advances or (y) Convert such Advances into Base Rate Advances.  The Designated Agent shall use reasonable efforts to determine from time to time whether the circumstances causing such suspension no longer exist and, promptly after the Designated Agent knows that the circumstances causing such suspension no longer exist, the Designated Agent shall notify the Borrower and the Lenders.

(e)              If at any time the Designated Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (d)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (d)(i) have not arisen but either (w) the supervisor for the administrator of the Screen Rate has made a public statement that the administrator of the Screen Rate is insolvent (and there is no successor administrator that will continue
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publication of the Screen Rate), (x) the administrator of the Screen Rate has made a public statement identifying a specific date after which the Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the Screen Rate), (y) the supervisor for the administrator of the Screen Rate has made a public statement identifying a specific date after which the Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the Screen Rate or a Governmental Authority having jurisdiction over the Designated Agent has made a public statement identifying a specific date after which the Screen Rate shall no longer be used for determining interest rates for loans, then the Designated Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Eurocurrency Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin).  Notwithstanding anything to the contrary in Section 8.01, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Designated Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Majority Lenders stating that such Majority Lenders object to such amendment.  Until an alternate rate of interest shall be determined in accordance with this clause (e) (but, in the case of the circumstances described in clause (ii) of the first sentence of this clause (e), only to the extent the Screen Rate and such Interest Period is not available or published at such time on a current basis), clauses (A) and (B) of clause (d) shall be applicable.  Notwithstanding the foregoing, if any alternate rate of interest established pursuant to this clause (e) (without giving effect to the Applicable Margin or any alternative spread that may have been agreed upon over the applicable Lenders’ deemed cost of funds) shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.

(e)              If the Borrower shall fail to select the duration of any Interest Period for any Eurocurrency Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01, the Designated Agent will forthwith so notify the Borrower and the Lenders and such Advances will automatically, on the last day of the then-existing Interest Period therefor, be Converted into Base Rate Advances.

(f)               Upon the occurrence and during the continuance of any Event of Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will automatically, on the last day of the then-existing Interest Period therefor, be Converted into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances shall be suspended.
 
SECTION 2.09  Optional Conversion of Advances .  The Borrower may on any Business Day, upon notice given to the Designated Agent not later than (i) 11:00 A.M. (New York City time) on the same Business Day as the date of the proposed Conversion in the case of a Conversion of Eurocurrency Rate Advances into Base Rate Advances and (ii) 1:00 P.M. (London time) on the third Business Day prior to the date of the proposed Conversion in the case of a Conversion of Base Rate Advances into Eurocurrency Rate Advances or of Eurocurrency Rate Advances of one Interest Period into Eurocurrency Rate Advances of another Interest Period, as the case may be, and subject to the provisions of Sections 2.08 and 2.12, Convert all Advances of one Type comprising the same Borrowing into Advances of the other Type; provided, however, that any Conversion of any Eurocurrency Rate Advances into Base Rate Advances or into Eurocurrency Rate Advances of another Interest Period shall be made on, and only on, the last day of an Interest Period for such Eurocurrency Rate Advances.  Promptly upon receipt from the Borrower of a notice of a proposed Conversion hereunder, the Designated Agent shall give notice of such proposed Conversion to each Lender.  Each such notice of a Conversion shall, within the restrictions set forth above, specify (x) the date of such Conversion (which shall be a Business Day), (y) the Advances to be Converted
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and (z) if such Conversion is into Eurocurrency Rate Advances, the duration of the initial Interest Period for each such Advance.  The Borrower may Convert all Eurocurrency Rate Advances of any one Lender into Base Rate Advances of such Lender in accordance with the provisions of Section 2.12 by complying with the procedures set forth therein and in this Section 2.09 as though each reference in this Section 2.09 to Advances of any Type were to such Advances of such Lender.  Each such notice of Conversion shall, subject to the provisions of Sections 2.08 and 2.12, be irrevocable and binding on the Borrower.

SECTION 2.10  Prepayments of Advances .  The Borrower may, upon not less than (i) the same Business Day’s notice to the Designated Agent received not later than 11:00 A.M. (New York City time) in the case of Borrowings consisting of Base Rate Advances or (ii) three Business Days’ notice to the Designated Agent received not later than 1:00 P.M. (New York City time) in the case of Borrowings consisting of Eurocurrency Rate Advances, stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amounts of the Advances constituting part of the same Borrowings in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the case of any such prepayment of Eurocurrency Rate Advances, the Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 8.04(b).
 
SECTION 2.11  Increased Costs .  (a) If, after the date hereof, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any hereafter promulgated guideline or request from any central bank or other Governmental Authority, including, without limitation, any agency of the European Union or similar monetary or multinational authority (whether or not having the force of law), which guideline or request (x) imposes, modifies or deems applicable any reserve, special deposit or similar requirement against assets held by, deposits with or for the account of or credit extended by any Lender or (y) imposes on any Lender any other condition regarding this Agreement (including any assessment or charge on or with respect to the Commitments or Advances, deposits or liabilities incurred to fund Advances, assets consisting of Advances (but not unrelated assets) or capital attributable thereto), there shall be any increase in the cost (excluding any allocation of corporate overhead) to any Lender (which cost such Lender reasonably determines in good faith is material) of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances, then such Lender shall so notify the Borrower promptly after such Lender knows of such increased cost and determines that such cost is material and the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the Designated Agent), pay to the Designated Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost.  A certificate of such Lender as to the amount of such increased cost in reasonable detail and stating the basis upon which such amount has been calculated and certifying that such Lender’s method of allocating such costs is fair and reasonable and that such Lender’s demand for payment of such costs hereunder is not inconsistent with its treatment of other borrowers which, as a credit matter, are substantially similar to the Borrower and which are subject to similar provisions, submitted to the Borrower and the Designated Agent by such Lender, shall be conclusive and binding for all purposes hereof, absent manifest error.  Notwithstanding the foregoing, the Borrower shall not be required to pay any amount under this Section 2.11 relating to (i) costs that are Excluded Taxes or are subject to indemnification under Section 2.14 or (ii) reserve requirements that are included in the Eurocurrency Rate Reserve Percentage.

(b)              If, after the date hereof, either (i) the introduction of or change in or in the interpretation of any law or regulation or (ii) the compliance by any Lender with any hereafter promulgated guideline or request from any central bank or other Governmental Authority, including, without limitation, any agency of the European Union or similar monetary or multinational authority (whether or not having
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the force of law), affects or would affect the amount of capital or liquidity required or expected to be maintained by such Lender or any entity controlling such Lender and the amount of such capital or liquidity is materially increased by or based upon the existence of such Lender’s commitment to lend hereunder and other commitments of this type, then such Lender shall so notify the Borrower promptly after such Lender makes such determination and, upon demand by such Lender (with a copy of such demand to the Designated Agent), the Borrower shall pay to such Lender within five days from the date of such demand, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender or such controlling entity in the light of such circumstances, to the extent that such Lender reasonably determines in good faith such increase in capital or liquidity to be material and allocable to the existence of such Lender’s commitment to lend hereunder.  A certificate of such Lender as to such amount in reasonable detail and stating the basis upon which such amount has been calculated and certifying that such Lender’s method of allocating such increase of capital is fair and reasonable and that such Lender’s demand for payment of such increase of capital hereunder is not inconsistent with its treatment of other borrowers which, as a credit matter, are substantially similar to the Borrower and which are subject to similar provisions, submitted to the Borrower and the Designated Agent by such Lender, shall be conclusive and binding for all purposes hereof, absent manifest error.

(c)              The Borrower shall not be obligated to pay under this Section 2.11 any amounts which relate to costs or increases of capital incurred prior to the 12  months immediately preceding the date of demand for payment of such amounts by any Lender, unless the applicable law, regulation, guideline or request resulting in such costs or increases of capital is imposed retroactively.  In the case of any law, regulation, guideline or request which is imposed retroactively, the Lender making demand for payment of any amount under this Section 2.11 shall notify the Borrower not later than 12 months from the date that such Lender should reasonably have known of such law, regulation, guideline or request and the Borrower’s obligation to compensate such Lender for such amount is contingent upon such Lender so notifying the Borrower; provided, however, that any failure by such Lender to provide such notice shall not affect the Borrower’s obligations under this Section 2.11 with respect to amounts resulting from costs or increases of capital incurred after the date which occurs 12 months immediately preceding the date on which such Lender notified the Borrower of such law, regulation, guideline or request.

(d)              If any Lender shall subsequently recoup any costs (other than from the Borrower) for which such Lender has theretofore been compensated by the Borrower under this Section 2.11, such Lender shall remit to the Borrower an amount equal to the amount of such recoupment.  Amounts required to be paid by the Borrower pursuant to this Section 2.11 shall be paid in addition to, and without duplication of, any amounts required to be paid pursuant to Section 2.14.

(e)              For purposes hereof, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be changes in law or regulation referred to in paragraphs (a) and (b) of this Section, regardless of the date enacted, adopted, promulgated or issued.

(f)               Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section 2.11 shall survive the payment in full (after the Maturity Date) of all payment obligations of the Borrower in respect of Advances hereunder.

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SECTION 2.12  Illegality .  Notwithstanding any other provision of this Agreement, if any Lender shall notify the Designated Agent that the introduction of or any change in or in the interpretation of any law or regulation after the date hereof makes it unlawful, or any central bank or other Governmental Authority asserts that it is unlawful, for any Lender or its Eurocurrency Lending Office to perform its obligations hereunder to make Eurocurrency Rate Advances or to fund or maintain Eurocurrency Rate Advances, (a) the obligation of such Lender to make, or to Convert Base Rate Advances into, Eurocurrency Rate Advances shall be suspended until such Lender shall notify the Designated Agent, and the Designated Agent shall notify the Borrower and the other Lenders, that the circumstances causing such suspension no longer exist (which notice shall be given promptly after the Designated Agent has been advised by such Lender that the circumstances causing such suspension no longer exist) and (b) the Borrower shall forthwith prepay in full all Eurocurrency Rate Advances of such Lender then outstanding, together with interest accrued thereon, unless, in the case of a Eurocurrency Rate Advance, the Borrower, within five Business Days of notice from the Designated Agent or, if permitted by law, on and as of the last day of the then-existing Interest Period for such Eurocurrency Rate Advance, Converts it into a Base Rate Advance.
 
SECTION 2.13  Payments and Computations .  (a) The Borrower shall make each payment hereunder (and under the Notes, if any), irrespective of any right of set-off or counterclaim, not later than 1:00 P.M. (New York City time) at the Payment Office on the day when due, in Dollars to the Designated Agent, by deposit of such funds to the Designated Agent’s Account in same day funds.  The Designated Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or fees ratably (other than amounts payable pursuant to Sections  2.11, 2.14, 8.04 and 8.08) to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.  Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 8.07(d), from and after the effective date specified in such Assignment and Acceptance, the Designated Agent shall make all payments hereunder and under the Notes, if any, issued in connection therewith in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.

(b)              All computations of interest based on clause (a) of the definition of “Base Rate” shall be made by the Designated Agent on the basis of a year of 365 or 366 days, as the case may be and all computations of interest based on the Eurocurrency Rate with respect to Advances, the NYFRB Rate, the Federal Funds Rate or the Overnight Bank Funding Rate and of fees shall be made by the Designated Agent, on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable.  Each determination by the Designated Agent of an interest rate hereunder shall be conclusive and binding for all purposes hereof, absent manifest error (it being understood and agreed that, with respect to any Reference Bank, nothing in this Agreement shall require the Designated Agent to disclose to any other party hereto (other than the Borrower) any information regarding such Reference Bank or any rate provided by such Reference Bank in accordance with the definition of “Eurocurrency Rate”, including, without limitation, whether such Reference Bank has provided a rate or the rate provided by any such Reference Bank).

(c)              Whenever any payment hereunder or under the Notes, if any, shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the payment of interest or fees, as the case may be; provided, however, that if such extension would cause payment of interest on or principal of Eurocurrency Rate Advances to be made in the next following calendar month, such payment shall be made on the immediately preceding Business Day.

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(d)              Unless the Designated Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Lenders hereunder that the Borrower will not make such payment in full, the Designated Agent may assume that the Borrower has made such payment in full to the Designated Agent on such date and the Designated Agent may, but shall not be required to, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent that the Borrower shall not have so made such payment in full to the Designated Agent, each Lender shall repay to the Designated Agent, forthwith on demand, such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Designated Agent, at the Federal Funds Rate.
 
SECTION 2.14  Taxes .  (a) Subject to Section 2.14(f) below, any and all payments by the Borrower hereunder or under the Notes, if any, shall be made, in accordance with Section 2.13, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding (i) in the case of each Lender and the Designated Agent, taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender or the Designated Agent, as the case may be, is organized or any political subdivision thereof, (ii) in the case of each Lender and the Designated Agent, taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, imposed on its income, and franchise taxes imposed on it by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof or by any other jurisdiction in which such Lender or the Designated Agent, as the case may be, is doing business that is unrelated to this Agreement, (iii) in the case of a Lender and the Designated Agent, U.S. federal withholding taxes imposed on amounts payable to or for the account of such recipient with respect to an applicable interest in this Agreement, an Advance or a Commitment pursuant to a law in effect on the date on which (A) such recipient acquires such interest in this Agreement, Advance or Commitment, or (B) such recipient changes its lending office, except in each case to the extent that, pursuant to this Section 2.14, amounts with respect to such taxes, levies, imposts, deductions, charges or withholding, and all liabilities with respect thereto, were payable either to such recipient’s assignor immediately before such Lender or the Designated Agent became a party hereto or to such Lender or the Designated Agent immediately before it changed its lending office, and (iv) in the case of each Lender and the Designated Agent or other recipient of payments hereunder, any withholding taxes imposed under FATCA (all such excluded taxes, levies, imposts, deductions, charges and liabilities being referred to as “ Excluded Taxes ”, and all taxes levies, imposts, deductions, charges, withholdings and liabilities that are not Excluded Taxes being referred to as “ Taxes ”).  Subject to Section 2.14(f) below, if the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or the Designated Agent, as the case may be, (i) the sum payable shall be increased as may be necessary so that after making all required deductions of Taxes (including deductions of Taxes applicable to additional sums payable under this Section 2.14) such Lender or the Designated Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

(b)              In addition, the Borrower agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or under the Notes, if any, or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or the Notes, if any (hereinafter referred to as “ Other Taxes ”).

(c)              (i)               Subject to Section 2.14(f), the Borrower will indemnify each Lender and the Designated Agent for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes
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or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.14) paid by such Lender or the Designated Agent, as the case may be, and any liability (including penalties (to the extent not imposed as a result of such Lender’s or the Designated Agent’s gross negligence or willful misconduct), interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted.  This indemnification shall be made within 30 days from the date such Lender or the Designated Agent, as the case may be, makes written demand therefor.
 
 (ii)              Each Lender will severally indemnify the Designated Agent, within 10 days after demand therefor, for (A) any Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Designated Agent for such Taxes and without limiting the obligation of the Borrower to do so), (B) any taxes attributable to such Lender’s failure to comply with the provisions of Section 8.07(e) relating to the maintenance of a Participant Register and (C) any Excluded Taxes that are attributable to such Lender, in each case, that are payable or paid by the Designated Agent in connection with this Agreement, and any reasonable expenses arising therefrom or with respect thereto, whether or not such taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Designated Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Designated Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or otherwise payable by the Designated Agent to the Lender from any other source against any amount due to the Designated Agent under this Section 2.14(c)(ii).

(d)              Within 30 days after the date of any payment of Taxes, the Borrower will furnish to the Designated Agent, at its address referred to in Section 8.02, the original or a certified copy of a receipt evidencing payment thereof, to the extent that such a receipt is issued, or if such receipt is not issued, other evidence of payment thereof that is reasonably satisfactory to the Designated Agent.

(e)              (i)               Each Lender that is a U.S. Person shall deliver to the Borrower and the Designated Agent on or prior to the date of its execution and delivery of this Agreement, and each such Lender that is not a party hereto on the date hereof shall deliver to the Borrower and the Designated Agent on or prior to the date on which such Lender becomes a Lender hereunder pursuant to Section  8.07 two true, accurate and complete original signed copies of IRS Form W-9 for purposes of certifying that such Lender is exempt from United States backup withholding tax on payments pursuant to this Agreement.  Each Lender that is not a U.S. Person shall deliver to the Borrower and the Designated Agent on or prior to the date of its execution and delivery of this Agreement, and each such Lender that is not a party hereto on the date hereof shall deliver to the Borrower and the Designated Agent on or prior to the date on which such Lender becomes a Lender hereunder pursuant to Section  8.07 two true, accurate and complete original signed copies of (A) IRS Form W-8BEN or IRS Form W-8BEN-E  (or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder), (B) IRS Form W-8ECI (or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder) or (C) IRS Form W-8IMY (or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder) accompanied by IRS Form W-9, IRS Form W-8BEN, IRS Form W-8BEN-E or IRS Form W-8ECI, as appropriate, in each case for purposes of certifying that such Lender is exempt from United States withholding tax on payments pursuant to this Agreement.  As applicable, each Lender further agrees to deliver to the Borrower and the Designated Agent from time to time, as reasonably requested by the Borrower or the Designated Agent, and in any case before or promptly upon the occurrence of any events requiring a change in the most recent form previously delivered pursuant to this Section 2.14(e), a true, accurate and complete original signed copy of (A) IRS Form W-9 (or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder), (B) IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder),
 
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(C) within 15 days prior to every third anniversary of the date of delivery of the initial IRS Form W-8ECI by such Lender (or more often if required by law) on which this Agreement is still in effect, IRS Form W-8ECI (or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder) or (D) IRS Form W-8IMY(or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder) accompanied by IRS Form W-9, IRS Form W-8BEN, IRS Form W-8BEN-E or IRS Form W-8ECI, as appropriate, in each case for purposes of certifying that such Lender   is   exempt from United States withholding tax on payments pursuant to this Agreement.  If any form or document referred to in this Section 2.14(e)(i) requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by IRS Forms W-9, W-8BEN, W-8BEN-E, W-8ECI or W-8IMY, that any Lender reasonably considers to be confidential, such Lender promptly shall give notice thereof to the Borrower and the Designated Agent and shall not be obligated to include in such form or document such confidential information; provided that such Lender certifies to the Borrower that the failure to disclose such confidential information does not increase the obligations of the Borrower under this Section 2.14.
 
 (ii)              If a payment made to a Lender under this Agreement would be subject to United States withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Designated Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Designated Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Designated Agent as may be necessary for the Borrower and the Designated Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this Section 2.14(e)(ii) “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(f)               Notwithstanding any other provision of this Section 2.14 to the contrary, for any period with respect to which a Lender has failed to provide the Borrower with the appropriate form described in Section 2.14(e) establishing its exemption from United States withholding tax or backup withholding tax on payments hereunder (other than if such failure is due to a change in law occurring subsequent to the date on which such form originally was required to be provided), such Lender shall not be entitled to any payments under this Section 2.14 with respect to United States withholding taxes; provided , however , that should a Lender become subject to United States withholding taxes because of its failure to deliver a form required hereunder, the Borrower shall take such steps as such Lender shall reasonably request to assist such Lender to recover such United States withholding taxes.

(g)              Without affecting its rights under this Section 2.14 or any other provision of this Agreement, each Lender agrees that if any Taxes or Other Taxes are imposed and required by law to be paid or to be withheld from any amount payable to any Lender or its Applicable Lending Office with respect to which the Borrower would be obligated pursuant to this Section 2.14 to increase any amounts payable to such Lender or to pay any such Taxes or Other Taxes, such Lender shall use reasonable efforts to select an alternative Applicable Lending Office which would not result in the imposition of such Taxes or Other Taxes; provided , however , that no Lender shall be obligated to select an alternative Applicable Lending Office if such Lender determines that (i) as a result of such selection, such Lender would be in violation of an applicable law, regulation or treaty, or would incur unreasonable additional costs or expenses, or (ii) such selection would be inadvisable for regulatory reasons or inconsistent with the interests of such Lender.

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(h)              Each Lender agrees with the Borrower that it will take all reasonable actions by all usual means (i) to secure and maintain the benefit of all benefits available to it under the provisions of any applicable double tax treaty concluded by the United States to which such Lender may be entitled by reason of the location of such Lender’s Applicable Lending Office or its place of incorporation or its status as an enterprise of any jurisdiction having any such applicable double tax treaty, if such benefit would reduce the amount payable by the Borrower in accordance with this Section 2.14, and (ii) otherwise to cooperate with the Borrower to minimize the amount payable by the Borrower pursuant to this Section 2.14; provided , however , that no Lender shall be obliged to disclose to the Borrower any information regarding its tax affairs or tax computations or to reorder its tax affairs or tax planning pursuant hereto.

(i)               If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.14 (including by the payment of additional amounts pursuant to this Section 2.14), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.14(i) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this Section 2.14(i), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.14(i) the payment of which would place the indemnified party in a less favorable net after-tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.

(j)               Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section 2.14 shall survive the payment in full of the principal and interest on all Advances and the termination of this Agreement until such date as all applicable statutes of limitations (including any extensions thereof) have expired with respect to such agreements and obligations of the Borrower contained in this Section 2.14.
 
SECTION 2.15  Sharing of Payments, etc.   If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) on account of the Advances made by it (other than pursuant to Section 2.11, 2.14, 8.04 or 8.08) in excess of its ratable share of payments on account of the Advances obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the Advances made by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery, together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered.  The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.15 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation.
 
SECTION 2.16  Mandatory Assignment by a Lender; Mitigation .  If any Lender (a) requests from the Borrower either reimbursement for increased costs pursuant to Section 2.11, or payment of or reimbursement for Taxes pursuant to Section 2.14, or if any Lender notifies the Designated Agent that
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it is unlawful for such Lender or its Eurocurrency Lending Office to perform its obligations hereunder pursuant to Section 2.12, (b) has failed to consent to a proposed amendment, waiver or consent that under Section 8.01 requires the consent of all the Lenders (or all the affected Lenders) and with respect to which the Majority Lenders shall have granted their consent or (c) is a Defaulting Lender, (i) in the case of clause (a), such Lender will, upon three Business Days’ notice by the Borrower to such Lender and the Designated Agent, to the extent not inconsistent with such Lender’s internal policies and applicable legal and regulatory restrictions, use reasonable efforts to make, fund or maintain its Eurocurrency Rate Advances through another office of such Lender if (A) as a result thereof, the additional amounts required to be paid pursuant to Section  2.11 or 2.14, as applicable, in respect of such Eurocurrency Rate Advances would be materially reduced or the provisions of Section 2.12 would not apply to such Lender, as applicable, and (B) as determined by such Lender in good faith but in its sole discretion, the making or maintaining of such Eurocurrency Rate Advances through such other office would not otherwise materially and adversely affect such Eurocurrency Rate Advances or such Lender and (ii) in case of clauses (a), (b) and (c), unless such Lender has theretofore taken steps to remove or cure, and has removed or cured, the conditions creating such obligation to pay such additional amounts or the circumstances described in Section 2.12 or has consented to the amendment, waiver or consent specified in clause (b), or is no longer a Defaulting Lender (other than if it became a Defaulting Lender due to a Bail-In Action, in which case such Borrower’s right shall continue notwithstanding), the Borrower may designate an Eligible Assignee to purchase for cash (pursuant to an Assignment and Acceptance) all, but not less than all, of the Advances then owing to such Lender and to acquire and assume all, but not less than all, of such Lender’s rights and obligations hereunder, without recourse to or warranty by, or expense to, such Lender, for a purchase price equal to the outstanding principal amount of each such Advance then owing to such Lender plus any accrued but unpaid interest thereon and any accrued but unpaid fees owing thereto and, in addition, (A) all additional cost reimbursements, expense reimbursements and indemnities, if any, owing in respect of such Lender’s Commitment hereunder, and all other accrued and unpaid amounts owing to such Lender hereunder, at such time shall be paid to such Lender and (B) if such Eligible Assignee is not otherwise a Lender at such time, any applicable processing and recordation fee under Section 8.07(a) for such assignment shall have been paid; provided that, in the case of any assignment resulting from the circumstances specified in clause (b), the Eligible Assignee shall have consented to the applicable amendment, waiver or consent and, as a result of such assignment and any contemporaneous assignments, the applicable amendment, waiver or consent can be effected.

SECTION 2.17  Evidence of Debt .  (a)  Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Advance owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.  The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such notice to the Designated Agent) to the effect that a promissory note or other evidence of indebtedness is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to be made by, such Lender, the Borrower shall promptly execute and deliver to such Lender a promissory note or other evidence of indebtedness, in form and substance reasonably satisfactory to the Borrower and such Lender (each, a “ Note ”), payable to such Lender in a principal amount equal to the Commitment of such Lender; provided, however, that the execution and delivery of such promissory note or other evidence of indebtedness shall not be a condition precedent to the making of any Advance under this Agreement.

(b)              The Register maintained by the Designated Agent pursuant to Section 8.07(c) shall include a control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances and currencies comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Acceptance delivered to and accepted by the Designated Agent, (iii) the
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amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iv) the amount of any sum received by the Designated Agent from the Borrower hereunder and each Lender’s share thereof.

(c)              Entries made in good faith by the Designated Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Designated Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement.
 
SECTION 2.18  Use of Proceeds .  The proceeds of the Advances shall be available (and the Borrower agrees that it shall use such proceeds) solely for purposes of financing the Target Acquisition and paying fees, costs and expenses incurred in connection with the Transactions, the Target Acquisition and the other transactions contemplated by the Purchase Agreement.
 
SECTION 2.19  [Intentionally Omitted] .
 
SECTION 2.20  [Intentionally Omitted] .
 
SECTION 2.21  Defaulting Lenders .  (a)  Notwithstanding any provision of this Agreement to the contrary, if one or more Lenders become Defaulting Lenders, then, upon notice to such effect by the Designated Agent (which notice shall be given promptly after the Designated Agent becomes aware that any Lender shall have become a Defaulting Lender, including as a result of being advised thereof by the Borrower) (such notice being referred to as a “ Defaulting Lender Notice ”), the following provisions shall apply for so long as any such Lender is a Defaulting Lender:

(i)                no ticking fee shall accrue or at any time be payable for such period on the unused amount of the Commitment of any Defaulting Lender pursuant to Section 2.03(a); and

(ii)              the Commitment and outstanding Advances of each Defaulting Lender shall be disregarded in determining whether the requisite Lenders shall have taken any action hereunder (including any consent to any waiver, amendment or other modification pursuant to Section 8.01); provided that any waiver, amendment or other modification that, disregarding the effect of this clause (ii), requires the consent of all Lenders or of all Lenders affected thereby and which affects such Defaulting Lender differently than other Lenders or affected Lenders, as the case may be, shall require the consent of such Defaulting Lender.

(b)              Any amount payable to a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise, and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.15 but excluding Section 2.16) shall, unless the Borrower otherwise agrees in writing in its sole discretion, in lieu of being distributed to such Defaulting Lender, be retained by the Designated Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Designated Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Designated Agent hereunder, (ii) second, to the funding of any Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Designated Agent, (iii) third, if so determined by the Designated Agent and the Borrower, held in such account as cash collateral for future funding obligations
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of the Defaulting Lender under this Agreement, (iv) fourth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (v) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction.

(c)              In the event that the Designated Agent and the Borrower agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) such Lender shall cease to be a Defaulting Lender for all purposes hereof and (ii) such Lender shall purchase at par such of the Advances of the other Lenders as the Designated Agent shall determine to be necessary in order for the Lenders to hold such Advances ratably in accordance with their Commitments.

(d)              No Commitment of any Lender shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by the Borrower of its obligations hereunder and under the other Loan Documents shall not be excused or otherwise modified, as a result of the operation of this Section. The rights and remedies against a Defaulting Lender under this Section are in addition to other rights and remedies that the Borrower, the Designated Agent or any Non-Defaulting Lender may have against such Defaulting Lender.

ARTICLE III

CONDITIONS OF LENDING

SECTION 3.01  Conditions Precedent to Effectiveness of Section 2.01 .  Section 2.01 of this Agreement shall become effective on and as of the first date (the “ Effective Date ”) on which all of the following conditions precedent have been satisfied or waived in accordance with Section 8.01:

(a)              the Designated Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Designated Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement;

(b)              the Designated Agent (or its counsel) shall have received from the Guarantor either (i) a counterpart of the Guaranty signed on behalf of the Guarantor or (ii) written evidence satisfactory to the Designated Agent (which may include facsimile or other electronic transmission of a signed counterpart of the Guaranty) that the Guarantor has signed a counterpart of the Guaranty;

(c)              the Designated Agent shall have received on or before the Effective Date the following, each dated as of the Effective Date:  (i) certified copies of the resolutions of the Board of Directors of the Borrower or the Executive Committee of such Board authorizing the execution and delivery of this Agreement and the other documents related hereto; (ii) certified copies of the resolutions of the Board of Directors of the Guarantor or the Executive Committee of such Board authorizing the execution and delivery of the Guaranty and the other documents related hereto; (iii) certified copies of the organizational documents of each of the Borrower and the Guarantor; (iv) a certificate of the Secretary or an Assistant Secretary of each of the Borrower and the Guarantor certifying the name and true signature of the officer of the Borrower executing this Agreement on its behalf or the Guarantor executing the Guaranty on its behalf, as applicable; (v) certificates of good standing for the Borrower and the Guarantor from the Secretary of State of Delaware; and (vi) an opinion or opinions of counsel for the Borrower and the Guarantor (which may be in-house counsel, external counsel or a combination of the two), in form and substance reasonably satisfactory to the Joint Lead Arrangers; and

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(d)              all fees and other amounts due and payable by the Borrower and its Subsidiaries to the Joint Lead Arrangers, the Designated Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least two Business Days prior to the Effective Date by the relevant Person and to the extent such amounts are payable on or prior to the Effective Date.

The Designated Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding.
 
SECTION 3.02  Closing Date .  The obligation of each Lender to make an Advance on the Closing Date shall be subject to the further conditions precedent that the Effective Date shall have occurred and that:

(a)              Each of the Purchase Agreement Representations and Specified Representations shall be true and correct in all material respects as of the Closing Date; provided that any representation and warranty that is qualified as to materiality, “Company Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such date (it being acknowledged that the definition of “Company Material Adverse Effect” shall be as defined in the Purchase Agreement for purposes of the Purchase Agreement Representations made or to be made on or as of the Closing Date).

(b)              Prior to or substantially concurrently with the initial funding of the Advances, all of the conditions precedent to the consummation of the Target Acquisition as set forth in the Purchase Agreement shall have been satisfied or waived in accordance with the terms thereof and hereof, and each of the Delta Certificate of Merger and the Wax Certificate of Merger (in each case, as defined in the Purchase Agreement) shall have been filed, in each case in accordance with the Purchase Agreement, without giving effect to any amendments, modifications, supplements or waivers by the Guarantor (or any of its Affiliates) thereto or consents by the Guarantor (or any of its Affiliates) thereunder that are materially adverse to the Joint Lead Arrangers or the Lenders in their capacities as such without the Joint Lead Arrangers’ prior written consent (not to be unreasonably withheld, conditioned or delayed) (it being understood and agreed that (a) amendments, waivers and other changes to the definition of “Company Material Adverse Effect” in the Purchase Agreement, to the first sentence of Section 3.06 (Absence of Certain Changes) of the Purchase Agreement, or to Section 6.02(a)(ii)(x) of the Purchase Agreement, in each case as in effect on the Commitment Letter Date, shall be deemed to be materially adverse to the Lenders and (b) any modification, amendment or express waiver or consents by the Guarantor (or any of its Affiliates) that results in (x) an increase to the purchase price shall be deemed to not be materially adverse to the Lenders so long as such increase is not funded with proceeds of Debt and (y) a decrease to the purchase price shall be deemed to not be materially adverse to the Lenders so long as such reduction is allocated to ratably reduce the Commitments).
 
(c)              The Joint Lead Arrangers shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of (x) the Guarantor and its Subsidiaries for the three most recently completed fiscal years ended at least 90 days before the Closing Date and (y) 21CF and its Subsidiaries for the three most recently completed fiscal years ended at least 90 days before the Closing Date and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of each of the Guarantor and its Subsidiaries and 21CF and its Subsidiaries, for each subsequent fiscal quarter ended at least 45 days before the Closing Date (other than the fourth fiscal quarter) and the corresponding period of the prior fiscal year; provided that filing of the required financial statements on Form 10-K and/or Form 10-Q, as applicable, by the Guarantor or 21CF, respectively, will satisfy the foregoing applicable requirements. The Joint Lead Arrangers hereby acknowledge receipt of the financial
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statements in the foregoing clause (i) with respect to the Guarantor for the fiscal years ended September 29, 2018, September 30, 2017 and October 1, 2016 and with respect to 21CF for the fiscal years ended June 30, 2018, 2017 and 2016 and receipt of the financial statements in the foregoing clause (ii) with respect to 21CF for the fiscal quarters ended September 30, 2018 and 2017.

(d)              The Joint Lead Arrangers shall have received (i) unaudited pro forma consolidated income statements of the Borrower and its Subsidiaries (after giving effect to the Transactions and the Target Acquisition and the other transactions contemplated by the Purchase Agreement) for each of (x) the most recent fiscal year of the Guarantor for which audited consolidated financial statements are required to have been provided pursuant to clause (c)(i) above and (y) the interim period, if any, since the date of such audited financial statements through the most recent quarterly unaudited consolidated financial statements of the Guarantor required to have been provided pursuant to clause (c)(ii) above and (ii) unaudited pro forma consolidated income statements of Target and its Subsidiaries for each of (x) the fiscal years of 21CF for which audited consolidated financial statements of 21CF are required to have been provided pursuant to clause (c)(i) above and (y) the interim period, if any, utilized in the preparation of the pro forma financial statements provided pursuant to clause (d)(i) (in the case of each of the preceding clauses (i) and (ii), to the extent that would be required to be included in a registration statement on Form S-4 of the Borrower pursuant to Regulation S-X). The Joint Lead Arrangers hereby acknowledge receipt of the pro forma financial statements in the foregoing clause (i) for the twelve months ended September 30, 2017 and for the interim periods ended June 30, 2018 and March 31, 2018 and receipt of the pro forma financial statements in the foregoing clause (ii) for the fiscal years ended June 30, 2017, 2016 and 2015 and for the interim period ended December 31, 2017, in the case of unaudited pro forma consolidated income statements, and June 30, 2018 and March 31, 2018 in the case of the unaudited pro forma condensed combined balance sheet.

(e)              All fees and other amounts due and payable by the Borrower and its Subsidiaries to the Joint Lead Arrangers, the Designated Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least two Business Days prior to the Closing Date by the relevant Person and to the extent such amounts are payable on or prior to the Closing Date.

(f)               The Designated Agent shall have received a certificate substantially in the form set forth in Exhibit E hereto from the chief financial officer or treasurer of the Borrower and the chief financial officer or treasurer of the Guarantor, certifying that each of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, in each case after giving effect to the Transactions and the Target Acquisition and the other transactions contemplated by the Purchase Agreement and the incurrence of the Debt and other obligations being incurred in connection with this Agreement and the Transactions and the Target Acquisition and the other transactions contemplated by the Purchase Agreement, that, with (x) respect to the Borrower and its Subsidiaries on a consolidated basis, (i) the sum of the liabilities of the Borrower and its Subsidiaries, taken as a whole, does not exceed the present fair saleable value of the assets of the Borrower and its Subsidiaries, taken as a whole; (ii) the capital of the Borrower and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of the Borrower and its Subsidiaries, taken as a whole, contemplated on the date hereof and (iii) the Borrower and its Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts including current obligations beyond their ability to pay such debt as they mature in the ordinary course of business and (y) with respect to the Guarantor and its Subsidiaries on a consolidated basis, (i) the sum of the liabilities of the Guarantor and its Subsidiaries, taken as a whole, does not exceed the present fair saleable value of the assets of the Guarantor and its Subsidiaries, taken as a whole; (ii) the capital of the Guarantor and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of the Guarantor and its Subsidiaries, taken as a whole, contemplated on the date hereof and (iii) the Guarantor and its Subsidiaries, taken as a whole, do not intend
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to incur, or believe that they will incur, debts including current obligations beyond their ability to pay such debt as they mature in the ordinary course of business.

(g)              The Designated Agent shall have received a certificate from a Responsible Officer of the Borrower, certifying as to the satisfaction of the conditions set forth in Section 3.02(a) and (b) of this Agreement.

(h)              The Designated Agent shall have received a Notice of Borrowing in accordance with the requirements hereof.

The Designated Agent shall notify the Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding.  Notwithstanding the foregoing, the obligations of the Lenders to make Advances hereunder shall become effective once each of the foregoing conditions is satisfied (or waived pursuant to Section 8.01) on or prior to the Commitment Termination Date (and, in the event such conditions are not so satisfied or waived prior to the Commitment Termination Date, the Commitments shall terminate as of such date).

                           SECTION 3.03  Determinations Under Sections 3.01 and 3.02 .  For purposes of determining compliance with the conditions specified in Section 3.01 and Section 3.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless the Designated Agent shall have received notice from such Lender prior to the date that the Borrower, by notice to the Lenders, designates as the proposed Effective Date or Closing Date, as applicable, specifying its objection thereto.  The Designated Agent shall promptly notify the Lenders and the Borrower of the occurrence of the Closing Date.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

SECTION 4.01  Representations and Warranties of the Borrower .  The Borrower represents and warrants as of the Effective Date and the Closing Date as follows:

(a)              Each of the Borrower and the Guarantor is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.  Each of the Borrower and the Guarantor is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction (other than its jurisdiction of incorporation) in which the nature of its activities or the character of the properties it owns or leases make such qualification necessary and in which the failure so to qualify would have a material adverse effect on the financial condition or operations of the Consolidated Group, taken as a whole.
 
(b)              (i) The execution, delivery and performance by (x) the Borrower of this Agreement and each of the Notes, if any, delivered hereunder are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and do not contravene (A) the Borrower’s certificate of incorporation or by-laws or (B) any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any material contractual restriction binding on or affecting the Borrower and (y) the Guarantor of the Guaranty are within the Guarantor’s corporate powers, have been duly authorized by all necessary corporate action and do not contravene (A) the Guarantor’s certificate of incorporation or by-laws or (B) any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any material contractual restriction binding on or affecting the Guarantor; (ii) no authorization or approval
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or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes, if any, or by the Guarantor of the Guaranty, in each case except such as have been obtained or made and are in full force and effect; and (iii) this Agreement is and each of the Notes, when delivered hereunder, will be the legal, valid and binding obligation of the Borrower and the Guaranty will be the legal, valid and binding obligation of the Guarantor, enforceable against the Borrower or the Guarantor, as applicable, in accordance with their respective terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and general principles of equity.

(c)              The Guarantor’s most recent annual report on Form 10-K, containing the consolidated balance sheet of the Guarantor and its Subsidiaries, and the related consolidated statements of income and of cash flows of the Guarantor and its Subsidiaries, copies of which have been furnished to each Lender pursuant to Section 5.01(e)(ii) or as otherwise furnished to the Lenders (including by posting on the website of the SEC at http://www.sec.gov), fairly present the consolidated financial condition of the Guarantor and its Subsidiaries as at the date of such balance sheet and the consolidated results of operations of the Guarantor and its Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied.

(d)              There is no pending or, to the Borrower’s knowledge, threatened claim, action or proceeding affecting any member of the Consolidated Group which could reasonably be expected to have a material adverse effect on the financial condition or operations of the Consolidated Group, taken as a whole, or which could reasonably be expected to affect the legality, validity or enforceability of this Agreement; and to the Borrower’s knowledge, each member of the Consolidated Group has complied, and is in compliance, with all applicable laws, rules, regulations, permits, orders, consent decrees and judgments, except for any such matters which have not had, and would not reasonably be expected to have, a material adverse effect on the financial condition or operations of the Consolidated Group, taken as a whole.

(e)              The Borrower and the ERISA Affiliates have not incurred and are not reasonably expected to incur any material liability in connection with their Single Employer Plans or Multiple Employer Plans, other than ordinary liabilities for benefits; neither the Borrower nor any ERISA Affiliate has incurred or is reasonably expected to incur any material withdrawal liability (as defined in Part I of Subtitle E of Title IV of ERISA) to any Multiemployer Plan; and no Multiemployer Plan of the Guarantor or any ERISA Affiliate is reasonably expected to be terminated, within the meaning of Title IV of ERISA.  For purposes of this Section 4.01(e), references to the Borrower prior to the Closing Date shall be deemed to be references to the Guarantor.

(f)               The Borrower has implemented and will maintain policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their directors, officers and employees with applicable Anti-Corruption Laws and Sanctions Laws, and is in compliance with applicable Anti-Corruption Laws and Sanctions Laws in all material respects. None of the Borrower or any Subsidiary or, to the knowledge of the Borrower, any director, officer or employee of the Borrower or any Subsidiary acting in connection with or benefitting from the credit facility established hereby, is a Sanctioned Person.  No borrowing of Advances will be made by the Borrower (A) for the purpose of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person, in violation of applicable Anti-Corruption Laws or (B) for the purpose of financing, funding or facilitating unauthorized transactions with any Sanctioned Person. To the knowledge of the Borrower, no transactions undertaken by the Borrower hereunder will be undertaken in violation of applicable Anti-Corruption Laws or Sanctions Laws.  For purposes of this Section 4.01(f), references to the Borrower, prior to the Closing Date, shall be deemed to be references to the Guarantor.

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(g)              The proceeds of the Advances will be used in accordance with Section 2.18.

(h)              The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no part of the proceeds of any Borrowing hereunder will be used to buy or carry any Margin Stock in violation of Regulation U.

(i)               Neither the Guarantor nor the Borrower is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

(j)               Immediately after the consummation of the Transactions to occur on the Closing Date, the Target Acquisition and the other transactions contemplated by the Purchase Agreement, each of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, in each case on a consolidated basis, is Solvent.

ARTICLE V

COVENANTS OF THE BORROWER

SECTION 5.01  Affirmative Covenants .  So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will, unless the Majority Lenders shall otherwise consent in writing:

(a)              Compliance with Laws, etc .  Comply, and cause each member of the Consolidated Group to comply, in all material respects with all applicable laws, rules, regulations, permits, orders, consent decrees and judgments binding on any member of the Consolidated Group, including ERISA and the Patriot Act, the failure with which to comply would have a material adverse effect on the financial condition or operations of the Consolidated Group, taken as a whole.

(b)              Payment of Taxes, etc .  Pay and discharge, and cause each member of the Consolidated Group to pay and discharge, before the same shall become delinquent, if the failure to pay and discharge would have a material adverse effect on the financial condition or operations of the Consolidated Group, taken as a whole, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims which, if unpaid, would by law become a Lien upon its property; provided, however , that no member of the Consolidated Group shall be required to pay or discharge any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained in accordance with GAAP.

(c)              Preservation of Corporate Existence, etc .  Subject to Section 5.02(a), preserve and maintain its, and cause the Guarantor to preserve and maintain its, corporate existence, rights (charter and statutory) and franchises; provided, however , that neither the Borrower nor the Guarantor shall be required to preserve any right or franchise if the loss thereof would not have a material adverse effect on the business, financial condition or operations of the Consolidated Group, taken as a whole.

(d)              Maintenance of Interest Coverage Ratio .  Maintain as of the last day of each fiscal quarter of the Borrower, commencing with the first fiscal quarter of the Borrower following the Effective Date, the ratio of (i) Consolidated EBITDA for the Measurement Period ending on such day to (ii) Consolidated Interest Expense for the Measurement Period ending on such day of not less than 3.00 to 1.00. For purposes of this Section 5.01(d), references to the Borrower, prior to the Closing Date, shall be deemed to be references to the Guarantor.

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(e)              Reporting Requirements .  Furnish to the Designated Agent, on behalf of the Lenders:

(i)               as soon as available and in any event within 50 days after the end of each of the first three quarters of each fiscal year of the Borrower, a copy of the Borrower’s quarterly report to shareholders on Form 10-Q as filed with the Securities and Exchange Commission (the “ SEC ”), in each case containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and consolidated statements of income and of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, and a certificate of any of the Borrower’s Chairman of the Board of Directors, President, Chief Financial Officer, Treasurer, Assistant Treasurer or Controller (A) stating that no Event of Default, or event that with the giving of notice or passage of time or both would constitute an Event of Default, has occurred and is continuing and (B) containing a schedule which shall set forth the computations used by the Borrower in determining compliance with the covenant contained in Section 5.01(d); provided that the quarterly report on Form 10-Q required to be delivered pursuant to this paragraph shall be deemed to be delivered if such report shall have been posted and shall be available on the website of the SEC at http://www.sec.gov;

(ii)              as soon as available and in any event within 100 days after the end of each fiscal year of the Borrower, a copy of the Borrower’s annual report to shareholders on Form 10-K as filed with the SEC, containing consolidated financial statements of the Borrower and its Subsidiaries for such year and a certificate of any of the Borrower’s Chairman of the Board of Directors, President, Chief Financial Officer, Treasurer, Assistant Treasurer or Controller (A) stating that no Event of Default, or event that with the giving of notice or passage of time or both would constitute an Event of Default, has occurred and is continuing and (B) containing a schedule which sets forth the computations used by the Borrower in determining compliance with the covenant contained in Section 5.01(d); provided that the annual report on Form 10-K required to be delivered pursuant to this paragraph shall be deemed to be delivered if such report shall have been posted and shall be available on the website of the SEC at http://www.sec.gov;

(iii)             promptly after a Responsible Officer of the Borrower obtains actual knowledge of the occurrence of an Event of Default, and each event that with the giving of notice or passage of time or both would constitute an Event of Default, a statement of any Responsible Officer setting forth details of such Event of Default or event continuing on the date of such statement, and the action which the Borrower has taken and proposes to take with respect thereto;

(iv)             promptly after a Responsible Officer of the Borrower obtains actual knowledge thereof, notice of any actions, suits and proceedings before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Borrower or any of its Subsidiaries of the type described in Section 4.01(d);

(v)              promptly after a Responsible Officer of the Borrower obtains actual knowledge thereof, written notice of any pending or threatened Environmental Claim against the Borrower or any of its Subsidiaries or any of their respective properties which could reasonably be expected to materially and adversely affect the financial condition or operations of the Borrower and its Subsidiaries, taken as a whole;

(vi)             promptly after a Responsible Officer of the Borrower obtains actual knowledge of the occurrence of any ERISA Event which could reasonably be expected to materially and adversely affect the financial condition or operations of the Borrower and its Subsidiaries, taken as
 
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a whole, a statement of any of the Borrower’s Chairman of the Board of Directors, President, Chief Financial Officer, Treasurer, Assistant Treasurer or Controller describing such ERISA Event and the action, if any, which the Borrower has taken and proposes to take with respect thereto;
 
(vii)           promptly after a Responsible Officer of the Borrower obtains actual knowledge of receipt thereof by the Borrower or any ERISA Affiliate from the sponsor of a Multiemployer Plan, a copy of each notice received by the Borrower or any ERISA Affiliate concerning (A) the imposition of withdrawal liability (as defined in Part I of Subtitle E of Title IV of ERISA) by a Multiemployer Plan, which withdrawal liability could reasonably be expected to materially and adversely affect the financial condition or operations of the Borrower and its Subsidiaries, taken as a whole, (B) the termination, within the meaning of Title IV of ERISA, of any Multiemployer Plan, which termination could reasonably be expected to materially and adversely affect the financial condition or operations of the Borrower and its Subsidiaries, taken as a whole, or (C) the amount of liability incurred, or which may be incurred, by the Borrower or any ERISA Affiliate in connection with any event described in subclause (vii)(A) or (vii)(B) above; and

(viii)          such other material information reasonably related to any Lender’s credit analysis of the Borrower or any of its Subsidiaries as any Lender through the Designated Agent may from time to time reasonably request.

For purposes of this Section 5.01(e), references to the Borrower, prior to the Closing Date, shall be deemed to be references to the Guarantor.  For the avoidance of doubt, and subject to the immediately preceding sentence, all references in this Section 5.01, in Section 4.01 or elsewhere in this Agreement to any annual, quarterly or other reports filed with the SEC by the Borrower or any financial statements of the Borrower, and all determinations of Consolidated EBITDA or Consolidated Interest Expense for any Measurement Period, in each case, will be determined (x) prior to such time on or after the Closing Date as the Borrower first files its annual or quarterly report with the SEC, by reference to the Guarantor being the “Borrower” and (y) thereafter, by reference to the Borrower being the “Borrower” but, where applicable for any such determination, taking into account and combining any portion of the relevant period during which the Guarantor produced the relevant financial statements, mutatis mutandis .

SECTION 5.02  Negative Covenants .  So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will not, without the written consent of the Majority Lenders:

(a)              Mergers, etc .  Merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole (whether now owned or hereafter acquired), to, any Person, or permit any of its Subsidiaries to do so, unless (i) immediately after giving effect to such proposed transaction, no Event of Default or event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default would exist and (ii) in the case of any such merger to which the Borrower is a party, the Borrower is the surviving corporation.

ARTICLE VI

EVENTS OF DEFAULT

                           SECTION 6.01  Events of Default .  If any of the following events (“ Events of Default ”) shall occur and be continuing:

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(a)              The Borrower shall fail to pay any principal of any Advance when the same becomes due and payable; or the Borrower shall fail to pay any interest on any Advance, or any fee or other amount payable under this Agreement, in each case within three Business Days after such interest, fee or other amount becomes due and payable; or

(b)              Any representation or warranty made by the Borrower herein or by the Borrower (or any of its officers) delivered in writing and identified as delivered in connection with this Agreement shall prove to have been incorrect in any material respect when made; or

(c)              The Borrower shall fail to perform or observe any covenant contained in Section 5.01(d), Section 5.01(e)(iii) or Section 5.02; or

(d)              The Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed if the failure to perform or observe such other term, covenant or agreement shall remain unremedied for 30 days after written notice thereof shall have been given to the Borrower and the Guarantor by the Designated Agent or the Majority Lenders; or

(e)              (i)         Any member of the Consolidated Group shall fail to pay any principal of or premium or interest on any Debt of such member of the Consolidated Group which is outstanding in a principal amount of at least $250,000,000 in the aggregate (but excluding Debt arising hereunder) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure (A) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt and (B) shall not have been cured or waived; (ii) any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or (iii) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; provided that (1) clause (iii) above shall not apply (and it is understood that clause (ii) above does not apply) to any prepayment, redemption, purchase or defeasance of any such Debt (including the Debt incurred under the RSN Credit Agreement) incurred for the purpose of financing, in whole or in part, any acquisition (including the Target Acquisition) if such prepayment, redemption, purchase or defeasance is required to be made (A) as a result of such acquisition failing to be consummated or (B) with the proceeds of any sale or other disposition of assets, any incurrence of any other Debt or any issuance of any equity interests by any member of the Consolidated Group, (2) clause (iii) above shall not apply (and it is understood that clause (ii) above does not apply) to any prepayment, redemption, purchase or defeasance of any such Debt of any Person acquired by the Borrower (or, prior to the Closing Date, the Guarantor) or any of its Subsidiaries after the date hereof (including 21CF and its subsidiaries) if such prepayment, redemption, purchase or defeasance is required to be made as a result of the consummation of such acquisition (including, in the case of 21CF and its subsidiaries, the Target Acquisition) and (3) it is understood that clauses (ii) and (iii) above do not apply to any demand for payment of any such Debt that, by its terms, is due on demand made at any time (howsoever described); or

(f)               The Borrower, the Guarantor or any Material Subsidiary shall generally not pay its Debts as such Debts become due, or shall admit in writing its inability to pay its Debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Borrower, the Guarantor or any Material Subsidiary seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition
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of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for substantially all of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Borrower, the Guarantor or any Material Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (f); or

(g)              Any money judgment, writ or warrant of attachment or similar process against the Borrower, the Guarantor, any Material Subsidiary or any of their respective assets in an amount in excess of $250,000,000 (exclusive of any amount covered by a nationally recognized financially sound insurer that has received notice of the claim to which such money judgment, writ or warrant of attachment or similar process relates and has not denied coverage or otherwise denied liability in respect thereof) is entered and shall remain undischarged, unvacated, unbonded or unstayed for a period of 30 days or, in any case, within five days of any pending sale or disposition of any asset pursuant to any such process; or

(h)              the Guaranty shall for any reason be terminated by the Guarantor or cease to be in full force and effect or to be valid and binding on the Guarantor, or the enforceability thereof shall be contested by the Guarantor;

then, and in any such event, the Designated Agent shall at the request, or may with the consent, of the Majority Lenders, by notice to each of the Borrower and the Guarantor, (A) declare the obligation of each Lender to make Advances to be terminated, whereupon the same shall forthwith terminate and/or (B) declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however , that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances shall automatically be terminated and (B) the Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower.

ARTICLE VII

THE DESIGNATED AGENT

SECTION 7.01  Authorization and Action .  (a)  Each Lender hereby appoints and authorizes the Designated Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Designated Agent by the terms hereof, together with such powers as are reasonably incidental thereto.  As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement of this Agreement or collection of the Advances), the Designated Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however , that the Designated Agent shall not be required to take any action which exposes the Designated Agent to personal liability or which is contrary to this Agreement or applicable law.  The Designated Agent agrees to give to each Lender prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement.

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(b)              The Designated Agent may perform any of its duties and exercise its rights and powers hereunder through any of its Affiliates.  Notwithstanding anything herein to the contrary, the exculpatory provisions of this Article VII and the provisions of Sections 8.04 and 8.08 shall apply to any such Affiliate of the Designated Agent and the Designated Agent shall remain responsible for the performance of such duties.

(b)              The Joint Lead Arrangers and Joint Bookrunners named on the cover of this Agreement shall have no duties under this Agreement other than those afforded to them in their capacities as Lenders, and each Lender hereby acknowledges that the Joint Lead Arrangers and Joint Bookrunners have no liability to them under this Agreement other than those assumed by them in their capacities as Lenders.
 
SECTION 7.02  Designated Agent’s Reliance, etc.   Neither the Designated Agent nor any of its directors, officers, agents or employees shall be liable to any Lender for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct.  Without limitation of the generality of the foregoing, the Designated Agent:  (i) may treat the Lender which made any Advance as the holder of the Debt resulting therefrom until the Designated Agent receives and accepts an Assignment and Acceptance entered into by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement on the part of the Borrower or to inspect the property (including the books and records) of the Borrower; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any instrument or document furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be received by telecopier) believed by it to be genuine and signed or sent by the proper party or parties.
 
SECTION 7.03  The Designated Agent and its Affiliates .  With respect to its Commitment and the Advances made by it and any Note or Notes issued to it, the Designated Agent shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Designated Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include the Designated Agent in its individual capacity.  The Designated Agent and its respective Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with the Borrower, any of its subsidiaries and any Person who may do business with or own securities of the Borrower or any such subsidiary, all as if the Designated Agent were not the Designated Agent and without any duty to account therefor to the Lenders.
 
SECTION 7.04  Lender Credit Decision .  Each Lender acknowledges that it has, independently and without reliance upon the Designated Agent or any other Lender and based on the financial statements referred to in Section 4.01(c) and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon the Designated Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.

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SECTION 7.05  Indemnification .  The Lenders severally agree to indemnify the Designated Agent (to the extent not reimbursed by the Borrower but without affecting the Borrower’s obligations with respect thereto), ratably according to the respective principal amounts of Advances then owing to each of them (or, if no Advances are at the time outstanding or if any Advances are then owing to Persons which are not Lenders, ratably according to the respective amounts of their Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Designated Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Designated Agent under this Agreement in its capacity as such; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Designated Agent’s gross negligence or willful misconduct.  Without limitation of the foregoing, each Lender agrees to reimburse the Designated Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Designated Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal or bankruptcy proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Designated Agent is not reimbursed for such expenses by the Borrower.
 
SECTION 7.06  Successor Designated Agent .  The Designated Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower and such resignation shall be effective upon the appointment of a successor Designated Agent as provided herein.  Upon any such resignation, the Majority Lenders shall have the right (with the consent of the Borrower unless an Event of Default has occurred and is continuing) to appoint a successor Designated Agent (which shall be a Lender).  If no successor Designated Agent shall have been so appointed by the Majority Lenders, and shall have accepted such appointment, within 30 days after the retiring Designated Agent’s giving of notice of resignation, then the retiring Designated Agent may, on behalf of the Lenders, appoint a successor Designated Agent.  Any successor Designated Agent appointed hereunder shall be a commercial bank organized or licensed under the laws of the United States or of any State thereof, or an Affiliate of any such commercial bank, having a combined capital and surplus of at least $500,000,000.  Upon the acceptance of any appointment as Designated Agent hereunder by a successor Designated Agent, such successor Designated Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Designated Agent, and the retiring Designated Agent shall be discharged from its duties and obligations under this Agreement.  After any retiring Designated Agent’s resignation hereunder as Designated Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Designated Agent under this Agreement.
 
SECTION 7.07  Certain Lender Representations, etc.

(a)              Each Lender represents and warrants, as of the date such Person became a Lender party hereto, to, and from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Designated Agent and the institutions named as Co-Administrative Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents on the cover page of this Agreement and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any of its Subsidiaries, that at least one of the following is and will be true:

(i)               such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Advances or the Commitments,

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(ii)              the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement,

(iii)              (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Advances, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement, or

(iv)            such other representation, warranty and covenant as may be agreed in writing between the Designated Agent, in its sole discretion, and such Lender.

(b)              In addition, unless clause (i) of the immediately preceding paragraph is true with respect to such Lender or such Lender has provided another representation, warranty and covenant as provided in clause (iv) of the immediately preceding paragraph, such Lender further represents and warrants, as of the date such Person became a Lender party hereto, to, and covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Designated Agent and the institutions named as Co-Administrative Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents on the cover page of this Agreement and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any of its Subsidiaries, that:

(i)               none of the Designated Agent or any of the institutions named as Co-Administrative Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents on the cover page of this Agreement or their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by any Person under this Agreement or any documents related to hereto or thereto),

(ii)              the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),

(iii)             the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies,

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(iv)            the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Advances, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and

(v)              no fee or other compensation is being paid directly to the Designated Agent or any of the institutions named as Co-Administrative Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents on the cover page of this Agreement or their respective Affiliates for investment advice (as opposed to other services) in connection with the Advances, the Commitments or this Agreement.

(c)              The Designated Agent and the institutions named as Co-Administrative Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents on the cover page of this Agreement hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Advances, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Advances or the Commitments for an amount less than the amount being paid for an interest in the Advances or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

The following terms shall for purposes of this Section have the meanings set forth below:

“ Benefit Plan ” means (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

“ PTE ” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

ARTICLE VIII

MISCELLANEOUS

SECTION 8.01  Amendments, etc.

No amendment or waiver of any provision of this Agreement, or consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Majority Lenders and the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however , that no amendment, waiver or consent shall:  (a) waive any of the conditions specified in Section 3.01 or 3.02 without the written consent of each Lender, (b) increase the Commitments of the Lenders or subject the Lenders to any additional obligations without the written consent of each affected Lender, (c) reduce the principal of, or
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interest on, the Advances or the fees payable hereunder without the written consent of each affected Lender, (d) postpone any date fixed for any payment of principal of, or interest on, the Advances or any fee without the written consent of each affected Lender, (e) change the percentage of the Commitments or of the aggregate unpaid principal amount of Advances, or the number of Lenders which shall be required for the Lenders or any of them to take any action hereunder without the written consent of each Lender or (f) amend this Section 8.01 or Section 2.21(a)(ii) without the written consent of each Lender (it being understood that, for purposes of this proviso, “Lender” shall not include the Borrower or any of its Affiliates, if a Lender, at the time of any such amendment, waiver or consent); provided further that no amendment, waiver or consent shall, unless in writing and signed by the Designated Agent, in addition to the Lenders required above to take such action, affect the rights or duties of the Designated Agent under this Agreement or any Note.

SECTION 8.02  Notices, etc.   (a)  All notices and other communications provided for hereunder shall, except as otherwise expressly provided for herein, be in writing (including telecopier communication) and mailed, e-mailed, telecopied or delivered, if to the Borrower, at its address at:

The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Treasurer
Telecopier Number:  (818) 563-1682
Email:  corp.finance@disney.com;

with a copy to:

The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521-0523
Attention: Treasury Operations
Telecopier Number:  (818) 843-7921
Email: corp.cash.management.group@disney.com;

with a copy to:

The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention:  Associate General Counsel, Corporate Legal Department
Telecopier Number:  (818) 560-1823;

if to any Lender, at its Domestic Lending Office specified on Schedule 1.01 hereto or in the Assignment and Acceptance pursuant to which it became a Lender, as the case may be; and if to the Designated Agent, at its address at:

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JPMorgan Chase Bank, N.A.
Investment Bank Loan Operations
500 Stanton Christiana Rd.
NCC5 / 1st Floor
Newark, DE, 19713
Attention: Eugene Tull
Phone Number: (302) 634 – 1112
Email:  eugene.h.tulliii@chase.com;

with a copy to:

JPMorgan Chase Bank, N.A.
383 Madison Avenue, Floor 24
New York, NY 10179
Attention:  Bruce Borden
Phone Number:  (212) 270-5799
Email: bruce.s.borden@jpmorgan.com;

or, as to each party, at such other address as shall be designated by such party in a written notice to the other parties; provided that materials required to be delivered pursuant to Section 5.01(e)(i) or (ii) shall be delivered to the Designated Agent as specified in Section 8.02(b) or as otherwise specified to the Borrower by the Designated Agent; and provided further that such materials shall be deemed delivered to the Designated Agent to the extent posted and available on the website of the SEC at www.sec.gov.  All such notices and communications shall, when mailed, telecopied or e-mailed, be effective when deposited in the mails, telecopied or confirmed by e-mail, respectively, except that notices and communications to the Designated Agent pursuant to Article II or VII shall not be effective until received by the Designated Agent.  Delivery by telecopier, electronic mail or other electronic means of an executed counterpart of any amendment or waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of an original executed counterpart thereof.

(b)              The Borrower agrees that the Designated Agent may make materials required to be delivered pursuant to Section 5.01(e)(i) and (ii), as well as any other written information, documents, instruments (other than the Notes) and other material relating to the Borrower, any of its Subsidiaries or any other materials or matters relating to this Agreement or any of the transactions contemplated hereby (collectively, the “ Communications ”) available to the Lenders by posting such notices on IntraLinks or a substantially similar electronic system (the “ Platform ”).  The Borrower acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Designated Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform.  No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Designated Agent or any of its Affiliates in connection with the Platform.

(c)              Each Lender agrees that notice to it (as provided in the next sentence) (a “ Notice ”) specifying that any Communications have been posted to the Platform shall constitute effective delivery of such information, documents or other materials to such Lender for purposes of this Agreement; provided that if reasonably requested by any Lender, the Designated Agent shall deliver a copy of the Communications to such Lender by e-mail or telecopier.  Each Lender agrees (i) to notify the Designated
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Agent in writing of such Lender’s e-mail addresses to which a Notice may be sent by electronic transmission (including by electronic communication) on or before the date such Lender becomes a party to this Agreement (and from time to time thereafter to ensure that the Designated Agent has on record effective e-mail addresses for such Lender) and (ii) that any Notice may be sent to such e-mail address.

SECTION 8.03  No Waiver; Remedies .  No failure on the part of any Lender or the Designated Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
 
SECTION 8.04  Costs and Expenses .  (a)  The Borrower agrees promptly to pay all actual, reasonable and documented costs and expenses (including, without limitation, the actual, reasonable and documented fees and expenses of one counsel) of the Designated Agent in connection with the negotiation and execution of this Agreement and all related documentation and the syndication of the credit facility established hereby.  The Borrower further agrees to pay, within five Business Days of demand, all actual, reasonable and documented costs and expenses of the Designated Agent and each Lender, if any, in connection with the enforcement (whether through legal proceedings or otherwise) of this Agreement and the other instruments and documents to be delivered hereunder, including, without limitation, in connection with the enforcement of rights under this Section 8.04(a); provided , that any such costs and expenses consisting of fees and expenses of counsel shall be limited to the actual, reasonable and documented fees and expenses of one counsel for the Designated Agent and no more than one additional counsel for the Lenders as a group (together with (i) such local counsel, limited in each case to one such local counsel for the Designated Agent and one such local counsel for the Lenders as a group per jurisdiction, that may be reasonably required by the Designated Agent or the Lenders and (ii) if any Lender shall have reasonably concluded (based upon the advice of counsel) that its representation by counsel for the Lenders creates a conflict of interest for such counsel, such separate counsel as such Lender may reasonably require).

(b)              If any payment of principal of, or Conversion of, any Eurocurrency Rate Advance is made other than on the last day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.04 or 2.10 or acceleration of the maturity of the Advances pursuant to Section 6.01 or for any other reason (other than by reason of a payment pursuant to Section 2.12), the Borrower shall, within five Business Days of demand by any Lender (with a copy of such demand to the Designated Agent), pay to such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by such Lender to fund or maintain such Advance.  All obligations of the Borrower under this Section 8.04 shall survive the making and repayment of the Advances and the termination of this Agreement.
 
SECTION 8.05  Right of Set-off .  Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Designated Agent to declare the Advances due and payable pursuant to the provisions of Section 6.01, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, but excluding trust accounts) at any time held and other indebtedness at any time owing by such Lender to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement, whether or not such Lender shall have made any demand under this Agreement.  Each Lender agrees promptly to notify the Borrower and the Designated Agent after any such set-off and application made by such Lender; provided that the failure to give such
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notice shall not affect the validity of such setoff and application.  The rights of each Lender under this Section are in addition to other rights and remedies (including, without limitation, other rights of setoff) which such Lender may have.

SECTION 8.06  Binding Effect; Integration .  This Agreement shall become effective as specified in Section 3.01 and, thereafter, shall be binding upon and inure to the benefit of the Borrower, the Designated Agent and each Lender and their respective successors and permitted assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of each Lender.  This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent, the Joint Lead Arrangers and/or the Joint Bookrunners constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  In connection with the foregoing and for the avoidance of doubt, it is understood and agreed that the commitments of the Lenders and their affiliates under the Commitment Letter shall be automatically terminated concurrently with the effectiveness of this Agreement and the effectiveness of the RSN Credit Agreement.
 
SECTION 8.07  Assignments and Participations .  (a)  Each Lender may and, if requested by the Borrower upon notice by the Borrower delivered to such Lender and the Designated Agent pursuant to clause (ii) of Section 2.16 will, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it and any Note or Notes held by it); provided, however , that (i) each such assignment shall be of a constant, and not a varying, percentage of all the assigning Lender’s rights and obligations under this Agreement, (ii) the amount (without duplication) of the Commitment and the pro-rata share of outstanding Advances of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance) shall not be less than $12,500,000 (unless the assigning Lender shall assign its entire interest hereunder or such lesser amount is previously agreed among such assigning Lender, the Designated Agent and the Borrower) or an integral multiple of $500,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee and (iv) the parties to each such assignment (other than the Borrower) shall execute and deliver to the Designated Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided that the Designated Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.  Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights such Lender assignor may have under Sections 2.11, 2.14 and 8.08) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).

(b)              By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows:  (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no
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responsibility with respect to the financial condition of the Borrower or any of its Subsidiaries or the performance or observance by the Borrower of any of its obligations under this Agreement or any instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(c), and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Designated Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Designated Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Designated Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.

(c)              The Designated Agent shall maintain a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the “ Register ”).  The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Designated Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice to the Designated Agent.

(d)              Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee and, if applicable, the Borrower, together with any Note subject to such assignment, the Designated Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.

(e)              Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it and any Note issued to it hereunder); provided, however , that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Designated Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall not agree in any participation agreement with any participant or proposed participant to obtain the consent of such participant before agreeing to the amendment, modification or waiver of any of the terms of this Agreement  or any Note before consenting to any action or failure to act by the Borrower or any other party hereunder or under any Note, or before exercising any rights it may have in respect thereof, unless such amendment, modification, waiver, consent or exercise would (A) increase the amount of such participant’s portion of such Lender’s Commitment, (B) reduce the principal amount of or rate of interest on the Advances or any fee or other amounts payable hereunder to which such participant would be entitled to receive a share under such participation agreement, or (C) postpone any date fixed for any payment of principal of or interest on the Advances or any fee or other amounts payable hereunder to which such participant would be entitled to receive a share under such participation agreement.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the
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name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Advances or other obligations under this Agreement (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a participant’s interest in any Commitments, Advances, Notes or its other obligations under this Agreement) to any Person except to the extent that such disclosure is requested by such Person and is necessary to establish that such Commitment, Advance, Note or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Designated Agent (in its capacity as Designated Agent) shall have no responsibility for maintaining a Participant Register.

(f)               Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower in writing and directly related to the transactions contemplated hereunder; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender in accordance with the terms of Section 8.09(a).

(g)              No participation or assignment hereunder shall be made in violation of the Securities Act of 1933, as amended from time to time, or any applicable state securities laws, and each Lender hereby represents that it will make any Advance for its own account in the ordinary course of its business and not with a view to the public distribution or sale thereof.

(h)              Anything in this Agreement to the contrary notwithstanding, any Lender may at any time assign or create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and any Note issued to it hereunder) in favor of any Federal Reserve Bank or any foreign central bank having authority over such Lender in accordance with Regulation A of the Board of Governors of the Federal Reserve System (or any successor regulation thereto), any applicable operating circular of such Federal Reserve Bank or any other regulation issued by the applicable foreign central bank; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
 
SECTION 8.08  Indemnification .  The Borrower agrees to indemnify and hold harmless the Designated Agent, each Lender and each of their Affiliates and their respective officers, directors, employees, agents and advisors (each, an “ Indemnified Party ”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted against any Indemnified Party, in each case arising out of or in connection with or by reason of, or in connection with the preparation for a defense of, any investigation, litigation or proceeding (whether or not an Indemnified Party is a party thereto) arising out of, related to or in connection with the Commitments hereunder or the Advances made hereunder or any transactions in connection herewith, including, without limitation, any transaction in which any proceeds of the Advances are, or are proposed to be, applied (collectively, the “ Indemnified Matters ”); provided that the Borrower shall have no obligation to any Indemnified Party under this Section 8.08 with respect to (i) matters for which such Indemnified Party has been reimbursed by or on behalf of the Borrower pursuant to any other provision of this Agreement, but only to the extent of such reimbursement, or (ii) Indemnified Matters found by a court of competent jurisdiction to have resulted from the willful misconduct or gross negligence
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of such Indemnified Party.  If any action is brought against any Indemnified Party, such Indemnified Party shall promptly notify the Borrower in writing of the institution of such action and the Borrower shall thereupon have the right, at its option, to elect to assume the defense of such action; provided, however, that the Borrower shall not, in assuming the defense of any Indemnified Party in any Indemnified Matter, agree to any dismissal or settlement of such Indemnified Matter without the prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld, if such dismissal or settlement (A) would require any admission or acknowledgment of culpability or wrongdoing by such Indemnified Party or (B) would provide for any non-monetary relief to any Person to be performed by such Indemnified Party.  If the Borrower so elects, it shall promptly assume the defense of such action, including the employment of counsel (reasonably satisfactory to such Indemnified Party) and payment of expenses.  Such Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (1) the employment of such counsel shall have been authorized in writing by the Borrower in connection with the defense of such action or (2) the Borrower shall not have properly employed counsel reasonably satisfactory to such Indemnified Party to have charge of the defense of such action, in which case such fees and expenses shall be paid by the Borrower.  If an Indemnified Party shall have reasonably concluded (based upon the advice of counsel) that the representation by one counsel of such Indemnified Party and the Borrower creates a conflict of interest for such counsel, the reasonable fees and expenses of such counsel shall be borne by the Borrower and the Borrower shall not have the right to direct the defense of such action on behalf of such Indemnified Party (but shall retain the right to direct the defense of such action on behalf of the Borrower).  Anything in this Section 8.08 to the contrary notwithstanding, the Borrower shall not be liable for the fees and expenses of more than one counsel for any Indemnified Party in any jurisdiction as to any Indemnified Matter or for any settlement of any Indemnified Matter effected without its written consent.  All obligations of the Borrower under this Section 8.08 shall survive the making and repayment of the Advances and the termination of this Agreement.

SECTION 8.09  Confidentiality .  (a)  None of the Designated Agent or the Lenders may disclose to any Person any confidential, proprietary or non-public information of the Borrower furnished to the Designated Agent or the Lenders by the Borrower or any of its Subsidiaries (such information being referred to collectively herein as the “ Borrower Information ”), except that each of the Designated Agent and each of the Lenders may disclose Borrower Information (i) to its and its Affiliates’ employees, officers, directors, agents, auditors and advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Borrower Information and instructed to keep such Borrower Information confidential on substantially the same terms as provided herein), (ii) to the extent requested by any regulatory authority or self-regulatory body, (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (iv) to any other party to this Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section 8.09(a), to any assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations under this Agreement, (vii) to the extent such Borrower Information (A) is or becomes generally available to the public on a non-confidential basis, other than as a result of a breach of this Section 8.09(a) by the Designated Agent or such Lender, or (B) is or becomes available to the Designated Agent or such Lender on a non-confidential basis from a source other than the Borrower, its Affiliates or their respective officers, directors, agents, auditors and advisors, provided such source is not bound by a confidentiality agreement or other legal or fiduciary obligations of secrecy with the Borrower or its Affiliates with respect to the Borrower Information, and (viii) with the consent of the Borrower.

(b)              The Borrower agrees to maintain the confidentiality of any rate provided by an individual Reference Bank hereunder for purposes of setting the Eurocurrency Rate (and the name of such
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Reference Bank), except (i) to its and its Affiliates’ employees, officers, directors, agents, auditors and advisors (it being understood that the persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential on substantially the same terms as provided herein), (ii) as consented to by the applicable Reference Bank, (iii) to the extent requested by any regulatory authority or self-regulatory body, (iv) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder or (vi) to the extent such rate (A) is or becomes generally available to the public on a non-confidential basis, other than as a result of a breach of this Section 8.09(b) by the Borrower, or (B) is or becomes available to the Borrower on a non-confidential basis from a source other than the applicable Reference Bank, provided, to its knowledge, such source is not bound by a confidentiality agreement or other legal or fiduciary obligations of secrecy with such Reference Bank with respect to the rate.  Notwithstanding the foregoing, it is understood that the Borrower may disclose to any Lender the average of the rates quoted by the Reference Banks that provide rate quotes in connection with any determination of the Eurocurrency Rate.

SECTION 8.10  Patriot Act .  Each Lender and the Designated Agent hereby notifies the Borrower that, pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow it to identify the Borrower in accordance with the Patriot Act.  The Borrower shall promptly provide such information upon request by any Lender or the Designated Agent.
 
SECTION 8.11  Judgment .  If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Designated Agent could purchase Dollars with such other currency at the Designated Agent’s principal office in London at 11:00 A.M. (London time) on the Business Day preceding that on which a final judgment is given.

(a)              The obligation of the Borrower in respect of any sum due from it in any currency (the “ Primary Currency ”) to any Lender or the Designated Agent hereunder shall, notwithstanding any judgment in any other currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Designated Agent (as the case may be) of any sum adjudged to be due in such other currency, such Lender or the Designated Agent (as the case may be) may, in accordance with normal banking procedures, purchase the applicable Primary Currency with such other currency; if the amount of the applicable Primary Currency so purchased is less than such sum due to such Lender or the Designated Agent (as the case may be) in the applicable Primary Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Designated Agent (as the case may be) against such loss, and if the amount of the applicable Primary Currency so purchased exceeds such sum due to such Lender or the Designated Agent (as the case may be) in the applicable Primary Currency, such Lender or the Designated Agent (as the case may be) agrees to remit to the Borrower such excess.
 
SECTION 8.12  Consent to Jurisdiction and Service of Process; WAIVER OF JURY TRIAL .  (a) All judicial proceedings brought against the Borrower with respect to this Agreement or any instrument or other documents delivered hereunder may be brought in any state or Federal court in the Borough of Manhattan in the State of New York, and by execution and delivery of this Agreement, the Borrower accepts, for itself and in connection with its properties, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any final judgment rendered thereby in connection with this Agreement or any instrument or other document delivered hereunder from which no appeal has been taken or is available.  The Borrower agrees to receive service of
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process in any such proceeding in any such court at its office at 77 West 66 th Street, 15 th Floor, New York, New York 10023, Attention:  Kenneth E. Newman (or at such other address in the Borough of Manhattan in the State of New York as the Borrower shall notify the Designated Agent from time to time) and, if the Borrower ever ceases to maintain such office in the Borough of Manhattan, irrevocably designates and appoints Corporation Service Company, 1180 Avenue of the Americas, Suite 210, New York, New York 10036, or any other address in the State of New York communicated by Corporation Service Company to the Designated Agent, as its agent to receive on its behalf service of all process in any such proceeding in any such court, such service being hereby acknowledged by the Borrower to be effective and binding service in every respect.

(b) WAIVER OF JURY TRIAL .  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
 
SECTION 8.13  Intentionally Omitted .
 
SECTION 8.14  Governing Law .  This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York; provided that the laws of the State of Delaware shall govern in determining the accuracy of any Purchase Agreement Representation and whether as a result of any inaccuracy or breach thereof, a condition to the Guarantor’s (or any of the Guarantor’s Affiliates’) obligation to close under the Purchase Agreement has not been met, or whether the Guarantor (or any of the Guarantor’s Affiliates) has the right to terminate its obligations under the Purchase Agreement as a result thereof and whether the Target Acquisition has been consummated in accordance with the terms of the Purchase Agreement (in each case without regard to its rules of conflicts of law).
 
SECTION 8.15  Execution in Counterparts .  This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page to this Agreement by telecopier or other electronic means shall be effective as delivery of an original executed counterpart of this Agreement.  A full set of executed counterparts of this Agreement shall be lodged with each of the Designated Agent and the Borrower.  Any Notes issued hereunder shall be delivered in original hard copy to the Lender requesting such Note.
 
SECTION 8.16  Severability .  Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.  The parties hereto shall endeavor in good-faith negotiations to replace the prohibited or unenforceable provision with valid provisions the economic effect of which comes as close as possible to that of the prohibited or unenforceable provision.

54

SECTION 8.17  No Fiduciary Relationship .   The Borrower, on behalf of itself and its subsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby and any communications in connection therewith, the Designated Agent, the Lenders and their Affiliates are acting pursuant to a contractual relationship on an arm’s-length basis, and the parties hereto do not intend that the Designated Agent, the Lenders or their Affiliates act or be responsible as a fiduciary to the Borrower, its management, stockholders, creditors or any other Person.  Each of the Borrower, the Designated Agent, the Lenders and their Affiliates expressly disclaims any fiduciary relationship and agrees they are each responsible for making their own independent judgments with respect to any transactions entered into between them.
 
SECTION 8.18  Non-Public Information .  Each Lender acknowledges that all information, including requests for waivers and amendments, furnished by the Borrower or the Designated Agent pursuant to or in connection with, or in the course of administering, this Agreement will be syndicate-level information, which may contain material non-public information with respect to the Borrower, its subsidiaries or their securities.  Each Lender represents to the Borrower and the Designated Agent that (i) it has developed compliance procedures regarding the use of such material non-public information and that it will handle such material non-public information in accordance with such procedures and applicable law, including Federal, state and foreign securities laws, and (ii) it has identified to the Designated Agent a credit contact who may receive information that may contain such material non-public information in accordance with its compliance procedures and applicable law, including Federal, state and foreign securities laws.
 
SECTION 8.19  Acknowledgement and Consent to Bail-In of EEA Financial Institutions .  Notwithstanding anything to the contrary in this Agreement or in any other agreement, arrangement or understanding among the parties hereto, each party hereto acknowledges that any liability of any EEA Financial Institution arising under this Agreement, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority (exercised in accordance with the relevant Bail-In Legislation) and consents to and acknowledges and agrees to be bound by:

(a)              the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b)              the effects of any Bail-In Action on any such liability, including, if applicable:

(i)               a reduction in full or in part or cancellation of any such liability;

(ii)              a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document, subject to the right of such recipient to decline ownership of such shares or other instruments of ownership, in which case, subject as provided in the relevant Bail-In Legislation, any such liability may be reduced or cancelled, as the case may be, to the same extent as if such shares or other instruments of ownership had been accepted; or

(iii)             the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

The following terms shall for purposes of this Section have the meanings set forth below:

55

“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of such EEA Financial Institution.

“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“ EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“ EEA Member Country ” means any member state of the European Union, Iceland, Liechtenstein and Norway.

“ EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

[Remainder of Page Intentionally Left Blank]

56

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective representatives thereunto duly authorized, as of the date first above written.
 
 
TWDC HOLDCO 613 CORP. (TO BE RENAMED THE WALT DISNEY COMPANY)
 
       
 
By:
/s/ Jonathan S. Headley  
    Name:  Jonathan S. Headley  
    Title:    Treasurer  
       
 
 
 
 
 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Bridge Credit Agreement
 
 
 
 
JPMORGAN CHASE BANK, N.A.,
as Co-Administrative Agent, Designated Agent and a Lender
 
       
 
By:
/s/ Bruce S. Borden  
    Name:  Bruce S. Borden  
    Title:    Executive Director  
       
 
 
 
 
 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Bridge Credit Agreement
 
 
 
 
CITIBANK, N.A.,
as Co-Administrative Agent and a Lender
 
       
 
By:
/s/ Michael Vondriska   
    Name:  Michael Vondriska  
    Title:    Vice President  
       
 
 
 
 
 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Bridge Credit Agreement
 

 
 
 
BNP PARIBAS,
as a Lender
 
       
 
By:
/s/ Nicole Rodriguez  
    Name:  Nicole Rodriguez  
    Title:    Director  
       
       
       
  By:  /s/ Christopher Sked   
    Name:   Christopher Sked  
    Title:     Managing Director  
 
 
 
 
 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Bridge Credit Agreement
 
 
 
 
 
HSBC BANK USA, N.A.,
as a Lender
 
       
 
By:
/s/ Michael Bieber  
    Name:  Michael Bieber  
    Title:    Managing Director  
       
 
 
 
 
 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Bridge Credit Agreement
 

 
 
HSBC BANK PLC,
as a Lender
 
       
 
By:
/s/ Bradley Wilson  
    Name:  Bradley Wilson  
    Title:    Director  
       
 
 
 
 
 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Bridge Credit Agreement
 


 
 
HSBC BANK CANADA,
as a Lender
 
       
 
By:
/s/ Eric Striegler  
    Name:  Eric Striegler  
    Title:    Head of Multinationals  
       
 
 

 
 
By:
/s/ Bianca Albert   
    Name:  Bianca Albert  
    Title:    Associate, Global Banking  
       
 
 
 
 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Bridge Credit Agreement
 

 
 
ROYAL BANK OF CANADA,
as a Lender
 
       
 
By:
/s/ Alfonse Simone  
    Name:  Alfonse Simone  
    Title:    Authorized Signatory  
       
 
 
 
 
 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Bridge Credit Agreement



SCHEDULE 1.01
APPLICABLE LENDING OFFICES


Name of Lender
Domestic Lending Office
 
Eurocurrency Lending Office
BNP Paribas
787 Seventh Avenue
787 Seventh Avenue
 
New York, NY 10019
New York, NY 10019
 
Attn: Loan Servicing Dept.
Attn: Loan Servicing Dept.
 
Tel: 514-285- 6043
Tel: 514-285- 6043
 
Fax: 201-616-7911
Fax: 201-616-7911
 
Email: loan.book@us.bnpparibas.com
 
Email: loan.book@us.bnpparibas.com
Citibank, N.A.
1615 Brett Rd. Bldg. III
1615 Brett Rd. Bldg. III
 
New Castle, DE 19720
New Castle, DE 19720
 
Attn: Sathyeswar Arumgam
Attn: Sathyeswar Arumgam
 
Tel: 201-751-7571
Tel: 201-751-7571
 
Email: GLOriginationOps@citi.com
 
Email: GLOriginationOps@citi.com
HSBC Bank USA,
N.A.
452 Fifth Avenue
New York, NY 10018 Attn: CTLA Loan
Admin Tel: 212-525-1529
Fax: 847-793-3415
Email: ctlany.loanadmin@us.hsbc.com
 
452 Fifth Avenue
New York, NY 10018 Attn: CTLA Loan
Admin Tel: 212-525-1529
Fax: 847-793-3415
Email: ctlany.loanadmin@us.hsbc.com
HSBC Bank PLC
The Manager, Loans Admin Operations
HSBC Bank plc
28th floor
8 Canada Square, London E14 5HQ
Email: Loanops.uklibor@hsbc.com
 
The Manager, Loans Admin Operations
HSBC Bank plc
28th floor
8 Canada Square, London E14 5HQ
Email: Loanops.uklibor@hsbc.com
 
HSBC Bank Canada
Agency Administrator, Agency Services
6th Floor, 70 York Street
Toronto, Ontario, M5J IS9
Tel: 416-443-3739
Fax: 647-788-2188
Email: cacmbagency5@hsbc.ca
 
Agency Administrator, Agency Services
6th Floor, 70 York Street
Toronto, Ontario, M5J IS9
Tel: 416-443-3739
Fax: 647-788-2188
Email: cacmbagency5@hsbc.ca
JPMorgan Chase Bank, N.A.
500 Stanton Christiana Road Ops Building 2,
3rd Floor Attn: Eugene Tull III
Tel: 302-634-5881
Fax: 302-634-3301
Email: eugene.h.tulliii@chase.com
Loans Agency 6th floor
25 Bank Street, Canary Wharf London
E145JP
United Kingdom Attn: Nicole Johnson
Tel: +44-0-20-7742-7178
Fax: +44-0-20-7777-2360
Email: nicole.johnson@jpmorgan.com
 
Royal Bank of Canada
200 Vesey Street
200 Vesey Street
 
New York, NY 10281-8098
New York, NY 10281-8098
 
Attn: Henrick Tang
Attn: Henrick Tang
 
Tel: 416-974-2274
Tel: 416-974-2274
 
Fax: 212-428-2372
Fax: 212-428-2372
 
Email: Henrick.Tang@rbc.com
Email: Henrick.Tang@rbc.com
 



SCHEDULE 2.01
COMMITMENTS


Lender
Commitment
JPMorgan Chase Bank, N.A.
$5,175,000,000
Citibank, N.A.
$5,175,000,000
BNP Paribas
$3,450,000,000
HSBC Bank USA, N.A.
$1,246,638,655.46
HSBC Bank Canada
$144,957,983.20
HSBC Bank PLC
$2,058,403,361.34
Royal Bank of Canada
$3,450,000,000
Total
$20,700,000,000
 

 

Exhibit 10.2
 

 
364-DAY CREDIT AGREEMENT
Dated as of March 15, 2019,

among

TWDC HOLDCO 613 CORP.
(TO BE RENAMED THE WALT DISNEY COMPANY),

as Borrower,


The Lenders Party Hereto,

JPMORGAN CHASE BANK, N.A.

and

CITIBANK, N.A.,
as Co-Administrative Agents,

and

JPMORGAN CHASE BANK, N.A.,
as Designated Agent
__________________________________________

BNP PARIBAS,
HSBC SECURITIES (USA) INC.
and
RBC CAPITAL MARKETS, LLC,
as Co-Syndication Agents

JPMORGAN CHASE BANK, N.A.,
CITIBANK, N.A.,
BNP PARIBAS SECURITIES CORP.,
HSBC SECURITIES (USA) INC.
and
RBC CAPITAL MARKETS, LLC,
as Joint Lead Arrangers

JPMORGAN CHASE BANK, N.A.,
and
CITIBANK, N.A.,
as Joint Bookrunners
 
TABLE OF CONTENTS

Page

ARTICLE I  DEFINITIONS AND ACCOUNTING TERMS
1
   
SECTION 1.01
Certain Defined Terms
1
SECTION 1.02
Computation of Time Periods
15
SECTION 1.03
Accounting Terms
15
   
ARTICLE II  AMOUNTS AND TERMS OF THE ADVANCES
16
   
SECTION 2.01
The Advances
16
SECTION 2.02
Making the Advances
16
SECTION 2.03
Fees
17
SECTION 2.04
Termination and Reduction of Commitments
17
SECTION 2.05
Repayment of Advances
19
SECTION 2.06
Interest on Advances
19
SECTION 2.07
[Intentionally Omitted.]
20
SECTION 2.08
Interest Rate Determination
20
SECTION 2.09
Optional Conversion of Advances
21
SECTION 2.10
Prepayments of Advances
22
SECTION 2.11
Increased Costs
22
SECTION 2.12
Illegality
24
SECTION 2.13
Payments and Computations
24
SECTION 2.14
Taxes
25
SECTION 2.15
Sharing of Payments, etc.
28
SECTION 2.16
Mandatory Assignment by a Lender; Mitigation
29
SECTION 2.17
Evidence of Debt
29
SECTION 2.18
Use of Proceeds
30
SECTION 2.19
[Intentionally Omitted]
30
SECTION 2.20
[Intentionally Omitted]
30
SECTION 2.21
Defaulting Lenders
30
   
ARTICLE III  CONDITIONS OF LENDING
31
   
SECTION 3.01
Conditions Precedent to Effectiveness of Section 2.01
31
SECTION 3.02
Closing Date
32
SECTION 3.03
Determinations Under Sections 3.01 and 3.02
34
   
ARTICLE IV  REPRESENTATIONS AND WARRANTIES
34
   
SECTION 4.01
Representations and Warranties of the Borrower
34
ARTICLE V  COVENANTS OF THE BORROWER
36
   
SECTION 5.01
Affirmative Covenants
36
SECTION 5.02
Negative Covenants
39

i
 
ARTICLE VI  EVENTS OF DEFAULT
39
   
SECTION 6.01
Events of Default
39
   
ARTICLE VII  THE DESIGNATED AGENT
41
   
SECTION 7.01
Authorization and Action
41
SECTION 7.02
Designated Agent’s Reliance, etc.
41
SECTION 7.03
The Designated Agent and its Affiliates
42
SECTION 7.04
Lender Credit Decision
42
SECTION 7.05
Indemnification
42
SECTION 7.06
Successor Designated Agent
42
SECTION 7.07
Certain Lender Representations, etc.
43
   
ARTICLE VIII  MISCELLANEOUS
45
   
SECTION 8.01
Amendments, etc.
45
SECTION 8.02
Notices, etc.
45
SECTION 8.03
No Waiver; Remedies
47
SECTION 8.04
Costs and Expenses
47
SECTION 8.05
Right of Set-off
48
SECTION 8.06
Binding Effect; Integration
48
SECTION 8.07
Assignments and Participations
48
SECTION 8.08
Indemnification
51
SECTION 8.09
Confidentiality
51
SECTION 8.10
Patriot Act
52
SECTION 8.11
Judgment
52
SECTION 8.12
Consent to Jurisdiction and Service of Process; WAIVER OF JURY TRIAL
53
SECTION 8.13
Intentionally Omitted
53
SECTION 8.14
Governing Law
53
SECTION 8.15
Execution in Counterparts
53
SECTION 8.16
Severability
54
SECTION 8.17
No Fiduciary Relationship
54
SECTION 8.18
Non-Public Information
54
SECTION 8.19
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
54


SCHEDULE

Schedule 1.01 – List of Applicable Lending Offices
Schedule 2.01 – Commitments

EXHIBITS

Exhibit A – Form of Notice of Borrowing
Exhibit B – Form of Assignment and Acceptance
Exhibit C – [Reserved]
Exhibit D – Form of Guaranty
Exhibit E – Form of Solvency Certificate
 
ii
364-DAY CREDIT AGREEMENT, dated as of March 15, 2019, among TWDC HOLDCO 613 CORP. (to be renamed THE WALT DISNEY COMPANY), a Delaware corporation (the “ Borrower ”), the banks, financial institutions and other institutional lenders party hereto and JPMORGAN CHASE BANK, N.A., as designated agent (together with any successor designated agent appointed pursuant to Article VII, the “ Designated Agent ”) for the Lenders hereunder.

IN CONSIDERATION of the agreements herein contained, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01  Certain Defined Terms .

As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“ 21CF ” means Twenty-First Century Fox, Inc., a Delaware corporation.

“ 21CF RSN Assets ” means those certain assets of 21CF and its Subsidiaries related to the regional sports networks of 21CF.

“ Advance ” means an advance by a Lender to the Borrower as part of a Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate Advance, each of which shall be a “ Type ” of Advance .

“ Affiliate ” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person.

“ Agreement ” means this 364-Day Credit Agreement, as it may be amended, supplemented or otherwise modified from time to time in accordance with Section 8.01.

“ Anti-Corruption Laws ” means the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010 and all other similar laws, rules, and regulations of any jurisdiction applicable to the Borrower and its Subsidiaries concerning or relating to bribery or corruption.

“ Applicable Lending Office ” means, with respect to each Lender, such Lender’s Domestic Lending Office, in the case of a Base Rate Advance, and such Lender’s Eurocurrency Lending Office, in the case of a Eurocurrency Rate Advance.

“ Applicable Margin ” means, as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such date as set forth below:

 
Public Debt Rating
S&P/Moody’s
Applicable Margin for
Eurocurrency Rate Advances
Applicable Margin for
Base Rate Advances
Level 1:
At least A+ by S&P /A1 by Moody’s
0.750%
0.00%

 
Public Debt Rating
S&P/Moody’s
Applicable Margin for
Eurocurrency Rate Advances
Applicable Margin for
Base Rate Advances
Level 2:
A by S&P/A2 by Moody’s
0.875%
0.00%
Level 3:
A- by S&P /A3 by Moody’s
1.00%
0.00%
Level 4:
Lower than A- by S&P /A3 by Moody’s or unrated
1.125%
0.125%

“ Asset Sale ” means the sale or other disposition by a member of the Consolidated Group of assets of the Consolidated Group (including the sale of capital stock or other equity interests of any Subsidiary of a member of the Consolidated Group or any sale or other disposition pursuant to any casualty or condemnation proceeding).

“ Assignment and Acceptance ” means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Designated Agent and the Borrower, in substantially the form of Exhibit B hereto.

“ Bail-In Action ” has the meaning specified in Section 8.19.

“ Bail-In Legislation ” has the meaning specified in Section 8.19.

“ Base Rate ” means, for each day in any period, a fluctuating interest rate per annum as shall be in effect from time to time, which rate per annum shall at all times for such day during such period be equal to the highest of:

(a)              the Prime Rate in effect for such day;

(b)              the NYFRB Rate in effect for such day plus 1/2 of 1.00%; and

(c)              the Eurocurrency Rate for a one-month Interest Period commencing on such date plus 1.00%.

“ Base Rate Advance ” means an Advance which bears interest as provided in Section 2.06(a)(i).

“ Borrowed Debt ” means any Debt for borrowed money or Debt incurred pursuant to debt securities issued or sold by any member of the Consolidated Group, including hybrid securities or debt securities convertible into capital stock.

“ Borrowing ” means a borrowing consisting of simultaneous Advances of the same Type made by each of the Lenders pursuant to Section 2.01.

“ Bridge Credit Agreement ” means that certain 364-Day Bridge Credit Agreement dated as of March 15, 2019, by and among the Borrower, JPMorgan Chase Bank, N.A., Citibank, N.A. and the lenders party thereto from time to time, as it may be amended, supplemented or otherwise modified from time to time.
2

“ Bridge Credit Agreement Termination Time ” means the time that all of the Commitments (as defined in the Bridge Credit Agreement) have been terminated, all of the Advances (as defined in the Bridge Credit Agreement) have been repaid in full in cash and all other payment obligations of the Borrower under the Bridge Credit Agreement ( other than contingent obligations that are not yet due and payable) have been paid in full in cash.

“ Business Day ” means a day of the year (a) on which banks are not required or authorized to close in Los Angeles, California, or New York City, New York and (b) if the applicable Business Day relates to Eurocurrency Rate Advances, on which dealings are carried on in the London interbank market.

“ Closing Date ” means the date on which the conditions specified in Section 3.02 are satisfied (or waived in accordance with Section 8.01) and the initial Advance is made.

“ Co-Administrative Agents ” means JPMorgan Chase Bank, N.A. and Citibank, N.A.

“ Co-Syndication Agents ” means BNP Paribas Securities Corp., HSBC Securities (USA) Inc. and Royal Bank of Canada, as co-syndication agents hereunder.

“ Code ” means the U.S. Internal Revenue Code of 1986, as amended.

“ Commitment ” means as to any Lender, the commitment of such Lender to make an Advance pursuant to Section 2.01, as such commitment may be reduced from time to time pursuant to the terms hereof or increased pursuant to an Assignment and Acceptance entered into by such Lender.  The initial amount of each Lender’s Commitment is (a) the amount set forth in the column labeled “Commitment” opposite such Lender’s name on Schedule 2.01 hereto, or (b) if such Lender has entered into any Assignment and Acceptance, the amount set forth for such Lender in the Register maintained by the Designated Agent pursuant to Section 8.07(c), as such amount may be reduced pursuant to Section 2.04.  As of the Effective Date, the aggregate amount of the Commitments is $15,000,000,000.

“ Consolidated EBITDA ” means, for any period, (a) net income or net loss, as the case may be, of the Consolidated Group on a consolidated basis for such period, as determined in accordance with GAAP for such period, plus (b) the sum of all amounts which, in the determination of such consolidated net income or net loss, as the case may be, for such period, have been deducted for (i) Consolidated Interest Expense, (ii) consolidated income tax expense, (iii) consolidated depreciation expense, (iv) consolidated amortization expense and (v) any non-cash goodwill impairment charges, in each case determined in accordance with GAAP for such period.

“ Consolidated Group ” means, prior to the Closing Date, the Guarantor and its Subsidiaries and on and after the Closing Date, the Borrower and its Subsidiaries.  It is understood that as of the Effective Date and at all times prior to the Closing Date, the Borrower shall be a wholly-owned Subsidiary of the Guarantor and as of the Closing Date and thereafter, the Guarantor shall be a wholly-owned Subsidiary of the Borrower.

“ Consolidated Interest Expense ” means, for any period, the total interest expense of the Consolidated Group with respect to all outstanding Debt of the Consolidated Group during such period, all as determined on a consolidated basis for such period and in accordance with GAAP for such period.

“ Convert ”, “ Conversion ” and “ Converted ” each refers to a conversion of Advances of one Type into Advances of another Type pursuant to Section 2.08 or 2.09.

“ Debt ” means, with respect to any Person:  (a) indebtedness for borrowed money, (b) obligations evidenced by bonds, debentures, notes or other similar instruments, (c) obligations to pay the
3

deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business), (d) obligations as lessee under leases which shall have been or should be, in accordance with GAAP, recorded as capital leases and (e) obligations under direct or indirect guarantees in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of any other Person of the kinds referred to in clauses (a) through (d) above.

“ Defaulting Lender ” means any Lender, as reasonably determined by the Designated Agent (or by the Borrower in the case of clause (e) below; provided that in the absence of a concurring determination by the Designated Agent, without limiting any other rights of the parties vis-a-vis such Defaulting Lender, the sole consequence under Section 2.21(a) of such a determination by the Borrower shall be a mandatory assignment by such Lender pursuant to the terms of Section 2.16 hereof, if requested by the Borrower), that has (a) failed to fund any portion of its Advances within three Business Days of the date required to be funded by it hereunder, (b) notified the Borrower, the Designated Agent or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit, (c) failed, within three Business Days after written request by the Designated Agent (based upon the reasonable belief that such Lender may not fulfill its funding obligation), to confirm in writing that it will comply with the terms of this Agreement relating to its funding obligations under this Agreement, unless subject to a good faith dispute, provided that any such Lender shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Designated Agent, (d) otherwise failed to pay over to the Designated Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless subject to a good faith dispute, or (e) become the subject of (or is reasonably likely not to fund its obligations hereunder as a result of) a bankruptcy or insolvency proceeding or a Bail-In Action, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action indicating its consent to, approval of or acquiescence in any such proceeding or appointment, or has a parent company that has become the subject of a bankruptcy or insolvency proceeding or a Bail-In Action, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action indicating its consent to, approval of or acquiescence in any such proceeding, appointment or action, provided that for purposes of this clause (e), in the absence of a Bail-In Action, a Lender shall not qualify as a Defaulting Lender solely as a result of the acquisition or maintenance of an ownership interest in such Lender or its parent company, or of the exercise of control over such Lender or any Person controlling such Lender, by any Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permits such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Lender.

“ Defaulting Lender Notice ” has the meaning specified in Section 2.21(a).

“ Designated Agent ” has the meaning specified in the preamble to this Agreement.

“ Designated Agent’s Account ” means such account of the Designated Agent as the Designated Agent shall notify in writing to the Borrower and the Lenders from time to time.

“ Dollars ” and the “ $ ” sign each means lawful currency of the United States.

“ Domestic Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” opposite its name on Schedule 1.01 hereto or in the Assignment
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and Acceptance pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Designated Agent for such purpose.

“ Domestic Subsidiary ” means a Subsidiary organized under the laws of a jurisdiction located in the United States of America.

“ EEA Financial Institution ” has the meaning specified in Section 8.19.

“ EEA Member Country ” has the meaning specified in Section 8.19.

“ EEA Resolution Authority ” has the meaning specified in Section 8.19.

“ Effective Date ” has the meaning specified in Section 3.01.

“ Eligible Assignee ” means (a) a Lender or any Affiliate of a Lender or (b) any bank or other financial institution, or any other Person (other than a natural Person), which has been approved in writing by the Borrower and the Designated Agent as an Eligible Assignee for purposes of this Agreement; provided that neither the Borrower’s approval nor the Designated Agent’s approval shall be unreasonably withheld; and provided further that the Borrower may withhold its approval if the Borrower reasonably believes that an assignment to such Eligible Assignee pursuant to Section 8.07 would result in the incurrence of increased costs payable by the Borrower pursuant to Section 2.11 or 2.14.

“ Environmental Claim ” means any administrative, regulatory or judicial action, suit, demand, claim, lien, notice or proceeding relating to any Environmental Law or any Environmental Permit.

“ Environmental Law ” means any federal, state or local statute, law, rule, regulation, ordinance, code or duly promulgated policy or rule of common law, now or hereafter in effect, and in each case as amended, and any judicial or administrative interpretation thereof, including any order, consent decree or judgment, relating to the environment, health, safety or any Hazardous Material.

“ Environmental Permit ” means any permit, approval, identification number, license or other authorization required under any applicable Environmental Law.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and the rulings issued thereunder.

“ ERISA Affiliate ” means any Person that for purposes of Title IV of ERISA is a member of the Borrower’s (or, prior to the Closing Date, the Guarantor’s) controlled group, or under common control with the Borrower (or, prior to the Closing Date, the Guarantor), within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended.

“ ERISA Event ” means:  (a) (i) the occurrence with respect to a Plan of a reportable event, within the meaning of Section 4043 of ERISA, unless the 30-day notice requirement with respect thereto has been waived by the Pension Benefit Guaranty Corporation, or (ii) the provisions of subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2) of such Section) are applicable with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in subsection (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA could reasonably be expected to occur with respect to such Plan within the following 30 days; (b) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (c) the cessation of
 
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operations by the Borrower or the Guarantor, as applicable, or any ERISA Affiliate thereof at a facility in the circumstances described in Section 4062(e) of ERISA; (d) the withdrawal by the Borrower or the Guarantor, as applicable, or any ERISA Affiliate thereof from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (e) the failure by the Borrower or any ERISA Affiliate to make a payment to a Plan described in Section 303(f)(1)(A) of ERISA; or (f) the institution by the Pension Benefit Guaranty Corporation of proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence of any event or condition which is reasonably likely to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, a Plan.

“ EU Bail-In Legislation Schedule ” has the meaning specified in Section 8.19.

“ Eurocurrency Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Eurocurrency Lending Office” opposite its name on Schedule 1.01 hereto or in the Assignment and Acceptance pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Designated Agent for such purpose.

“ Eurocurrency Liabilities ” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“ Eurocurrency Rate ” means, with respect to any Eurocurrency Rate Advance for any Interest Period, the rate per annum equal to (a) the London interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period as displayed on the Reuters screen page that displays such rate (currently page LIBOR01) (or, in the event such rate does not appear on a page of the Reuters screen, on the appropriate page of such other information service or such other source that publishes such rate as shall be selected by the Designated Agent with the consent of the Borrower, not to be unreasonably withheld), at approximately 11:00 A.M. (London time) two Business Days prior to the commencement of such Interest Period (the “ Screen Rate ”) divided by (b) a percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for such Interest Period ( provided that, if for any reason a Screen Rate (including an Interpolated Screen Rate, as provided below) is not available, the term “Eurocurrency Rate” shall mean, for any Interest Period for each Eurocurrency Rate Advance comprising part of the same Borrowing, (i) an interest rate per annum equal to the average (rounded upward to the nearest whole multiple of 1/16 of 1.00% per annum, if such average is not such a multiple) of the rate per annum at which deposits in Dollars are offered by the principal office of each of the Reference Banks in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period for a period equal to such Interest Period and in an amount substantially equal to such Reference Bank’s Eurocurrency Rate Advance comprising part of such Borrowing divided by   (ii) a percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for such Interest Period).  In the event that the Eurocurrency Rate is to be determined by the Reference Banks, the Eurocurrency Rate for any Interest Period for each Eurocurrency Rate Advance comprising part of the same Borrowing shall be determined by the Designated Agent on the basis of applicable rates furnished to and received by the Designated Agent from the Reference Banks two Business Days before the first day of such Interest Period, subject, however, to the provisions of Section 2.08.  If, as to any currency, no Screen Rate shall be available for a particular Interest Period but Screen Rates shall be available for maturities both longer and shorter than such Interest Period, then the Screen Rate for such Interest Period shall be the Interpolated Screen Rate.  For the avoidance of doubt, nothing in this Agreement shall obligate any Reference Bank to provide the information referred to in clause (i) hereof.  Notwithstanding the foregoing, the Eurocurrency Rate shall in no event be less than zero.
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“ Eurocurrency Rate Advance ” means an Advance which bears interest as provided in Section 2.06(a)(ii).

“ Eurocurrency Rate Reserve Percentage ” means, with respect to any Lender for any Interest Period for any Eurocurrency Rate Advance, the reserve percentage applicable during such Interest Period (or, if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor thereto) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for such Lender with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurocurrency Rate Advances is determined) having a term equal to such Interest Period.

“ Events of Default ” has the meaning specified in Section 6.01.

“ Excluded Entity ” means each of the Hong Kong Disneyland Entities, the Shanghai Project Entities and the Specified Project Entities.

“ Excluded Taxes ” has the meaning specified in Section 2.14(a).

“ Existing Credit Agreements ” means, collectively (i) the Five-Year Credit Agreement dated as of March 9, 2018, among the Guarantor, the banks, financial institutions and other institutional lenders party thereto and JPMorgan Chase Bank, N.A., as designated agent for the lenders thereunder, (ii) the 364-Day Credit Agreement dated as of March 9, 2018, among the Guarantor, the banks, financial institutions and other institutional lenders party thereto and Citibank, N.A., as designated agent for the lenders thereunder and (iii) the Five-Year Credit Agreement dated as of March 11, 2016, among the Guarantor, the banks, financial institutions and other institutional lenders party thereto and JPMorgan Chase Bank, N.A., as designated agent for the lenders thereunder,  in each case, as such agreement may have been amended, supplemented or otherwise modified from time to time.

“ FATCA ” means Sections 1471 through 1474 of the Code, as in effect on the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among governmental authorities and implementing such Sections of the Code.

“ Federal Funds Rate ” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depository institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided that if such rate shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.

“ Federal Reserve Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

“ Foreign Subsidiary ” means any Subsidiary which is not a Domestic Subsidiary.

“ GAAP ” means generally accepted accounting principles in the United States.
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“ Governmental Authority ” means the government of the United States of America or any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“ Guaranty ” means a guaranty entered into by the Guarantor and the Administrative Agent, in substantially the form of Exhibit D hereto.

“ Guarantor ” means The Walt Disney Company (to be renamed TWDC Enterprises 18 Corp.), a Delaware corporation.

“ Hazardous Material ” means (a) any petroleum or petroleum product, natural or synthetic gas, asbestos in any form that is or could become friable, urea formaldehyde foam insulation or radon gas, (b) any substance defined as or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”, “toxic substances”, “contaminants” or “pollutants”, or words of similar import, under any applicable Environmental Law or (c) any other substance exposure to which is regulated by any governmental or regulatory authority.

“ Hong Kong Disneyland Entity ” means any Subsidiary of the Borrower (or, prior to the Closing Date, of the Guarantor) and any other Person whose equity securities or interests are owned, directly or indirectly, in whole or in part, by any member of the Consolidated Group, the primary business of which is the direct or indirect ownership, management, operation, design, construction and/or financing of the recreational and commercial facilities and complex, or any part thereof or any addition thereto, commonly known as “Hong Kong Disney”, “Hong Kong Disneyland” or “Disneyland Resort Hong Kong”, located at Penny’s Bay on Lantau Island, Hong Kong, which Subsidiaries and other Persons include, without limitation, as of the date hereof, Hongkong International Theme Parks Limited, Hong Kong Disneyland Management Limited and Walt Disney Holdings (Hong Kong) Limited.

“ Indemnified Matters ” has the meaning specified in Section 8.08.

“ Indemnified Party ” has the meaning specified in Section 8.08.

“Interest Period ”   means, for each Eurocurrency Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurocurrency Rate Advance or on the date of the Conversion of any Base Rate Advance into a Eurocurrency Rate Advance and ending on the last day of the period selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below.  The duration of each such Interest Period shall be one, two, three or six months (or, with respect to any Borrowing made less than one month prior to the Maturity Date, the period commencing on the date of such Borrowing and ending on the Maturity Date) as the Borrower may select, upon notice received by the Designated Agent not later than 1:00 P.M. (New York City time) on the third Business Day prior to the first day of such Interest Period for each Eurocurrency Rate Advance; provided, however, that:

(i)               Interest Periods commencing on the same date for Eurocurrency Rate Advances comprising part of the same Borrowing shall be of the same duration;

(ii)              whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next
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succeeding Business Day; provided, however, that if such extension would cause the last day of such Interest Period to occur in the next succeeding calendar month, the last day of such Interest Period shall occur on the immediately preceding Business Day;

(iii)             whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month; and

(iv)             the Borrower may not select for any Advance any Interest Period which ends after the Maturity Date.

“ Interpolated Screen Rate ” means, with respect to any Eurocurrency Rate Advance denominated in any currency for any Interest Period, a rate per annum which results from interpolating on a linear basis between (a) the applicable Screen Rate for the longest maturity for which a Screen Rate is available that is shorter than such Interest Period and (b) the applicable Screen Rate for the shortest maturity for which a Screen Rate is available that is longer than such Interest Period.

 “ IRS ” means the U.S. Internal Revenue Service.

“ Joint Bookrunners ” means JPMorgan Chase Bank, N.A. and Citibank, N.A., as joint bookrunners hereunder.

“ Joint Lead Arrangers ” means JPMorgan Chase Bank, N.A., Citibank, N.A., BNP Paribas Securities Corp., HSBC Securities (USA) Inc. and RBC Capital Markets, LLC, as joint lead arrangers hereunder.

“ Lenders ” means, collectively, the Persons listed on Schedule 2.01 and each Eligible Assignee that shall become a party hereto pursuant to Section 8.07.

“ Lien ” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement which has the same effect as a lien or security interest.

“ Loan Documents ” means this Agreement, the Guaranty and each Note delivered pursuant to Section 2.17(a), in each case as amended, modified, supplemented or restated from time to time.

“ Majority Lenders ” means, at any time, Lenders owed at least a majority in interest of the aggregate unpaid principal amount of the Advances owing to the Lenders at such time, or, if no such principal amount is outstanding at such time, Lenders having at least a majority in interest of the Commitments at such time; provided,   however, that neither the Borrower nor any of its Affiliates, if a Lender, shall be included in the determination of the Majority Lenders at any time.

“ Margin Stock ” means margin stock within the meaning of Regulations T, U and X, as applicable.

“ Material Subsidiary ” means, at any date of determination, a Subsidiary of the Borrower (or, prior to the Closing Date, of the Guarantor) that, either individually or together with its Subsidiaries, taken as a whole, has total assets exceeding $250,000,000 on such date.
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“ Maturity Date ” means the date that is 364 calendar days following the Closing Date, or, if the date that is 364 calendar days following the Closing Date is not a Business Day, the Business Day immediately preceding the date that is 364 calendar days following the Closing Date.

“ Measurement Period ” means, at any date of determination, the most recently completed four consecutive fiscal quarters of the Borrower on or immediately prior to such date.

“ Moody’s ” means Moody’s Investors Service, Inc. or any successor thereto.

“ Multiemployer Plan ” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Borrower, the Guarantor or any ERISA Affiliate is making or accruing an obligation to make contributions or has within any of the preceding five plan years made or accrued an obligation to make contributions.

“ Multiple Employer Plan ” means a single‑employer plan, as defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the Borrower, the Guarantor or any ERISA Affiliate and at least one Person other than the Borrower, the Guarantor and the ERISA Affiliates or (ii) was so maintained and in respect of which the Borrower, the Guarantor or an ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

“ Net Cash Proceeds ” means:

(a)              with respect to any Asset Sale, the excess, if any, of (i) the cash received in connection therewith (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) payments (including, without limitation, any premium or penalty) made to retire any Debt that is required to be repaid in connection with the sale thereof (other than Advances) (it being understood that, for purposes of this clause (A), a permanent reduction of the amount of the commitments under the Bridge Credit Agreement as a result of the receipt of Net Cash Proceeds from an Asset Sale shall be deemed to be a payment to retire Debt in an amount equal to the aggregate amount by which such commitments are so reduced), (B) the fees and expenses incurred by the Consolidated Group in connection therewith (or, if such fees or expenses have not yet then been incurred or invoiced, good faith estimates thereof), (C) taxes paid or reasonably estimated to be payable by the Consolidated Group in connection with such transaction, and (D) the amount of reserves established by the Consolidated Group in good faith and pursuant to commercially reasonable practices for adjustment in respect of the sale price of such asset or assets or, to the extent related to such transaction, against any liabilities under indemnification obligations, pension and other post-employment benefit liabilities and liabilities related to environmental matters, provided that if the amount of such reserves exceeds the amounts charged against such reserves, then such excess, upon the determination thereof, shall then constitute Net Cash Proceeds;

(b)              with respect to the incurrence, issuance, offering or placement of Borrowed Debt, the excess, if any, of (i) the cash received by the Consolidated Group in connection with such incurrence, issuance, offering or placement over (ii) the sum of (A) payments (including, without limitation, any premium or penalty) made to retire any Debt that is required to be repaid in connection with such issuance, offering or placement (other than Advances), and (B) the underwriting discounts and commissions and other fees and expenses incurred by the Consolidated Group in connection with such issuance, offering or placement (or, if such fees or expenses have not yet then been incurred or invoiced, good faith estimates thereof); and
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(c)              with respect to the issuance of capital stock or other equity interests, the excess of (i) the cash received in connection with such issuance over (ii) the underwriting discounts and commissions and other fees and expenses incurred by the Consolidated Group in connection with such issuance (or, if such fees or expenses have not yet then been incurred or invoiced, good faith estimates thereof).

“ Non-Defaulting Lender ” means, at any time, any Lender that is not a Defaulting Lender at such time.

“ Note ”   has the meaning specified in Section 2.17(a).

“ Notice of Borrowing ” has the meaning specified in Section 2.02(a).

“ NYFRB ” means the Federal Reserve Bank of New York.

“ NYFRB Rate ” means, for any day, the greater of (a) the Federal Funds Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. (New York City time) on such day received by the Designated Agent from a Federal funds broker of recognized standing selected by it; provided , further , that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“ Other Taxes ” has the meaning specified in Section 2.14(b).

“ Overnight Bank Funding Rate ” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).

“ Participant Register ” has the meaning specified in Section 8.07(e).

“ Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56 and all other laws and regulations relating to money-laundering and terrorist activities.

“ Payment Office ” means such office of the Designated Agent as shall be from time to time selected by the Designated Agent and notified by the Designated Agent to the Borrower and the Lenders.

“ Person ” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.

“ Plan ” means a Single Employer Plan or a Multiple Employer Plan.

“ Prime Rate ” means the rate of interest publicly announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
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“ Public Debt Rating ” means, as of any date of determination, the higher rating that has been most recently announced by either S&P or Moody’s, as the case may be, for any class of senior, unsecured, non-credit enhanced long-term public debt issued by the Borrower.  For purposes of the foregoing, (a) if only one of S&P and Moody’s shall have in effect a Public Debt Rating, the Applicable Margin and the Ticking Fee Percentage shall be determined by reference to the available rating; (b) if neither S&P nor Moody’s shall have in effect a Public Debt Rating, the Applicable Margin and the Ticking Fee Percentage will be set in accordance with Level 4 under the definition of “Applicable Margin” or “Ticking Fee Percentage”, as the case may be; (c) if the ratings established by S&P and Moody’s shall fall within different levels, the Applicable Margin and the Ticking Fee Percentage shall be based upon the higher rating; (d) if any rating established by S&P or Moody’s shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change; and (e) if S&P or Moody’s shall change the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P or Moody’s, as the case may be, shall refer to the then‑equivalent rating by S&P or Moody’s, as the case may be.

“ Purchase Agreement ” means that certain Agreement and Plan of Merger dated as of December 13, 2017, as amended and restated as of June 20, 2018 (together with all exhibits, schedules and disclosure letters thereto) among the Guarantor, 21CF, the Borrower and certain other parties thereto.

“ Purchase Agreement Representations ” means the representations made by or with respect to the Target and its subsidiaries in the Purchase Agreement as are material to the interests of the Lenders (including, without limitation, the representation in the first sentence of Section 3.06(a) of the Purchase Agreement), but only to the extent that the accuracy of any such representation is a condition to the Borrower’s (or any of its Affiliates’) obligation to close the Target Acquisition under the Purchase Agreement and the Borrower (or any of its Affiliates) have the right to terminate its (or such Affiliate’s) obligations under the Purchase Agreement as a result of the failure of such representations to be accurate or the failure of such representations to be accurate results in a failure of a condition precedent to the Borrower’s (or such Affiliate’s) obligations to consummate the Target Acquisition pursuant to the Purchase Agreement.

“ Reference Banks ” means each of Citibank, N.A. and JPMorgan Chase Bank, N.A., or, in the event that fewer than two of such banks remain Lenders hereunder at any time, any other commercial bank designated by the Borrower (with the consent of such bank) and approved by the Majority Lenders as constituting a “ Reference Bank ” hereunder, in each case, acting in its capacity as a “ Reference Bank ” hereunder.

“ Register ” has the meaning specified in Section 8.07(c).

“ Regulation D ” means Regulation D of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“ Regulation T ” means Regulation T of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“ Regulation U ” means Regulation U of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“ Regulation X ” means Regulation X of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
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“ Reinvestment Period ” means, with respect to any Net Cash Proceeds received in connection with any Asset Sale, the period of six months following the receipt of such Net Cash Proceeds; provided that, in the event that, during such six-month period, a member of the Consolidated Group enters into a binding commitment to reinvest all or any of such Net Cash Proceeds, the Reinvestment Period with respect to all or such portion of such Net Cash Proceeds, as the case may be, shall be extended such that it ends on the date that is 227 days following such six-month period.

“ Repayment Limitation ” has the meaning specified in Section 2.04.

“ Responsible Officer ” means the chief executive officer, the president, the chief financial officer, the treasurer or any assistant treasurer of the Borrower.

“ S&P ” means S&P Global Ratings, a business unit of Standard & Poor’s Financial Services LLC, and any successor to its rating agency business.

“ Sanctions Laws ” means trade or financial sanctions imposed, administered or enforced by the Office of Foreign Assets Control (“ OFAC ”) of the U.S. Department of the Treasury or similar trade or financial sanctions imposed, administered or enforced by (a) the U.S. Department of State pursuant to the International Emergency Economic Powers Act, Trading with the Enemy Act, United Nations Participation Act, Foreign Narcotics Kingpin Designation Act, Comprehensive Iran Sanctions, Accountability, and Divestment Act, Iran Threat Reduction and Syria Human Rights Act and related executive orders and regulations, (b) Her Majesty’s Treasury of the United Kingdom, (c) the European Union, or (d) United Nations Security Council.

“ Sanctioned Person ” means any Person currently named on OFAC’s List of Specially Designated Nationals and Blocked Persons or any entity that is 50% or more owned by such Person; the Sanctioned Entities List maintained by the U.S. Department of State; the Consolidated list of persons, groups and entities subject to European Union financial sanctions maintained by the European Union External Action Committee; the Consolidated List of Financial Sanctions Targets maintained by Her Majesty’s Treasury of the United Kingdom; the Compendium of United Nations Security Council Sanctions Lists.

“ Screen Rate ” has the meaning assigned to that term in the definition of “Eurocurrency Rate”.

“ SEC ” has the meaning specified in Section 5.01(e)(i).

“ Shanghai Project Entity ” means any Subsidiary of the Borrower (or, prior to the Closing Date, of the Guarantor) and any other Person whose equity securities or interests are owned, directly or indirectly, in whole or in part, by any member of the Consolidated Group, the primary business of which is the direct or indirect ownership, management, operation, design, construction and/or financing of the recreational and commercial facilities and complex or any part thereof or any addition thereto, to be known as “Shanghai Disney”, “Shanghai Disneyland” or “Disneyland Resort Shanghai” or by any similar name, to be located in the Pudong New Area, Shanghai, People’s Republic of China, which Subsidiaries and other Persons include, without limitation, as of the date hereof, Shanghai International Theme Park Company Limited, Shanghai International Theme Park Associated Facilities Company Limited, Shanghai International Theme Park and Resort Management Company Limited and WD Holdings (Shanghai), LLC.

“ Single Employer Plan ” means a single-employer plan, as defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the Borrower, the Guarantor or an ERISA Affiliate and
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no Person other than the Borrower, the Guarantor and the ERISA Affiliates or (ii) was so maintained and in respect of which the Borrower, the Guarantor or an ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

“ Solvent ” means, with respect to any Person, (i) the sum of the liabilities of such Person does not exceed the present fair saleable value of the assets of such Person, (ii) the capital of such Person is not unreasonably small in relation to the business of such Person and (iii) such Person does not intend to incur, or believe that it will incur, debts including current obligations, beyond its ability to pay such debts as they mature in the ordinary course of business.

“ Specified Project Entity ” means:

(a)              DVD Financing, Inc.;

(b)              each Affiliate of the Guarantor organized after February 25, 2004 (the “ Organization Date ”) (or whose business commenced after the Organization Date) and any other Person organized after the Organization Date (or whose business commenced after the Organization Date) whose equity securities or interests are owned, directly or indirectly, in whole or in part, by any member of the Consolidated Group, in each case, if:

(i)               such Affiliate or other Person has incurred Debt for the purpose of financing all or a part of the costs of the acquisition, construction, development or operation of a particular project (“ Project Debt ”);

(ii)              except for customary guarantees, keep-well agreements and similar credit and equity support arrangements in respect of Project Debt incurred by such Affiliate or other Person from any member of the Consolidated Group not in excess of $150,000,000 or from third parties, the source of repayment of such Project Debt is limited to the assets and revenues of such particular project (or, if such particular project comprises all or substantially all of the assets of such Affiliate or other Person, the assets and revenues of such Affiliate or other Person); and

(iii)             the property over which Liens are granted to secure such Project Debt, if any, consists solely of the assets and revenues of such particular project or the equity securities or interests of such Affiliate or other Person or a Subsidiary of the Borrower (or, prior to the Closing Date, of the Guarantor) referred to in clause (c) below; and

(c)              each Affiliate of the Guarantor organized after the Organization Date (or whose business commenced after the Organization Date) whose equity securities or interests are owned, directly or indirectly, in whole or in part, by any member of the Consolidated Group, the primary business of which is the direct or indirect ownership, management or operation of, or provision of services to, any Affiliate or other Person referred to in clause (b) above.

“ Specified Representations ” means the representations and warranties set forth in the first sentence of Section 4.01(a) (limited to the corporate existence of the Borrower and the Guarantor), Section 4.01(b) (other than clause (i)(x)(B), clause (i)(y)(B) and clause (ii) thereof), the third sentence appearing in Section 4.01(f), Section 4.01(h), Section 4.01(i) and Section 4.01(j).

“ Subsidiary ” means with respect to any Person, any (a) corporation (or foreign equivalent) other than an Excluded Entity or (b) general partnership, limited partnership or limited liability company (or foreign equivalent) other than an Excluded Entity (each, a “ Non-Corporate Entity ”), in either case, of
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which more than 50% of the outstanding capital stock (or comparable interest) having ordinary voting power (irrespective of whether at the time capital stock (or comparable interest) of any other class or classes of such corporation or Non-Corporate Entity shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly (through one or more Subsidiaries) owned by such Person.  In the case of a Non-Corporate Entity, a Person shall be deemed to have more than 50% of interests having ordinary voting power only if such Person’s vote in respect of such interests comprises more than 50% of the total voting power of all such interests in such Non-Corporate Entity.  For purposes of this definition, any managerial powers or rights comparable to managerial powers afforded to a Person solely by reason of such Person’s ownership of general partner or comparable interests (or foreign equivalent) shall not be deemed to be “interests having ordinary voting power”.

“ Target ” means 21CF.

“ Target Acquisition ” means the acquisition by the Borrower of the Target pursuant to the Purchase Agreement.

“ Taxes ” has the meaning specified in Section 2.14(a).

“ Ticking Fee Percentage ” means, as of any date, the applicable rate per annum under the caption “Ticking Fee Percentage” as determined by reference to the Public Debt Rating in effect on such date as set forth below:

Ratings
Level
Public Debt Rating
S&P/Moody’s
Ticking Fee
Percentage
Level 1:
At least A+ by S&P /A1 by Moody’s
0.05%
Level 2:
A by S&P/A2 by Moody’s
0.05%
Level 3:
A- by S&P /A3 by Moody’s
0.07%
Level 4:
Lower than A- by S&P /A3 by Moody’s or unrated
0.10%

“ Transactions ” means the entry into this Agreement and the transactions contemplated hereby, the borrowings by the Borrower under each the Commitments, and in each case, payment of related fees costs and expenses .

“ Type ” has the meaning specified in the definition of “ Advance ”.

“ United States ” and “ U.S. ” each means the United States of America.

“ U.S. Person ” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

“ Write-Down and Conversion Powers ” has the meaning specified in Section 8.19.

SECTION 1.02  Computation of Time Periods .  In this Agreement, in the computation of periods of time from a specified date to a later specified date, the word “ from ” means “from and including” and the words “ to ” and “ until ” each means “to but excluding”.

SECTION 1.03  Accounting Terms .  All accounting terms not specifically defined herein shall be construed in accordance with GAAP as in effect from time to time; provided, however , that if any
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changes in accounting principles from those used in the preparation of the financial statements referred to in Section 4.01(c) dated September 30, 2017, hereafter occur by reason of the promulgation of rules, regulations, pronouncements, opinions or other requirements of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or successors thereto or agencies with similar functions) and result in a change in the method of calculation of any financial covenant or term related thereto contained in this Agreement, then upon the request of either the Borrower or the Designated Agent (acting at the instruction of the Majority Lenders), the Borrower and the Designated Agent shall enter into negotiations to amend such financial covenant or other relevant terms of this Agreement to eliminate the effect of any such change; provided further, however , that upon such request and until such amendment becomes effective, such financial covenant or other relevant terms shall be performed, observed and determined in accordance with GAAP as in effect immediately prior to such change.

ARTICLE II

AMOUNTS AND TERMS OF THE ADVANCES

SECTION 2.01  The Advances .  Each Lender severally and not jointly agrees, on the terms and conditions hereinafter set forth, to make an Advance to the Borrower in Dollars on the Closing Date in a principal amount not to exceed such Lender’s outstanding Commitment immediately prior to the making of the Advance.  Each Borrowing shall be in an aggregate amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except that any Borrowing may be in an amount equal to the remaining unused amount of the Commitments and shall consist of Advances of the same Type made on the same day by the Lenders ratably according to their respective Commitment.  Upon the fulfillment of any Lender’s obligation to make its Advance on the Closing Date in accordance with the terms of this Agreement, such Lender’s Commitment will be terminated.  The Borrower may prepay Advances pursuant to Section 2.04 or Section 2.10, provided that Advances may not be reborrowed once repaid.

SECTION 2.02  Making the Advances   (a) Each Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (New York City time) on the same Business Day as the date of a proposed Borrowing comprised of Base Rate Advances or (y) 1:00 P.M. (New York City time) on the third Business Day prior to the date of a proposed Borrowing comprised of Eurocurrency Rate Advances, by the Borrower to the Designated Agent, which shall give to each Lender prompt notice thereof by telecopier.  Each such notice of a Borrowing (a “ Notice of Borrowing ”) shall be by telecopier, or by telephone confirmed immediately by telecopier, in substantially the form of Exhibit A hereto, specifying therein the requested (i) date of such Borrowing (which shall be a Business Day), (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing and (iv) in the case of a Borrowing comprised of Eurocurrency Rate Advances, initial Interest Period and currency for each such Advance.  Each Lender shall, before 1:00 P.M. (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Designated Agent at the Designated Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing.  After the Designated Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Designated Agent will make such funds available to the Borrower at the office where the Designated Agent’s Account is maintained (or to an account of the Borrower in the relevant jurisdiction and designated by the Borrower in the applicable Notice of Borrowing).

(b)              Each Notice of Borrowing shall be irrevocable and binding on the Borrower.  In the case of any Borrowing which the related Notice of Borrowing specifies as to be comprised of Eurocurrency Rate Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without
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limitation, any loss, cost or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by such Lender to fund the Eurocurrency Rate Advance to be made by such Lender as part of such Borrowing when such Eurocurrency Rate Advance, as a result of such failure, is not made on such date.

(c)              Unless the Designated Agent shall have received notice from a Lender on or prior to the date of any Borrowing that such Lender will not make available to the Designated Agent such Lender’s ratable portion of such Borrowing, the Designated Agent may, but shall not be required to, assume that such Lender has made such portion available to the Designated Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Designated Agent may, but shall not be required to, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount.  If and to the extent that any Lender shall not have made such ratable portion available to the Designated Agent, such Lender agrees to pay to the Designated Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Designated Agent, at the Federal Funds Rate; provided, however, that (i) within two Business Days after any Lender shall fail to make such ratable portion available to the Designated Agent, the Designated Agent shall notify the Borrower of such failure and (ii) if such Lender shall not have paid such corresponding amount to the Designated Agent within two Business Days after such demand is made of such Lender by the Designated Agent, the Borrower agrees to repay to the Designated Agent forthwith upon demand by the Designated Agent to the Borrower such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Designated Agent, at the interest rate applicable at the time to Advances comprising such Borrowing.  If and to the extent such corresponding amount shall be paid by such Lender to the Designated Agent in accordance with this Section 2.02(c), such amount shall constitute such Lender’s Advance as part of such Borrowing for all purposes of this Agreement.

(d)              The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.

SECTION 2.03  Fees .

(a)              Ticking Fee .  The Borrower agrees to pay to each Lender, subject to Section 2.21(a)(i), a ticking fee, which shall commence accruing on the Effective Date, at a rate per annum equal to the Ticking Fee Percentage on the aggregate daily amount of such Lender’s undrawn Commitments (if any), payable quarterly in arrears on the first Business Day of each January, April, July and October, and on the earlier of (x) the date the aggregate Commitments terminate in full or are otherwise reduced to zero and (y) the Closing Date.

(b)              [Intentionally Omitted] .

(c)              Additional Fees .  The Borrower shall pay to the Designated Agent and each Joint Lead Arranger for their account (or that of their applicable Affiliate) such fees as may from time to time be agreed between any of the Consolidated Group and the Designated Agent and/or such Joint Lead Arranger.

SECTION 2.04  Termination and Reduction of Commitments ; Mandatory Prepayments.

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(a)              Unless previously terminated, the Commitments shall terminate in full at 5:00 p.m., New York City time, on the earliest of (i) the date that is five (5) business days after the “Termination Date” (as defined in the Purchase Agreement as in effect on the Commitment Letter Date, including as the same may be extended in accordance with the provisions of the Purchase Agreement as in effect on the Commitment Letter Date), (ii) the closing of the Target Acquisition with or without the use of the Advances or the Commitments (provided that the foregoing shall not prohibit the Borrower from drawing the Advances on the date on which the Target Acquisition so closes), (iii) written notice by the Borrower or the Guarantor to the Joint Lead Arrangers that it has abandoned the Target Acquisition and (iv) the termination of the Purchase Agreement prior to closing of the Target Acquisition or the termination of the Guarantor’s (or any of the Guarantor’s Affiliates’) obligations under the Purchase Agreement to consummate the Target Acquisition in accordance with the terms thereof.  Any termination of the Commitments shall be permanent.

(b)              Ratable Reduction or Termination . The Borrower may at any time terminate or reduce in whole or in part the unused portion of any Commitments of the Lenders without premium or penalty; provided that the aggregate reduction of any Commitments shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000 (or, if less, an aggregate amount that is equal to the entire unused balance of the Commitments).

(c)              The Borrower shall notify the Designated Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section 2.04 at least two Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Designated Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Borrower pursuant to this Section 2.04 shall be irrevocable; provided that any such notice delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, the consummation of any other financing, sale or other transaction, or the availability of a source of funds for the prepayment of Advances (if any), in which case such notice may be revoked by the Borrower (by notice to the Designated Agent on or prior to the specified effective date of such Commitment reduction or termination) if such condition is not satisfied. Any termination or reduction of Commitments shall be permanent. Each reduction of any Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.

(d)              Mandatory Prepayment .  Any outstanding Advances shall be prepaid or, prior to the Closing Date, the Commitments shall be reduced, in each case, on a dollar-for-dollar basis within three Business Days following (in the case of a prepayment of Advances) or at the time of (in the case of a reduction of Commitments) receipt by the Consolidated Group after the date hereof of any Net Cash Proceeds (or in the case of clause (i) below, commitments) referred to in this paragraph (d):

(i)               [reserved];

(ii)              from 100.0% of the Net Cash Proceeds actually received by the Consolidated Group from Asset Sales in respect of the 21CF RSN Assets; and

(iii)             from 100.0% of the Net Cash Proceeds actually received by the Consolidated Group from Asset Sales outside the ordinary course of business (except for (A) Asset Sales between or among the Consolidated Group, (B) leases, licenses, subleases and sublicenses, (C) Asset Sales, the Net Cash Proceeds of which do not exceed $2,000,000,000 in the aggregate and (D) Asset Sales in respect of the 21CF RSN Assets); provided that such Net Cash Proceeds shall not be required to be so applied on such date to the extent that such Net Cash Proceeds are used to acquire, maintain, develop, construct, improve, upgrade or repair tangible or intangible assets useful in the business
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of the Consolidated Group, in each case within the Reinvestment Period; provided , further , that if all or any portion of such Net Cash Proceeds are not so used within the Reinvestment Period, such remaining portion not so used shall be applied on the date that is 10 Business Days after the last day of the Reinvestment Period as a mandatory repayment of principal of outstanding Advances as provided above in this Section 2.04(d)(iii).

Notwithstanding the foregoing or anything else to the contrary contained herein or otherwise, other than any mandatory prepayment or Commitment reduction required hereunder in respect of Net Cash Proceeds resulting from Asset Sales in respect of 21CF RSN Assets, no mandatory prepayment or Commitment reduction shall be applied or required hereunder prior to the Bridge Credit Agreement Termination Time.

All mandatory prepayments and Commitment reductions shall be applied without penalty or premium (except for breakage costs required pursuant to Section 8.04(b) and accrued interest, if any) and will be applied pro rata among the Lenders.  Mandatory prepayments of the Advances may not be reborrowed.

If the Net Cash Proceeds are received by a Foreign Subsidiary of the Borrower or any other Subsidiary of such Foreign Subsidiary, the Commitments shall only be reduced (or the Advances prepaid) to the extent that (i) such Net Cash Proceeds can be promptly transferred to the Borrower without adverse tax consequences to Borrower and any of its Subsidiaries and (ii) such transfer would not be prohibited or restricted by applicable law, rule or regulation or contract or the organizational documents of such Foreign Subsidiary (in the case of clauses (i) and (ii), as reasonably determined by the Borrower in good faith) (each, a “ Repayment Limitation ”); it being understood that if such Repayment Limitation exists, upon such Repayment Limitation ceasing to apply, the Commitments will be immediately reduced or, if applicable, the Advances will be repaid within three Business Days thereof, in the manner set forth above as if such Net Cash Proceeds were received by the Borrower on the date such Repayment Limitation ceased to exist.

The Borrower shall give the Designated Agent prompt written notice of any mandatory Commitment reduction or prepayment of Advances under this Section 2.04(d), which notice shall be accompanied by a reasonably detailed calculations of the applicable Net Cash Proceeds.

SECTION 2.05  Repayment of Advances .  The Borrower shall repay to each Lender on the Maturity Date the aggregate principal amount of the Advances owing to such Lender on such date.

SECTION 2.06  Interest on Advances .  (a) Scheduled Interest .  The Borrower shall pay to each Lender interest on the unpaid principal amount of each Advance owing to such Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:

(i)              Base Rate Advances .  During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (A) the Base Rate and (B) the Applicable Margin in effect from time to time, payable quarterly in arrears on the first Business Day of each January, April, July and October during such periods and on the date such Base Rate Advance shall be Converted or paid in full.

(ii)              Eurocurrency Rate Advances .  During such periods as such Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (A) the Eurocurrency Rate for such Interest Period for such Advance and (B) the Applicable Margin in effect from time to time, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on the date
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which occurs three months after the first day of such Interest Period and on the date such Eurocurrency Rate Advance shall be Converted or paid in full.

(b)              Default Interest .  The Borrower shall pay interest on the unpaid principal amount of each Advance that is not paid when due and on the unpaid amount of all interest, fees and other amounts payable hereunder that is not paid when due, payable on demand of the Designated Agent or the Majority Lenders, at a rate per annum equal at all times to (i) in the case of any amount of principal, 2.00% per annum above the rate per annum required to be paid on such Advance immediately prior to the date on which such amount became due and (ii) to the fullest extent permitted by law, in the case of all other amounts, 2.00% per annum above the rate of interest applicable to Base Rate Advances in effect from time to time.

SECTION 2.07  [Intentionally Omitted.]

SECTION 2.08  Interest Rate Determination . (a)  If requested, each Reference Bank may, but shall not be required to, furnish to the Designated Agent timely information for the purpose of determining each Eurocurrency Rate.  Subject to clause (c) below, if any one or more of the Reference Banks shall not furnish such timely information to the Designated Agent for the purpose of determining such interest rate, the Designated Agent shall determine such interest rate on the basis of timely information furnished by the remaining Reference Banks.

(b)              The Designated Agent shall give prompt notice to the Borrower and the Lenders of (i) the applicable interest rate determined by the Designated Agent and (ii) subject to Section 2.13(b), the details of such determination for purposes of Sections 2.06(a)(i) and/or 2.06(a)(ii).

(c)              If at any time when the Eurocurrency Rate is being determined by reference to rates furnished by the Reference Banks in accordance with the definition of “Eurocurrency Rate”, fewer than two Reference Banks furnish timely information to the Designated Agent for purposes of determining the Eurocurrency Rate for any Eurocurrency Rate Advances, (i) the Designated Agent shall forthwith notify the Borrower and the Lenders that the interest rate cannot be determined for such Eurocurrency Rate Advances, (ii) each such Advance will automatically, on the last day of the then-existing Interest Period therefor, Convert into a Base Rate Advance (or, if such Advance is then a Base Rate Advance, will continue as a Base Rate Advance), and (iii) the obligation of the Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances shall be suspended until the Designated Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.

(d)              If, with respect to any Eurocurrency Rate Advances, (i) the Designated Agent shall be unable to determine the Eurocurrency Rate as contemplated hereby or (ii) the Majority Lenders notify the Designated Agent that (A) they are unable to obtain matching deposits in Dollars in the London interbank market at or about 11:00 A.M. (London time) on the second Business Day before the making of a Borrowing in sufficient amounts to fund their respective Eurocurrency Rate Advances as a part of such Borrowing during its Interest Period or (B) the Eurocurrency Rate for any Interest Period for such Advances will not adequately reflect the cost to such Majority Lenders (which cost each such Majority Lender reasonably determines in good faith is material) of making, funding or maintaining their respective Eurocurrency Rate Advances for such Interest Period, the Designated Agent shall forthwith so notify the Borrower and the Lenders, whereupon, unless, in the case of a development referred to in the preceding clause (ii)(B), the Applicable Margin shall be increased to reflect such costs as determined by such Majority Lenders and as agreed by the Borrower, and in any event subject to clause (e) below, (A) the obligation of the Lenders to make or continue at the end of the Interest Period, or to Convert Base Rate Advances into, Eurocurrency Rate Advances shall be suspended until the Designated Agent shall notify the Borrower and
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the Lenders that the circumstances causing such suspension no longer exist and (B) the Borrower will, on the last day of the then-existing Interest Period therefor, either (x) prepay such Advances or (y) Convert such Advances into Base Rate Advances.  The Designated Agent shall use reasonable efforts to determine from time to time whether the circumstances causing such suspension no longer exist and, promptly after the Designated Agent knows that the circumstances causing such suspension no longer exist, the Designated Agent shall notify the Borrower and the Lenders.

(e)              If at any time the Designated Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (d)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (d)(i) have not arisen but either (w) the supervisor for the administrator of the Screen Rate has made a public statement that the administrator of the Screen Rate is insolvent (and there is no successor administrator that will continue publication of the Screen Rate), (x) the administrator of the Screen Rate has made a public statement identifying a specific date after which the Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the Screen Rate), (y) the supervisor for the administrator of the Screen Rate has made a public statement identifying a specific date after which the Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the Screen Rate or a Governmental Authority having jurisdiction over the Designated Agent has made a public statement identifying a specific date after which the Screen Rate shall no longer be used for determining interest rates for loans, then the Designated Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Eurocurrency Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin).  Notwithstanding anything to the contrary in Section 8.01, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Designated Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Majority Lenders stating that such Majority Lenders object to such amendment.  Until an alternate rate of interest shall be determined in accordance with this clause (e) (but, in the case of the circumstances described in clause (ii) of the first sentence of this clause (e), only to the extent the Screen Rate and such Interest Period is not available or published at such time on a current basis), clauses (A) and (B) of clause (d) shall be applicable.  Notwithstanding the foregoing, if any alternate rate of interest established pursuant to this clause (e) (without giving effect to the Applicable Margin or any alternative spread that may have been agreed upon over the applicable Lenders’ deemed cost of funds) shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.

(f)              If the Borrower shall fail to select the duration of any Interest Period for any Eurocurrency Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01, the Designated Agent will forthwith so notify the Borrower and the Lenders and such Advances will automatically, on the last day of the then-existing Interest Period therefor, be Converted into Base Rate Advances.

(g)              Upon the occurrence and during the continuance of any Event of Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will automatically, on the last day of the then-existing Interest Period therefor, be Converted into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances shall be suspended.

SECTION 2.09  Optional Conversion of Advances .  The Borrower may on any Business Day, upon notice given to the Designated Agent not later than (i) 11:00 A.M. (New York City time) on the
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same Business Day as the date of the proposed Conversion in the case of a Conversion of Eurocurrency Rate Advances into Base Rate Advances and (ii) 1:00 P.M. (London time) on the third Business Day prior to the date of the proposed Conversion in the case of a Conversion of Base Rate Advances into Eurocurrency Rate Advances or of Eurocurrency Rate Advances of one Interest Period into Eurocurrency Rate Advances of another Interest Period, as the case may be, and subject to the provisions of Sections 2.08 and 2.12, Convert all Advances of one Type comprising the same Borrowing into Advances of the other Type; provided, however, that any Conversion of any Eurocurrency Rate Advances into Base Rate Advances or into Eurocurrency Rate Advances of another Interest Period shall be made on, and only on, the last day of an Interest Period for such Eurocurrency Rate Advances.  Promptly upon receipt from the Borrower of a notice of a proposed Conversion hereunder, the Designated Agent shall give notice of such proposed Conversion to each Lender.  Each such notice of a Conversion shall, within the restrictions set forth above, specify (x) the date of such Conversion (which shall be a Business Day), (y) the Advances to be Converted and (z) if such Conversion is into Eurocurrency Rate Advances, the duration of the initial Interest Period for each such Advance.  The Borrower may Convert all Eurocurrency Rate Advances of any one Lender into Base Rate Advances of such Lender in accordance with the provisions of Section 2.12 by complying with the procedures set forth therein and in this Section 2.09 as though each reference in this Section 2.09 to Advances of any Type were to such Advances of such Lender.  Each such notice of Conversion shall, subject to the provisions of Sections 2.08 and 2.12, be irrevocable and binding on the Borrower.

SECTION 2.10     Prepayments of Advances .  The Borrower may, upon not less than (i) the same Business Day’s notice to the Designated Agent received not later than 11:00 A.M. (New York City time) in the case of Borrowings consisting of Base Rate Advances or (ii) three Business Days’ notice to the Designated Agent received not later than 1:00 P.M. (New York City time) in the case of Borrowings consisting of Eurocurrency Rate Advances, stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amounts of the Advances constituting part of the same Borrowings in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the case of any such prepayment of Eurocurrency Rate Advances, the Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 8.04(b).

SECTION 2.11     Increased Costs .  (a) If, after the date hereof, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any hereafter promulgated guideline or request from any central bank or other Governmental Authority, including, without limitation, any agency of the European Union or similar monetary or multinational authority (whether or not having the force of law), which guideline or request (x) imposes, modifies or deems applicable any reserve, special deposit or similar requirement against assets held by, deposits with or for the account of or credit extended by any Lender or (y) imposes on any Lender any other condition regarding this Agreement (including any assessment or charge on or with respect to the Commitments or Advances, deposits or liabilities incurred to fund Advances, assets consisting of Advances (but not unrelated assets) or capital attributable thereto), there shall be any increase in the cost (excluding any allocation of corporate overhead) to any Lender (which cost such Lender reasonably determines in good faith is material) of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances, then such Lender shall so notify the Borrower promptly after such Lender knows of such increased cost and determines that such cost is material and the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the Designated Agent), pay to the Designated Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost.  A certificate of such Lender as to the amount of such increased cost in reasonable detail and stating the basis upon which such amount has been calculated and certifying that such Lender’s
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method of allocating such costs is fair and reasonable and that such Lender’s demand for payment of such costs hereunder is not inconsistent with its treatment of other borrowers which, as a credit matter, are substantially similar to the Borrower and which are subject to similar provisions, submitted to the Borrower and the Designated Agent by such Lender, shall be conclusive and binding for all purposes hereof, absent manifest error.  Notwithstanding the foregoing, the Borrower shall not be required to pay any amount under this Section 2.11 relating to (i) costs that are Excluded Taxes or are subject to indemnification under Section 2.14 or (ii) reserve requirements that are included in the Eurocurrency Rate Reserve Percentage.

(b)              If, after the date hereof, either (i) the introduction of or change in or in the interpretation of any law or regulation or (ii) the compliance by any Lender with any hereafter promulgated guideline or request from any central bank or other Governmental Authority, including, without limitation, any agency of the European Union or similar monetary or multinational authority (whether or not having the force of law), affects or would affect the amount of capital or liquidity required or expected to be maintained by such Lender or any entity controlling such Lender and the amount of such capital or liquidity is materially increased by or based upon the existence of such Lender’s commitment to lend hereunder and other commitments of this type, then such Lender shall so notify the Borrower promptly after such Lender makes such determination and, upon demand by such Lender (with a copy of such demand to the Designated Agent), the Borrower shall pay to such Lender within five days from the date of such demand, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender or such controlling entity in the light of such circumstances, to the extent that such Lender reasonably determines in good faith such increase in capital or liquidity to be material and allocable to the existence of such Lender’s commitment to lend hereunder.  A certificate of such Lender as to such amount in reasonable detail and stating the basis upon which such amount has been calculated and certifying that such Lender’s method of allocating such increase of capital is fair and reasonable and that such Lender’s demand for payment of such increase of capital hereunder is not inconsistent with its treatment of other borrowers which, as a credit matter, are substantially similar to the Borrower and which are subject to similar provisions, submitted to the Borrower and the Designated Agent by such Lender, shall be conclusive and binding for all purposes hereof, absent manifest error.

(c)              The Borrower shall not be obligated to pay under this Section 2.11 any amounts which relate to costs or increases of capital incurred prior to the 12  months immediately preceding the date of demand for payment of such amounts by any Lender, unless the applicable law, regulation, guideline or request resulting in such costs or increases of capital is imposed retroactively.  In the case of any law, regulation, guideline or request which is imposed retroactively, the Lender making demand for payment of any amount under this Section 2.11 shall notify the Borrower not later than 12 months from the date that such Lender should reasonably have known of such law, regulation, guideline or request and the Borrower’s obligation to compensate such Lender for such amount is contingent upon such Lender so notifying the Borrower; provided, however, that any failure by such Lender to provide such notice shall not affect the Borrower’s obligations under this Section 2.11 with respect to amounts resulting from costs or increases of capital incurred after the date which occurs 12 months immediately preceding the date on which such Lender notified the Borrower of such law, regulation, guideline or request.

(d)              If any Lender shall subsequently recoup any costs (other than from the Borrower) for which such Lender has theretofore been compensated by the Borrower under this Section 2.11, such Lender shall remit to the Borrower an amount equal to the amount of such recoupment.  Amounts required to be paid by the Borrower pursuant to this Section 2.11 shall be paid in addition to, and without duplication of, any amounts required to be paid pursuant to Section 2.14.

(e)              For purposes hereof, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith
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and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be changes in law or regulation referred to in paragraphs (a) and (b) of this Section, regardless of the date enacted, adopted, promulgated or issued.

(f)              Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section 2.11 shall survive the payment in full (after the Maturity Date) of all payment obligations of the Borrower in respect of Advances hereunder.

SECTION 2.12  Illegality .  Notwithstanding any other provision of this Agreement, if any Lender shall notify the Designated Agent that the introduction of or any change in or in the interpretation of any law or regulation after the date hereof makes it unlawful, or any central bank or other Governmental Authority asserts that it is unlawful, for any Lender or its Eurocurrency Lending Office to perform its obligations hereunder to make Eurocurrency Rate Advances or to fund or maintain Eurocurrency Rate Advances, (a) the obligation of such Lender to make, or to Convert Base Rate Advances into, Eurocurrency Rate Advances shall be suspended until such Lender shall notify the Designated Agent, and the Designated Agent shall notify the Borrower and the other Lenders, that the circumstances causing such suspension no longer exist (which notice shall be given promptly after the Designated Agent has been advised by such Lender that the circumstances causing such suspension no longer exist) and (b) the Borrower shall forthwith prepay in full all Eurocurrency Rate Advances of such Lender then outstanding, together with interest accrued thereon, unless, in the case of a Eurocurrency Rate Advance, the Borrower, within five Business Days of notice from the Designated Agent or, if permitted by law, on and as of the last day of the then-existing Interest Period for such Eurocurrency Rate Advance, Converts it into a Base Rate Advance.

SECTION 2.13  Payments and Computations .  (a) The Borrower shall make each payment hereunder (and under the Notes, if any), irrespective of any right of set-off or counterclaim, not later than 1:00 P.M. (New York City time) at the Payment Office on the day when due, in Dollars to the Designated Agent, by deposit of such funds to the Designated Agent’s Account in same day funds.  The Designated Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or fees ratably (other than amounts payable pursuant to Sections  2.11, 2.14, 8.04 and 8.08) to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.  Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 8.07(d), from and after the effective date specified in such Assignment and Acceptance, the Designated Agent shall make all payments hereunder and under the Notes, if any, issued in connection therewith in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.

(b)              All computations of interest based on clause (a) of the definition of “Base Rate” shall be made by the Designated Agent on the basis of a year of 365 or 366 days, as the case may be and all computations of interest based on the Eurocurrency Rate with respect to Advances, the NYFRB Rate, the Federal Funds Rate or the Overnight Bank Funding Rate and of fees shall be made by the Designated Agent, on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable.  Each determination by the Designated Agent of an interest rate hereunder shall be conclusive and binding for all purposes hereof, absent manifest error (it being understood and agreed that, with respect to any Reference
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Bank, nothing in this Agreement shall require the Designated Agent to disclose to any other party hereto (other than the Borrower) any information regarding such Reference Bank or any rate provided by such Reference Bank in accordance with the definition of “Eurocurrency Rate”, including, without limitation, whether such Reference Bank has provided a rate or the rate provided by any such Reference Bank).

(c)              Whenever any payment hereunder or under the Notes, if any, shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the payment of interest or fees, as the case may be; provided, however, that if such extension would cause payment of interest on or principal of Eurocurrency Rate Advances to be made in the next following calendar month, such payment shall be made on the immediately preceding Business Day.

(d)              Unless the Designated Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Lenders hereunder that the Borrower will not make such payment in full, the Designated Agent may assume that the Borrower has made such payment in full to the Designated Agent on such date and the Designated Agent may, but shall not be required to, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent that the Borrower shall not have so made such payment in full to the Designated Agent, each Lender shall repay to the Designated Agent, forthwith on demand, such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Designated Agent, at the Federal Funds Rate.

SECTION 2.14 Taxes .  (a) Subject to Section 2.14(f) below, any and all payments by the Borrower hereunder or under the Notes, if any, shall be made, in accordance with Section 2.13, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding (i) in the case of each Lender and the Designated Agent, taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender or the Designated Agent, as the case may be, is organized or any political subdivision thereof, (ii) in the case of each Lender and the Designated Agent, taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, imposed on its income, and franchise taxes imposed on it by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof or by any other jurisdiction in which such Lender or the Designated Agent, as the case may be, is doing business that is unrelated to this Agreement, (iii) in the case of a Lender and the Designated Agent, U.S. federal withholding taxes imposed on amounts payable to or for the account of such recipient with respect to an applicable interest in this Agreement, an Advance or a Commitment pursuant to a law in effect on the date on which (A) such recipient acquires such interest in this Agreement, Advance or Commitment, or (B) such recipient changes its lending office, except in each case to the extent that, pursuant to this Section 2.14, amounts with respect to such taxes, levies, imposts, deductions, charges or withholding, and all liabilities with respect thereto, were payable either to such recipient’s assignor immediately before such Lender or the Designated Agent became a party hereto or to such Lender or the Designated Agent immediately before it changed its lending office, and (iv) in the case of each Lender and the Designated Agent or other recipient of payments hereunder, any withholding taxes imposed under FATCA (all such excluded taxes, levies, imposts, deductions, charges and liabilities being referred to as “ Excluded Taxes ”, and all taxes levies, imposts, deductions, charges, withholdings and liabilities that are not Excluded Taxes being referred to as “ Taxes ”).  Subject to Section 2.14(f) below, if the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or the Designated Agent, as the case may be, (i) the sum payable shall be increased as may be necessary so that after making all required deductions of Taxes (including deductions of Taxes applicable to additional sums payable under this Section 2.14)
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such Lender or the Designated Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

(b)              In addition, the Borrower agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or under the Notes, if any, or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or the Notes, if any (hereinafter referred to as “ Other Taxes ”).

(c)              (i)               Subject to Section 2.14(f), the Borrower will indemnify each Lender and the Designated Agent for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.14) paid by such Lender or the Designated Agent, as the case may be, and any liability (including penalties (to the extent not imposed as a result of such Lender’s or the Designated Agent’s gross negligence or willful misconduct), interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted.  This indemnification shall be made within 30 days from the date such Lender or the Designated Agent, as the case may be, makes written demand therefor.
 
 (ii)              Each Lender will severally indemnify the Designated Agent, within 10 days after demand therefor, for (A) any Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Designated Agent for such Taxes and without limiting the obligation of the Borrower to do so), (B) any taxes attributable to such Lender’s failure to comply with the provisions of Section 8.07(e) relating to the maintenance of a Participant Register and (C) any Excluded Taxes that are attributable to such Lender, in each case, that are payable or paid by the Designated Agent in connection with this Agreement, and any reasonable expenses arising therefrom or with respect thereto, whether or not such taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Designated Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Designated Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or otherwise payable by the Designated Agent to the Lender from any other source against any amount due to the Designated Agent under this Section 2.14(c)(ii).

(d)              Within 30 days after the date of any payment of Taxes, the Borrower will furnish to the Designated Agent, at its address referred to in Section 8.02, the original or a certified copy of a receipt evidencing payment thereof, to the extent that such a receipt is issued, or if such receipt is not issued, other evidence of payment thereof that is reasonably satisfactory to the Designated Agent.

(e)              (i)               Each Lender that is a U.S. Person shall deliver to the Borrower and the Designated Agent on or prior to the date of its execution and delivery of this Agreement, and each such Lender that is not a party hereto on the date hereof shall deliver to the Borrower and the Designated Agent on or prior to the date on which such Lender becomes a Lender hereunder pursuant to Section  8.07 two true, accurate and complete original signed copies of IRS Form W-9 for purposes of certifying that such Lender is exempt from United States backup withholding tax on payments pursuant to this Agreement.  Each Lender that is not a U.S. Person shall deliver to the Borrower and the Designated Agent on or prior to the date of its execution and delivery of this Agreement, and each such Lender that is not a party hereto on the date hereof shall deliver to the Borrower and the Designated Agent on or prior to the date on which such Lender becomes a Lender hereunder pursuant to Section  8.07 two true, accurate and complete original signed copies of (A) IRS Form W-8BEN or IRS Form W-8BEN-E  (or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder), (B) IRS Form W-8ECI
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(or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder) or (C) IRS Form W-8IMY (or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder) accompanied by IRS Form W-9, IRS Form W-8BEN, IRS Form W-8BEN-E or IRS Form W-8ECI, as appropriate, in each case for purposes of certifying that such Lender is exempt from United States withholding tax on payments pursuant to this Agreement.  As applicable, each Lender further agrees to deliver to the Borrower and the Designated Agent from time to time, as reasonably requested by the Borrower or the Designated Agent, and in any case before or promptly upon the occurrence of any events requiring a change in the most recent form previously delivered pursuant to this Section 2.14(e), a true, accurate and complete original signed copy of (A) IRS Form W-9 (or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder), (B) IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder), (C) within 15 days prior to every third anniversary of the date of delivery of the initial IRS Form W-8ECI by such Lender (or more often if required by law) on which this Agreement is still in effect, IRS Form W-8ECI (or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder) or (D) IRS Form W-8IMY(or any successor or substitute form or forms required under the Code or the applicable regulations promulgated thereunder) accompanied by IRS Form W-9, IRS Form W-8BEN, IRS Form W-8BEN-E or IRS Form W-8ECI, as appropriate, in each case for purposes of certifying that such Lender   is   exempt from United States withholding tax on payments pursuant to this Agreement.  If any form or document referred to in this Section 2.14(e)(i) requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by IRS Forms W-9, W-8BEN, W-8BEN-E, W-8ECI or W-8IMY, that any Lender reasonably considers to be confidential, such Lender promptly shall give notice thereof to the Borrower and the Designated Agent and shall not be obligated to include in such form or document such confidential information; provided that such Lender certifies to the Borrower that the failure to disclose such confidential information does not increase the obligations of the Borrower under this Section 2.14.
 
 (ii)              If a payment made to a Lender under this Agreement would be subject to United States withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Designated Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Designated Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Designated Agent as may be necessary for the Borrower and the Designated Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this Section 2.14(e)(ii) “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(f)              Notwithstanding any other provision of this Section 2.14 to the contrary, for any period with respect to which a Lender has failed to provide the Borrower with the appropriate form described in Section 2.14(e) establishing its exemption from United States withholding tax or backup withholding tax on payments hereunder (other than if such failure is due to a change in law occurring subsequent to the date on which such form originally was required to be provided), such Lender shall not be entitled to any payments under this Section 2.14 with respect to United States withholding taxes; provided , however , that should a Lender become subject to United States withholding taxes because of its failure to deliver a form required hereunder, the Borrower shall take such steps as such Lender shall reasonably request to assist such Lender to recover such United States withholding taxes.

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(g)              Without affecting its rights under this Section 2.14 or any other provision of this Agreement, each Lender agrees that if any Taxes or Other Taxes are imposed and required by law to be paid or to be withheld from any amount payable to any Lender or its Applicable Lending Office with respect to which the Borrower would be obligated pursuant to this Section 2.14 to increase any amounts payable to such Lender or to pay any such Taxes or Other Taxes, such Lender shall use reasonable efforts to select an alternative Applicable Lending Office which would not result in the imposition of such Taxes or Other Taxes; provided , however , that no Lender shall be obligated to select an alternative Applicable Lending Office if such Lender determines that (i) as a result of such selection, such Lender would be in violation of an applicable law, regulation or treaty, or would incur unreasonable additional costs or expenses, or (ii) such selection would be inadvisable for regulatory reasons or inconsistent with the interests of such Lender.

(h)              Each Lender agrees with the Borrower that it will take all reasonable actions by all usual means (i) to secure and maintain the benefit of all benefits available to it under the provisions of any applicable double tax treaty concluded by the United States to which such Lender may be entitled by reason of the location of such Lender’s Applicable Lending Office or its place of incorporation or its status as an enterprise of any jurisdiction having any such applicable double tax treaty, if such benefit would reduce the amount payable by the Borrower in accordance with this Section 2.14, and (ii) otherwise to cooperate with the Borrower to minimize the amount payable by the Borrower pursuant to this Section 2.14; provided , however , that no Lender shall be obliged to disclose to the Borrower any information regarding its tax affairs or tax computations or to reorder its tax affairs or tax planning pursuant hereto.

(i)               If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.14 (including by the payment of additional amounts pursuant to this Section 2.14), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.14(i) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this Section 2.14(i), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.14(i) the payment of which would place the indemnified party in a less favorable net after-tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.

(j)               Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section 2.14 shall survive the payment in full of the principal and interest on all Advances and the termination of this Agreement until such date as all applicable statutes of limitations (including any extensions thereof) have expired with respect to such agreements and obligations of the Borrower contained in this Section 2.14.

SECTION 2.15  Sharing of Payments, etc.   If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) on account of the Advances made by it (other than pursuant to Section 2.11, 2.14, 8.04 or 8.08) in excess of its ratable share of payments on account of the Advances obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the Advances made by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the
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purchase price to the extent of such recovery, together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered.  The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.15 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation.

SECTION 2.16  Mandatory Assignment by a Lender; Mitigation .  If any Lender (a) requests from the Borrower either reimbursement for increased costs pursuant to Section 2.11, or payment of or reimbursement for Taxes pursuant to Section 2.14, or if any Lender notifies the Designated Agent that it is unlawful for such Lender or its Eurocurrency Lending Office to perform its obligations hereunder pursuant to Section 2.12, (b) has failed to consent to a proposed amendment, waiver or consent that under Section 8.01 requires the consent of all the Lenders (or all the affected Lenders) and with respect to which the Majority Lenders shall have granted their consent or (c) is a Defaulting Lender, (i) in the case of clause (a), such Lender will, upon three Business Days’ notice by the Borrower to such Lender and the Designated Agent, to the extent not inconsistent with such Lender’s internal policies and applicable legal and regulatory restrictions, use reasonable efforts to make, fund or maintain its Eurocurrency Rate Advances through another office of such Lender if (A) as a result thereof, the additional amounts required to be paid pursuant to Section  2.11 or 2.14, as applicable, in respect of such Eurocurrency Rate Advances would be materially reduced or the provisions of Section 2.12 would not apply to such Lender, as applicable, and (B) as determined by such Lender in good faith but in its sole discretion, the making or maintaining of such Eurocurrency Rate Advances through such other office would not otherwise materially and adversely affect such Eurocurrency Rate Advances or such Lender and (ii) in case of clauses (a), (b) and (c), unless such Lender has theretofore taken steps to remove or cure, and has removed or cured, the conditions creating such obligation to pay such additional amounts or the circumstances described in Section 2.12 or has consented to the amendment, waiver or consent specified in clause (b), or is no longer a Defaulting Lender (other than if it became a Defaulting Lender due to a Bail-In Action, in which case such Borrower’s right shall continue notwithstanding), the Borrower may designate an Eligible Assignee to purchase for cash (pursuant to an Assignment and Acceptance) all, but not less than all, of the Advances then owing to such Lender and to acquire and assume all, but not less than all, of such Lender’s rights and obligations hereunder, without recourse to or warranty by, or expense to, such Lender, for a purchase price equal to the outstanding principal amount of each such Advance then owing to such Lender plus any accrued but unpaid interest thereon and any accrued but unpaid fees owing thereto and, in addition, (A) all additional cost reimbursements, expense reimbursements and indemnities, if any, owing in respect of such Lender’s Commitment hereunder, and all other accrued and unpaid amounts owing to such Lender hereunder, at such time shall be paid to such Lender and (B) if such Eligible Assignee is not otherwise a Lender at such time, any applicable processing and recordation fee under Section 8.07(a) for such assignment shall have been paid; provided that, in the case of any assignment resulting from the circumstances specified in clause (b), the Eligible Assignee shall have consented to the applicable amendment, waiver or consent and, as a result of such assignment and any contemporaneous assignments, the applicable amendment, waiver or consent can be effected.

SECTION 2.17  Evidence of Debt .  (a)  Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Advance owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.  The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such notice to the Designated Agent) to the effect that a promissory note or other evidence of indebtedness is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to be made
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by, such Lender, the Borrower shall promptly execute and deliver to such Lender a promissory note or other evidence of indebtedness, in form and substance reasonably satisfactory to the Borrower and such Lender (each, a “ Note ”), payable to such Lender in a principal amount equal to the Commitment of such Lender; provided, however, that the execution and delivery of such promissory note or other evidence of indebtedness shall not be a condition precedent to the making of any Advance under this Agreement.

(b)              The Register maintained by the Designated Agent pursuant to Section 8.07(c) shall include a control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances and currencies comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Acceptance delivered to and accepted by the Designated Agent, (iii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iv) the amount of any sum received by the Designated Agent from the Borrower hereunder and each Lender’s share thereof.

(c)              Entries made in good faith by the Designated Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Designated Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement.

SECTION 2.18  Use of Proceeds .  The proceeds of the Advances shall be available (and the Borrower agrees that it shall use such proceeds) solely for purposes of financing the Target Acquisition and paying fees, costs and expenses incurred in connection with the Transactions, the Target Acquisition and the other transactions contemplated by the Purchase Agreement.

SECTION 2.19  [Intentionally Omitted] .

SECTION 2.20  [Intentionally Omitted] .

SECTION 2.21  Defaulting Lenders .  (a)  Notwithstanding any provision of this Agreement to the contrary, if one or more Lenders become Defaulting Lenders, then, upon notice to such effect by the Designated Agent (which notice shall be given promptly after the Designated Agent becomes aware that any Lender shall have become a Defaulting Lender, including as a result of being advised thereof by the Borrower) (such notice being referred to as a “ Defaulting Lender Notice ”), the following provisions shall apply for so long as any such Lender is a Defaulting Lender:

(i)               no ticking fee shall accrue or at any time be payable for such period on the unused amount of the Commitment of any Defaulting Lender pursuant to Section 2.03(a); and

(ii)              the Commitment and outstanding Advances of each Defaulting Lender shall be disregarded in determining whether the requisite Lenders shall have taken any action hereunder (including any consent to any waiver, amendment or other modification pursuant to Section 8.01); provided that any waiver, amendment or other modification that, disregarding the effect of this clause (ii), requires the consent of all Lenders or of all Lenders affected thereby and which affects such Defaulting Lender differently than other Lenders or affected Lenders, as the case may be, shall require the consent of such Defaulting Lender.

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(b)              Any amount payable to a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise, and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.15 but excluding Section 2.16) shall, unless the Borrower otherwise agrees in writing in its sole discretion, in lieu of being distributed to such Defaulting Lender, be retained by the Designated Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Designated Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Designated Agent hereunder, (ii) second, to the funding of any Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Designated Agent, (iii) third, if so determined by the Designated Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (iv) fourth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (v) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction.

(c)              In the event that the Designated Agent and the Borrower agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) such Lender shall cease to be a Defaulting Lender for all purposes hereof and (ii) such Lender shall purchase at par such of the Advances of the other Lenders as the Designated Agent shall determine to be necessary in order for the Lenders to hold such Advances ratably in accordance with their Commitments.

(d)              No Commitment of any Lender shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by the Borrower of its obligations hereunder and under the other Loan Documents shall not be excused or otherwise modified, as a result of the operation of this Section. The rights and remedies against a Defaulting Lender under this Section are in addition to other rights and remedies that the Borrower, the Designated Agent or any Non-Defaulting Lender may have against such Defaulting Lender.

ARTICLE III

CONDITIONS OF LENDING

SECTION 3.01  Conditions Precedent to Effectiveness of Section 2.01 .  Section 2.01 of this Agreement shall become effective on and as of the first date (the “ Effective Date ”) on which all of the following conditions precedent have been satisfied or waived in accordance with Section 8.01:

(a)              the Designated Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Designated Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement;

(b)              the Designated Agent (or its counsel) shall have received from the Guarantor either (i) a counterpart of the Guaranty signed on behalf of the Guarantor or (ii) written evidence satisfactory to the Designated Agent (which may include facsimile or other electronic transmission of a signed counterpart of the Guaranty) that the Guarantor has signed a counterpart of the Guaranty;

(c)              the Designated Agent shall have received on or before the Effective Date the following, each dated as of the Effective Date:  (i) certified copies of the resolutions of the Board of Directors of the Borrower or the Executive Committee of such Board authorizing the execution and delivery
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of this Agreement and the other documents related hereto; (ii) certified copies of the resolutions of the Board of Directors of the Guarantor or the Executive Committee of such Board authorizing the execution and delivery of the Guaranty and the other documents related hereto; (iii) certified copies of the organizational documents of each of the Borrower and the Guarantor; (iv) a certificate of the Secretary or an Assistant Secretary of each of the Borrower and the Guarantor certifying the name and true signature of the officer of the Borrower executing this Agreement on its behalf or the Guarantor executing the Guaranty on its behalf, as applicable; (v) certificates of good standing for the Borrower and the Guarantor from the Secretary of State of Delaware; and (vi) an opinion or opinions of counsel for the Borrower and the Guarantor (which may be in-house counsel, external counsel or a combination of the two), in form and substance reasonably satisfactory to the Joint Lead Arrangers; and

(d)              all fees and other amounts due and payable by the Borrower and its Subsidiaries to the Joint Lead Arrangers, the Designated Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least two Business Days prior to the Effective Date by the relevant Person and to the extent such amounts are payable on or prior to the Effective Date.

The Designated Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding.

SECTION 3.02     Closing Date .  The obligation of each Lender to make an Advance on the Closing Date shall be subject to the further conditions precedent that the Effective Date shall have occurred and that:

(a)              Each of the Purchase Agreement Representations and Specified Representations shall be true and correct in all material respects as of the Closing Date; provided that any representation and warranty that is qualified as to materiality, “Company Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such date (it being acknowledged that the definition of “Company Material Adverse Effect” shall be as defined in the Purchase Agreement for purposes of the Purchase Agreement Representations made or to be made on or as of the Closing Date).

(b)              Prior to or substantially concurrently with the initial funding of the Advances, all of the conditions precedent to the consummation of the Target Acquisition as set forth in the Purchase Agreement shall have been satisfied or waived in accordance with the terms thereof and hereof, and each of the Delta Certificate of Merger and the Wax Certificate of Merger (in each case, as defined in the Purchase Agreement) shall have been filed, in each case in accordance with the Purchase Agreement, without giving effect to any amendments, modifications, supplements or waivers by the Guarantor (or any of its Affiliates) thereto or consents by the Guarantor (or any of its Affiliates) thereunder that are materially adverse to the Joint Lead Arrangers or the Lenders in their capacities as such without the Joint Lead Arrangers’ prior written consent (not to be unreasonably withheld, conditioned or delayed) (it being understood and agreed that (a) amendments, waivers and other changes to the definition of “Company Material Adverse Effect” in the Purchase Agreement, to the first sentence of Section 3.06 (Absence of Certain Changes) of the Purchase Agreement, or to Section 6.02(a)(ii)(x) of the Purchase Agreement, in each case as in effect on the Commitment Letter Date, shall be deemed to be materially adverse to the Lenders and (b) any modification, amendment or express waiver or consents by the Guarantor (or any of its Affiliates) that results in (x) an increase to the purchase price shall be deemed to not be materially adverse to the Lenders so long as such increase is not funded with proceeds of Debt and (y) a decrease to the purchase price shall be deemed to not be materially adverse to the Lenders so long as such reduction is allocated to ratably reduce the Commitments).

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(c)              The Joint Lead Arrangers shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of (x) the Guarantor and its Subsidiaries for the three most recently completed fiscal years ended at least 90 days before the Closing Date and (y) 21CF and its Subsidiaries for the three most recently completed fiscal years ended at least 90 days before the Closing Date and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of each of the Guarantor and its Subsidiaries and 21CF and its Subsidiaries, for each subsequent fiscal quarter ended at least 45 days before the Closing Date (other than the fourth fiscal quarter) and the corresponding period of the prior fiscal year; provided that filing of the required financial statements on Form 10-K and/or Form 10-Q, as applicable, by the Guarantor or 21CF, respectively, will satisfy the foregoing applicable requirements. The Joint Lead Arrangers hereby acknowledge receipt of the financial statements in the foregoing clause (i) with respect to the Guarantor for the fiscal years ended September 29, 2018, September 30, 2017 and October 1, 2016 and with respect to 21CF for the fiscal years ended June 30, 2018, 2017 and 2016 and receipt of the financial statements in the foregoing clause (ii) with respect to 21CF for the fiscal quarters September 30, 2018 and 2017.

(d)              The Joint Lead Arrangers shall have received (i) unaudited pro forma consolidated income statements of the Borrower and its Subsidiaries (after giving effect to the Transactions and the Target Acquisition and the other transactions contemplated by the Purchase Agreement) for each of (x) the most recent fiscal year of the Guarantor for which audited consolidated financial statements are required to have been provided pursuant to clause (c)(i) above and (y) the interim period, if any, since the date of such audited financial statements through the most recent quarterly unaudited consolidated financial statements of the Guarantor required to have been provided pursuant to clause (c)(ii) above and (ii) unaudited pro forma consolidated income statements of Target and its Subsidiaries for each of (x) the fiscal years of 21CF for which audited consolidated financial statements of 21CF are required to have been provided pursuant to clause (c)(i) above and (y) the interim period, if any, utilized in the preparation of the pro forma financial statements provided pursuant to clause (d)(i) (in the case of each of the preceding clauses (i) and (ii), to the extent that would be required to be included in a registration statement on Form S-4 of the Borrower pursuant to Regulation S-X). The Joint Lead Arrangers hereby acknowledge receipt of the pro forma financial statements in the foregoing clause (i) for the twelve months ended September 30, 2017 and for the interim periods ended June 30, 2018 and March 31, 2018 and receipt of the pro forma financial statements in the foregoing clause (ii) for the fiscal years ended June 30, 2017, 2016 and 2015 and for the interim period ended December 31, 2017, in the case of unaudited pro forma consolidated income statements, and June 30, 2018 and March 31, 2018 in the case of the unaudited pro forma condensed combined balance sheet.

(e)              All fees and other amounts due and payable by the Borrower and its Subsidiaries to the Joint Lead Arrangers, the Designated Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least two Business Days prior to the Closing Date by the relevant Person and to the extent such amounts are payable on or prior to the Closing Date.

(f)               The Designated Agent shall have received a certificate substantially in the form set forth in Exhibit E hereto from the chief financial officer or treasurer of the Borrower and the chief financial officer or treasurer of the Guarantor, certifying that each of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, in each case after giving effect to the Transactions and the Target Acquisition and the other transactions contemplated by the Purchase Agreement and the incurrence of the Debt and other obligations being incurred in connection with this Agreement and the Transactions and the Target Acquisition and the other transactions contemplated by the Purchase Agreement, that, with (x) respect to the Borrower and its Subsidiaries on a consolidated basis, (i) the sum of the liabilities of the Borrower and its Subsidiaries, taken as a whole, does not exceed the present fair saleable value of the assets
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of the Borrower and its Subsidiaries, taken as a whole; (ii) the capital of the Borrower and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of the Borrower and its Subsidiaries, taken as a whole, contemplated on the date hereof and (iii) the Borrower and its Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts including current obligations beyond their ability to pay such debt as they mature in the ordinary course of business and (y) with respect to the Guarantor and its Subsidiaries on a consolidated basis, (i) the sum of the liabilities of the Guarantor and its Subsidiaries, taken as a whole, does not exceed the present fair saleable value of the assets of the Guarantor and its Subsidiaries, taken as a whole; (ii) the capital of the Guarantor and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of the Guarantor and its Subsidiaries, taken as a whole, contemplated on the date hereof and (iii) the Guarantor and its Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts including current obligations beyond their ability to pay such debt as they mature in the ordinary course of business.

(g)              The Designated Agent shall have received a certificate from a Responsible Officer of the Borrower, certifying as to the satisfaction of the conditions set forth in Section 3.02(a) and (b) of this Agreement.

(h)              The Designated Agent shall have received a Notice of Borrowing in accordance with the requirements hereof.

The Designated Agent shall notify the Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding.  Notwithstanding the foregoing, the obligations of the Lenders to make Advances hereunder shall become effective once each of the foregoing conditions is satisfied (or waived pursuant to Section 8.01) on or prior to the Commitment Termination Date (and, in the event such conditions are not so satisfied or waived prior to the Commitment Termination Date, the Commitments shall terminate as of such date).

SECTION 3.03   Determinations Under Sections 3.01 and 3.02 .  For purposes of determining compliance with the conditions specified in Section 3.01 and Section 3.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless the Designated Agent shall have received notice from such Lender prior to the date that the Borrower, by notice to the Lenders, designates as the proposed Effective Date or Closing Date, as applicable, specifying its objection thereto.  The Designated Agent shall promptly notify the Lenders and the Borrower of the occurrence of the Closing Date.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

SECTION 4.01  Representations and Warranties of the Borrower .  The Borrower represents and warrants as of the Effective Date and the Closing Date as follows:

(a)              Each of the Borrower and the Guarantor is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.  Each of the Borrower and the Guarantor is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction (other than its jurisdiction of incorporation) in which the nature of its activities or the character of the properties it owns or leases make such qualification necessary and in which the failure so to qualify would have a material adverse effect on the financial condition or operations of the Consolidated Group, taken as a whole.

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(b)              (i) The execution, delivery and performance by (x) the Borrower of this Agreement and each of the Notes, if any, delivered hereunder are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and do not contravene (A) the Borrower’s certificate of incorporation or by-laws or (B) any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any material contractual restriction binding on or affecting the Borrower and (y) the Guarantor of the Guaranty are within the Guarantor’s corporate powers, have been duly authorized by all necessary corporate action and do not contravene (A) the Guarantor’s certificate of incorporation or by-laws or (B) any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any material contractual restriction binding on or affecting the Guarantor; (ii) no authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes, if any, or by the Guarantor of the Guaranty, in each case except such as have been obtained or made and are in full force and effect; and (iii) this Agreement is and each of the Notes, when delivered hereunder, will be the legal, valid and binding obligation of the Borrower and the Guaranty will be the legal, valid and binding obligation of the Guarantor, enforceable against the Borrower or the Guarantor, as applicable, in accordance with their respective terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and general principles of equity.

(c)              The Guarantor’s most recent annual report on Form 10-K, containing the consolidated balance sheet of the Guarantor and its Subsidiaries, and the related consolidated statements of income and of cash flows of the Guarantor and its Subsidiaries, copies of which have been furnished to each Lender pursuant to Section 5.01(e)(ii) or as otherwise furnished to the Lenders (including by posting on the website of the SEC at http://www.sec.gov), fairly present the consolidated financial condition of the Guarantor and its Subsidiaries as at the date of such balance sheet and the consolidated results of operations of the Guarantor and its Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied.

(d)              There is no pending or, to the Borrower’s knowledge, threatened claim, action or proceeding affecting any member of the Consolidated Group which could reasonably be expected to have a material adverse effect on the financial condition or operations of the Consolidated Group, taken as a whole, or which could reasonably be expected to affect the legality, validity or enforceability of this Agreement; and to the Borrower’s knowledge, each member of the Consolidated Group has complied, and is in compliance, with all applicable laws, rules, regulations, permits, orders, consent decrees and judgments, except for any such matters which have not had, and would not reasonably be expected to have, a material adverse effect on the financial condition or operations of the Consolidated Group, taken as a whole.

(e)              The Borrower and the ERISA Affiliates have not incurred and are not reasonably expected to incur any material liability in connection with their Single Employer Plans or Multiple Employer Plans, other than ordinary liabilities for benefits; neither the Borrower nor any ERISA Affiliate has incurred or is reasonably expected to incur any material withdrawal liability (as defined in Part I of Subtitle E of Title IV of ERISA) to any Multiemployer Plan; and no Multiemployer Plan of the Guarantor or any ERISA Affiliate is reasonably expected to be terminated, within the meaning of Title IV of ERISA.  For purposes of this Section 4.01(e), references to the Borrower prior to the Closing Date shall be deemed to be references to the Guarantor.

(f)               The Borrower has implemented and will maintain policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their directors, officers and employees with applicable Anti-Corruption Laws and Sanctions Laws, and is in compliance with applicable Anti-Corruption Laws and Sanctions Laws in all material respects. None of the Borrower or any Subsidiary or,
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to the knowledge of the Borrower, any director, officer or employee of the Borrower or any Subsidiary acting in connection with or benefitting from the credit facility established hereby, is a Sanctioned Person.  No borrowing of Advances will be made by the Borrower (A) for the purpose of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person, in violation of applicable Anti-Corruption Laws or (B) for the purpose of financing, funding or facilitating unauthorized transactions with any Sanctioned Person. To the knowledge of the Borrower, no transactions undertaken by the Borrower hereunder will be undertaken in violation of applicable Anti-Corruption Laws or Sanctions Laws.  For purposes of this Section 4.01(f), references to the Borrower, prior to the Closing Date, shall be deemed to be references to the Guarantor.

(g)              The proceeds of the Advances will be used in accordance with Section 2.18.

(h)              The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no part of the proceeds of any Borrowing hereunder will be used to buy or carry any Margin Stock in violation of Regulation U.

(i)               Neither the Guarantor nor the Borrower is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

(j)               Immediately after the consummation of the Transactions to occur on the Closing Date, the Target Acquisition and the other transactions contemplated by the Purchase Agreement, each of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, in each case on a consolidated basis, is Solvent.

ARTICLE V

COVENANTS OF THE BORROWER

SECTION 5.01  Affirmative Covenants .  So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will, unless the Majority Lenders shall otherwise consent in writing:

(a)              Compliance with Laws, etc .  Comply, and cause each member of the Consolidated Group to comply, in all material respects with all applicable laws, rules, regulations, permits, orders, consent decrees and judgments binding on any member of the Consolidated Group, including ERISA and the Patriot Act, the failure with which to comply would have a material adverse effect on the financial condition or operations of the Consolidated Group, taken as a whole.

(b)              Payment of Taxes, etc .  Pay and discharge, and cause each member of the Consolidated Group to pay and discharge, before the same shall become delinquent, if the failure to pay and discharge would have a material adverse effect on the financial condition or operations of the Consolidated Group, taken as a whole, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims which, if unpaid, would by law become a Lien upon its property; provided, however , that no member of the Consolidated Group shall be required to pay or discharge any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained in accordance with GAAP.

(c)              Preservation of Corporate Existence, etc .  Subject to Section 5.02(a), preserve and maintain its, and cause the Guarantor to preserve and maintain its, corporate existence, rights (charter and
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statutory) and franchises; provided, however , that neither the Borrower nor the Guarantor shall be required to preserve any right or franchise if the loss thereof would not have a material adverse effect on the business, financial condition or operations of the Consolidated Group, taken as a whole.

(d)              Maintenance of Interest Coverage Ratio .  Maintain as of the last day of each fiscal quarter of the Borrower, commencing with the first fiscal quarter of the Borrower following the Effective Date, the ratio of (i) Consolidated EBITDA for the Measurement Period ending on such day to (ii) Consolidated Interest Expense for the Measurement Period ending on such day of not less than 3.00 to 1.00. For purposes of this Section 5.01(d), references to the Borrower, prior to the Closing Date, shall be deemed to be references to the Guarantor.

(e)              Reporting Requirements .  Furnish to the Designated Agent, on behalf of the Lenders:

(i)               as soon as available and in any event within 50 days after the end of each of the first three quarters of each fiscal year of the Borrower, a copy of the Borrower’s quarterly report to shareholders on Form 10-Q as filed with the Securities and Exchange Commission (the “ SEC ”), in each case containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and consolidated statements of income and of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, and a certificate of any of the Borrower’s Chairman of the Board of Directors, President, Chief Financial Officer, Treasurer, Assistant Treasurer or Controller (A) stating that no Event of Default, or event that with the giving of notice or passage of time or both would constitute an Event of Default, has occurred and is continuing and (B) containing a schedule which shall set forth the computations used by the Borrower in determining compliance with the covenant contained in Section 5.01(d); provided that the quarterly report on Form 10-Q required to be delivered pursuant to this paragraph shall be deemed to be delivered if such report shall have been posted and shall be available on the website of the SEC at http://www.sec.gov;

(ii)              as soon as available and in any event within 100 days after the end of each fiscal year of the Borrower, a copy of the Borrower’s annual report to shareholders on Form 10-K as filed with the SEC, containing consolidated financial statements of the Borrower and its Subsidiaries for such year and a certificate of any of the Borrower’s Chairman of the Board of Directors, President, Chief Financial Officer, Treasurer, Assistant Treasurer or Controller (A) stating that no Event of Default, or event that with the giving of notice or passage of time or both would constitute an Event of Default, has occurred and is continuing and (B) containing a schedule which sets forth the computations used by the Borrower in determining compliance with the covenant contained in Section 5.01(d); provided that the annual report on Form 10-K required to be delivered pursuant to this paragraph shall be deemed to be delivered if such report shall have been posted and shall be available on the website of the SEC at http://www.sec.gov;

(iii)             promptly after a Responsible Officer of the Borrower obtains actual knowledge of the occurrence of an Event of Default, and each event that with the giving of notice or passage of time or both would constitute an Event of Default, a statement of any Responsible Officer setting forth details of such Event of Default or event continuing on the date of such statement, and the action which the Borrower has taken and proposes to take with respect thereto;

(iv)            promptly after a Responsible Officer of the Borrower obtains actual knowledge thereof, notice of any actions, suits and proceedings before any court or governmental department,
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commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Borrower or any of its Subsidiaries of the type described in Section 4.01(d);

(v)              promptly after a Responsible Officer of the Borrower obtains actual knowledge thereof, written notice of any pending or threatened Environmental Claim against the Borrower or any of its Subsidiaries or any of their respective properties which could reasonably be expected to materially and adversely affect the financial condition or operations of the Borrower and its Subsidiaries, taken as a whole;

(vi)            promptly after a Responsible Officer of the Borrower obtains actual knowledge of the occurrence of any ERISA Event which could reasonably be expected to materially and adversely affect the financial condition or operations of the Borrower and its Subsidiaries, taken as a whole, a statement of any of the Borrower’s Chairman of the Board of Directors, President, Chief Financial Officer, Treasurer, Assistant Treasurer or Controller describing such ERISA Event and the action, if any, which the Borrower has taken and proposes to take with respect thereto;

(vii)           promptly after a Responsible Officer of the Borrower obtains actual knowledge of receipt thereof by the Borrower or any ERISA Affiliate from the sponsor of a Multiemployer Plan, a copy of each notice received by the Borrower or any ERISA Affiliate concerning (A) the imposition of withdrawal liability (as defined in Part I of Subtitle E of Title IV of ERISA) by a Multiemployer Plan, which withdrawal liability could reasonably be expected to materially and adversely affect the financial condition or operations of the Borrower and its Subsidiaries, taken as a whole, (B) the termination, within the meaning of Title IV of ERISA, of any Multiemployer Plan, which termination could reasonably be expected to materially and adversely affect the financial condition or operations of the Borrower and its Subsidiaries, taken as a whole, or (C) the amount of liability incurred, or which may be incurred, by the Borrower or any ERISA Affiliate in connection with any event described in subclause (vii)(A) or (vii)(B) above; and

(viii)         such other material information reasonably related to any Lender’s credit analysis of the Borrower or any of its Subsidiaries as any Lender through the Designated Agent may from time to time reasonably request.

For purposes of this Section 5.01(e), references to the Borrower, prior to the Closing Date, shall be deemed to be references to the Guarantor.  For the avoidance of doubt, and subject to the immediately preceding sentence, all references in this Section 5.01, in Section 4.01 or elsewhere in this Agreement to any annual, quarterly or other reports filed with the SEC by the Borrower or any financial statements of the Borrower, and all determinations of Consolidated EBITDA or Consolidated Interest Expense for any Measurement Period, in each case, will be determined (x) prior to such time on or after the Closing Date as the Borrower first files its annual or quarterly report with the SEC, by reference to the Guarantor being the “Borrower” and (y) thereafter, by reference to the Borrower being the “Borrower” but, where applicable for any such determination, taking into account and combining any portion of the relevant period during which the Guarantor produced the relevant financial statements, mutatis mutandis .

SECTION 5.02  Negative Covenants .  So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will not, without the written consent of the Majority Lenders:

(a)              Mergers, etc .  Merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole (whether now owned or hereafter acquired),
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to, any Person, or permit any of its Subsidiaries to do so, unless (i) immediately after giving effect to such proposed transaction, no Event of Default or event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default would exist and (ii) in the case of any such merger to which the Borrower is a party, the Borrower is the surviving corporation.

ARTICLE VI

EVENTS OF DEFAULT

SECTION 6.01  Events of Default .  If any of the following events (“ Events of Default ”) shall occur and be continuing:

(a)              The Borrower shall fail to pay any principal of any Advance when the same becomes due and payable; or the Borrower shall fail to pay any interest on any Advance, or any fee or other amount payable under this Agreement, in each case within three Business Days after such interest, fee or other amount becomes due and payable; or

(b)              Any representation or warranty made by the Borrower herein or by the Borrower (or any of its officers) delivered in writing and identified as delivered in connection with this Agreement shall prove to have been incorrect in any material respect when made; or

(c)              The Borrower shall fail to perform or observe any covenant contained in Section 5.01(d), Section 5.01(e)(iii) or Section 5.02; or

(d)              The Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed if the failure to perform or observe such other term, covenant or agreement shall remain unremedied for 30 days after written notice thereof shall have been given to the Borrower and the Guarantor by the Designated Agent or the Majority Lenders; or

(e)              (i)  Any member of the Consolidated Group shall fail to pay any principal of or premium or interest on any Debt of such member of the Consolidated Group which is outstanding in a principal amount of at least $250,000,000 in the aggregate (but excluding Debt arising hereunder) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure (A) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt and (B) shall not have been cured or waived; (ii) any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or (iii) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; provided that (1) clause (iii) above shall not apply (and it is understood that clause (ii) above does not apply) to any prepayment, redemption, purchase or defeasance of any such Debt (including the Debt incurred under the Bridge Credit Agreement) incurred for the purpose of financing, in whole or in part, any acquisition (including the Target Acquisition) if such prepayment, redemption, purchase or defeasance is required to be made (A) as a result of such acquisition failing to be consummated or (B) with the proceeds of any sale or other disposition of assets, any incurrence of any other Debt or any issuance of any equity interests by any member of the Consolidated Group, (2) clause (iii) above shall not apply (and it is understood that clause (ii) above does not apply) to any prepayment, redemption, purchase or defeasance
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of any such Debt of any Person acquired by the Borrower (or, prior to the Closing Date, the Guarantor) or any of its Subsidiaries after the date hereof (including 21CF and its subsidiaries) if such prepayment, redemption, purchase or defeasance is required to be made as a result of the consummation of such acquisition (including, in the case of 21CF and its subsidiaries, the Target Acquisition) and (3) it is understood that clauses (ii) and (iii) above do not apply to any demand for payment of any such Debt that, by its terms, is due on demand made at any time (howsoever described); or

(f)              The Borrower, the Guarantor or any Material Subsidiary shall generally not pay its Debts as such Debts become due, or shall admit in writing its inability to pay its Debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Borrower, the Guarantor or any Material Subsidiary seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for substantially all of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Borrower, the Guarantor or any Material Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (f); or

(g)              Any money judgment, writ or warrant of attachment or similar process against the Borrower, the Guarantor, any Material Subsidiary or any of their respective assets in an amount in excess of $250,000,000 (exclusive of any amount covered by a nationally recognized financially sound insurer that has received notice of the claim to which such money judgment, writ or warrant of attachment or similar process relates and has not denied coverage or otherwise denied liability in respect thereof) is entered and shall remain undischarged, unvacated, unbonded or unstayed for a period of 30 days or, in any case, within five days of any pending sale or disposition of any asset pursuant to any such process; or

(h)              the Guaranty shall for any reason be terminated by the Guarantor or cease to be in full force and effect or to be valid and binding on the Guarantor, or the enforceability thereof shall be contested by the Guarantor;

then, and in any such event, the Designated Agent shall at the request, or may with the consent, of the Majority Lenders, by notice to each of the Borrower and the Guarantor, (A) declare the obligation of each Lender to make Advances to be terminated, whereupon the same shall forthwith terminate and/or (B) declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however , that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances shall automatically be terminated and (B) the Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower.

ARTICLE VII

THE DESIGNATED AGENT

SECTION 7.01  Authorization and Action .  (a)  Each Lender hereby appoints and authorizes the Designated Agent to take such action as agent on its behalf and to exercise such powers
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under this Agreement as are delegated to the Designated Agent by the terms hereof, together with such powers as are reasonably incidental thereto.  As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement of this Agreement or collection of the Advances), the Designated Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however , that the Designated Agent shall not be required to take any action which exposes the Designated Agent to personal liability or which is contrary to this Agreement or applicable law.  The Designated Agent agrees to give to each Lender prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement.

(b)              The Designated Agent may perform any of its duties and exercise its rights and powers hereunder through any of its Affiliates.  Notwithstanding anything herein to the contrary, the exculpatory provisions of this Article VII and the provisions of Sections 8.04 and 8.08 shall apply to any such Affiliate of the Designated Agent and the Designated Agent shall remain responsible for the performance of such duties.

(c)              The Joint Lead Arrangers and Joint Bookrunners named on the cover of this Agreement shall have no duties under this Agreement other than those afforded to them in their capacities as Lenders, and each Lender hereby acknowledges that the Joint Lead Arrangers and Joint Bookrunners have no liability to them under this Agreement other than those assumed by them in their capacities as Lenders.

SECTION 7.02  Designated Agent’s Reliance, etc.     Neither the Designated Agent nor any of its directors, officers, agents or employees shall be liable to any Lender for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct.  Without limitation of the generality of the foregoing, the Designated Agent:  (i) may treat the Lender which made any Advance as the holder of the Debt resulting therefrom until the Designated Agent receives and accepts an Assignment and Acceptance entered into by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement on the part of the Borrower or to inspect the property (including the books and records) of the Borrower; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any instrument or document furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be received by telecopier) believed by it to be genuine and signed or sent by the proper party or parties.

SECTION 7.03  The Designated Agent and its Affiliates .  With respect to its Commitment and the Advances made by it and any Note or Notes issued to it, the Designated Agent shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Designated Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include the Designated Agent in its individual capacity.  The Designated Agent and its respective Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with the Borrower, any of its subsidiaries
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and any Person who may do business with or own securities of the Borrower or any such subsidiary, all as if the Designated Agent were not the Designated Agent and without any duty to account therefor to the Lenders.

SECTION 7.04   Lender Credit Decision .  Each Lender acknowledges that it has, independently and without reliance upon the Designated Agent or any other Lender and based on the financial statements referred to in Section 4.01(c) and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon the Designated Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.

SECTION 7.05  Indemnification .  The Lenders severally agree to indemnify the Designated Agent (to the extent not reimbursed by the Borrower but without affecting the Borrower’s obligations with respect thereto), ratably according to the respective principal amounts of Advances then owing to each of them (or, if no Advances are at the time outstanding or if any Advances are then owing to Persons which are not Lenders, ratably according to the respective amounts of their Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Designated Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Designated Agent under this Agreement in its capacity as such; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Designated Agent’s gross negligence or willful misconduct.  Without limitation of the foregoing, each Lender agrees to reimburse the Designated Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Designated Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal or bankruptcy proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Designated Agent is not reimbursed for such expenses by the Borrower.

SECTION 7.06  Successor Designated Agent .  The Designated Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower and such resignation shall be effective upon the appointment of a successor Designated Agent as provided herein.  Upon any such resignation, the Majority Lenders shall have the right (with the consent of the Borrower unless an Event of Default has occurred and is continuing) to appoint a successor Designated Agent (which shall be a Lender).  If no successor Designated Agent shall have been so appointed by the Majority Lenders, and shall have accepted such appointment, within 30 days after the retiring Designated Agent’s giving of notice of resignation, then the retiring Designated Agent may, on behalf of the Lenders, appoint a successor Designated Agent.  Any successor Designated Agent appointed hereunder shall be a commercial bank organized or licensed under the laws of the United States or of any State thereof, or an Affiliate of any such commercial bank, having a combined capital and surplus of at least $500,000,000.  Upon the acceptance of any appointment as Designated Agent hereunder by a successor Designated Agent, such successor Designated Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Designated Agent, and the retiring Designated Agent shall be discharged from its duties and obligations under this Agreement.  After any retiring Designated Agent’s resignation hereunder as Designated Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Designated Agent under this Agreement.

SECTION 7.07  Certain Lender Representations, etc.  

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(a)              Each Lender represents and warrants, as of the date such Person became a Lender party hereto, to, and from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Designated Agent and the institutions named as Co-Administrative Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents on the cover page of this Agreement and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any of its Subsidiaries, that at least one of the following is and will be true:

(i)               such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Advances or the Commitments,

(ii)              the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement,

(iii)             (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Advances, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement, or

(iv)            such other representation, warranty and covenant as may be agreed in writing between the Designated Agent, in its sole discretion, and such Lender.

(b)              In addition, unless clause (i) of the immediately preceding paragraph is true with respect to such Lender or such Lender has provided another representation, warranty and covenant as provided in clause (iv) of the immediately preceding paragraph, such Lender further represents and warrants, as of the date such Person became a Lender party hereto, to, and covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Designated Agent and the institutions named as Co-Administrative Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents on the cover page of this Agreement and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any of its Subsidiaries, that:

(i)               none of the Designated Agent or any of the institutions named as Co-Administrative Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents on the cover page of this Agreement or their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by any Person under this Agreement or any documents related to hereto or thereto),

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(ii)              the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),

(iii)             the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies,

(iv)            the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Advances, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and

(v)              no fee or other compensation is being paid directly to the Designated Agent or any of the institutions named as Co-Administrative Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents on the cover page of this Agreement or their respective Affiliates for investment advice (as opposed to other services) in connection with the Advances, the Commitments or this Agreement.

(c)              The Designated Agent and the institutions named as Co-Administrative Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents on the cover page of this Agreement hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Advances, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Advances or the Commitments for an amount less than the amount being paid for an interest in the Advances or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

The following terms shall for purposes of this Section have the meanings set forth below:

“ Benefit Plan ” means (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

“ PTE ” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

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ARTICLE VIII

MISCELLANEOUS

SECTION 8.01   Amendments, etc.  

No amendment or waiver of any provision of this Agreement, or consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Majority Lenders and the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however , that no amendment, waiver or consent shall:  (a) waive any of the conditions specified in Section 3.01 or 3.02 without the written consent of each Lender, (b) increase the Commitments of the Lenders or subject the Lenders to any additional obligations without the written consent of each affected Lender, (c) reduce the principal of, or interest on, the Advances or the fees payable hereunder without the written consent of each affected Lender, (d) postpone any date fixed for any payment of principal of, or interest on, the Advances or any fee without the written consent of each affected Lender, (e) change the percentage of the Commitments or of the aggregate unpaid principal amount of Advances, or the number of Lenders which shall be required for the Lenders or any of them to take any action hereunder without the written consent of each Lender or (f) amend this Section 8.01 or Section 2.21(a)(ii) without the written consent of each Lender (it being understood that, for purposes of this proviso, “Lender” shall not include the Borrower or any of its Affiliates, if a Lender, at the time of any such amendment, waiver or consent); provided further that no amendment, waiver or consent shall, unless in writing and signed by the Designated Agent, in addition to the Lenders required above to take such action, affect the rights or duties of the Designated Agent under this Agreement or any Note.

SECTION 8.02  Notices, etc.     (a)  All notices and other communications provided for hereunder shall, except as otherwise expressly provided for herein, be in writing (including telecopier communication) and mailed, e-mailed, telecopied or delivered, if to the Borrower, at its address at:

The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Treasurer
Telecopier Number:  (818) 563-1682
Email:  corp.finance@disney.com;

with a copy to:

The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521-0523
Attention: Treasury Operations
Telecopier Number:  (818) 843-7921
Email: corp.cash.management.group@disney.com;

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with a copy to:

The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention:  Associate General Counsel, Corporate Legal Department
Telecopier Number:  (818) 560-1823;

if to any Lender, at its Domestic Lending Office specified on Schedule 1.01 hereto or in the Assignment and Acceptance pursuant to which it became a Lender, as the case may be; and if to the Designated Agent, at its address at:

JPMorgan Chase Bank, N.A.
Investment Bank Loan Operations
500 Stanton Christiana Rd.
NCC5 / 1st Floor
Newark, DE, 19713
Attention: Eugene Tull
Phone Number: (302) 634 – 1112
Email:  eugene.h.tulliii@chase.com;

with a copy to:

JPMorgan Chase Bank, N.A.
383 Madison Avenue, Floor 24
New York, NY 10179
Attention:  Bruce Borden
Phone Number:  (212) 270-5799
Email: bruce.s.borden@jpmorgan.com;

or, as to each party, at such other address as shall be designated by such party in a written notice to the other parties; provided that materials required to be delivered pursuant to Section 5.01(e)(i) or (ii) shall be delivered to the Designated Agent as specified in Section 8.02(b) or as otherwise specified to the Borrower by the Designated Agent; and provided further that such materials shall be deemed delivered to the Designated Agent to the extent posted and available on the website of the SEC at www.sec.gov.  All such notices and communications shall, when mailed, telecopied or e-mailed, be effective when deposited in the mails, telecopied or confirmed by e-mail, respectively, except that notices and communications to the Designated Agent pursuant to Article II or VII shall not be effective until received by the Designated Agent.  Delivery by telecopier, electronic mail or other electronic means of an executed counterpart of any amendment or waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of an original executed counterpart thereof.

(b)              The Borrower agrees that the Designated Agent may make materials required to be delivered pursuant to Section 5.01(e)(i) and (ii), as well as any other written information, documents, instruments (other than the Notes) and other material relating to the Borrower, any of its Subsidiaries or any other materials or matters relating to this Agreement or any of the transactions contemplated hereby (collectively, the “ Communications ”) available to the Lenders by posting such notices on IntraLinks or a substantially similar electronic system (the “ Platform ”).  The Borrower acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as
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available” and (iii) neither the Designated Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform.  No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Designated Agent or any of its Affiliates in connection with the Platform.

(c)              Each Lender agrees that notice to it (as provided in the next sentence) (a “ Notice ”) specifying that any Communications have been posted to the Platform shall constitute effective delivery of such information, documents or other materials to such Lender for purposes of this Agreement; provided that if reasonably requested by any Lender, the Designated Agent shall deliver a copy of the Communications to such Lender by e-mail or telecopier.  Each Lender agrees (i) to notify the Designated Agent in writing of such Lender’s e-mail addresses to which a Notice may be sent by electronic transmission (including by electronic communication) on or before the date such Lender becomes a party to this Agreement (and from time to time thereafter to ensure that the Designated Agent has on record effective e-mail addresses for such Lender) and (ii) that any Notice may be sent to such e-mail address.

SECTION 8.03  No Waiver; Remedies .  No failure on the part of any Lender or the Designated Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 8.04  Costs and Expenses .  (a)  The Borrower agrees promptly to pay all actual, reasonable and documented costs and expenses (including, without limitation, the actual, reasonable and documented fees and expenses of one counsel) of the Designated Agent in connection with the negotiation and execution of this Agreement and all related documentation and the syndication of the credit facility established hereby.  The Borrower further agrees to pay, within five Business Days of demand, all actual, reasonable and documented costs and expenses of the Designated Agent and each Lender, if any, in connection with the enforcement (whether through legal proceedings or otherwise) of this Agreement and the other instruments and documents to be delivered hereunder, including, without limitation, in connection with the enforcement of rights under this Section 8.04(a); provided , that any such costs and expenses consisting of fees and expenses of counsel shall be limited to the actual, reasonable and documented fees and expenses of one counsel for the Designated Agent and no more than one additional counsel for the Lenders as a group (together with (i) such local counsel, limited in each case to one such local counsel for the Designated Agent and one such local counsel for the Lenders as a group per jurisdiction, that may be reasonably required by the Designated Agent or the Lenders and (ii) if any Lender shall have reasonably concluded (based upon the advice of counsel) that its representation by counsel for the Lenders creates a conflict of interest for such counsel, such separate counsel as such Lender may reasonably require).

(b)              If any payment of principal of, or Conversion of, any Eurocurrency Rate Advance is made other than on the last day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.04 or 2.10 or acceleration of the maturity of the Advances pursuant to Section 6.01 or for any other reason (other than by reason of a payment pursuant to Section 2.12), the Borrower shall, within five Business Days of demand by any Lender (with a copy of such demand to the Designated Agent), pay to such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by such Lender to fund or maintain such Advance.  All
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obligations of the Borrower under this Section 8.04 shall survive the making and repayment of the Advances and the termination of this Agreement.

SECTION 8.05  Right of Set-off .  Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Designated Agent to declare the Advances due and payable pursuant to the provisions of Section 6.01, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, but excluding trust accounts) at any time held and other indebtedness at any time owing by such Lender to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement, whether or not such Lender shall have made any demand under this Agreement.  Each Lender agrees promptly to notify the Borrower and the Designated Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application.  The rights of each Lender under this Section are in addition to other rights and remedies (including, without limitation, other rights of setoff) which such Lender may have.

SECTION 8.06  Binding Effect; Integration .  This Agreement shall become effective as specified in Section 3.01 and, thereafter, shall be binding upon and inure to the benefit of the Borrower, the Designated Agent and each Lender and their respective successors and permitted assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of each Lender.  This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent, the Joint Lead Arrangers and/or the Joint Bookrunners constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. In connection with the foregoing and for the avoidance of doubt, it is understood and agreed that the commitments of the Lenders and their affiliates under the Commitment Letter shall be automatically terminated concurrently with the effectiveness of this Agreement and the effectiveness of the Bridge Credit Agreement.

SECTION 8.07  Assignments and Participations .  (a)  Each Lender may and, if requested by the Borrower upon notice by the Borrower delivered to such Lender and the Designated Agent pursuant to clause (ii) of Section 2.16 will, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it and any Note or Notes held by it); provided, however , that (i) each such assignment shall be of a constant, and not a varying, percentage of all the assigning Lender’s rights and obligations under this Agreement, (ii) the amount (without duplication) of the Commitment and the pro-rata share of outstanding Advances of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance) shall not be less than $12,500,000 (unless the assigning Lender shall assign its entire interest hereunder or such lesser amount is previously agreed among such assigning Lender, the Designated Agent and the Borrower) or an integral multiple of $500,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee and (iv) the parties to each such assignment (other than the Borrower) shall execute and deliver to the Designated Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided that the Designated Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.  Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations
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hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights such Lender assignor may have under Sections 2.11, 2.14 and 8.08) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).

(b)              By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows:  (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any of its Subsidiaries or the performance or observance by the Borrower of any of its obligations under this Agreement or any instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(c), and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Designated Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Designated Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Designated Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.

(c)              The Designated Agent shall maintain a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the “ Register ”).  The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Designated Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice to the Designated Agent.

(d)              Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee and, if applicable, the Borrower, together with any Note subject to such assignment, the Designated Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.

(e)              Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it and any Note issued to it hereunder); provided, however , that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Designated Agent and
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the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) such Lender shall not agree in any participation agreement with any participant or proposed participant to obtain the consent of such participant before agreeing to the amendment, modification or waiver of any of the terms of this Agreement  or any Note before consenting to any action or failure to act by the Borrower or any other party hereunder or under any Note, or before exercising any rights it may have in respect thereof, unless such amendment, modification, waiver, consent or exercise would (A) increase the amount of such participant’s portion of such Lender’s Commitment, (B) reduce the principal amount of or rate of interest on the Advances or any fee or other amounts payable hereunder to which such participant would be entitled to receive a share under such participation agreement, or (C) postpone any date fixed for any payment of principal of or interest on the Advances or any fee or other amounts payable hereunder to which such participant would be entitled to receive a share under such participation agreement.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Advances or other obligations under this Agreement (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a participant’s interest in any Commitments, Advances, Notes or its other obligations under this Agreement) to any Person except to the extent that such disclosure is requested by such Person and is necessary to establish that such Commitment, Advance, Note or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Designated Agent (in its capacity as Designated Agent) shall have no responsibility for maintaining a Participant Register.

(f)               Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower in writing and directly related to the transactions contemplated hereunder; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender in accordance with the terms of Section 8.09(a).

(g)              No participation or assignment hereunder shall be made in violation of the Securities Act of 1933, as amended from time to time, or any applicable state securities laws, and each Lender hereby represents that it will make any Advance for its own account in the ordinary course of its business and not with a view to the public distribution or sale thereof.

(h)              Anything in this Agreement to the contrary notwithstanding, any Lender may at any time assign or create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and any Note issued to it hereunder) in favor of any Federal Reserve Bank or any foreign central bank having authority over such Lender in accordance with Regulation A of the Board of Governors of the Federal Reserve System (or any successor regulation thereto), any applicable operating circular of such Federal Reserve Bank or any other regulation issued by the applicable foreign central bank; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

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SECTION 8.08  Indemnification .  The Borrower agrees to indemnify and hold harmless the Designated Agent, each Lender and each of their Affiliates and their respective officers, directors, employees, agents and advisors (each, an “ Indemnified Party ”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted against any Indemnified Party, in each case arising out of or in connection with or by reason of, or in connection with the preparation for a defense of, any investigation, litigation or proceeding (whether or not an Indemnified Party is a party thereto) arising out of, related to or in connection with the Commitments hereunder or the Advances made hereunder or any transactions in connection herewith, including, without limitation, any transaction in which any proceeds of the Advances are, or are proposed to be, applied (collectively, the “ Indemnified Matters ”); provided that the Borrower shall have no obligation to any Indemnified Party under this Section 8.08 with respect to (i) matters for which such Indemnified Party has been reimbursed by or on behalf of the Borrower pursuant to any other provision of this Agreement, but only to the extent of such reimbursement, or (ii) Indemnified Matters found by a court of competent jurisdiction to have resulted from the willful misconduct or gross negligence of such Indemnified Party.  If any action is brought against any Indemnified Party, such Indemnified Party shall promptly notify the Borrower in writing of the institution of such action and the Borrower shall thereupon have the right, at its option, to elect to assume the defense of such action; provided, however, that the Borrower shall not, in assuming the defense of any Indemnified Party in any Indemnified Matter, agree to any dismissal or settlement of such Indemnified Matter without the prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld, if such dismissal or settlement (A) would require any admission or acknowledgment of culpability or wrongdoing by such Indemnified Party or (B) would provide for any non-monetary relief to any Person to be performed by such Indemnified Party.  If the Borrower so elects, it shall promptly assume the defense of such action, including the employment of counsel (reasonably satisfactory to such Indemnified Party) and payment of expenses.  Such Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (1) the employment of such counsel shall have been authorized in writing by the Borrower in connection with the defense of such action or (2) the Borrower shall not have properly employed counsel reasonably satisfactory to such Indemnified Party to have charge of the defense of such action, in which case such fees and expenses shall be paid by the Borrower.  If an Indemnified Party shall have reasonably concluded (based upon the advice of counsel) that the representation by one counsel of such Indemnified Party and the Borrower creates a conflict of interest for such counsel, the reasonable fees and expenses of such counsel shall be borne by the Borrower and the Borrower shall not have the right to direct the defense of such action on behalf of such Indemnified Party (but shall retain the right to direct the defense of such action on behalf of the Borrower).  Anything in this Section 8.08 to the contrary notwithstanding, the Borrower shall not be liable for the fees and expenses of more than one counsel for any Indemnified Party in any jurisdiction as to any Indemnified Matter or for any settlement of any Indemnified Matter effected without its written consent.  All obligations of the Borrower under this Section 8.08 shall survive the making and repayment of the Advances and the termination of this Agreement.

SECTION 8.09  Confidentiality .  (a)  None of the Designated Agent or the Lenders may disclose to any Person any confidential, proprietary or non-public information of the Borrower furnished to the Designated Agent or the Lenders by the Borrower or any of its Subsidiaries (such information being referred to collectively herein as the “ Borrower Information ”), except that each of the Designated Agent and each of the Lenders may disclose Borrower Information (i) to its and its Affiliates’ employees, officers, directors, agents, auditors and advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Borrower Information and instructed to keep such Borrower Information confidential on substantially the same terms as provided herein), (ii) to the extent requested by any regulatory authority or self-regulatory body, (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (iv) to any other party to this Agreement, (v) in
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connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section 8.09(a), to any assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations under this Agreement, (vii) to the extent such Borrower Information (A) is or becomes generally available to the public on a non-confidential basis, other than as a result of a breach of this Section 8.09(a) by the Designated Agent or such Lender, or (B) is or becomes available to the Designated Agent or such Lender on a non-confidential basis from a source other than the Borrower, its Affiliates or their respective officers, directors, agents, auditors and advisors, provided such source is not bound by a confidentiality agreement or other legal or fiduciary obligations of secrecy with the Borrower or its Affiliates with respect to the Borrower Information, and (viii) with the consent of the Borrower.

(b)              The Borrower agrees to maintain the confidentiality of any rate provided by an individual Reference Bank hereunder for purposes of setting the Eurocurrency Rate (and the name of such Reference Bank), except (i) to its and its Affiliates’ employees, officers, directors, agents, auditors and advisors (it being understood that the persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential on substantially the same terms as provided herein), (ii) as consented to by the applicable Reference Bank, (iii) to the extent requested by any regulatory authority or self-regulatory body, (iv) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder or (vi) to the extent such rate (A) is or becomes generally available to the public on a non-confidential basis, other than as a result of a breach of this Section 8.09(b) by the Borrower, or (B) is or becomes available to the Borrower on a non-confidential basis from a source other than the applicable Reference Bank, provided, to its knowledge, such source is not bound by a confidentiality agreement or other legal or fiduciary obligations of secrecy with such Reference Bank with respect to the rate.  Notwithstanding the foregoing, it is understood that the Borrower may disclose to any Lender the average of the rates quoted by the Reference Banks that provide rate quotes in connection with any determination of the Eurocurrency Rate.

SECTION 8.10  Patriot Act .  Each Lender and the Designated Agent hereby notifies the Borrower that, pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow it to identify the Borrower in accordance with the Patriot Act.  The Borrower shall promptly provide such information upon request by any Lender or the Designated Agent.

SECTION 8.11  Judgment .  If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Designated Agent could purchase Dollars with such other currency at the Designated Agent’s principal office in London at 11:00 A.M. (London time) on the Business Day preceding that on which a final judgment is given.

(a)              The obligation of the Borrower in respect of any sum due from it in any currency (the “ Primary Currency ”) to any Lender or the Designated Agent hereunder shall, notwithstanding any judgment in any other currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Designated Agent (as the case may be) of any sum adjudged to be due in such other currency, such Lender or the Designated Agent (as the case may be) may, in accordance with normal banking procedures, purchase the applicable Primary Currency with such other currency; if the amount of the applicable Primary Currency so purchased is less than such sum due to such Lender or the Designated
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Agent (as the case may be) in the applicable Primary Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Designated Agent (as the case may be) against such loss, and if the amount of the applicable Primary Currency so purchased exceeds such sum due to such Lender or the Designated Agent (as the case may be) in the applicable Primary Currency, such Lender or the Designated Agent (as the case may be) agrees to remit to the Borrower such excess.

SECTION 8.12  Consent to Jurisdiction and Service of Process; WAIVER OF JURY TRIAL .  (a) All judicial proceedings brought against the Borrower with respect to this Agreement or any instrument or other documents delivered hereunder may be brought in any state or Federal court in the Borough of Manhattan in the State of New York, and by execution and delivery of this Agreement, the Borrower accepts, for itself and in connection with its properties, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any final judgment rendered thereby in connection with this Agreement or any instrument or other document delivered hereunder from which no appeal has been taken or is available.  The Borrower agrees to receive service of process in any such proceeding in any such court at its office at 77 West 66 th Street, 15 th Floor, New York, New York 10023, Attention:  Kenneth E. Newman (or at such other address in the Borough of Manhattan in the State of New York as the Borrower shall notify the Designated Agent from time to time) and, if the Borrower ever ceases to maintain such office in the Borough of Manhattan, irrevocably designates and appoints Corporation Service Company, 1180 Avenue of the Americas, Suite 210, New York, New York 10036, or any other address in the State of New York communicated by Corporation Service Company to the Designated Agent, as its agent to receive on its behalf service of all process in any such proceeding in any such court, such service being hereby acknowledged by the Borrower to be effective and binding service in every respect.

(b) WAIVER OF JURY TRIAL .  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

SECTION 8.13  Intentionally Omitted .

SECTION 8.14  Governing Law .  This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York; provided that the laws of the State of Delaware shall govern in determining the accuracy of any Purchase Agreement Representation and whether as a result of any inaccuracy or breach thereof, a condition to the Guarantor’s (or any of the Guarantor’s Affiliates’) obligation to close under the Purchase Agreement has not been met, or whether the Guarantor (or any of the Guarantor’s Affiliates) has the right to terminate its obligations under the Purchase Agreement as a result thereof and whether the Target Acquisition has been consummated in accordance with the terms of the Purchase Agreement (in each case without regard to its rules of conflicts of law).

SECTION 8.15  Execution in Counterparts .  This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same
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agreement.  Delivery of an executed counterpart of a signature page to this Agreement by telecopier or other electronic means shall be effective as delivery of an original executed counterpart of this Agreement.  A full set of executed counterparts of this Agreement shall be lodged with each of the Designated Agent and the Borrower.  Any Notes issued hereunder shall be delivered in original hard copy to the Lender requesting such Note.

SECTION 8.16  Severability .  Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.  The parties hereto shall endeavor in good-faith negotiations to replace the prohibited or unenforceable provision with valid provisions the economic effect of which comes as close as possible to that of the prohibited or unenforceable provision.

SECTION 8.17  No Fiduciary Relationship .   The Borrower, on behalf of itself and its subsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby and any communications in connection therewith, the Designated Agent, the Lenders and their Affiliates are acting pursuant to a contractual relationship on an arm’s-length basis, and the parties hereto do not intend that the Designated Agent, the Lenders or their Affiliates act or be responsible as a fiduciary to the Borrower, its management, stockholders, creditors or any other Person.  Each of the Borrower, the Designated Agent, the Lenders and their Affiliates expressly disclaims any fiduciary relationship and agrees they are each responsible for making their own independent judgments with respect to any transactions entered into between them.

SECTION 8.18  Non-Public Information .  Each Lender acknowledges that all information, including requests for waivers and amendments, furnished by the Borrower or the Designated Agent pursuant to or in connection with, or in the course of administering, this Agreement will be syndicate-level information, which may contain material non-public information with respect to the Borrower, its subsidiaries or their securities.  Each Lender represents to the Borrower and the Designated Agent that (i) it has developed compliance procedures regarding the use of such material non-public information and that it will handle such material non-public information in accordance with such procedures and applicable law, including Federal, state and foreign securities laws, and (ii) it has identified to the Designated Agent a credit contact who may receive information that may contain such material non-public information in accordance with its compliance procedures and applicable law, including Federal, state and foreign securities laws.

SECTION 8.19  Acknowledgement and Consent to Bail-In of EEA Financial Institutions .  Notwithstanding anything to the contrary in this Agreement or in any other agreement, arrangement or understanding among the parties hereto, each party hereto acknowledges that any liability of any EEA Financial Institution arising under this Agreement, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority (exercised in accordance with the relevant Bail-In Legislation) and consents to and acknowledges and agrees to be bound by:

(a)              the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b)              the effects of any Bail-In Action on any such liability, including, if applicable:

(i)               a reduction in full or in part or cancellation of any such liability;

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(ii)              a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document, subject to the right of such recipient to decline ownership of such shares or other instruments of ownership, in which case, subject as provided in the relevant Bail-In Legislation, any such liability may be reduced or cancelled, as the case may be, to the same extent as if such shares or other instruments of ownership had been accepted; or

(iii)             the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

The following terms shall for purposes of this Section have the meanings set forth below:

“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of such EEA Financial Institution.

“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“ EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“ EEA Member Country ” means any member state of the European Union, Iceland, Liechtenstein and Norway.

“ EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

[Remainder of Page Intentionally Left Blank]
55

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective representatives thereunto duly authorized, as of the date first above written.
 
 
TWDC HOLDCO 613 CORP. (TO BE RENAMED
THE WALT DISNEY COMPANY),
 
       
 
By:
/s/Jonathan S. Headley   
    Name:  Jonathan S. Headley  
    Title:    Treasurer  
       

 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Credit Agreement

 
 
JPMORGAN CHASE BANK, N.A.,
as Co-Administrative Agent, Designated Agent and a Lender,
 
       
 
By:
/s/ Bruce S. Borden  
    Name:  Bruce S. Borden  
    Title:    Executive Director  
       

 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Credit Agreement

 
 
CITIBANK, N.A.,
as Co-Administrative Agent and a Lender,
 
       
 
By:
/s/ Michael Vondriska  
    Name:  Michael Vondriska  
    Title:    Vice President  
       

 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Credit Agreement
 
 
BNP PARIBAS,
as a Lender
 
       
 
By:
/s/ Nicole Rodriguez  
    Name:  Nicole Rodriguez  
    Title:    Director  
       
       
    /s/ Christopher Sked   
    Name: Christopher Sked  
    Title:    Managing Director  
       

 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Credit Agreement
 

 
 
HSBC BANK USA, N.A.,
as a Lender
 
       
 
By:
/s/ Michael Bieber  
    Name:  Michael Bieber  
    Title:    Managing Director  
       

 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Credit Agreement
 
 
HSBC BANK PLC,
as a Lender
 
       
 
By:
/s/ Bradley Wilson  
    Name:  Bradley Wilson  
    Title:    Director  
       

 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Credit Agreement

 
 
HSBC BANK CANADA,
as a Lender
 
       
 
By:
/s/ Eric Striegler  
    Name:  Eric Striegler  
    Title:    Head of Multinationals  
       

 
 
 
By:
/s/ Bianca Albert  
    Name:  Bianca Albert  
    Title:    Associate, Global Banking  
       

 
 
 
 
 
 
 
Signature Page to the 364-Day Credit Agreement
 
 
ROYAL BANK OF CANADA,
as a Lender
 
       
 
By:
/s/ Alfonse Simone  
    Name:  Alfonse Simone  
    Title:    Authorized Signatory  
       

 
 
 
 
 
 
 
 
 
Signature Page to the 364-Day Credit Agreement
 

SCHEDULE 1.01
APPLICABLE LENDING OFFICES


Name of Lender
Domestic Lending Office
Eurocurrency Lending Office
 
BNP Paribas
787 Seventh Avenue
787 Seventh Avenue
 
New York, NY 10019
New York, NY 10019
 
Attn: Loan Servicing Dept.
Attn: Loan Servicing Dept.
 
Tel: 514-285- 6043
Tel: 514-285- 6043
 
Fax: 201-616-7911
Fax: 201-616-7911
 
Email: loan.book@us.bnpparibas.com
Email: loan.book@us.bnpparibas.com
 
Citibank, N.A.
1615 Brett Rd. Bldg. III
1615 Brett Rd. Bldg. III
 
New Castle, DE 19720
New Castle, DE 19720
 
Attn: Sathyeswar Arumgam
Attn: Sathyeswar Arumgam
 
Tel: 201-751-7571
Tel: 201-751-7571
 
Email: GLOriginationOps@citi.com
Email: GLOriginationOps@citi.com
 
HSBC Bank USA,
N.A.
452 Fifth Avenue
New York, NY 10018 Attn: CTLA Loan
Admin Tel: 212-525-1529
Fax: 847-793-3415
Email: ctlany.loanadmin@us.hsbc.com
452 Fifth Avenue
New York, NY 10018 Attn: CTLA Loan
Admin Tel: 212-525-1529
Fax: 847-793-3415
Email: ctlany.loanadmin@us.hsbc.com
 
HSBC Bank PLC
The Manager, Loans Admin Operations
HSBC Bank plc
28th floor
8 Canada Square, London E14 5HQ
Email: Loanops.uklibor@hsbc.com
 
The Manager, Loans Admin Operations
HSBC Bank plc
28th floor
8 Canada Square, London E14 5HQ
Email: Loanops.uklibor@hsbc.com
 
HSBC Bank Canada
Agency Administrator, Agency Services
6th Floor, 70 York Street
Toronto, Ontario, M5J IS9
Tel: 416-443-3739
Fax: 647-788-2188
Email: cacmbagency5@hsbc.ca
Agency Administrator, Agency Services
6th Floor, 70 York Street
Toronto, Ontario, M5J IS9
Tel: 416-443-3739
Fax: 647-788-2188
Email: cacmbagency5@hsbc.ca
 
JPMorgan Chase Bank, N.A.
500 Stanton Christiana Road Ops Building 2,
3rd Floor Attn: Eugene Tull III
Tel: 302-634-5881
Fax: 302-634-3301
Email: eugene.h.tulliii@chase.com
Loans Agency 6th floor
25 Bank Street, Canary Wharf London
E145JP
United Kingdom Attn: Nicole Johnson
Tel: +44-0-20-7742-7178
Fax: +44-0-20-7777-2360
Email: nicole.johnson@jpmorgan.com
 
Royal Bank of Canada
200 Vesey Street
200 Vesey Street
 
New York, NY 10281-8098
New York, NY 10281-8098
 
Attn: Henrick Tang
Attn: Henrick Tang
 
Tel: 416-974-2274
Tel: 416-974-2274
 
Fax: 212-428-2372
Fax: 212-428-2372
 
Email: Henrick.Tang@rbc.com
Email: Henrick.Tang@rbc.com
 
 
SCHEDULE 2.01
COMMITMENTS


Lender
Commitment
JPMorgan Chase Bank, N.A.
$3,750,000,000
Citibank, N.A.
$3,750,000,000
BNP Paribas
$2,500,000,000
HSBC Bank USA, N.A.
$903,361,344.54
HSBC Bank Canada
$105,042,016.80
HSBC Bank PLC
$1,491,596,638.66
Royal Bank of Canada
$2,500,000,000
Total
$15,000,000,000