exv4w01






Exhibit 4.01




EXECUTION VERSION




PUBLISHED CUSIP NO. 87150VAD8




 

 












CREDIT AGREEMENT




dated as of



September 8, 2010



among



SYMANTEC CORPORATION



The Lenders Party Hereto



and



WELLS FARGO BANK,

NATIONAL ASSOCIATION

as Administrative Agent



and



BANK OF AMERICA, N.A. and

CITIBANK, N.A.

as Co-Syndication Agents



and



JPMORGAN CHASE BANK, N.A. and

MORGAN STANLEY SENIOR FUNDING, INC.

as Co-Documentation Agents



 





WELLS FARGO SECURITIES, LLC,

BANC OF AMERICA SECURITIES LLC and

CITIGROUP GLOBAL MARKETS INC.

as Joint Lead Arrangers and Joint Bookrunners



 

 








 









 














TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	DEFINITIONS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.1
	 	Defined Terms	 	 	1	 
	Section 1.2
	 	Classification of Loans and Borrowings	 	 	16	 
	Section 1.3
	 	Terms Generally	 	 	16	 
	Section 1.4
	 	Accounting Terms; GAAP	 	 	17	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	THE CREDITS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.1
	 	Commitments	 	 	17	 
	Section 2.2
	 	Loans and Borrowings	 	 	17	 
	Section 2.3
	 	Requests for Revolving Borrowings	 	 	18	 
	Section 2.4
	 	[Reserved]	 	 	19	 
	Section 2.5
	 	Swingline Loans	 	 	19	 
	Section 2.6
	 	[Reserved]	 	 	20	 
	Section 2.7
	 	Funding of Borrowings	 	 	20	 
	Section 2.8
	 	Interest Elections	 	 	21	 
	Section 2.9
	 	Termination and Reduction of Commitments	 	 	22	 
	Section 2.10
	 	Repayment of Loans; Evidence of Debt	 	 	23	 
	Section 2.11
	 	Prepayment of Loans	 	 	23	 
	Section 2.12
	 	Fees	 	 	24	 
	Section 2.13
	 	Interest	 	 	24	 
	Section 2.14
	 	Alternate Rate of Interest	 	 	25	 
	Section 2.15
	 	Increased Costs	 	 	26	 
	Section 2.16
	 	Break Funding Payments	 	 	27	 
	Section 2.17
	 	Taxes	 	 	27	 
	Section 2.18
	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	 	 	29	 
	Section 2.19
	 	Mitigation Obligations; Replacement of Lenders	 	 	30	 
	Section 2.20
	 	Increase in the Aggregate Commitments	 	 	31	 
	Section 2.21
	 	Extension of Maturity Date	 	 	33	 
	Section 2.22
	 	Defaulting Lenders	 	 	35	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE III	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	REPRESENTATIONS AND WARRANTIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.1
	 	Organization; Powers	 	 	38	 
	Section 3.2
	 	Authorization; Enforceability	 	 	38	 
	Section 3.3
	 	Governmental Approvals; No Conflicts	 	 	38	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 3.4
	 	Financial Condition; No Material Adverse Change	 	 	38	 
	Section 3.5
	 	Properties	 	 	39	 
	Section 3.6
	 	Litigation and Environmental Matters	 	 	39	 
	Section 3.7
	 	Compliance with Laws and Agreements	 	 	39	 
	Section 3.8
	 	Investment Company Status	 	 	39	 
	Section 3.9
	 	Taxes	 	 	40	 
	Section 3.10
	 	ERISA	 	 	40	 
	Section 3.11
	 	Disclosure	 	 	40	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE IV	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	CONDITIONS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.1
	 	Effective Date	 	 	40	 
	Section 4.2
	 	Each Credit Event	 	 	41	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE V	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	AFFIRMATIVE COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.1
	 	Financial Statements; Ratings Change and Other Information	 	 	42	 
	Section 5.2
	 	Notices of Material Events	 	 	43	 
	Section 5.3
	 	Existence; Conduct of Business	 	 	43	 
	Section 5.4
	 	Payment of Obligations	 	 	44	 
	Section 5.5
	 	Maintenance of Properties; Insurance	 	 	44	 
	Section 5.6
	 	Books and Records; Inspection Rights	 	 	44	 
	Section 5.7
	 	Compliance with Laws	 	 	44	 
	Section 5.8
	 	Use of Proceeds	 	 	44	 
	Section 5.9
	 	Consolidated Leverage Ratio	 	 	44	 
	Section 5.10
	 	Additional Guarantors	 	 	44	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VI	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	NEGATIVE COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.1
	 	Liens	 	 	45	 
	Section 6.2
	 	Fundamental Changes	 	 	45	 
	Section 6.3
	 	Subsidiary Indebtedness	 	 	46	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VII	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	EVENTS OF DEFAULT	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VIII	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	THE ADMINISTRATIVE AGENT	 	 	 	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	ARTICLE IX	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.1
	 	Notices	 	 	51	 
	Section 9.2
	 	Waivers; Amendments	 	 	53	 
	Section 9.3
	 	Expenses; Indemnity; Damage Waiver	 	 	54	 
	Section 9.4
	 	Successors and Assigns	 	 	55	 
	Section 9.5
	 	Survival	 	 	59	 
	Section 9.6
	 	Counterparts; Integration; Effectiveness	 	 	59	 
	Section 9.7
	 	Severability	 	 	60	 
	Section 9.8
	 	Right of Setoff	 	 	60	 
	Section 9.9
	 	Governing Law; Jurisdiction; Consent to Service of Process	 	 	60	 
	Section 9.10
	 	WAIVER OF JURY TRIAL	 	 	61	 
	Section 9.11
	 	Headings	 	 	61	 
	Section 9.12
	 	Confidentiality	 	 	61	 
	Section 9.13
	 	Interest Rate Limitation	 	 	62	 
	Section 9.14
	 	No Advisory or Fiduciary Responsibility	 	 	63	 
	Section 9.15
	 	Electronic Execution of Assignments and Certain Other Documents	 	 	63	 
	Section 9.16
	 	USA PATRIOT Act	 	 	63	 
	 
	 	 	 	 	 	 
	SCHEDULES:	 	 	 	 
	 
	 	 	 	 	 	 
	Schedule 1.1
	 	Subsidiaries Excluded from Material Subsidiaries	 	 	 	 
	Schedule 2.1
	 	Commitments and Notice Information	 	 	 	 
	Schedule 3.6
	 	Disclosed Matters	 	 	 	 
	Schedule 6.1
	 	Liens	 	 	 	 
	Schedule 6.3
	 	Subsidiary Indebtedness	 	 	 	 
	 
	 	 	 	 	 	 
	EXHIBITS:	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit A — Form of Assignment and Assumption	 	 	 	 
	Exhibit B-1 — Form of Borrowing Request	 	 	 	 
	Exhibit B-2 — Form of Swingline Borrowing Request	 	 	 	 
	Exhibit C — Form of Interest Election Request	 	 	 	 
	Exhibit D — Form of Note	 	 	 	 
	Exhibit E — Form of Opinion of Borrower’s Counsel	 	 	 	 
	Exhibit F — Form of Guaranty Agreement	 	 	 	 
	Exhibit G — Form of Compliance Certificate	 	 	 	 







iii











 





          CREDIT AGREEMENT dated as of September 8, 2010, among SYMANTEC CORPORATION as Borrower,
the LENDERS party hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent.




          The parties hereto agree as follows:




ARTICLE I




DEFINITIONS



     Section 1.1 Defined Terms. As used in this Agreement, the following terms have the meanings
specified below:




     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined by reference
to the Alternate Base Rate.




     “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve
Rate.




     “Administrative Agent” means Wells Fargo, in its capacity as administrative agent for
the Lenders hereunder, or any successor administrative agent.




     “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied
by the Administrative Agent.




     “Affiliate” means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.




     “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the LIBO Rate for an Interest Period of 1 month in effect on such
day plus 1.0%, as adjusted to conform to changes as of the opening of business on the date
of any such change of such LIBO Rate. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Federal Funds Effective Rate or the LIBO Rate shall be effective from
and including the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the LIBO Rate, respectively.




     “Anniversary Date” means September 8, 2011 and September 8 in each succeeding calendar
year occurring during the term of this Agreement.




     “Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments



1









 






have terminated or expired, the Applicable Percentages shall be determined based upon
the Commitments most recently in effect, giving effect to any assignments.




     “Applicable Rate” means, for any day, with respect to any Eurodollar Loan, any ABR Loan
(including any Swingline Loan) or the facility fees payable hereunder, as the case may be,
the applicable rate per annum set forth across from the caption “Applicable Rate for
Eurodollar Loans”, “Applicable Rate for ABR Loans and Swingline Loans” or “Facility Fee” in
the table below, as the case may be, based upon the Consolidated Leverage Ratio, as more
fully described below.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Level 1	 	Level 2	 	Level 3	 	Level 4	 	Level 5
	Consolidated

Leverage Ratio

	 	Less than or equal

to 0.50:1.00
	 	Less than or equal

to 1.00:1.00 but

greater than

0.50:1.00
	 	Less than or equal

to 1.75:1.00 but

greater than

1.00:1.00
	 	Less than or equal

to 2.25:1.00 but

greater than

1.75:1.00
	 	Greater than

2.25:1.00

	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Facility Fee

	 	0.15%
	 	 	0.175	%	 	 	0.225	%	 	 	0.275	%	 	 	0.375	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate for 

Eurodollar Loans

	 	1.10%
	 	 	1.325	%	 	 	1.525	%	 	 	1.725	%	 	 	2.125	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate for
ABR Loans and
Swingline Loans

	 	0.10%
	 	 	0.325	%	 	 	0.525	%	 	 	0.725	%	 	 	1.125	%







     The Consolidated Leverage Ratio shall be determined on the basis of the most recent
certificate of the Borrower to be delivered pursuant to Section 5.1(a) or Section 5.1(b), as
the case may be, for the most recently ended fiscal quarter or fiscal year of the Borrower,
as applicable, and any change in the Consolidated Leverage Ratio shall be effective one
Business Day after the date on which the Administrative Agent receives such certificate,
provided, that until the Borrower has delivered to the Administrative Agent such certificate
pursuant to Section 5.1(b) in respect of the second fiscal quarter of fiscal 2011, the
Consolidated Leverage Ratio shall be deemed to be at Level 3; provided, further, that for so
long as the Borrower has not delivered such certificate when due pursuant to Section 5.1(a)
or Section 5.1(b), as the case may be, the Consolidated Leverage Ratio shall be deemed to be
at Level 4 until the respective certificate is delivered to the Administrative Agent.




     “Approved Fund” has the meaning assigned to such term in Section 9.4.




     “Arrangers” means Wells Fargo Securities, LLC, Banc of America Securities LLC and
Citigroup Global Markets Inc., in their capacity as joint lead arrangers and joint
bookrunners.



2









 






     “Assignment and Assumption” means an assignment and assumption entered into by a Lender
and an assignee (with the consent of any party whose consent is required by Section 9.4),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.




     “Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.




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




     “Borrower” means Symantec Corporation, a Delaware corporation.




     “Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is
in effect or (b) a Swingline Loan.




     “Borrowing Request” means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.3.




     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City or Charlotte, North Carolina are authorized or required by
law to remain closed; provided that, when used in connection with a Eurodollar Loan, the
term “Business Day” shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.




     “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.




     “Cash Collateralize” shall mean to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, or the Swingline Lender
and the Lenders, as collateral for obligations in respect of Swingline Loans, or obligations
of Lenders to fund participations in respect of either thereof (as the context may require),
cash or deposit account balances or, if the Swingline Lender benefiting from such collateral
shall agree in its sole discretion, other credit support, in each case pursuant to
documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the
Swingline Lender. “Cash Collateral” shall have a meaning correlative to the foregoing and
shall include the proceeds of such cash collateral and other credit support.




     “Change in Control” means (a) any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee
benefit plan of such Person or its subsidiaries, and any person or entity acting



3









 






in its capacity as trustee, agent or other fiduciary or administrator of any such plan)
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial
ownership” of all securities that such person or group has the right to acquire (such right,
an “option right”), whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of 35% or more of the Equity Interests of the Borrower
entitled to vote for members of the board of directors on a fully diluted basis (i.e.,
taking into account all such securities that such person or group has the right to acquire
pursuant to any option right); (b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i) nominated
by the board of directors of the Borrower nor (ii) appointed by directors so nominated; or
(c) the acquisition of direct or indirect Control of the Borrower by any Person or group.




     “Change in Law” means (a) the adoption of any law, rule or regulation after the date of
this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof after the date of this Agreement or (c) compliance
by any Lender (or, for purposes of Section 2.15(b), by any lending office of such Lender or
by such Lender’s holding company, if any) with any request, guideline or directive (whether
or not having the force of law) of any Governmental Authority made or issued after the date
of this Agreement.




     “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.




     “Code” means the Internal Revenue Code of 1986.




     “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Swingline Loans hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.9
and (b) reduced or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 2.20 or Section 9.4. The initial amount of each Lender’s Commitment is
set forth on Schedule 2.1. The initial aggregate amount of the Lenders’ Commitments is
$1,000,000,000.




     “Commitment Increase” has the meaning set forth in Section 2.20(a) hereof.




     “Consolidated EBITDA” means, with respect to any Person for any period, an amount equal
to (a) Consolidated Net Income (before discontinued operations) of such Person for such
period plus (b) the sum of, in each case to the extent reflected as a charge in the
calculation of such Consolidated Net Income of such Person for such period in accordance
with GAAP, but without duplication, (i) income tax expense, (ii) Consolidated Interest
Expense, (iii) depreciation, depletion, and amortization of intangibles or financing or
acquisition costs and (iv) all non-cash charges and non-cash



4









 






losses for such period (including, but not limited to, stock option expense and
restructuring and impairment charges) minus (c) the sum of, in each case to the extent
included in the calculation of Consolidated Net Income of such Person for such period in
accordance with GAAP, but without duplication, (i) any credit for income tax, (ii) any
amounts of interest income, (iii) gains from extraordinary items for such period, (iv) any
aggregate net gain from the sale, exchange or other disposition of capital assets by such
Person, (v) cash payments for previously reserved charges of the sort described in clause
(iv), and (vi) any other non-cash gains which have been added in determining Consolidated
Net Income.




     “Consolidated Funded Debt” of any person means (a) all obligations of such person that
would be classified as indebtedness in accordance with GAAP (it being understood that
convertible securities subject to Financial Accounting Standard Board Staff Position APB
14-1 shall be accounted for as set forth therein), (b) obligations of such person with
respect to letters of credit, whether drawn or undrawn, contingent or otherwise and (c) all
guarantees or other contingent obligations of such person with respect to any indebtedness
of others, determined on a consolidated basis in accordance with GAAP.




     “Consolidated Interest Expense” means, for any period, total cash interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and its
Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower
and its Subsidiaries (including all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers’ acceptance financing and net costs under Swap
Agreements in respect of interest rates to the extent such net costs are allocable to such
period in accordance with GAAP).




     “Consolidated Leverage Ratio” means, as of the last day of any period, the ratio of (a)
Consolidated Funded Debt on such day to (b) Consolidated EBITDA for such period.




     “Consolidated Net Income” means, for any period, the consolidated net income (or loss)
of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person
accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of
any Person (other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such income is
actually received by the Borrower or such Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any contractual obligation (other
than under any Loan Document) or requirement of law applicable to such Subsidiary.




     “Control” means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the ability



5









 






to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.




     “Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all
other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor
relief Laws of the United States or other applicable jurisdictions from time to time in
effect.




     “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of
Default.




     “Defaulting Lender” means, subject to Section 2.22(b), any Lender that, as determined
by the Administrative Agent (with notice to the Borrower of such determination), (a) has
failed to perform any of its funding obligations hereunder, including in respect of its
Loans or participations in Swingline Loans, within three Business Days of the date required
to be funded by it hereunder, (b) has notified the Borrower or the Administrative Agent that
it does not intend to comply with its funding obligations or has made a public statement to
that effect with respect to its funding obligations hereunder or under other agreements in
which it commits to extend credit, (c) has failed, within three Business Days after request
by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent
that it will comply with its funding obligations, or (d) has, or has a direct or indirect
parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law,
or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization or
liquidation of its business or assets, including the Federal Deposit Insurance Corporation
or any other state or federal regulatory authority acting in such a capacity; provided that
a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition
of any equity interest in that Lender or any direct or indirect parent company thereof by a
Governmental Authority.




     “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.6.




     “dollars” or “$” refers to lawful money of the United States of America.




     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.




     “Effective Date” means the date on which the conditions specified in Section 4.1 are
satisfied (or waived in accordance with Section 9.2).




     “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the



6









 






environment, preservation or reclamation of natural resources, the management, release
or threatened release of any Hazardous Material or to health and safety matters.




     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities),
of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.




     “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights entitling the
holder thereof to purchase or acquire any such equity interest.




     “ERISA” means the Employee Retirement Income Security Act of 1974.




     “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.




     “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the
30 day notice period is waived); (b) the failure of any Plan or Multiemployer Plan to
satisfy the minimum funding standard of Section 412 of the Code or Section 302 of ERISA,
whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section
302(c) of ERISA of an application for a waiver of the minimum funding standard with respect
to any Plan, or the filing pursuant to Section 431(d) of the Code or Section 304(d) of ERISA
of an application for the extension of amortization periods with respect to any
Multiemployer Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan; (e) the
receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice,
or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA.



7









 






     “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.




     “Event of Default” has the meaning assigned to such term in ARTICLE VII.




     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the
United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in
which its applicable lending office is located, (b) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction in which the
Borrower is located, (c) in the case of a Foreign Lender (other than an assignee pursuant to
a request by the Borrower under Section 2.19(b)), any United States withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement (or designates a new lending office) or is attributable to such
Foreign Lender’s failure to comply with Section 2.17(e), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new
lending office (or assignment), to receive additional amounts from the Borrower with respect
to such withholding tax pursuant to Section 2.17(a) and (d) any taxes imposed on any
“withholdable payment” payable to such recipient as a result of the failure of such
recipient to satisfy the applicable requirements as set forth in FATCA after December 31,
2012.




     “Existing Credit Agreement” means that certain Credit Agreement dated as of July 12,
2006, among the Borrower, the lenders named therein, and JPMorgan Chase Bank, as
administrative agent.




     “FATCA” means Sections 1471 through 1474 of the Code.




     “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for
such transactions received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.




     “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.




     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



8









 






     “Fronting Exposure” shall mean, at any time there is a Defaulting Lender, such
Defaulting Lender’s Applicable Percentage of outstanding Swingline Loans made by the
Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s
participation obligation has been (a) reallocated to other Lenders or Cash Collateralized in
accordance with Section 2.22 or (b) funded by such Defaulting Lender in accordance with
Section 2.5.




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




     “Governmental Authority” means the government of the United States of America, 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).




     “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business, or customary indemnification obligations
entered into in connection with any acquisition or disposition of assets or of other
entities (other than to the extent that the primary obligations that are the subject of such
Guarantee would be considered Indebtedness hereunder).




     “Guarantor” means any Material Subsidiary of the Borrower that has delivered the
Guaranty pursuant to Section 4.1(f) or a Guaranty Accession pursuant to Section 5.10 hereof.




     “Guaranty” has the meaning set forth in Section 4.1(f) hereof.




     “Guaranty Accession” has the meaning set forth in the Guaranty.




     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated



9









 






biphenyls, radon gas, infectious or medical wastes and all other substances or wastes
of any nature regulated pursuant to any Environmental Law.




     “Indebtedness” of any Person at any date means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than current trade payables incurred
in the ordinary course of such Person’s business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness
created or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to repossession or
sale of such property), (e) all Capital Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account party or applicant under
or in respect of acceptances, letters of credit, surety bonds or similar arrangements, (g)
the liquidation value of all redeemable preferred capital stock of such Person, (h) all
Guarantees of such Person in respect of obligations of the kind referred to in clauses (a)
through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h)
above secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation, and (j) for the purposes of Section 7(f) and (g)
only, the net obligations of such Person in respect of all Swap Agreements entered into with
a particular counterparty. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person’s ownership interest in
or other relationship with such entity, except to the extent the terms of such Indebtedness
expressly provide that such Person is not liable therefor.




     “Indemnified Taxes” means Taxes other than Excluded Taxes.




     “Information Memorandum” means the Administrative Documents dated August, 2010 relating
to the Borrower and the Transactions.




     “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.8.




     “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which
such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of
more than three months’ duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months’ duration after the first day of such Interest
Period, and (c) with respect to any Swingline Loan, the day that such Loan is required to be
repaid.




     “Interest Period” means with respect to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding



10









 






day in the calendar month that is one, two, three or six months (or, with the consent
of each Lender, a shorter period, or nine or twelve months) thereafter, as the Borrower may
elect; provided, that (i) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day unless, in
the case of a Eurodollar Borrowing only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next preceding
Business Day and (ii) any Interest Period pertaining to a Eurodollar Borrowing that
commences on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing, thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.




     “Lenders” means the Persons listed on Schedule 2.1 and any other Person that shall have
become a party hereto pursuant to an Assignment and Assumption or pursuant to Section
2.20(c), other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Assumption. Unless the context otherwise requires, the term “Lenders”
includes the Swingline Lender.




     “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of
such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest
rates applicable to dollar deposits in the London interbank market) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest Period, as
the rate for dollar deposits with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the “LIBO Rate” with
respect to such Eurodollar Borrowing for such Interest Period shall be the rate at which
dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.




     “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or
title retention agreement (or any financing lease having substantially the same economic
effect as any of the foregoing) relating to such asset and (c) in the case of securities,
any purchase option, call or similar right of a third party with respect to such securities.




     “Loan Documents” means this Agreement, the Notes (if any) and the Guaranty and any
supplements to the Guaranty delivered pursuant to Section 5.10 hereof.



11









 






     “Loan Parties” means the Borrower and the Guarantors.




     “Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.




     “Material Adverse Effect” means a material adverse effect on (a) the business,
financial condition or operations of the Borrower and the Subsidiaries taken as a whole, (b)
the ability of the Borrower to perform any of its obligations under this Agreement or any of
the other Loan Documents or (c) the rights of or benefits available to the Lenders under
this Agreement and the other Loan Documents.




     “Material Indebtedness” means Indebtedness (other than the Loans), or obligations in
respect of one or more Swap Agreements, of any one or more of the Borrower and its
Subsidiaries in a principal amount exceeding $50,000,000. For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of the Borrower or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would
be required to pay if such Swap Agreement were terminated at such time.




     “Material Subsidiary” means, at any date of determination, a Domestic Subsidiary of the
Borrower (other than as set forth on Schedule 1.1) that, either individually or together
with its Subsidiaries, taken as a whole, has total tangible assets exceeding $50,000,000 as
of the most recent available quarterly or year-end financial statements; provided however
that a Domestic Subsidiary shall not be a Material Subsidiary if the provision of a Guaranty
by it would give rise to or increase the amount includable in income of the Company pursuant
to Section 956 of the Code.




     “Maturity Date” means September 8, 2014.




     “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.




     “Minority Interests” means any shares of stock of any class of a Subsidiary (other than
directors’ qualifying shares as required by law) that are not owned by the Borrower and/or
one or more of its Subsidiaries.




     “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA, and to which the Borrower or any ERISA Affiliate makes, is obligated to make, or has
been obligated to make, contributions.




     “Note” has the meaning set forth in Section 2.10.




     “Other Taxes” means any and all present or future stamp, court or documentary taxes or
any other excise, property, intangible, recording, filing or similar Taxes which arise from
any payment made, from the execution, delivery, performance, enforcement or registration of,
from the receipt or perfection of a security interest under, or otherwise



12









 






with respect to, this Agreement and the other Loan Documents. Other Taxes shall not
include any Excluded Taxes.




     “Participant” has the meaning set forth in Section 9.4.




     “Payment Office” means the office of the Administrative Agent designated on Schedule
2.1 under the heading “Instructions for wire transfers to the Administrative Agent,” or such
other office as the Administrative Agent may designate to the Lenders and the Borrower for
such purpose from time to time.




     “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




     “Permitted Encumbrances” means:




          (a) Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.4;




          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, landlord’s, repairmen’s and
other like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being contested in compliance
with Section 5.4;




          (c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;




          (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;




          (e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (k) of ARTICLE VII or securing appeal or other surety bonds relating to such
judgments;




          (f) Liens arising under repurchase agreements, reverse repurchase agreements,
securities lending and borrowing agreements and similar transactions;




          (g) Liens arising from precautionary filings in respect of operating leases;




          (h) Liens arising from leases, licenses, subleases or sublicenses which do not (A)
interfere in any material respect with the business of the Borrower or any Subsidiary or (B)
secure any Indebtedness;




          (i) Liens on cash collateral or government securities to secure obligations under Swap
Agreements and letters of credit, provided, that the aggregate



13









 






value of such collateral so pledged by the Borrower and its Subsidiaries does not at
any time exceed $25 million in the aggregate;




          (j) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;




          (k) Liens securing obligations (other than obligations representing Indebtedness for
borrowed money) under operating or similar agreements entered into in the ordinary course of
business;




          (l) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;




          provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




     “Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.




     “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and with respect to which the Borrower or any ERISA Affiliate is (or, if such plan
were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined
in Section 3(5) of ERISA.




     “Prime Rate” means the rate of interest per annum publicly announced from time to time
by Wells Fargo as its “prime rate.” The “prime rate” is a rate set by Wells Fargo based upon
various factors including Wells Fargo’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate.




     “Register” has the meaning set forth in Section 9.4.




     “Related Parties” means, with respect to any specified Person, such Person’s Affiliates
and the respective directors, officers, employees, agents and advisors of such Person and
such Person’s Affiliates.




     “Required Lenders” means, at any time, Lenders having more than 50% of the aggregate
amount of the Commitments or, if the Commitments shall have been terminated, holding more
than 50% of the aggregate unpaid principal amount of the total Revolving Credit Exposures at
such time. The Commitment and Revolving Credit Exposure of any Defaulting Lender shall be
disregarded in determining Required Lenders at any time.



14









 






     “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its Swingline Exposure
at such time.




     “Revolving Loan” means a Loan made pursuant to Section 2.3.




     “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate
of the maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject for Eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute Eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of any change
in any reserve percentage.




     “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the
accounts of which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one
or more subsidiaries of the parent and which is required by GAAP to be consolidated in the
consolidated financial statements of the parent.




     “Subsidiary” means any subsidiary of the Borrower.




     “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to,
one or more rates, currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic, financial or pricing risk or
value or any similar transaction or any combination of these transactions; provided that no
phantom stock or similar plan providing for payments only on account of services provided by
current or former directors, officers, employees or consultants of the Borrower or the
Subsidiaries shall be a Swap Agreement.




     “Swingline Borrowing Request” means a request by the Borrower for a Swingline Borrowing
in accordance with Section 2.5.



15









 






     “Swingline Commitment” means an amount equal to the lesser of (a) $20,000,000 and (b)
the total Commitments. The Swingline Commitment is part of, and not in addition to, the
total Commitments.




     “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time
shall be its Applicable Percentage of the total Swingline Exposure at such time.




     “Swingline Lender” means Wells Fargo, in its capacity as lender of Swingline Loans
hereunder.




     “Swingline Loan” means a Loan made pursuant to Section 2.5.




     “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.




     “Transactions” means the execution, delivery and performance by the Loan Parties of
each Loan Document to which it is a party, the borrowing of Loans and the use of the
proceeds thereof.




     “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference
to the Adjusted LIBO Rate or the Alternate Base Rate.




     “Wells Fargo” means Wells Fargo Bank, National Association.




     “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.



     Section 1.2 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may
be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurodollar
Loan”) or by Class and Type (e.g., a “Eurodollar Revolving Loan”). Borrowings also may be
classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a “Eurodollar
Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Borrowing”).



     Section 1.3 Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not



16









 




to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules
to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights and (f) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time.




     Section 1.4 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any change occurring after
the date hereof in GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance herewith.
Notwithstanding the foregoing, all financial statements delivered hereunder shall be prepared, and
all financial covenants contained herein shall be calculated, without giving effect to any election
under the Statement of Financial Accounting Standards No. 159 (ASC 825) (or any similar accounting
principle) permitting or requiring a Person to value its financial liabilities or Indebtedness at
the fair value thereof.



ARTICLE II




THE CREDITS



     Section 2.1 Commitments. Subject to the terms and conditions set forth herein, each Lender
agrees to make Revolving Loans to the Borrower from time to time during the Availability Period in
an aggregate principal amount that will not result in (a) such Lender’s Revolving Credit Exposure
exceeding such Lender’s Commitment or (b) the sum of the total Revolving Credit Exposures exceeding
the total Commitments. Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.



     Section 2.2 Loans and Borrowings.



     (a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans
made by the Lenders in accordance with their Applicable Percentage. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required.



17









 





     (b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of ABR Loans
or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan shall
be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.



     (c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $10,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be
in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the total Commitments. Each Swingline Loan shall be in an amount that is an
integral multiple of $500,000 and not less than $1,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there shall not at any time be more than a
total of five Eurodollar Revolving Borrowings outstanding.



     (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.



     Section 2.3 Requests for Revolving Borrowings. To request a Revolving Borrowing, the Borrower
shall notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 12:00 noon, Charlotte, North Carolina time, three Business Days before
the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00
noon, Charlotte, North Carolina time, one Business Day before the date of the proposed Borrowing.
Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request in substantially
the form of Exhibit B-1 attached hereto and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance with Section 2.2:




     (i) the aggregate amount of the requested Borrowing;




     (ii) the date of such Borrowing, which shall be a Business Day;




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;




     (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and




     (v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.7.



18









 





          If no election as to the Type of Revolving Borrowing is specified, then the requested
Revolving Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to
any requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.




     Section 2.4 [Reserved].



     Section 2.5 Swingline Loans.



     (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the aggregate principal amount
of outstanding Swingline Loans exceeding the Swingline Commitment or (ii) the sum of the total
Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within
the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Swingline Loans. Notwithstanding the foregoing, the Swingline Lender
shall not make any Swingline Loan to the Borrower if any Lender is at that time a Defaulting
Lender, unless the Swingline Lender has entered into arrangements, including the delivery of Cash
Collateral, satisfactory to the Swingline Lender (in its sole discretion) with the Borrower or such
Lender to eliminate the Swingline Lender’s actual or potential Fronting Exposure (after giving
effect to Section 2.22(a)(iv)) with respect to the Defaulting Lender arising from either the
Swingline Loan then proposed to be made or that Swingline Loan and all other Swingline Exposure as
to which the Swingline Lender has actual or potential Fronting Exposure, as it may elect in its
sole discretion.



     (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 1:00 p.m. Charlotte, North Carolina
time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable, shall
specify the requested date (which shall be a Business Day) and amount of the requested Swingline
Loan and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Swingline Borrowing Request in substantially the form of Exhibit B-2 attached hereto and
signed by the Borrower. The Administrative Agent will promptly advise the Swingline Lender of any
such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan
available to the Borrower by means of a credit to the general deposit account of the Borrower with
the Swingline Lender by 3:00 p.m., Charlotte, North Carolina time, on the requested date of such
Swingline Loan.



     (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., Charlotte, North Carolina time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender’s Applicable



19









 




Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the
account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or
Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected
by any circumstance whatsoever, including (i) any set-off, counterclaim, recoupment, defense or
other right that such Lender may have against the Swingline Lender, the Administrative Agent, the
Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any
Default, or (iii) the failure of any conditions set forth in Section 4.2 or elsewhere herein to be
satisfied. Each Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.7 with respect to Loans
made by such Lender (and Section 2.7 shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts
so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments
in respect of such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of
the proceeds of a sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if
and to the extent such payment is required to be refunded to the Borrower for any reason. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the
Borrower of any default in the payment thereof.




     Section 2.6 [Reserved].



     Section 2.7 Funding of Borrowings.



     (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds by 2:00 p.m., Charlotte, North Carolina time, to
the account of the Administrative Agent most recently designated by it for such purpose by notice
to the Lenders; provided that Swingline Loans shall be made as provided in Section 2.5. The
Administrative Agent will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in Charlotte, North Carolina and designated by the Borrower in the applicable
Borrowing Request.



     (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s Applicable Percentage of such Borrowing, the Administrative Agent may assume that
such Lender has made such Applicable Percentage available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a



20









 




Lender has not in fact made its Applicable Percentage of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.




     Section 2.8 Interest Elections.



     (a) Each Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Revolving Borrowing, may elect Interest Periods therefore, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated among the Lenders holding
the Loans comprising such Borrowing in accordance with their Applicable Percentage, and the Loans
comprising each such portion shall be considered a separate Borrowing. This Section shall not
apply to Swingline Borrowings, which may not be converted or continued.



     (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.3 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written request (an “Interest Election Request”) in substantially the form of Exhibit C
attached hereto and signed by the Borrower.



     (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.2:




     (i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and



21









 






     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.



          If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




     (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.



     (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing (i) no outstanding Revolving Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Revolving Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.



     Section 2.9 Termination and Reduction of Commitments.



     (a) Unless previously terminated, the Commitments and the Swingline Commitment shall terminate
on the Maturity Date.



     (b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an integral
multiple of $1,000,000 and not less than $10,000,000, (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, the sum of the Revolving Credit Exposures would exceed the total
Commitments, and (iii) if, after giving effect to any reduction of the Commitments, the Swingline
Commitment exceeds the total Commitments, the Swingline Commitment shall be automatically reduced
by the amount of such excess.



     (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three 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 notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of
the Commitments shall be applied to the Lenders in accordance with their respective Applicable
Percentage.



22









 





     Section 2.10 Repayment of Loans; Evidence of Debt.



     (a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Revolving Loan on the Maturity
Date, and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earlier of the Maturity Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is
made; provided that on each date that a Revolving Borrowing is made, the Borrower shall repay all
Swingline Loans then outstanding.



     (b) 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 Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.



     (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.



     (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the obligations recorded
therein (absent manifest error); provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.



     (e) Any Lender may request that Loans made by it be evidenced by a promissory note (a “Note”).
In such event, the Borrower shall prepare, execute and deliver to such Lender a Note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) in substantially the form of Exhibit D attached hereto. Thereafter, the Loans evidenced
by such Note and interest thereon shall at all times (including after assignment pursuant to
Section 9.4) be represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).



     Section 2.11 Prepayment of Loans.



     (a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in accordance with paragraph (b) of this
Section.



     (b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 12:00
noon, Charlotte, North Carolina time, three Business Days before the date of



23









 




prepayment, (ii) in the case of prepayment of an ABR Revolving Borrowing, not later than 11:00
a.m., Charlotte, North Carolina time, one Business Day before the date of prepayment or (iii) in
the case of prepayment of a Swingline Loan, not later than 2:00 p.m., Charlotte, North Carolina
time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.9, then such notice of prepayment may
be revoked if such notice of termination is revoked in accordance with Section 2.9. Promptly
following receipt of any such notice relating to a Revolving Borrowing, the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.2. Each prepayment of a Revolving Borrowing
shall be applied ratably to the Loans of the Lenders in accordance with their respective Applicable
Percentages. Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.13 and any costs incurred as contemplated by Section 2.16.




     Section 2.12 Fees.



     (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
facility fee, which shall accrue at the relevant percentage set forth across from the heading
“Facility Fee” in the definition of “Applicable Rate” on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the date hereof to but
excluding the date on which such Commitment terminates; provided that, if such Lender continues to
have any Revolving Credit Exposure after its Commitment terminates, then such facility fee shall
continue to accrue on the daily amount of such Lender’s Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued facility fees shall be payable in
arrears on the last day of March, June, September and December of each year and on the date on
which the Commitments terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Commitments terminate shall be
payable on demand. All facility fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day but excluding the
last day).



     (b) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.



     (c) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent for distribution, in the case of facility fees, to the Lenders. Fees
paid shall not be refundable under any circumstances.



     Section 2.13 Interest.



     (a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear
interest at the Alternate Base Rate plus the Applicable Rate.



24









 





     (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.



     (c) Notwithstanding the foregoing, at all times when a Default has occurred hereunder and is
continuing, all amounts outstanding hereunder shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.



     (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Commitments; provided
that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any Eurodollar Revolving Loan prior to the end of the current
Interest Period therefore, accrued interest on such Loan shall be payable on the effective date of
such conversion.



     (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.



     Section 2.14 Alternate Rate of Interest. If prior to the commencement of any Interest Period
for a Eurodollar Borrowing:



     (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or



     (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in
such Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective,





25











 




and (ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing
shall be made as an ABR Borrowing.




     Section 2.15 Increased Costs.



     (a) If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); or




     (ii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such
Lender such additional amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.




     (b) If any Lender determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s capital or on the capital of
such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such
Lender to a level below that which such Lender or such Lender’s holding company could have achieved
but for such Change in Law (taking into consideration such Lender’s policies and the policies of
such Lender’s holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender
or such Lender’s holding company for any such reduction suffered.



     (c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such
Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this
Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.



     (d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 270 days prior to the date that such Lender notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s intention to claim compensation therefore; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the 270-day period referred
to above shall be extended to include the period of retroactive effect thereof.



26









 





     Section 2.16 Break Funding Payments. In the event of (a) the payment or prepayment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise), (b) the
conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(b) and is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of
a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate
that would have been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefore (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for such Loan), over
(ii) the amount of interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of such period, for
dollar deposits of a comparable amount and period from other banks in the Eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.



     Section 2.17 Taxes.



     (a) Any and all payments by or on account of any obligation of the Borrower hereunder shall be
made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided
that if the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable under this Section)
the Administrative Agent or Lender (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 Governmental Authority in
accordance with applicable law.



     (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.



     (c) The Borrower shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand therefore, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of



27









 




such payment or liability delivered to the Borrower by a Lender, or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.




     (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.



     (e) Any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:




     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States of America is a party;




     (ii) duly completed copies of Internal Revenue Service Form W-ECI;




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.



     In addition, each Lender shall deliver such other documentation prescribed by applicable law
as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements.



     (f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.17, it
shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.17 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant



28









 




Governmental Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require the Administrative Agent or any Lender to
make available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.




     (g) If a payment made to a Lender under any Loan Document would be subject to U.S. Federal
withholding Tax imposed by FATCA if such Lender fails 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 comply with such applicable reporting requirements and shall deliver
to the Borrower and the Administrative Agent (A) a certification signed by the chief financial
officer, principal accounting officer, treasurer or controller, and (B) other documentation
reasonably requested by the Borrower and the Administrative Agent sufficient for the Administrative
Agent and the Borrower to comply with their obligations under FATCA and to determine that such
Lender has complied with such applicable reporting requirements.



     Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.



     (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest or fees, or of amounts payable under Section 2.15, Section 2.16 or Section
2.17, or otherwise) prior to 12:00 noon, Charlotte, North Carolina time, on the date when due, in
immediately available funds, without set off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Payment Office, except payments to be made
directly to the Swingline Lender as expressly provided herein and except that payments pursuant to
Section 2.15, Section 2.16, Section 2.17 and Section 9.3 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly following receipt thereof.
If any payment hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.



     (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall
be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to such parties.



     (c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in Swingline Loans



29









 




and accrued interest thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Revolving Loans and
participations in and Swingline Loans; provided that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered, such participations shall
be rescinded and the purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement (including the
application of funds arising from the existence of a Defaulting Lender) or any payment obtained by
a Lender as consideration for the assignment of or sale of a participation in any of its Loans to
any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Borrower in the amount of such participation.




     (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.



     Section 2.19 Mitigation Obligations; Replacement of Lenders.



     (a) If any Lender requests compensation under Section 2.15, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.15 or Section 2.17, as the case may be, in the future and (ii) would not subject such Lender to
any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.



     (b) If any Lender requests compensation under Section 2.15, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the



30









 




account of any Lender pursuant to Section 2.17, or if any Lender is a Defaulting Lender, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.4), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding principal of its
Loans and participations in Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section 2.15 or payments
required to be made pursuant to Section 2.17, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply.




     Section 2.20 Increase in the Aggregate Commitments.



     (a) The Borrower may, not more than once in any year, by notice to the Administrative Agent,
request that the aggregate amount of the Commitments be increased by a minimum amount equal to
$100,000,000 or an integral multiple of $100,000,000 in excess thereof (each a “Commitment
Increase”), to be effective as of a date that is at least 90 days prior to the scheduled Maturity
Date then in effect (the “Increase Date”) as specified in the related notice to the Administrative
Agent; provided, however, that no Default shall have occurred and be continuing as of the date of
such request or as of the applicable Increase Date, or shall occur as a result thereof and,
provided, further, that at no time shall the total aggregate Commitments hereunder exceed
$1,500,000,000.



     (b) The Administrative Agent shall promptly notify the Lenders of a request by the Borrower
for a Commitment Increase, which notice shall include (i) the proposed amount of such requested
Commitment Increase, (ii) the proposed Increase Date and (iii) the date by which Lenders wishing to
participate in the Commitment Increase must commit to an increase in the amount of their respective
Commitments (the “Commitment Date”). Each Lender that is willing to participate in such requested
Commitment Increase (each an “Increasing Lender”) shall give written notice to the Administrative
Agent on or prior to the Commitment Date of the amount by which it is willing to increase its
Commitment. If the Lenders notify the Administrative Agent that they are willing to increase the
amount of their respective Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be allocated among the
Lenders willing to participate therein in such amounts as are agreed between the Borrower and the
Administrative Agent. The failure of any Lender to respond shall be deemed to be a refusal of such
Lender to increase its Commitment.



     (c) Promptly following each Commitment Date, the Administrative Agent shall notify the
Borrower as to the amount, if any, by which the Lenders are willing to participate in the requested
Commitment Increase. If the aggregate amount by which the Lenders are willing



31









 




to participate in any requested Commitment Increase on any such Commitment Date is less than
the requested Commitment Increase, then the Borrower may extend offers to one or more Persons
reasonably acceptable to the Administrative Agent (each, an “Eligible Assignee”) to participate in
any portion of the requested Commitment Increase that has not been committed to by the Lenders as
of the applicable Commitment Date; provided, however, that the Commitment of each such Eligible
Assignee shall be in an amount of $25,000,000 or an integral multiple of $1,000,000 in excess
thereof.




     (d) On each Increase Date, each Eligible Assignee that accepts an offer to participate in a
requested Commitment Increase in accordance with Section 2.20(c) (each such Eligible Assignee and
each Eligible Assignee that agrees to an extension of the Maturity Date in accordance with Section
2.21(c), an “Assuming Lender”) shall become a Lender party to this Agreement as of such Increase
Date and the Commitment of each Increasing Lender for such requested Commitment Increase shall be
so increased by such amount (or by the amount allocated to such Lender pursuant to the last
sentence of Section 2.20(b)) as of such Increase Date; provided, however, that the Administrative
Agent shall have received on or before such Increase Date the following, each dated such date:




     (i) (A) a certificate of the Borrower signed by an authorized officer of the Borrower
(1) certifying and attaching the resolutions adopted by the Board of Directors of the
Borrower or the Executive Committee of such Board approving the Commitment Increase and the
corresponding modifications to this Agreement, and (2) certifying that, before and after
giving effect to such increase, (x) the representations and warranties contained in Article
III and the other Loan Documents are true and correct on and as of the Increase Date, except
to the extent that such representations and warranties specifically refer to an earlier
date, in which case they are true and correct as of such earlier date, and except that for
purposes of this Section 2.20, the representations and warranties contained in Section
3.4(a) shall be deemed to refer to the most recent statements furnished pursuant to Section
5.1, and (y) no Default exists and (B) an opinion of counsel for the Borrower (which may be
in-house counsel) in form and substance satisfactory to the Administrative Agent;




     (ii) a joinder agreement from each Assuming Lender, if any, in form and substance
satisfactory to such Assuming Lender, the Borrower and the Administrative Agent (each a
“Joinder Agreement”), duly executed by such Assuming Lender, the Administrative Agent and
the Borrower; and




     (iii) confirmation from each Increasing Lender of the increase in the amount of its
Commitment in a writing satisfactory to the Borrower and the Administrative Agent.



     (e) On each Increase Date, upon fulfillment of the conditions set forth in Section 2.20(d), in
the event any Revolving Loans are then outstanding, (i) each relevant Increasing Lender and
Assuming Lender shall make available to the Administrative Agent such amounts in immediately
available funds as the Administrative Agent shall determine, for the benefit of the other Lenders,
as being required in order to cause, after giving effect to the applicable Commitment Increase and
the application of such amounts to make payments to such other Lenders, the Revolving Loans to be
held ratably by all Lenders as of such date in accordance



32









 




with their respective Applicable Percentages (after giving effect to the Commitment Increase),
(ii) the Borrower shall be deemed to have prepaid and reborrowed all outstanding Revolving Loans
made to it as of such Commitment Increase Date (with each such borrowing to consist of Revolving
Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower
in accordance with the requirements of Section 2.2) and (iii) the Borrower shall pay to the Lenders
the amounts, if any, payable under Section 2.16 as a result of such prepayment.




     (f) This Section shall supersede any provisions in Section 2.18 or Section 9.2 to the
contrary.



     Section 2.21 Extension of Maturity Date.



     (a) At least 45 days but not more than 60 days prior to the next Anniversary Date, the
Borrower, by written notice to the Administrative Agent, may request an extension of the Maturity
Date in effect at such time by one calendar year from its then scheduled expiration. The
Administrative Agent shall promptly notify each Lender of such request, and each Lender shall in
turn, in its sole discretion, not later than 30 days prior to such next Anniversary Date, notify
the Borrower and the Administrative Agent in writing as to whether such Lender will consent to such
extension. If any Lender shall fail to notify the Administrative Agent and the Borrower in writing
of its consent to any such request for extension of the Maturity Date at least 30 days prior to the
next Anniversary Date, such Lender shall be deemed to be a Declining Lender with respect to such
request. The Administrative Agent shall notify the Borrower not later than 25 days prior to such
next Anniversary Date of the decision of the Lenders regarding the Borrower’s request for an
extension of the Maturity Date.



     (b) If all of the Lenders consent in writing to any such request in accordance with subsection
(a) of this Section 2.21, the Maturity Date in effect at such time shall, effective as at such next
Anniversary Date (the “Extension Date”), be extended for one calendar year; provided that on each
Extension Date, no Default shall have occurred and be continuing, or shall occur as a consequence
thereof. If the total of the Commitments of the existing Lenders that have agreed so to extend
their Maturity Date and the additional Commitments of Eligible Assignees assumed in accordance with
subsection (c) of this Section 2.21 shall be more than 50% of the aggregate amount of the
Commitments in effect immediately prior to the existing Maturity Date, the Maturity Date in effect
at such time shall, effective as at the applicable Extension Date, be extended as to those Lenders
that so consented (each an “Extending Lender”) but shall not be extended as to any other Lender
(each a “Declining Lender”). To the extent that the Maturity Date is not extended as to any Lender
pursuant to this Section 2.21 and the Commitment of such Lender is not assumed in accordance with
subsection (c) of this Section 2.21 on or prior to the applicable Extension Date, the Commitment of
such Declining Lender shall automatically terminate in whole on such unextended Maturity Date
without any further notice or other action by the Borrower, such Lender or any other Person and any
outstanding Loans, together with accrued and unpaid interest, fees and other amounts due to such
Declining Lender shall be paid in full on such unextended Maturity Date; provided that such
Declining Lender’s rights under Section 2.15, Section 2.17 and Section 9.3 shall survive the
Maturity Date for such Lender as to matters occurring prior to such date. It is understood and
agreed that no Lender shall have any



33









 




obligation whatsoever to agree to any request made by the Borrower for any requested extension
of the Maturity Date.




     (c) If there are any Declining Lenders, the Borrower may arrange for one or more Extending
Lenders or other Eligible Assignees (each such Eligible Assignee that accepts an offer to assume a
Declining Lender’s Commitment as of the applicable Extension Date being an “Assuming Lender”) to
assume, effective as of the Extension Date, any Declining Lender’s Commitment and all of the
obligations of such Declining Lender under this Agreement thereafter arising, without recourse to
or warranty by, or expense to, such Declining Lender; provided, however, that the amount of the
Commitment of any such Assuming Lender as a result of such substitution shall in no event be less
than $50,000,000 unless the amount of the Commitment of such Declining Lender is less than
$50,000,000, in which case such Assuming Lender shall assume all of such lesser amount; and
provided further that:




     (i) any such Extending Lender or Assuming Lender shall have paid to such Declining
Lender (A) the aggregate principal amount of, and any interest accrued and unpaid to the
effective date of the assignment on, the outstanding Loans, if any, of such Declining Lender
plus (B) any accrued but unpaid fees owing to such Declining Lender as of the effective date
of such assignment;




     (ii) all additional costs reimbursements, expense reimbursements and indemnities
payable to such Declining Lender, and all other accrued and unpaid amounts owing to such
Declining Lender hereunder, as of the effective date of such assignment shall have been paid
to such Declining Lender; and




     (iii) with respect to any such Assuming Lender, the applicable processing and
recordation fee required under Section 9.4 for such assignment shall have been paid;



          provided further that such Declining Lender’s rights under Section 2.15, Section 2.17 and
Section 9.3 shall survive such substitution as to matters occurring prior to the date of
substitution. At least three Business Days prior to any Extension Date, (A) each such Assuming
Lender, if any, shall have delivered to the Borrower and the Administrative Agent an Assignment and
Assumption, in form and substance satisfactory to the Borrower and the Administrative Agent (an
“Assumption Agreement”), duly executed by such Assuming Lender, such Declining Lender, the Borrower
and the Administrative Agent, (B) any such Extending Lender shall have delivered confirmation in
writing satisfactory to the Borrower and the Administrative Agent as to the increase in the amount
of its Commitment and (C) each Declining Lender being replaced pursuant to this Section 2.21 shall
have delivered to the Administrative Agent any Note or Notes held by such Declining Lender. Upon
the payment or prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the
immediately preceding sentence, each such Extending Lender or Assuming Lender, as of the Extension
Date, will be substituted for such Declining Lender under this Agreement and shall be a Lender for
all purposes of this Agreement, without any further acknowledgment by or the consent of the other
Lenders, and the obligations of each such Declining Lender hereunder shall, by the provisions
hereof, be released and discharged.







34









 








     (d) If all of the Extending and Assuming Lenders (after giving effect to any assignments and
assumptions pursuant to subsection (c) of this Section 2.21) consent in writing to a requested
extension (whether by written consent pursuant to subsection (a) of this Section 2.21, by execution
and delivery of an Assumption Agreement or otherwise) not later than one Business Day prior to such
Extension Date, the Administrative Agent shall so notify the Borrower, and, so long as no Default
shall have occurred and be continuing as of such Extension Date, or shall occur as a consequence
thereof, the Maturity Date then in effect shall be extended for the additional one-year period as
described in subsection (a) of this Section 2.21, and all references in this Agreement, and in the
Notes, if any, to the “Maturity Date” shall, with respect to each Extending Lender and each
Assuming Lender for such Extension Date, refer to the Maturity Date as so extended. Promptly
following each Extension Date, the Administrative Agent shall notify the Lenders (including,
without limitation, each Assuming Lender) of the extension of the scheduled Maturity Date in effect
immediately prior thereto and shall thereupon record in the Register the relevant information with
respect to each such Extending Lender and each such Assuming Lender.



     Section 2.22 Defaulting Lenders.



     (a) Notwithstanding anything to the contrary contained in this Agreement, if any Lender
becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender,
to the extent permitted by applicable law:




     (i) Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or
consent with respect to this Agreement shall be restricted as set forth in the definition of
Required Lenders and in Section 9.2.




     (ii) Any payment of principal, interest, fees or other amounts received by the
Administrative Agent for the account of such Defaulting Lender (whether voluntary or
mandatory, at maturity, pursuant to Article VII or otherwise) shall be applied at such time
or times as may be determined by the Administrative Agent as follows: first, to the payment
of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to
the Swingline Lender hereunder; third, if so determined by the Administrative Agent or
requested by the Swingline Lender, to be held as Cash Collateral for future funding
obligations of such Defaulting Lender in respect of any participation in any Swingline Loan;
fourth, as the Borrower may request (so long as no Default exists), to the funding of any
Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as
required by this Agreement, as determined by the Administrative Agent; fifth, if so
determined by the Administrative Agent and the Borrower, to be held in a non-interest
bearing deposit account and released in order to satisfy obligations of such Defaulting
Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the
Lenders or the Swingline Lender as a result of any judgment of a court of competent
jurisdiction obtained by any Lender or the Swingline Lender against that Defaulting Lender
as a result of such Defaulting Lender’s breach of its obligations under this Agreement;
seventh, so long as no Default exists, to the payment of any amounts owing to the Borrower
as a result of any judgment of a court of competent jurisdiction obtained by the Borrower
against such Defaulting Lender as a result of such



35









 






Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such
Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided
that if (x) such payment is a payment of the principal amount of any Loans in respect of
which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans
were made at a time when the conditions set forth in Section 4.2 were satisfied or waived,
such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro
rata basis prior to being applied to the payment of any Loans of such Defaulting Lender.
Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.




     (iii) Any Defaulting Lender shall be entitled to receive any facility fee pursuant to
Section 2.12 for any period during which that Lender is a Defaulting Lender only to the
extent allocable to the sum of (1) the outstanding amount of the Revolving Loans funded by
it, and (2) its Applicable Percentage of the Swingline Loans for which it has provided Cash
Collateral pursuant to Section 2.22(c) (and the Borrower shall (A) be required to pay to the
Swingline Lender the amount of such fee allocable to its Fronting Exposure arising from that
Defaulting Lender, and (B) not be required to pay the remaining amount of the facility fee
that otherwise would have been required to have been paid to that Defaulting Lender).




     (iv) All or any part of such Defaulting Lender’s Swingline Exposure shall automatically
(effective on the day such Lender becomes a Defaulting Lender) be reallocated among the
non-Defaulting Lenders in accordance with their respective Applicable Percentages
(calculated without regard to such Defaulting Lender’s Commitment) but only to the extent
that (x) no Default shall have occurred and be continuing (and, unless the Borrower shall
have otherwise notified the Administrative Agent at the time, the Borrower shall be deemed
to have represented and warranted that such condition is satisfied at such time), and (y)
such reallocation does not cause the Revolving Credit Exposure of any non-Defaulting Lender
to exceed such non-Defaulting Lender’s Commitment.




     (v) If the reallocation described in clause (iv) above cannot, or can only partially,
be effected, the Borrower shall, without prejudice to any right or remedy available to it
hereunder or under law, within 2 Business Days following notice by the Administrative Agent,
Cash Collateralize such Defaulting Lender’s Swingline Exposure (after giving effect to any
partial reallocation pursuant to clause (iv) above) in accordance with the procedures set
forth in Section 2.22(c) for so long as such Swingline Loans are outstanding.



     (b) If the Borrower, the Administrative Agent and the Swingline Lender agree in writing in
their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting
Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective
date specified in such notice and subject to any conditions set forth therein (which may include
arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable,
purchase that portion of outstanding Loans of the other Lenders or take such other



36









 




actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans
and funded and unfunded participations in Swingline Loans to be held on a pro rata basis by the
Lenders in accordance with their Applicable Percentages (without giving effect to Section
2.22(a)(iv), whereupon such Lender will cease to be a Defaulting Lender; provided that no
adjustments will be made retroactively with respect to fees accrued or payments made by or on
behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that
except to the extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender’s having been a Defaulting Lender.




     (c) At any time that there shall exist a Defaulting Lender, within 2 Business Days upon the
request of the Administrative Agent or any Swingline Lender, the Borrower shall deliver to the
Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after
giving effect to Section 2.22(a)(iv) and any Cash Collateral provided by the Defaulting Lender).




     (i) All Cash Collateral (other than credit support not constituting funds subject to
deposit) shall be maintained in blocked, non-interest bearing deposit accounts with the
Administrative Agent. The Borrower, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit
of the Administrative Agent and the Lenders (including the Swingline Lender), and agrees to
maintain, a first priority security interest in all such cash, deposit accounts and all
balances therein, and all other property so provided as collateral pursuant hereto, and in
all proceeds of the foregoing, all as security for the obligations to which such Cash
Collateral may be applied pursuant to clause (ii) below. If at any time the Administrative
Agent determines that Cash Collateral is subject to any right or claim of any Person other
than the Administrative Agent as herein provided, or that the total amount of such Cash
Collateral is less than the applicable Fronting Exposure and other obligations secured
thereby, the Borrower or the relevant Defaulting Lender will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral
in an amount sufficient to eliminate such deficiency.




     (ii) Notwithstanding anything to the contrary contained in this Agreement, Cash
Collateral provided under any of this Section 2.22 in respect of Swingline Loans shall be
held and applied to the satisfaction of the specific Swingline Loans, obligations to fund
participations therein (including, as to Cash Collateral provided by a Defaulting Lender,
any interest accrued on such obligation) and other obligations for which the Cash Collateral
was so provided, prior to any other application of such property as may be provided for
herein.




     (iii) Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting
Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its
assignee)), or (ii) the Administrative Agent’s good faith determination that there exists
excess Cash Collateral; provided, however, (x) that Cash Collateral



37









 






furnished by or on behalf of a Loan Party shall not be released during the continuance
of a Default (and following application as provided in this Section 2.22 may be otherwise
applied in accordance with Section 2.18), and (y) the Person providing Cash Collateral and
the Swingline Lender may agree that Cash Collateral shall not be released but instead held
to support future anticipated Fronting Exposure or other obligations.



ARTICLE III




REPRESENTATIONS AND WARRANTIES



          The Borrower represents and warrants to the Lenders that:




     Section 3.1 Organization; Powers. Each of the Borrower and its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.



     Section 3.2 Authorization; Enforceability. The Transactions are within the Borrower’s
corporate powers and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.



     Section 3.3 Governmental Approvals; No Conflicts. The Transactions (a) do not require any
consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other organizational documents
of the Borrower or any of its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other instrument binding upon the
Borrower or any of its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries other than such violations,
defaults or payments that could not reasonably be expected to result in a Material Adverse Effect,
and (d) will not result in the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries.



     Section 3.4 Financial Condition; No Material Adverse Change.



     (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows as of and for the fiscal year ended April
2, 2010, reported on by KPMG LLP, independent public accountants. Such financial statements
present fairly, in all material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year end audit adjustments and the absence of footnotes in the
case of the statements referred to in clause (ii) above.



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     (b) Since April 2, 2010, there has been no material adverse change in the business, financial
condition or operations of the Borrower and its Subsidiaries, taken as a whole.



     Section 3.5 Properties.



     (a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests
in or rights to use, all its real and personal property material to its business, except for minor
defects in title that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes.



     (b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and the
use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



     Section 3.6 Litigation and Environmental Matters.



     (a) There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the
Borrower or any of its Subsidiaries (i) that could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that
involve this Agreement, any other Loan Document or the Transactions.



     (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.



     (c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.



     Section 3.7 Compliance with Laws and Agreements. Each of the Borrower and its Subsidiaries is
in compliance with all laws, regulations and orders of any Governmental Authority applicable to it
or its property and all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect. No Default has occurred and is continuing.



     Section 3.8 Investment Company Status. None of the Borrower, any Person Controlling the
Borrower, or any Subsidiary is or is required to be registered as an “investment company” under the
Investment Company Act of 1940.



39









 





     Section 3.9 Taxes. Each of the Borrower and its Subsidiaries has timely filed or caused to be
filed all Tax returns and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside
on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably
be expected to result in a Material Adverse Effect.



     Section 3.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events for which liability is reasonably expected to
occur, could reasonably be expected to result in a Material Adverse Effect.



     Section 3.11 Disclosure. The Borrower has disclosed to the Lenders all agreements and
instruments to which it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. Neither the Information Memorandum nor any of the other reports, financial
statements, certificates or other information furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so furnished), taken as a
whole, contains any material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time.



ARTICLE IV




CONDITIONS



     Section 4.1 Effective Date. The obligations of the Lenders to make Loans hereunder shall not
become effective until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 9.2):



     (a) The Administrative 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 Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.



     (b) The Administrative Agent shall have received a Note executed by the Borrower in favor of
each Lender requesting a Note.



     (c) The Administrative Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Fenwick & West LLP, counsel
for the Borrower, in substantially the form of Exhibit E hereto. The Borrower hereby requests such
counsel to deliver such opinion.



     (d) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,



40









 




existence and good standing of the Borrower, the authorization of the Transactions and any
other legal matters relating to the Borrower, this Agreement, the other Loan Documents or the
Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.




     (e) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed on behalf of the Borrower by the President, a Vice President or a Financial Officer of the
Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section
4.2.



     (f) The Administrative Agent shall have received a guaranty agreement (the “Guaranty”) in
substantially the form of Exhibit F hereto, executed by each of the Material Subsidiaries.



     (g) (i) All fees and expenses (including reasonable fees, charges and disbursements of counsel
to the Administrative Agent) required to be paid to the Administrative Agent and the Arrangers on
or before the Effective Date shall have been paid and (ii) all fees required to be paid to the
Lenders on or before the Effective Date shall have been paid.



     (h) The Administrative Agent shall have received evidence that the Existing Credit Agreement
has been or concurrently with the Effective Date is being paid in full and terminated.



     (i) The Administrative Agent shall have received, to the extent requested by any of the
Lenders, all documentation and other information required by bank regulatory authorities under
applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA
PATRIOT Act.



     The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and
such notice shall be conclusive and binding. Without limiting the generality of the provisions of
Article VIII, for purposes of determining compliance with the conditions specified in this Section
4.1, each Lender that has signed this Agreement 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 a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Effective Date specifying its objection
thereto.



     Section 4.2 Each Credit Event. The obligation of each Lender to make a Loan on the occasion
of any Borrowing, and the effectiveness of any Commitment Increase pursuant to Section 2.20 or any
Extension of the Maturity Date pursuant to Section 2.21, is subject to the satisfaction of the
following conditions:



     (a) The representations and warranties of the Borrower set forth in this Agreement (other
than, after the Effective Date, as set forth in Section 3.4(b) and Section 3.6(a) hereof) and the
other Loan Documents shall be true and correct on and as of the date of such Borrowing, except that
for purposes of this Section 4. 2, the representations and warranties contained in Section 3.4(a)
shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 5.1.



41









 





     (b) At the time of and immediately after giving effect to such Borrowing no Default shall have
occurred and be continuing.



     Each Borrowing, Commitment Increase and Extension of the Maturity Date shall be deemed to
constitute a representation and warranty by the Borrower that the conditions specified in
paragraphs (a) and (b) of this Section have been satisfied as of the date thereof.



ARTICLE V




AFFIRMATIVE COVENANTS



          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full, the Borrower covenants and
agrees with the Lenders that:




     Section 5.1 Financial Statements; Ratings Change and Other Information. The Borrower will
furnish to the Administrative Agent and each Lender:



     (a) within 90 days after the end of each fiscal year of the Borrower, its audited consolidated
balance sheet and related statements of operations, stockholders’ equity and cash flows as of the
end of and for such year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by KPMG LLP, or other independent public accountants of
recognized national standing (without a “going concern” or like qualification or exception and
without any qualification or exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied;



     (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, its consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of footnotes;



     (c) concurrently with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Borrower in substantially the form of Exhibit G attached
hereto (i) certifying as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken with respect thereto,
(ii) setting forth reasonably detailed calculations demonstrating compliance with Section 5.9 and
(iii) stating whether any change in GAAP or in the application thereof has occurred since the date
of the audited financial statements referred to in Section 3.4 and, if any such change has
occurred, specifying the effect of such change on the financial statements accompanying such
certificate;



42









 





     (d) concurrently with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such financial statements of any
Default (which certificate may be limited to the extent required by accounting rules or
guidelines);



     (e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the
Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be, provided, that such information shall
be deemed to have been delivered on the date on which such information has been posted on the
Borrower’s website on the Internet at http://www.symantec.com (or any successor page) or at
http://www.sec.gov; and



     (f) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement or any other Loan Document, as the Administrative Agent or any Lender may
reasonably request.



     Section 5.2 Notices of Material Events. The Borrower will furnish to the Administrative Agent
and each Lender prompt written notice of the following:



     (a) the occurrence of any Default;



     (b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a Material Adverse Effect;



     (c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that
have occurred, could reasonably be expected to result in a Material Adverse Effect; and



     (d) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.



     Each notice delivered under this Section shall be accompanied by a statement of a Financial
Officer or other executive officer of the Borrower setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken with respect
thereto.



     Section 5.3 Existence; Conduct of Business. The Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.2.



43









 





     Section 5.4 Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in
a Material Adverse Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.



     Section 5.5 Maintenance of Properties; Insurance. The Borrower will, and will cause each of
its Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in
good working order and condition, ordinary wear and tear excepted, and (b) maintain insurance
(either by way of self-insurance or with financially sound and reputable insurance companies) in
such amounts and against such risks as are customarily maintained by companies engaged in the same
or similar businesses operating in the same or similar locations.



     Section 5.6 Books and Records; Inspection Rights. The Borrower will, and will cause each of
its Subsidiaries to, keep proper books of record and account in which full, true and correct
entries are made of all dealings and transactions in relation to its business and activities as and
to the extent required by GAAP. The Borrower will, and will cause each of its Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender, upon reasonable
prior notice, to visit and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.



     Section 5.7 Compliance with Laws. The Borrower will, and will cause each of its Subsidiaries
to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to
it or its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



     Section 5.8 Use of Proceeds. The proceeds of the Loans will be used only for general
corporate purposes and stock repurchases under stock repurchase programs approved by the Borrower.
No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose
that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.



     Section 5.9 Consolidated Leverage Ratio. The Borrower shall maintain, as of the last day of
each fiscal quarter of the Borrower, commencing with the first fiscal quarter of the Borrower
following the Effective Date, a Consolidated Leverage Ratio for the Measurement Period ending on
such day, of not more than 3.0:1.0.



     Section 5.10 Additional Guarantors. If, as of the date of the most recently available
financial statements delivered pursuant to Section 5.1(a) or (b), as the case may be, any Person
shall have become a Material Subsidiary, then the Borrower shall, within 30 days after delivery of
such financial statements, cause such Material Subsidiary to enter into a Guaranty Accession,
unless (a) such Material Subsidiary is a direct or indirect subsidiary of any Person that is not a
Domestic Subsidiary or (b) in the case of any Person who shall become a Material Subsidiary as



44









 




a result of an acquisition by the Borrower or any of its Subsidiaries, the execution of such a
counterpart would violate any agreement to which such Material Subsidiary shall be party (and which
was not entered into upon or following such acquisition).




ARTICLE VI




NEGATIVE COVENANTS



          Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full, the Borrower covenants and agrees with
the Lenders that:




     Section 6.1 Liens. The Borrower will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired
by it, or assign or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:



     (a) Permitted Encumbrances;



     (b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the date
hereof and set forth in Schedule 6.1; provided that (i) such Lien shall not apply to any other
property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;



     (c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;



     (d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any
Subsidiary; provided that (i) such security interests and the Indebtedness secured thereby are
incurred prior to or within 90 days after such acquisition or the completion of such construction
or improvement, (ii) the Indebtedness secured thereby does not exceed 100% of the cost of
acquiring, constructing or improving such fixed or capital assets and (iii) such security interests
shall not apply to any other property or assets of the Borrower or any Subsidiary; and



     (e) other Liens in an aggregate amount not to exceed $50 million.



45









 





     Section 6.2 Fundamental Changes.



     (a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the stock of any of its
Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing:




     (i) any Person may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation;




     (ii) any Person may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary;




     (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to
the Borrower or to another Subsidiary;




     (iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith
that such liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; and




     (v) the Borrower or any of its Subsidiaries may sell any Subsidiary, or substantially
all of the capital stock or assets thereof, provided, that (i) any such sale is for fair
market value, determined in good faith by the Borrower (and, if approval by its board of
directors of the sale is required by applicable law or otherwise, such determination shall
be approved by its board of directors) and (ii) if such sale requires a release of all or
substantially all of the value of the Guaranty, each of the Lenders has provided its written
consent to the extent required by clause (v) of Section 9.2(b).



     (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related or
complementary thereto.



     Section 6.3 Subsidiary Indebtedness. Except for (i) Indebtedness of its Subsidiaries
described on Schedule 6.3 hereto, and (ii) Indebtedness of any Subsidiary of the Borrower acquired
after the Effective Date and Indebtedness of a Person merged or consolidated with or into the
Borrower or a Subsidiary of the Borrower after the Effective Date, which Indebtedness in each case
exists at the time of such acquisition, merger or consolidated and was not created or incurred in
contemplation of such acquisition, merger or consolidation, the Borrower will not permit the
aggregate principal amount of Indebtedness of its Subsidiaries (excluding any Indebtedness of a
Subsidiary owed to the Borrower or another Subsidiary, but including any Guarantee by a Subsidiary
of Indebtedness of the Borrower) at any time to exceed $250,000,000.



46









 





ARTICLE VII




EVENTS OF DEFAULT



          If any of the following events (each, an “Event of Default”) shall occur:




     (a) the Borrower shall fail to pay any principal of any Loan when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;



     (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under any of the Loan
Documents, when and as the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;



     (c) any representation or warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary in or in connection with this Agreement or any other Loan Document or any amendment or
modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection with this Agreement,
any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or
thereunder, shall prove to have been incorrect when made or deemed made;



     (d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.2(a), Section 5.3 (with respect to the Borrower’s existence), Section 5.8 or
Section 5.9 or in Article VI;



     (e) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained any of the Loan Documents (other than those specified in clause (a), (b) or (d) of this
Article of this Agreement), and such failure shall continue unremedied for a period of (i) 60 days
in the case of Section 5.1(a) or Section 5.1(b), or (ii) 30 days in all other cases, in each case
after notice thereof from the Administrative Agent to the Borrower (which notice will be given at
the request of any Lender);



     (f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise), after giving effect to any applicable grace period, if any, specified in the
agreement or instrument relating to such Material Indebtedness;



     (g) any event or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, after
giving effect to any applicable grace period, if any, specified in the agreement or instrument
relating to such Material Indebtedness; provided that this clause (g) shall not apply to



47









 




secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;




     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Law or
(ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Subsidiary or for a substantial part of its assets, and, in any
such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;



     (i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any Debtor Relief Law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;



     (j) the Borrower or any Subsidiary shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;



     (k) one or more judgments for the payment of money in excess of $50,000,000 individually or
$100,000,000 in the aggregate shall be rendered against the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce
any such judgment;



     (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect;



     (m) a Change in Control shall occur; or



     (n) any Loan Document, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or thereunder or satisfaction in full of all the obligations
hereunder or thereunder, ceases to be in full force and effect; or any Loan Party contests in any
manner the validity or enforceability of any Loan Document;


then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case






48









 







any principal not so declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to
the Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.




ARTICLE VIII




THE ADMINISTRATIVE AGENT



     Each of the Lenders hereby irrevocably appoints Wells Fargo as the Administrative Agent and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent and the Lenders, and the Borrower shall not have rights as a
third party beneficiary of any of such provisions.



     The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty
to account therefor to the Lenders.



     The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality of the foregoing,
the Administrative Agent: (a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) shall not have any duty to take
any discretionary action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.2
or in the other Loan Documents), and (c) shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that is communicated to
or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 9.2) or (ii) in the
absence of its own gross negligence or willful misconduct. The



49









 




Administrative Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or in connection herewith, (iii) the performance or observance of any of the covenants, agreements
or other terms or conditions set forth herein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.




     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed or sent by the proper Person.
The Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the making of a Loan, that by
its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume
that such condition is satisfactory to such Lender unless the Administrative Agent shall have
received notice to the contrary from such Lender prior to the making of such Loan. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.



     The Administrative Agent may perform any and all of its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.



     Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor, which shall be a bank with an office in the United
States, or an Affiliate of any such bank with an office in the United States. If no successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in




50












 




accordance with such notice and (1) the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this Article. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Article). The fees payable by the Borrower
to a successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 9.3 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while it was acting
as Administrative Agent.




     Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of their Related Parties
and based on such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document furnished hereunder or
thereunder.



     Anything herein to the contrary notwithstanding, none of the Arrangers or agents listed on the
cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of
the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a
Lender hereunder.



     The Lenders irrevocably authorize the Administrative Agent, at its option and in its
discretion to release any Guarantor from its obligations under the Guaranty if such Person ceases
to be a Subsidiary as a result of a transaction permitted hereunder. Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative
Agent’s authority to release any Guarantor from its obligations under the Guaranty pursuant to this
paragraph.



ARTICLE IX




MISCELLANEOUS



     Section 9.1 Notices.



     (a) Except in the case of notices and other communications expressly permitted to be given by
telephone (and subject to paragraph (b) below), all notices and other communications



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provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:





     (i) if to the Borrower, to it at 350 Ellis Street, Mountain View, CA 94043, Attention
of Treasury c/o Michael Seal (Telecopy No. (650) 527 5557), with a copy to General Counsel
(Telecopy No. (650) 429 9137);




     (ii) if to the Administrative Agent, to it at Wells Fargo Bank, National Association,
1525 W. W.T. Harris Blvd, Building 3A2, Mailcode NC 0680 Charlotte, North Carolina 28262,
Attention: Syndication Agency Services (Telephone: (704) 590 2706), (Telecopy: (704) 590
2782);




     (iii) if to the Swingline Lender, to it at Wells Fargo Bank, National Association, 1525
W. W.T. Harris Blvd, Building 3A2, Mailcode NC 0680 Charlotte, North Carolina 28262,
Attention: Syndication Agency Services (Telephone: (704) 590 2706), (Telecopy: (704) 590
2782); and




     (iv) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.




     Notices and other communications sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when received; notices
and other communications sent by telecopier shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient, shall be deemed
to have been given at the opening of business on the next business day for the recipient).
Notices and other communications delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such subsection (b).



     (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in
its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.



     (c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.



     (d) The Borrower agrees that the Administrative Agent may make the Communications (as defined
below) available to the Lenders by posting the Communications on SyndTrak or a substantially
similar electronic transmission system (the “Platform”). THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and
expressly disclaim liability for errors or omissions in the communications effected thereby (the
“Communications”). No warranty of any



52









 




kind, express, implied or statutory, including 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 any Agent Party in connection with the Communications or the Platform. In no
event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to any Loan Party, any Lender or any other Person or entity for
damages of any kind, including direct or indirect, special, incidental or consequential damages,
losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the
Administrative Agent’s transmission of Communications through the Platform.




     Section 9.2 Waivers; Amendments.



     (a) No failure or delay by the Administrative Agent or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent and the Lenders hereunder are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or any other Loan Document or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the generality of the foregoing, the making of a
Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative
Agent or any Lender may have had notice or knowledge of such Default at the time.



     (b) No amendment or waiver of any provision of this Agreement or any other Loan Document, and
no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective
unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall: (i) extend or increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of each Lender affected thereby;
provided, however, that notwithstanding clause (ii) or (iii) of this Section 9.2(b), only the
consent of the Required Lenders shall be necessary (A) to amend Section 2.13(c) or to waive any
obligation of the Borrower to pay interest at the default rate set forth therein or (B) to amend
any financial covenant hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or to reduce any fee payable
hereunder, (iv) change Section 2.18(b), Section 2.18(c) or any other Section hereof providing for
the ratable treatment of the Lenders, in each case in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each Lender, (v) release all
or substantially all of the value of the Guaranty, without the written consent of each Lender,
except to the extent the release of any Guarantor is permitted pursuant to



53









 




Article VIII (in which case such release may be made by the Administrative Agent acting
alone), (vi) change any of the provisions of this Section or the definition of “Required Lenders”
or any other provision hereof specifying the number or percentage of Lenders required to waive,
amend or modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender or (vii) waive any condition set forth in Section 4.1
(other than Section 4.1(g)(i)), or, in the case of the any Loans made on the Effective Date,
Section 4.2, without the written consent of each Lender. Notwithstanding anything to the contrary
herein, (i) no such agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or the Swingline Lender hereunder without the prior written consent of the
Administrative Agent or the Swingline Lender, as the case may be, (ii) no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent hereunder (and any
amendment, waiver or consent which by its terms requires the consent of all Lenders or each
affected Lender may be effected with the consent of the applicable Lenders other than Defaulting
Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended
without the consent of such Lender and (y) any waiver, amendment or modification requiring the
consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more
adversely than other affected Lenders shall require the consent of such Defaulting Lender and (iii)
if the Administrative Agent and the Borrower shall have jointly identified (each in its sole
discretion) an obvious error or omission of a technical or immaterial nature, in each case, in any
provision of the Loan Documents, then the Administrative Agent and the applicable Loan Parties
shall be permitted to amend such provision and such amendment shall become effective without any
further action or consent of any other party to any Loan Document if the same is not objected to in
writing by the Required Lenders within five Business Days following the posting of such amendment
to the Lenders.




     Section 9.3 Expenses; Indemnity; Damage Waiver.



     (a) The Borrower shall pay (i) all reasonable and documented out of pocket expenses incurred
by the Administrative Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the syndication of the
credit facilities provided for herein, the preparation and (to the extent that the Administrative
Agent has notified the Borrower that it is incurring such out of pocket expenses) administration of
this Agreement, any other Loan Document or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any
Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent
or any Lender, in connection with the enforcement or protection of its rights in connection with
this Agreement or any other Loan Document, including its rights under this Section, or in
connection with the Loans made hereunder, including all such out-of pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans.



     (b) The Borrower shall indemnify the Administrative Agent and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party
arising out of, in connection with, or as a result of (i)



54









 




the execution or delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other transactions
contemplated hereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and
its Related Parties only, the administration of this Agreement and the other Loan Documents (ii)
any Loan or the use of the proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.




     (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or the Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent or the Swingline Lender, as the case may
be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or the Swingline Lender in its capacity as
such.



     (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the Transactions or any Loan or the use of the proceeds thereof. No
Indemnitee shall be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed to such unintended recipients by such Indemnitee through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than
for direct or actual damages resulting from the gross negligence or willful misconduct of such
Indemnitee as determined by a final and nonappealable judgment of a court of competent
jurisdiction.



     (e) All amounts due under this Section shall be payable promptly after written demand
therefore.



     Section 9.4 Successors and Assigns.



     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void) and (ii) no Lender may assign or



55









 




otherwise transfer its rights or obligations hereunder except in accordance with this Section.
Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns permitted hereby,
Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.




     (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:




     (A) the Borrower, provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an
Event of Default has occurred and is continuing, any other assignee; and




     (B) the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of any Commitment to an assignee that is
a Lender with a Commitment immediately prior to giving effect to such assignment.




     (ii) Assignments shall be subject to the following additional conditions:




     (A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $10,000,000 (or a greater amount that is an integral multiple
of $1,000,000) unless each of the Borrower and the Administrative Agent otherwise
consent, provided that no such consent of the Borrower shall be required if an Event
of Default has occurred and is continuing;




     (B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement,
provided that this clause shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender’s rights and obligations in respect
of one Class of Commitments or Loans;




     (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500;




     (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more Credit Contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower and its



56









 






Related Parties or its securities) will be made available and who may receive
such information in accordance with the assignee’s compliance procedures and
applicable laws, including Federal and state securities laws;




     (E) No such assignment shall be made to (i) any Loan Party nor any Affiliate of
a Loan Party or (ii) any Defaulting Lender or any of its subsidiaries, or any
Person, who, upon becoming a Lender hereunder, would constitute any of the foregoing
Persons described in this clause (ii); and




     (F) In connection with any assignment of rights and obligations of any
Defaulting Lender hereunder, no such assignment shall be effective unless and until,
in addition to the other conditions thereto set forth herein, the parties to the
assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be
outright payment, purchases by the assignee of participations or subparticipations,
or other compensating actions, including funding, with the consent of the Borrower
and the Administrative Agent, the applicable pro rata share of Loans previously
requested but not funded by the Defaulting Lender, to each of which the applicable
assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full
all payment liabilities then owed by such Defaulting Lender to the Administrative
Agent or any Lender hereunder (and interest accrued thereon), and (y) acquire (and
fund as appropriate) its full pro rata share of all Loans and participations in
Swingline Loans in accordance with its Applicable Percentage. Notwithstanding the
foregoing, in the event that any assignment of rights and obligations of any
Defaulting Lender hereunder shall become effective under applicable Law without
compliance with the provisions of this paragraph, then the assignee of such interest
shall be deemed to be a Defaulting Lender for all purposes of this Agreement until
such compliance occurs.



          For the purposes of this Section 9.4(b), the term “Approved Fund” has the following meaning:





     “Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in
the ordinary course of its business and that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.




     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of



57









 






Section 2.15, Section 2.16, Section 2.17 and Section 9.3). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this
Section 9.4 shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of this
Section.




     (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive,
and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.




     (v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.5(c), Section 2.6(d) or (e), Section
2.7(b), Section 2.18(d) or Section 9.3(c), the Administrative Agent shall have no obligation
to accept such Assignment and Assumption and record the information therein in the Register
unless and until such payment shall have been made in full, together with all accrued
interest thereon. No assignment shall be effective for purposes of this Agreement unless it
has been recorded in the Register as provided in this paragraph.



     (c) (i) Any Lender may, without the consent of, or notice to, the Borrower, the Administrative
Agent or the Swingline Lender, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that
such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in the first proviso to Section 9.2(b) that affects
such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of



58









 




Section 2.15, Section 2.16 and Section 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.8 as though
it were a Lender, provided such Participant agrees to be subject to Section 2.18(c) as though it
were a Lender.





     (ii) A Participant shall not be entitled to receive any greater payment under Section
2.15 or Section 2.17 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent. A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.17 unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.17(e)
as though it were a Lender.



     (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.



     Section 9.5 Survival. All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto
and shall survive the execution and delivery of this Agreement and the making of any Loans,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended hereunder, and shall
continue in full force and effect as long as the principal of or any accrued interest on any Loan
or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long
as the Commitments have not expired or terminated. The provisions of Section 2.15, Section 2.16,
Section 2.17 and Section 9.3 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans,
the expiration or termination of the Commitments, the resignation of the Administrative Agent or
the Swing Line Lender, the replacement of any Lender, or the termination of this Agreement or any
provision hereof.



     Section 9.6 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent 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. Except as provided in Section 4.1, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts



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hereof which, when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy or other electronic imaging means shall be effective as delivery of a
manually executed counterpart of this Agreement.




     Section 9.7 Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction. Without
limiting the foregoing provisions of this Section 9.7, if and to the extent that the enforceability
of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor
Relief Laws, as determined in good faith by the Administrative Agent or the Swingline Lender, as
applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.



     Section 9.8 Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender and each of its Affiliates 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) at any time held by, and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Borrower against any of and
all the obligations of the Borrower now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement
and although such obligations may be unmatured; provided that in the event that any Defaulting
Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over
immediately to the Administrative Agent for further application in accordance with the provisions
of Section 2.22 and, pending such payment, shall be segregated by such Defaulting Lender from its
other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders,
and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement
describing in reasonable detail the obligations owing to such Defaulting Lender as to which it
exercised such right of setoff. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Lender may have. Each
Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not affect the validity of
such setoff and application.



     Section 9.9 Governing Law; Jurisdiction; Consent to Service of Process.



     (a) This Agreement shall be construed in accordance with and governed by the law of the State
of New York.



     (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action



60









 




or proceeding may be heard and determined in such New York State or, to the extent permitted
by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right
that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement against the Borrower or its properties in the courts of any
jurisdiction.




     (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



     (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.1. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.



     Section 9.10 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 9.11 Headings. Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this Agreement.



     Section 9.12 Confidentiality.



     (a) Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (i) to its and its
Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and
other advisors, or to any credit insurance provider relating to the Borrower and its obligations
(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), (ii)
to the extent requested by any regulatory authority, (iii) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (iv) to any other party to this
Agreement, (v) in connection with the exercise of any remedies hereunder or any



61









 




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,
to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (B) any actual or prospective counterparty (or
its advisors) to any swap or derivative transaction relating to the Borrower and its obligations,
(vii) with the consent of the Borrower or (viii) to the extent such Information (A) becomes
publicly available other than as a result of a breach of this Section or (B) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, “Information” means all information received from the
Borrower relating to the Borrower or its business, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure
by the Borrower; provided that, in the case of information received from the Borrower after the
date hereof, such information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.




     (b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.



     (c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER
OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS RELATED PARTIES OR ITS SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND
THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT
CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE
WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.



     Section 9.13 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at
any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable
law, the rate of interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such



62









 




Loan but were not payable as a result of the operation of this Section shall be cumulated and
the interest and Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefore) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.




     Section 9.14 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
Transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arrangers are arm’s-length
commercial transactions between the Borrower and its Affiliates, on the one hand, and the
Administrative Agent and the Arrangers, on the other hand, (B) the Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of
the Transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the
Administrative Agent and the Arrangers is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting
as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person
and (B) neither the Administrative Agent nor any Arranger has any obligation to the Borrower or any
of its Affiliates with respect to the Transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and
the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and neither the
Administrative Agent nor any Arranger has any obligation to disclose any of such interests to the
Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and
releases any claims that it may have against the Administrative Agent and the Arrangers with
respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect
of any transaction contemplated hereby.



     Section 9.15 Electronic Execution of Assignments and Certain Other Documents. The words
“execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in
any amendment or other modification hereof (including waivers and consents) shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed signature or the use of
a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     Section 9.16 USA PATRIOT Act. Each Lender that is subject to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby
notifies the Borrower that pursuant to the requirements of the 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 such Lender to identify the Borrower
in accordance with the Act.



63









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	SYMANTEC CORPORATION, as Borrower

 	 
	 	By  	/s/ James Beer
 	 
	 	 	Name:  	James Beer 	 
	 	 	Title:  	Executive Vice President & Chief
Financial Officer 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement




 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent, as Swingline Lender and as a
Lender

 	 
	 	By  	/s/ Karen Byler
 	 
	 	 	Name:  	Karen Byler 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement




 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as Co-Syndication
 Agent and as
a Lender

 	 
	 	By  	/s/ Jeffrey P. Mills
 	 
	 	 	Name:  	Jeffrey P. Mills 	 
	 	 	Title:  	Assistant Vice President 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement





 









 








	 	 	 	 	 
	 	CITIBANK, N.A., as Co-Syndication Agent and as a

Lender

 	 
	 	By  	/s/ Kevin Ege
 	 
	 	 	Name:  	Kevin Ege 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement





 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as Co-Documentation Agent
and as a Lender

 	 
	 	By  	/s/ Peter Thauer
 	 
	 	 	Name:  	Peter Thauer 	 
	 	 	Title:  	Executive Director 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement





 









 








	 	 	 	 	 
	 	MORGAN STANLEY SENIOR FUNDING, INC., as

Co-Documentation Agent

 	 
	 	By  	/s/ Ryan Vetsch
 	 
	 	 	Name:  	Ryan Vetsch 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement




 









 








	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A., as a Lender

 	 
	 	By  	/s/ Ryan Vetsch
 	 
	 	 	Name:  	Ryan Vetsch 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement





 









 








	 	 	 	 	 
	 	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender

 	 
	 	By  	/s/ Judith E. Smith
 	 
	 	 	Name:  	Judith E. Smith 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By  	                  /s/ Christopher Reo Day
 	 
	 	 	Name:  	Christopher Reo Day 	 
	 	 	Title:  	Associate 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement





 









 








	 	 	 	 	 
	 	UBS LOAN FINANCE LLC, as a Lender

 	 
	 	By  	/s/ Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director 	 
	 
	 	 	 
	 	By  	               /s/ Mary E. Evans
 	 
	 	 	Name:  	Mary E. Evans 	 
	 	 	Title:  	Associate Director 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement




 









 








	 	 	 	 	 
	 	BNP PARIBAS, as a Lender

 	 
	 	By  	/s/ Mathew Harvey
 	 
	 	 	Name:  	Mathew Harvey 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By  	                  /s/ Yudesh Sohan
 	 
	 	 	Name:  	Yudesh Sohan 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement




 









 








	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By  	/s/ Lawrence Li
 	 
	 	 	Name:  	Lawrence Li 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement





 









 








	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD., as a Lender

 	 
	 	By  	/s/ Bertram H. Tang
 	 
	 	 	Name:  	Bertram H. Tang 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Signature Page to Symantec Corporation 2010 Credit Agreement