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


 



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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.



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“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



4















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


 



5










 


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.



6















“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.



7















“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



8















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



51















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



52















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 66th Street, 15th 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



53















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;








54















(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