exv10w1



 





Exhibit 10.1



EXECUTION COPY




U.S. $500,000,000




FIVE YEAR CREDIT AGREEMENT




Dated as of March 22, 2007




Among




INTUIT INC.



as Borrower




and




THE INITIAL LENDERS NAMED HEREIN

as Initial Lenders




and




CITICORP USA, INC.



as Administrative Agent




and




JPMORGAN CHASE BANK, N.A.

as Syndication  Agent




and




BANK OF AMERICA, N.A.

BNP PARIBAS

and

MORGAN STANLEY BANK

as Co-Documentation Agents




and




THE BANK OF NOVA SCOTIA

as Lead Managing Agent




and




CITIGROUP GLOBAL MARKETS INC.

and

J.P. MORGAN SECURITIES INC.

as Arrangers




 









 





	 	 	 	 	 	 	 	 	 
	ARTICLE I	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 1.01.
	 	Certain Defined Terms
	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 1.02.
	 	Computation of Time Periods
	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 1.03.
	 	Accounting Terms
	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.01.
	 	The Advances and Letters of Credit
	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.02.
	 	Making the Advances
	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.03.
	 	Issuance of and Drawings and Reimbursement Under Letters of Credit
	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.04.
	 	Fees
	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.05.
	 	Optional Termination or Reduction of the Commitments
	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.06.
	 	Repayment of Advances and Letter of Credit Drawings
	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.07.
	 	Interest on Advances
	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.08.
	 	Interest Rate Determination
	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.09.
	 	Optional Conversion of Advances
	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.10.
	 	Optional Prepayments of Advances
	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.11.
	 	Increased Costs
	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.12.
	 	Illegality
	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.13.
	 	Payments and Computations
	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.14.
	 	Taxes
	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.15.
	 	Sharing of Payments, Etc.
	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.16.
	 	Evidence of Debt
	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.17.
	 	Use of Proceeds
	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.18.
	 	Increase in the Aggregate Commitments
	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.19.
	 	Extension of Termination Date
	 	 	22	 






i









 





	 	 	 	 	 	 	 	 	 
	ARTICLE III	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 3.01.
	 	Conditions Precedent to Effectiveness of Section 2.01
	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 3.02.
	 	Conditions Precedent to Each Borrowing, Issuance, Commitment Increase
and Extension Date.
	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 3.03.
	 	Determinations Under Section 3.01
	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 4.01.
	 	Representations and Warranties of the Borrower
	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 5.01.
	 	Affirmative Covenants
	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 5.02.
	 	Negative Covenants
	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 5.03.
	 	Financial Covenants
	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 6.01.
	 	Events of Default
	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 6.02.
	 	Actions in Respect of the Letters of Credit upon Default
	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.01.
	 	Authorization and Action
	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.02.
	 	Agent’s Reliance, Etc.
	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.03.
	 	CUSA and Affiliates
	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.04.
	 	Lender Credit Decision
	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.05.
	 	Indemnification
	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.06.
	 	Successor Agent
	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.07.
	 	Other Agents.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	35	 
	ARTICLE VIII	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.01.
	 	Amendments, Etc.
	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.02.
	 	Notices, Etc.
	 	 	35	 






ii









 





	 	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.03.
	 	No Waiver; Remedies
	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.04.
	 	Costs and Expenses
	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.05.
	 	Right of Set-off
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.06.
	 	Binding Effect
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.07.
	 	Assignments and Participations
	 	 	38	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.08.
	 	Confidentiality
	 	 	39	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.09.
	 	Governing Law
	 	 	40	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.10.
	 	Execution in Counterparts
	 	 	40	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.11.
	 	Jurisdiction, Etc.
	 	 	40	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.12.
	 	No Liability of the Issuing Banks
	 	 	40	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.13.
	 	Patriot Act Notice
	 	 	41	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.14.
	 	Waiver of Jury Trial
	 	 	42	 






iii









 





	 	 	 	 	 
	Schedules
	 	 	 	 
	 
	 	 	 	 
	Schedule I — List of Applicable Lending Offices
	 
	 	 	 	 
	Schedule 5.02(d) — Existing Subsidiary Debt
	 
	 	 	 	 
	Exhibits
	 	 	 	 
	 
	 	 	 	 
	Exhibit A

	 	-
	 	Form of Note
	 
	 	 	 	 
	Exhibit B

	 	-
	 	Form of Notice of Borrowing
	 
	 	 	 	 
	Exhibit C

	 	-
	 	Form of Assignment and Acceptance
	 
	 	 	 	 
	Exhibit D

	 	-
	 	Form of Opinion of Counsel for the Borrower







iv









 








FIVE YEAR CREDIT AGREEMENT




Dated as of March 22, 2007




          INTUIT INC., a Delaware corporation (the “Borrower”), the banks, financial
institutions and other institutional lenders (the “Initial Lenders”) and issuers of letter
of credit (the “Initial Issuing Banks”) listed on the signature pages hereof, JPMORGAN
CHASE BANK, N.A., as syndication agent, and CITICORP USA, INC. (“CUSA”), as administrative
agent (the “Agent”) for the Lenders (as hereinafter defined), agree as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




          SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):




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




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




     “Agent’s Account” means the account of the Agent maintained by the Agent at
Citibank at its office at 388 Greenwich Street, New York, New York 10013, Account No.
36852248, Attention: Bank Loan Syndications.




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




     “Applicable Margin” means (a) for Base Rate Advances as of any date, 0% per
annum and (b) for Eurodollar Rate Advances as of any date, a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as set forth below:



	 	 	 	 	 
	Public Debt Rating	 	Applicable Margin for
	S&P/Moody’s	 	Eurocurrency Rate Advances
	Level 1
	 	 	 	 
	A- or A3 or above
	 	 	0.180	%
	Level 2
	 	 	 	 
	BBB+ or Baa1
	 	 	0.270	%
	Level 3
	 	 	 	 
	BBB or Baa2
	 	 	0.350	%
	Level 4
	 	 	 	 
	BBB- or Baa3
	 	 	0.425	%
	Level 5
	 	 	 	 
	Lower than Level 4
	 	 	0.575	%







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



 









 





	 	 	 	 	 
	Public Debt Rating	 	Applicable
	S&P/Moody’s	 	Percentage
	Level 1
	 	 	 	 
	A- or A3 or above
	 	 	0.070	%
	Level 2
	 	 	 	 
	BBB+ or Baa1
	 	 	0.080	%
	Level 3
	 	 	 	 
	BBB or Baa2
	 	 	0.100	%
	Level 4
	 	 	 	 
	BBB- or Baa3
	 	 	0.125	%
	Level 5
	 	 	 	 
	Lower than Level 4
	 	 	0.175	%







     “Applicable Utilization Fee” means, as of any date that the aggregate principal
amount of the Advances plus the aggregate Available Amount of the Letters of Credit
outstanding exceed 50% of the aggregate Commitments, 0.05% per annum.




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




     “Assuming Lender” has the meaning specified in Section 2.18(d).




     “Assumption Agreement” has the meaning specified in Section 2.18(d)(ii).




     “Available Amount” of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming compliance
at such time with all conditions to drawing).




     “Base Rate” means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:




     (a) the rate of interest announced publicly by Citibank in New York, New York,
from time to time, as Citibank’s base rate;




     (b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no nearest 1/4
of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per annum, plus (ii) the
rate obtained by dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly on each Monday
(or, if such day is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be suspended or terminated,
on the basis of quotations for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages specified during
such three-week period by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in the United
States, plus (iii) the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the then



2









 







current annual assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar deposits of Citibank in the
United States; and




     (c) 1/2 of one percent per annum above the Federal Funds Rate.




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




     “Borrower Information” has the meaning specified in Section 8.08.




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




     “Business Day” means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day relates to
any Eurodollar Rate Advances, on which dealings are carried on in the London interbank
market.




     “Citibank” means Citibank, N.A.




     “Commitment” means a Revolving Credit Commitment or a Letter of Credit
Commitment.




     “Commitment Date” has the meaning specified in Section 2.18(b).




     “Commitment Increase” has the meaning specified in Section 2.18(a).




     “Consenting Lender” has the meaning specified in Section 2.19(b).




     “Consolidated” refers to the consolidation of accounts in accordance with GAAP.




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




     “Debt” of any Person 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 trade payables incurred in the ordinary course of
business of such Person that are (i) not overdue by more than 60 days or (ii) contested in
good faith by appropriate proceedings and as to which appropriate reserves are maintained by
such Person), (c) all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all obligations of such Person 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 obligations of such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations, contingent or
otherwise, of such Person in respect of acceptances, letters of credit or similar extensions
of credit, (g) all net obligations of such Person in respect of Hedge Agreements entered
into with a particular counterparty (determined as of any date as the amount such Person
would be required to pay to its counterparty in accordance with the terms thereof as if
terminated on such date of determination), (h) all Debt of others referred to in clauses (a)
through (g) above or clause (i) below and other payment obligations (collectively,
“Guaranteed Debt”) guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person through an agreement (1) to
pay or purchase such Guaranteed Debt or to advance or supply funds for the payment or
purchase of such Guaranteed Debt, (2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Guaranteed Debt or to assure the holder of such Guaranteed Debt
against loss, (3) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such property is
received or such services are rendered) or (4) otherwise to assure a creditor against loss,
and (i) all Debt



3









 







referred to in clauses (a) through (h) above (including Guaranteed Debt) secured by (or
for which the holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become liable for
the payment of such Debt.




     “Debt for Borrowed Money” means, as at any date of determination, all items
that, in accordance with GAAP, would be classified as indebtedness on a Consolidated balance
sheet of the Borrower and its Subsidiaries.




     “Default” means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.




     “Disclosed Litigation” has the meaning specified in Section 3.01(b).




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




     “EBITDA” means, for any period, net income (or net loss) plus the sum
of (a) interest expense, (b) income tax expense, (c) depreciation expense, (d) amortization
expense, (e) non-cash extraordinary losses (including, without limitation, charges for
impairment of goodwill) and (f) share based non-cash compensation expense, and minus
the sum of (x) non-cash extraordinary gains and (y) interest income, in each case determined
in accordance with GAAP for such period.




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




     “Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender; and
(iii) any other Person approved by the Agent, each Issuing Bank and, unless an Event of
Default has occurred and is continuing at the time any assignment is effected in accordance
with Section 8.07, the Borrower, such approval not to be unreasonably withheld or delayed;
provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.




     “Environmental Action” means any action, suit, demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement arising pursuant to or based
upon any Environmental Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.




     “Environmental Law” means any federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.




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




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



4









 






     “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a
member of the Borrower’s controlled group, or under common control with the Borrower, within
the meaning of Section 414 of the Internal Revenue Code.




     “ERISA Event” means (a) (i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC, or (ii) the requirements
of subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within
the following 30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate
such Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations
at a facility of the Borrower or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption
of an amendment to a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of
a trustee to administer, a Plan.




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




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




     “Eurodollar Rate” means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate
per annum obtained by dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Moneyline Telerate Markets Page 3750 (or any
successor page) as the London interbank offered rate for deposits in U.S. dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period or, if for any reason such
rate is not available, the average (rounded upward to the nearest whole multiple of 1/16 of
1% per annum, if such average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal office of each of the Reference Banks
in London, England to prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an amount substantially
equal to such Reference Bank’s Eurodollar Rate Advance comprising part of such Borrowing to
be outstanding during such Interest Period and for a period equal to such Interest Period by
(b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period. If the Moneyline Telerate Markets Page 3750 (or any successor page) is
unavailable, the Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.




     “Eurodollar Rate Advance” means an Advance that bears interest as provided in
Section 2.07(a)(ii).



5









 






     “Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing means the reserve percentage applicable
two Business Days before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate Advances is determined)
having a term equal to such Interest Period.




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




     “Extension Date” has the meaning specified in Section 2.19(b).




     “Federal Funds Rate” means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate
is not so published for any day that is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.




     “GAAP” has the meaning specified in Section 1.03.




     “Hazardous Materials” means (a) petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.




     “Hedge Agreements” means interest rate swap, cap or collar agreements, interest
rate future or option contracts, currency swap agreements, currency future or option
contracts and other similar interest rate or exchange rate hedging agreements.




     “Increase Date” has the meaning specified in Section 2.18(a).




     “Increasing Lender” has the meaning specified in Section 2.18(b).




     “Information Memorandum” means the information memorandum dated February 13,
2007 used by the Agent in connection with the syndication of the Commitments.




     “Interest Period” means, for each Eurodollar Rate Advance comprising part of
the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the
date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending
on the last day of the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the Borrower pursuant
to the provisions below. The duration of each such Interest Period shall be one, two, three
or six months, and subject to clause (c) of this definition, nine months or other period, as
the Borrower may, upon notice received by the Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest Period, select;
provided, however, that:




     (a) the Borrower may not select any Interest Period that ends after any
Termination Date unless, after giving effect to any reduction of the Revolving
Credit Commitments on such Terminating Date, the aggregate principal amount of Base
Rate Advances and of Eurodollar Rate



6









 







Advances having Interest Period that end on or prior to such Termination Date
shall be at least equal to the aggregate principal amount of Advances due and
payable on or prior to such date;




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




     (c) the Borrower shall not be entitled to select an Interest Period having
duration of nine months or other period unless, by 2:00 P.M. (New York City time) on
the third Business Day prior to the first day of such Interest Period, each Lender
notifies the Agent that such Lender will be providing funding for such Borrowing
with such Interest Period (the failure of any Lender to so respond by such time
being deemed for all purposes of this Agreement as an objection by such Lender to
the requested duration of such Interest Period); provided that, if any or
all of the Lenders object to the requested duration of such Interest Period, the
duration of the Interest Period for such Borrowing shall be one, two, three or six
months, as specified by the Borrower in the applicable Notice of Borrowing as the
desired alternative to an Interest Period of nine months or such other period;




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




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




     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.




     “Issuance” with respect to any Letter of Credit means the issuance, amendment,
renewal or extension of such Letter of Credit.




     “Issuing Bank” means an Initial Issuing Bank or any Eligible Assignee to which
a portion of the Letter of Credit Commitment hereunder has been assigned pursuant to Section
8.07 or any other Lender so long as such Eligible Assignee or Lender expressly agrees to
perform in accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as an Issuing Bank and notifies the Agent of
its Applicable Lending Office (which information shall be recorded by the Agent in the
Register), for so long as such Initial Issuing Bank, Eligible Assignee or Lender, as the
case may be, shall have a Letter of Credit Commitment.




     “L/C Cash Deposit Account” means an interest bearing cash deposit account to be
established and maintained by the Agent, over which the Agent shall have sole dominion and
control, upon terms as may be satisfactory to the Agent.




     “L/C Related Documents” has the meaning specified in Section 2.06(b)(i).




     “Lenders” means each Initial Lender, each Issuing Bank, each Assuming Lender
that shall become a party hereto pursuant to Section 2.18 or 2.19 and each Person that shall
become a party hereto pursuant to Section 8.07.




     “Letter of Credit” has the meaning specified in Section 2.01(b).



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     “Letter of Credit Agreement” has the meaning specified in Section 2.03(a).




     “Letter of Credit Commitment” means, with respect to each Issuing Bank, the
obligation of such Issuing Bank to issue Letters of Credit for the account of the Borrower
and its Subsidiaries in (a) the Dollar amount set forth opposite the Issuing Bank’s name on
Schedule I hereto under the caption “Letter of Credit Commitment” or (b) if such Issuing
Bank has entered into one or more Assignment and Acceptances, the amount set forth for such
Issuing Bank in the Register maintained by the Agent pursuant to Section 8.07(d) as such
Issuing Bank’s “Letter of Credit Commitment”, in each case as such amount may be reduced
prior to such time pursuant to Section 2.05.




     “Letter of Credit Facility” means, at any time, an amount equal to the least of
(a) the aggregate amount of the Issuing Banks’ Letter of Credit Commitments at such time,
(b) $100,000,000 and (c) the aggregate amount of the Revolving Credit Commitments, as such
amount may be reduced at or prior to such time pursuant to Section 2.05.




     “Lien” means any lien, security interest or other charge or encumbrance of any
kind, including, without limitation, the lien or retained security title of a conditional
vendor and any easement, right of way or other encumbrance on title to real property.




     “Material Adverse Change” means any material adverse change in the business,
financial condition or operations of the Borrower and its Subsidiaries taken as a whole.




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




     “Moody’s” means Moody’s Investors Service, Inc.




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




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




     “Non-Consenting Lender” has the meaning specified in Section 2.19(b).




     “Note” means a promissory note of the Borrower payable to the order of any
Lender, delivered pursuant to a request made under Section 2.16 in substantially the form of
Exhibit A hereto, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Advances made by such Lender.




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




     “Notice of Issuance” has the meaning specified in Section 2.03(a).




     “Patriot Act” means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56,
signed into law October 26, 2001.




     “PBGC” means the Pension Benefit Guaranty Corporation (or any successor).



8









 






     “Permitted Liens” means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens
for taxes, assessments and governmental charges or levies to the extent not required to be
paid under Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen’s,
mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in
the ordinary course of business securing obligations that are not overdue for a period of
more than 30 days or that are being contested in good faith and by appropriate proceedings
and for which any reserves required by generally accepted accounting principles have been
established; (c) pledges or deposits to secure obligations under workers’ compensation laws
or similar legislation or to secure public or statutory obligations; (d) easements, rights
of way and other encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect the use of such
property for its present purposes; (e) Liens to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of business; (f)
landlords’ Liens under leases to which such Person is a party; (g) Liens consisting of
leases, subleases, licenses or sublicenses granted to others and not interfering in any
material respect with the business of the Borrower and its Subsidiaries, taken as a whole,
and any interest or title of a lessor or licensor under any lease or license, as applicable;
(h) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or
other funds maintained with a creditor depository institution; (i) Liens securing judgments
for the payment of money not constituting an Event of Default under Section 6.01(f) or
securing appeal or other surety bonds related to such judgments; and (j) restrictions on
funds held for payroll customers pursuant to obligations to such customers.




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




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




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




     “Ratable Share” of any amount means, with respect to any Lender at any time,
the product of such amount times a fraction the numerator of which is the amount of
such Lender’s Revolving Credit Commitment at such time (or, if the Revolving Credit
Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s
Revolving Credit Commitment as in effect immediately prior to such termination) and the
denominator of which is the aggregate amount of all Revolving Credit Commitments at such
time (or, if the Revolving Credit Commitments shall have been terminated pursuant to Section
2.05 or 6.01, the aggregate amount of all Revolving Credit Commitments as in effect
immediately prior to such termination).



9









 






     “Reference Banks” means CUSA and JPMorgan Chase Bank, N.A.




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




     “Required Lenders” means at any time Lenders owed at least a majority in
interest of the then aggregate unpaid principal amount of the Advances owing to Lenders, or,
if no such principal amount is then outstanding, Lenders having at least a majority in
interest of the Revolving Credit Commitments.




     “Revolving Credit Commitment” means as to any Lender (a) the Dollar amount set
forth opposite such Lender’s name on Schedule I hereto as such Lender’s “Revolving Credit
Commitment”, (b) if such Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the Dollar amount set forth in such Assumption Agreement or (c) if such Lender
has entered into an Assignment and Acceptance, the Dollar amount set forth for such Lender
in the Register maintained by the Agent pursuant to Section 8.07(d), as such amount may be
reduced pursuant to Section 2.05 or increased pursuant to Section 2.18.




     “S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.




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




     “Solvent” means, with respect to any Person on a particular date, that on such
date (a) the fair value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as they become
absolute and matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature and (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person’s property would
constitute an unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an
actual or matured liability.




     “Subsidiary” of any Person means any corporation, partnership, joint venture,
limited liability company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a majority of the
Board of Directors of such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such Person’s other
Subsidiaries.




     “Termination Date” means the earlier of (a) five years after the Effective
Date, subject to the extension thereof pursuant to Section 2.19 and (b) the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01; provided,
however, that the Termination Date of any Lender that is a Non-Consenting Lender to
any requested extension pursuant to Section 2.19 shall be the Termination Date in effect
immediately prior to the applicable Extension Date for all purposes of this Agreement.




     “Unissued Letter of Credit Commitment” means, with respect to any Issuing Bank,
the obligation of such Issuing Bank to issue Letters of Credit for the account of the
Borrower or its specified Subsidiaries



10









 







in an amount equal to the excess of (a) the amount of its Letter of Credit Commitment
over (b) the aggregate Available Amount of all Letters of Credit issued by such Issuing
Bank.




     “Unused Commitment” means, with respect to each Lender at any time, (a) such
Lender’s Revolving Credit Commitment at such time minus (b) the sum of (i) the
aggregate principal amount of all Advances made by such Lender (in its capacity as a Lender)
and outstanding at such time, plus (ii) such Lender’s Ratable Share of (A) the
aggregate Available Amount of all the Letters of Credit outstanding at such time and (B) the
aggregate principal amount of all Advances made by each Issuing Bank pursuant to Section
2.03(c) that have not been ratably funded by such Lender and outstanding at such time.




     “Voting Stock” means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.



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



          SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements referred to in Section 4.01(e)
(“GAAP”).



ARTICLE II




AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT




          SECTION 2.01. The Advances and Letters of Credit. (a) The Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to make Advances to the
Borrower from time to time on any Business Day during the period from the Effective Date until the
Termination Date applicable to such Lender in an amount not to exceed such Lender’s Unused
Commitment. Each Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof and shall consist of Advances of the same Type made on the same day
by the Lenders ratably according to their respective Commitments. Within the limits of each
Lender’s Commitment, the Borrower may borrow under this Section 2.01(a), prepay pursuant to Section
2.10 and reborrow under this Section 2.01(a).



          (b) Letters of Credit. Each Issuing Bank agrees, on the terms and conditions
hereinafter set forth, in reliance upon the agreements of the other Lenders set forth in this
Agreement, to issue letters of credit (each, a “Letter of Credit”) denominated in U.S.
Dollars for the account of the Borrower and its specified Subsidiaries from time to time on any
Business Day during the period from the Effective Date until 30 days before the final Termination
Date in an aggregate Available Amount (i) for all Letters of Credit issued by each Issuing Bank not
to exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (y) such
Issuing Bank’s Letter of Credit Commitment at such time and (ii) for each such Letter of Credit not
to exceed an amount equal to the Unused Commitments of the Lenders at such time. No Letter of
Credit shall have an expiration date (including all rights of the Borrower or the beneficiary to
require renewal) later than 10 Business Days before the Termination Date, provided that no
Letter of Credit may expire after the Termination Date of any Non-Consenting Lender if, after
giving effect to such issuance, the aggregate Revolving Credit Commitments of the Consenting
Lenders (including any replacement Lenders) for the period following such Termination Date would be
less than the Available Amount of the Letters of Credit expiring after such Termination Date.
Within the limits referred to above, the Borrower may from time to time request the issuance of
Letters of Credit under this Section 2.01(b).



          SECTION 2.02. Making the Advances. (a) Except as otherwise provided in Section
2.03(c), each Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed Borrowing in the
case of



11









 







a Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (New York City
time) on the date of the proposed Borrowing in the case of a Borrowing consisting of Base Rate
Advances, by the Borrower to the Agent, which shall give to each Lender prompt notice thereof by
telecopier. Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by
telephone, confirmed immediately in writing, or telecopier in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type of Advances
comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for each such Advance.
Each Lender shall, before 1:00 P.M. (New York City time) on the date of such Borrowing make
available for the account of its Applicable Lending Office to the Agent at the Agent’s Account, in
same day funds, such Lender’s ratable portion of such Borrowing. After the Agent’s receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will
make such funds available to the Borrower at the Agent’s address referred to in Section 8.02.



          (b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not
select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such Borrowing is less
than $5,000,000 or if the obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not be
outstanding as part of more than six separate Borrowings.



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



          (d) Unless the Agent shall have received notice from a Lender prior to the time of any
Borrowing that such Lender will not make available to the Agent such Lender’s ratable portion of
such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent
on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such ratable portion
available to the Agent, such Lender and the Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute
such Lender’s Advance as part of such Borrowing for purposes of this Agreement.



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



          SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit.
(a) Request for Issuance. (i) Each Letter of Credit shall be issued upon notice, given not later
than 11:00 A.M. (New York City time) on the fifth Business Day prior to the date of the proposed
Issuance of such Letter of Credit (or on such shorter notice as the applicable Issuing Bank may
agree), by the Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent, prompt
notice thereof. Each such notice by the Borrower of Issuance of a Letter of Credit (a “Notice
of Issuance”) shall be by telecopier or telephone, confirmed immediately in writing, specifying
therein the requested (A) date of such Issuance (which shall be a Business Day), (B) Available
Amount of such Letter of Credit, (C) expiration date of such Letter of Credit, (D) name and address
of the beneficiary of such Letter of Credit and (E) form of such Letter of Credit. Each Letter of
Credit shall be issued pursuant to such application and agreement for letter of credit as such
Issuing Bank and the Borrower shall agree for use in connection with such requested
Letter of Credit (a “Letter of Credit Agreement”). If the requested form of such
Letter of Credit is acceptable to such Issuing Bank in its reasonable discretion (it being
understood that any such form shall have only explicit documentary conditions to draw and shall not
include discretionary conditions), such Issuing Bank will,



12









 







upon fulfillment of the applicable
conditions set forth in Section 3.02, make such Letter of Credit available to the Borrower at its
office referred to in Section 8.02 or as otherwise agreed with the Borrower in connection with such
Issuance. In the event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall govern.



          (b) Participations. By the Issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing or decreasing the amount thereof) and without any further action on the
part of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender,
and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit
equal to such Lender’s Ratable Share of the Available Amount of such Letter of Credit. The
Borrower hereby agrees to each such participation. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Agent, for the
account of such Issuing Bank, such Lender’s Ratable Share of each drawing made under a Letter of
Credit funded by such Issuing Bank and not reimbursed by the Borrower on the date made, or of any
reimbursement payment required to be refunded to the Borrower for any reason, which amount will be
advanced, and deemed to be an Advance to the Borrower hereunder, regardless of the satisfaction of
the conditions set forth in Section 3.02. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute
and unconditional and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender
further acknowledges and agrees that its participation in each Letter of Credit will be
automatically adjusted to reflect such Lender’s Ratable Share of the Available Amount of such
Letter of Credit at each time such Lender’s Revolving Credit Commitment is amended pursuant to a
Commitment Increase in accordance with Section 2.18, an assignment in accordance with Section 8.07
or otherwise pursuant to this Agreement.



          (c) Drawing and Reimbursement. The payment by an Issuing Bank of a draft drawn under
any Letter of Credit which is not reimbursed by the Borrower on the date made shall constitute for
all purposes of this Agreement the making by any such Issuing Bank of an Advance, which shall be a
Base Rate Advance, in the amount of such draft, without regard to whether the making of such an
Advance would exceed such Issuing Bank’s Unused Commitment. Each Issuing Bank shall give prompt
notice of each drawing under any Letter of Credit issued by it to the Borrower and the Agent. Upon
written demand by such Issuing Bank, with a copy of such demand to the Agent and the Borrower, each
Lender shall pay to the Agent such Lender’s Ratable Share of such outstanding Advance pursuant to
Section 2.03(b). Each Lender acknowledges and agrees that its obligation to make Advances pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the
Revolving Credit Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Promptly after receipt thereof, the Agent shall
transfer such funds to such Issuing Bank. Each Lender agrees to fund its Ratable Share of an
outstanding Advance on (i) the Business Day on which demand therefor is made by such Issuing Bank,
provided that notice of such demand is given not later than 11:00 A.M. (New York City time)
on such Business Day, or (ii) the first Business Day next succeeding such demand if notice of such
demand is given after such time. If and to the extent that any Lender shall not have so made the
amount of such Advance available to the Agent, such Lender agrees to pay to the Agent forthwith on
demand such amount together with interest thereon, for each day from the date of demand by any such
Issuing Bank until the date such amount is paid to the Agent, at the Federal Funds Rate for its
account or the account of such Issuing Bank, as applicable. If such Lender shall pay to the Agent
such amount for the account of any such Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute an Advance made by such Lender on such Business Day for
purposes of this Agreement, and the outstanding principal amount of the Advance made by such
Issuing Bank shall be reduced by such amount on such Business Day.



          (d) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to the Agent and
each Lender (with a copy to the Borrower) on the first Business Day of each month a written report
summarizing Issuance and expiration dates of Letters of Credit issued by such Issuing Bank during
the preceding month and
drawings during such month under all Letters of Credit and (B) to the Agent and each Lender
(with a copy to the Borrower) on the first Business Day of each calendar quarter a written report
setting forth the average daily



13









 







aggregate Available Amount during the preceding calendar quarter of
all Letters of Credit issued by such Issuing Bank.



          (e) Failure to Make Advances. The failure of any Lender to make the Advance to be
made by it on the date specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Advance on such date, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by such other Lender on such date.



          SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount of such Lender’s
Commitment from the date hereof in the case of each Initial Lender and from the effective date
specified in the Assumption Agreement or in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date applicable to such
Lender at a rate per annum equal to the Applicable Percentage in effect from time to time, payable
in arrears quarterly on the last day of each March, June, September and December, commencing March
31, 2007, and on the latest Termination Date.



          (b) Letter of Credit Fees. (i) The Borrower shall pay to the Agent for the account
of each Lender a commission on such Lender’s Ratable Share of the average daily aggregate Available
Amount of all Letters of Credit issued for the account of the Borrower and outstanding from time to
time at a rate per annum equal to the sum of (x) the Applicable Margin for Eurocurrency Rate
Advances in effect from time to time during such calendar quarter plus (y) the Applicable
Utilization Fee in effect from time to time, payable in arrears quarterly on the last day of each
March, June, September and December, commencing with the quarter ended March 31, 2007, and on the
latest Termination Date; provided that the Applicable Margin shall be 2% above the
Applicable Margin in effect upon the occurrence and during the continuation of an Event of Default
if the Borrower is required to pay default interest pursuant to Section 2.07(b).




     (ii) The Borrower shall pay to each Issuing Bank, for its own account, a fronting fee
and such other commissions, issuance fees, transfer fees and other fees and charges in
connection with the Issuance or administration of each Letter of Credit as the Borrower and
such Issuing Bank shall agree.



          (c) Agent’s Fees. The Borrower shall pay to the Agent for its own account such fees
as may from time to time be agreed between the Borrower and the Agent.



          SECTION 2.05. Optional Termination or Reduction of the Commitments. The Borrower
shall have the right, upon at least three Business Days’ notice to the Agent, to terminate in whole
or permanently reduce ratably in part the Unused Commitments of the Lenders, provided that
each partial reduction shall be in the aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.



          SECTION 2.06. Repayment of Advances and Letter of Credit Drawings. (a)
Advances. The Borrower shall repay to the Agent for the ratable account of each Lender on
the Termination Date applicable to such Lender the aggregate principal amount of the Advances made
by such Lender and then outstanding.



          (b) Letter of Credit Drawings. The obligations of the Borrower under any Letter of
Credit Agreement and any other agreement or instrument relating to any Letter of Credit issued for
the account of the Borrower shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without limitation, the following
circumstances (it being understood that any such payment by the Borrower is without prejudice to,
and does not constitute a waiver of, any rights the Borrower might have or might acquire as a
result of the payment by any Lender of any draft or the reimbursement by the Borrower thereof):




     (i) any lack of validity or enforceability of this Agreement, any Note, any Letter of
Credit Agreement, any Letter of Credit or any other agreement or instrument relating thereto
(all of the foregoing being, collectively, the “L/C Related Documents”);



14









 






     (ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the obligations of the Borrower in respect of any L/C Related Document or any
other amendment or waiver of or any consent to departure from all or any of the L/C Related
Documents;




     (iii) the existence of any claim, set-off, defense or other right that the Borrower may
have at any time against any beneficiary or any transferee of a Letter of Credit (or any
Persons for which any such beneficiary or any such transferee may be acting), any Issuing
Bank, the Agent, any Lender or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;




     (iv) any statement or any other document presented under a Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;




     (v) payment by any Issuing Bank under a Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit;




     (vi) any exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any guarantee, for all or any of the
obligations of the Borrower in respect of the L/C Related Documents; or




     (vii) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including, without limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Borrower or a guarantor.



          SECTION 2.07. Interest on Advances. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the
date of such Advance until such principal amount shall be paid in full, at the following rates per
annum:




     (i) Base Rate Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin plus (z) the Applicable
Utilization Fee, if applicable, payable in arrears quarterly on the last day of each March,
June, September and December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.




     (ii) Eurodollar Rate Advances. During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for
such Advance to the sum of (x) the Eurodollar Rate for such Interest Period for such Advance
plus (y) the Applicable Margin plus (z) the Applicable Utilization Fee, if
applicable, payable in arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest Period and on the
date such Eurodollar Rate Advance shall be Converted or paid in full.



          (b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default under Section 6.01(a), the Agent may, and upon the request of the Required Lenders shall,
require the Borrower to pay interest (“Default Interest”) on (i) the unpaid principal
amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause
(a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to
the fullest extent permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due until such amount shall
be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant
to clause (a)(i) above, provided, however, that following acceleration of the
Advances pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder whether
or not previously required by the Agent.



15









 





          SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank agrees to
furnish to the Agent timely information for the purpose of determining each Eurodollar Rate. If
any one or more of the Reference Banks shall not furnish such timely information to the Agent for
the purpose of determining any such interest rate, the Agent shall determine such interest rate on
the basis of timely information furnished by the remaining Reference Banks. The Agent shall give
prompt notice to the Borrower and the Lenders of the applicable interest rate determined by the
Agent for purposes of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.07(a)(ii).



          (b) If, with respect to any Eurodollar Rate Advances, the Required Lenders notify the Agent
that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Required Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance, and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no
longer exist.



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



          (d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$5,000,000, such Advances shall automatically Convert into Base Rate Advances.



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



          (f) If Moneyline Telerate Markets Page 3750 is unavailable and fewer than two Reference Banks
furnish timely information to the Agent for determining the Eurodollar Rate for any Eurodollar Rate
Advances,




     (i) the Agent shall forthwith notify the Borrower and the Lender that the interest rate
cannot be determined for such Eurodollar Rate Advances,




     (ii) each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance, and




     (iii) the obligation of the Lenders to make Eurodollar Rate Advances or to Convert
Advances into Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no longer exist.



          SECTION 2.09. Optional Conversion of Advances. The Borrower may on any Business Day,
upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.08 and
2.12, Convert all Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made only on the last day of an Interest
Period for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Advances shall result in more separate Borrowings than permitted under Section
2.02(b). Each such notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Advances



16









 







to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for each such Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.



          SECTION 2.10. Optional Prepayments of Advances. The Borrower may, upon notice at
least three Business Days’ prior to the date of such prepayment, in the case of Eurodollar Rate
Advances, and not later than 11:00 A.M. (New York City time) on the date of such prepayment, in the
case of Base Rate Advances, to the Agent stating the proposed date and aggregate principal amount
of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal
amount of the Advances comprising part of the same Borrowing in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in
the event of any such prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(c).



          SECTION 2.11. Increased Costs. (a) If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request made or issued after the date hereof from any central bank or other
governmental authority (whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Advances
or of agreeing to issue or of issuing or maintaining or participating in Letters of Credit
(excluding for purposes of this Section 2.11 any such increased costs resulting from (i) Taxes or
Other Taxes (as to which Section 2.14 shall govern) and (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrower shall from time to time, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased cost; provided,
however, that before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would avoid the need for,
or reduce the amount of, such increased cost and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.



          (b) If any Lender determines that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such capital is increased
by or based upon the existence of such Lender’s commitment to lend or to issue or participate in
Letters of Credit hereunder and other commitments of such type or the issuance or maintenance of or
participation in the Letters of Credit (or similar contingent obligations), then, upon demand by
such Lender (with a copy of such demand to the Agent), the Borrower shall pay to the Agent for the
account of such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be allocable to the
existence of such Lender’s commitment to lend or to issue or participate in Letters of Credit
hereunder or to the issuance or maintenance of or participation in any Letters of Credit. A
certificate as to such amounts submitted to the Borrower and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.



          SECTION 2.12. Illegality. Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its Eurodollar Lending Office
to perform its obligations hereunder to make
Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, (a) each
Eurodollar Rate Advance will automatically, upon such demand, Convert into a Base Rate Advance or
an Advance that bears interest at the rate set forth in Section 2.07(a)(i), as the case may be, and
(b) the obligation of the Lenders to make Eurodollar Rate Advances or to Convert Advances into
Eurodollar Rate Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.




17










 





          SECTION
2.13. Payments and Computations. (a) The
Borrower shall make each payment hereunder, irrespective of any right of counterclaim or set-off,
not later than 1:00 P.M. (New York City time) on the day when due in U.S. dollars to the Agent at
the Agent’s Account in same day funds. The Agent will promptly thereafter cause to be distributed
like funds relating to the payment of principal or interest, fees or commissions ratably (other
than amounts payable pursuant to Section 2.11, 2.14 or 8.04(c)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon any Assuming Lender
becoming a Lender hereunder as a result of a Commitment Increase pursuant to Section 2.18 and upon
the Agent’s receipt of such Lender’s Assumption Agreement and recording of the information
contained therein in the Register, from and after the applicable Increase Date, the Agent shall
make all payments hereunder and under any Notes issued in connection therewith in respect of the
interest assumed thereby to the Assuming Lender. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register pursuant to Section
8.07(c), from and after the effective date specified in such Assignment and Acceptance, the Agent
shall make all payments hereunder and under the Notes in respect of the interest assigned thereby
to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall make
all appropriate adjustments in such payments for periods prior to such effective date directly
between themselves.




          (b) All computations of interest based on the Base Rate shall be made by the Agent on the
basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on
the Eurodollar Rate or the Federal Funds Rate and of fees and Letter of Credit commissions shall be
made by the Agent on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest error.




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




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




          SECTION 2.14. Taxes. (a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under the Notes or any other documents to be delivered
hereunder shall be made, in accordance with Section 2.13 or the applicable provisions of such other
documents, free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction under
the laws of which such Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender’s
Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder
or under the Notes being hereinafter referred to as “Taxes”). If the Borrower shall be
required by law to deduct any
Taxes from or in respect of any sum payable hereunder or under any Note or any other documents
to be delivered hereunder to any Lender or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.14) such Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have






18









 







received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with applicable law.




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




          (c) The Borrower shall indemnify each Lender and the Agent for and hold it harmless against
the full amount of Taxes or Other Taxes (including, without limitation, taxes of any kind imposed
or asserted by any jurisdiction on amounts payable under this Section 2.14) imposed on or paid by
such Lender or the Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender or the Agent (as the case may be) makes written demand therefor.




          (d) Within 30 days after the date of any payment of Taxes, the Borrower shall furnish to the
Agent, at its address referred to in Section 8.02, the original or a certified copy of a receipt
evidencing such payment to the extent such a receipt is issued therefor, or other written proof of
payment thereof that is reasonably satisfactory to the Agent. In the case of any payment hereunder
or under the Notes or any other documents to be delivered hereunder by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the Borrower by a
payor that is not a United States person, if the Borrower determines that no Taxes are payable in
respect thereof, the Borrower shall furnish, or shall cause such payor to furnish, to the Agent, at
such address, an opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms “United
States” and “United States person” shall have the meanings specified in Section 7701 of
the Internal Revenue Code.




          (e) Each Lender organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement in the case of each Initial
Lender and on the date of the Assumption Agreement or the Assignment and Acceptance pursuant to
which it becomes a Lender in the case of each other Lender, and from time to time thereafter as
reasonably requested in writing by the Borrower (but only so long as such Lender remains lawfully
able to do so), shall provide each of the Agent and the Borrower with two original Internal Revenue
Service Forms W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate
of United States withholding tax on payments pursuant to this Agreement or the Notes. If the form
provided by a Lender at the time such Lender first becomes a party to this Agreement indicates a
United States interest withholding tax rate in excess of zero, withholding tax at such rate shall
be considered excluded from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date. If any form or document
referred to in this subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof by Internal
Revenue Service Form W-8BEN or W-8ECI, that the Lender reasonably considers to be confidential, the
Lender shall give notice thereof to the Borrower and shall not be obligated to include in such form
or document such confidential information.




          (f) For any period with respect to which a Lender has failed to provide the Borrower with the
appropriate form, certificate or other document described in Section 2.14(e) (other
than if such failure is due to a change in law, or in the interpretation or application
thereof, occurring subsequent to the date on which a form, certificate or other document originally
was required to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to indemnification under
Section 2.14(a) or (c) with respect to Taxes imposed by the United States by reason of such
failure; provided,





19









 







however, that should a Lender become subject to Taxes because of
its failure to deliver a form, certificate or other document required hereunder, the Borrower shall
take such steps as the Lender shall reasonably request to assist the Lender to recover such Taxes.




          (g) Any Lender claiming any additional amounts payable pursuant to this Section 2.14 agrees to
use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions)
to change the jurisdiction of its Eurodollar Lending Office if the making of such a change would
avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue
and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.




          SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Advances owing to it (other than (x) as payment of an Advance made by an Issuing
Bank pursuant to the first sentence of Section 2.03(c) of (y) pursuant to Section 2.11, 2.14 or
8.04(c)) in excess of its ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price
to the extent of such recovery together with an amount equal to such Lender’s ratable share
(according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment (including the
right of set-off) with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.




          SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such
notice to the Agent) to the effect that a Note is required or appropriate in order for such Lender
to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to
be made by, such Lender, the Borrower shall promptly execute and deliver to such Lender a Note
payable to the order of such Lender in a principal amount up to the Revolving Credit Commitment of
such Lender.




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




          (c) Entries made in good faith by the Agent in the Register pursuant to subsection (b) above,
and by each Lender in its account or accounts pursuant to subsection (a) above, shall be
prima facie evidence of the amount of principal and interest due and payable or to
become due and payable from the Borrower to, in the case of the Register, each Lender and, in the
case of such account or accounts, such
Lender, under this Agreement, absent manifest error; provided, however, that
the failure of the Agent or such Lender to make an entry, or any finding that an entry is
incorrect, in the Register or such account or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement.




          SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be available (and
the Borrower agrees that it shall use such proceeds) solely for general corporate purposes of the
Borrower and its Subsidiaries.




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          SECTION 2.18. Increase in the Aggregate Commitments. (a)
The Borrower may, at any time but in any event not more than once in any calendar year prior to the
latest Termination Date, by notice to the Agent, request that the aggregate amount of the
Commitment be increased by an amount of $25,000,000 or an integral multiple thereof (each a
“Commitment Increase”) to be effective as of a date that is at least 90 days prior to the
latest scheduled Termination Date then in effect (the “Increase Date”) as specified in the
related notice to the Agent; provided, however that (i) in no event shall the
aggregate amount of the Commitments at any time exceed $750,000,000 and (ii) on the date of any
request by the Borrower for a Commitment Increase and on the related Increase Date, the applicable
conditions set forth in Article III shall be satisfied.




          (b) The 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, in its sole discretion, give
written notice to the 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 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
Agent.




          (c) Promptly following each Commitment Date, the 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 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 Eligible Assignees 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 $5,000,000 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 2.18(b) (each such Eligible Assignee and
each Eligible Assignee that agrees to an extension of the Termination Date in accordance with
Section 2.19(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 2.18(b)) as of such Increase Date; provided,
however, that the Agent shall have received on or before such Increase Date the following,
each dated such date:





     (i) (A) certified copies of resolutions of 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 (B) an opinion of counsel for the
Borrower (which may be in-house counsel), in substantially the form of Exhibit E hereto;




     (ii) an assumption agreement from each Assuming Lender, if any, in form and substance
satisfactory to the Borrower and the Agent (each an “Assumption Agreement”), duly
executed by such Eligible Assignee, the 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 Agent.


On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding
sentence of this Section 2.18(d), the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time),
by telecopier, of the occurrence of the Commitment Increase to be effected on such Increase Date
and shall record in the Register the relevant information with respect to each Increasing Lender
and each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall,
before 2:00 P.M. (New York City time) on the Increase Date, make available for the account of its




21









 







Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, in the case of
such Assuming Lender, an amount equal to such Assuming Lender’s ratable portion of the Borrowings
then outstanding (calculated based on its Revolving Credit Commitment as a percentage of the
aggregate Revolving Credit Commitments outstanding after giving effect to the relevant Commitment
Increase) and, in the case of such Increasing Lender, an amount equal to the excess of (i) such
Increasing Lender’s ratable portion of the Borrowings then outstanding (calculated based on its
Revolving Credit Commitment as a percentage of the aggregate Revolving Credit Commitments
outstanding after giving effect to the relevant Commitment Increase) over (ii) such Increasing
Lender’s ratable portion of the Borrowings then outstanding (calculated based on its Revolving
Credit Commitment (without giving effect to the relevant Commitment Increase) as a percentage of
the aggregate Revolving Credit Commitments (without giving effect to the relevant Commitment
Increase). After the Agent’s receipt of such funds from each such Increasing Lender and each such
Assuming Lender, the Agent will promptly thereafter cause to be distributed like funds to the
other Lenders for the account of their respective Applicable Lending Offices in an amount to each
other Lender such that the aggregate amount of the outstanding Advances owing to each Lender after
giving effect to such distribution equals such Lender’s ratable portion of the Borrowings then
outstanding (calculated based on its Revolving Credit Commitment as a percentage of the aggregate
Commitments outstanding after giving effect to the relevant Commitment Increase).




          SECTION 2.19. Extension of Termination Date. (a) At
least 45 days but not more than 60 days prior to any anniversary of the Effective Date, the
Borrower, by written notice to the Agent, may request an extension of the Termination Date in
effect at such time by one year from its then scheduled expiration. The Agent shall promptly
notify each Lender of such request, and each Lender shall in turn, in its sole discretion, not
later than 20 days prior to such anniversary date, notify the Borrower and the Agent in writing as
to whether such Lender will consent to such extension. If any Lender shall fail to notify the
Agent and the Borrower in writing of its consent to any such request for extension of the
Termination Date at least 20 days prior to such anniversary date, such Lender shall be deemed to
be a Non-Consenting Lender with respect to such request. The Agent shall notify the Borrower not
later than 15 days prior to such anniversary date of the decision of the Lenders regarding the
Borrower’s request for an extension of the Termination Date.




          (b) If all the Lenders consent in writing to any such request in accordance with subsection
(a) of this Section 2.19, the Termination Date in effect at such time shall, effective as at such
anniversary of the Effective Date (the “Extension Date”), be extended for one year;
provided that on each Extension Date the applicable conditions set forth in Article III
shall be satisfied. If less than all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.19, the Termination Date in effect at such time
shall, effective as at the applicable Extension Date and subject to subsection (d) of this Section
2.19, be extended as to those Lenders that so consented (each a “Consenting Lender”) but
shall not be extended as to any other Lender (each a “Non-Consenting Lender”). To the
extent that the Termination Date is not extended as to any Lender pursuant to this Section 2.19
and the Revolving Credit Commitment of such Lender is not assumed in accordance with subsection
(c) of this Section 2.19 on or prior to the applicable Extension Date, the Revolving Credit
Commitment of such Non-Consenting Lender shall automatically terminate in whole on such unextended
Termination Date without any further notice or other action by the Borrower, such Lender or any
other Person; provided that such
Non-Consenting Lender’s rights under Sections 2.11, 2.14 and 8.04, and its obligations under
Section 7.05, shall survive the Termination Date for such Lender as to matters occurring prior to
such date. It is understood and agreed that no Lender shall have any obligation whatsoever to
agree to any request made by the Borrower for any requested extension of the Termination Date.




          (c) If less than all of the Lenders consent to any such request pursuant to subsection (a) of
this Section 2.19, the Agent shall promptly so notify the Consenting Lenders, and each Consenting
Lender may, in its sole discretion, give written notice to the Agent not later than 10 days prior
to the Extension Date of the amount of the Non-Consenting Lenders’ Revolving Credit Commitments for
which it is willing to accept an assignment. If the Consenting Lenders notify the Agent that they
are willing to accept assignments of Revolving Credit Commitments in an aggregate amount that
exceeds the amount of the Revolving Credit Commitments of the Non-Consenting Lenders, such
Revolving Credit Commitments shall be allocated among the Consenting Lenders willing to accept such
assignments in such amounts as are agreed between the Borrower and the Agent. If after giving
effect to the assignments of Revolving Credit Commitments described above there remains any
Revolving Credit Commitments of Non-Consenting Lenders, the Borrower may arrange for one or more
Consenting Lenders or other Eligible Assignees as Assuming Lenders to assume, effective as of the
Extension Date, any Non-Consenting






22









 







Lender’s Revolving Credit Commitment and all of the obligations
of such Non-Consenting Lender under this Agreement thereafter arising, without recourse to or
warranty by, or expense to, such Non-Consenting Lender; provided, however, that the
amount of the Revolving Credit Commitment of any such Assuming Lender as a result of such
substitution shall in no event be less than $5,000,000 unless the amount of the Revolving Credit
Commitment of such Non-Consenting Lender is less than $5,000,000, in which case such Assuming
Lender shall assume all of such lesser amount; and provided further that:





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




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




     (iii) with respect to any such Assuming Lender, the applicable processing and
recordation fee required under Section 8.07(a) for such assignment shall have been paid;


provided further that such Non-Consenting Lender’s rights under Sections 2.11, 2.14
and 8.04, and its obligations under Section 7.05, 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 Agent an
Assumption Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender, the
Borrower and the Agent, (B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Agent as to the increase in the amount of its Revolving Credit
Commitment and (C) each Non-Consenting Lender being replaced pursuant to this Section 2.19 shall
have delivered to the Agent any Note or Notes held by such Non-Consenting Lender. Upon the payment
or prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the immediately
preceding sentence, each such Consenting Lender or Assuming Lender, as of the Extension Date, will
be substituted for such Non-Consenting 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 Non-Consenting Lender hereunder shall, by the provisions
hereof, be released and discharged.




          (d) If (after giving effect to any assignments or assumptions pursuant to subsection (c) of
this Section 2.19) Lenders having Revolving Credit Commitments equal to at least 50% of the
Revolving Credit Commitments in effect immediately prior to the Extension Date consent in writing
to a
requested extension (whether by execution or delivery of an Assumption Agreement or otherwise)
not later than one Business Day prior to such Extension Date, the Agent shall so notify the
Borrower, and, subject to the satisfaction of the applicable conditions in Article III, the
Termination Date then in effect shall be extended for the additional one-year period as described
in subsection (a) of this Section 2.19, and all references in this Agreement, and in the Notes, if
any, to the “Termination Date” shall, with respect to each Consenting Lender and each
Assuming Lender for such Extension Date, refer to the Termination Date as so extended. Promptly
following each Extension Date, the Agent shall notify the Lenders (including, without limitation,
each Assuming Lender) of the extension of the scheduled Termination Date in effect immediately
prior thereto and shall thereupon record in the Register the relevant information with respect to
each such Consenting Lender and each such Assuming Lender.




ARTICLE III




CONDITIONS TO EFFECTIVENESS AND LENDING




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




23









 









     (a) There shall have occurred no Material Adverse Change since July 31, 2006.




     (b) There shall exist no action, suit, investigation, litigation or proceeding
affecting the Borrower or any of its Subsidiaries pending or threatened before any court,
governmental agency or arbitrator that (i) would be reasonably likely to have a Material
Adverse Effect other than the matters described in the Borrower’s filings made prior to the
date hereof with the Securities and Exchange Commission under the Securities Exchange Act
of 1934, as amended (the “Disclosed Litigation”) or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note or the consummation of
the transactions contemplated hereby.




     (c) The Lenders shall have been given such access to the management, records, books of
account, contracts and properties of the Borrower and its Subsidiaries as they shall have
reasonably requested.




     (d) All governmental and third party consents and approvals necessary in connection
with the transactions contemplated hereby shall have been obtained (without the imposition
of any conditions that are not acceptable to the Lenders) and shall remain in effect, and
no law or regulation shall be applicable in the reasonable judgment of the Lenders that
restrains, prevents or imposes materially adverse conditions upon the transactions
contemplated hereby.




     (e) The Borrower shall have notified each Lender and the Agent in writing as to the
proposed Effective Date.




     (f) The Borrower shall have paid all accrued fees and all reasonable documented out of
pocket costs and expenses of the Agent and the Lenders (including the accrued fees and
expenses of counsel to the Agent).




     (g) On the Effective Date, the following statements shall be true and the Agent shall
have received for the account of each Lender a certificate signed by a duly authorized
officer of the Borrower, dated the Effective Date, stating that:




     (i) The representations and warranties contained in Section 4.01 are correct
on and as of the Effective Date, and




     (ii) No event has occurred and is continuing that constitutes a Default.




     (h) The Agent shall have received on or before the Effective Date the following, each
dated such day, in form and substance satisfactory to the Agent and (except for the Notes)
in sufficient copies for each Lender:




     (i) The Notes to the order of the Lenders to the extent requested by any
Lender pursuant to Section 2.16.




     (ii) Certified copies of the resolutions of the Board of Directors of the
Borrower approving this Agreement and the Notes, and of all documents evidencing
other necessary corporate action and governmental approvals, if any, with respect
to this Agreement and the Notes.




     (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower
certifying the names and true signatures of the officers of the Borrower authorized
to sign this Agreement and the Notes and the other documents to be delivered
hereunder.




     (iv) A favorable opinion of Fenwick & West LLP, counsel for the Borrower,
substantially in the form of Exhibit D hereto.



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     (v) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in
form and substance satisfactory to the Agent.




     (i) The Borrower shall have terminated the commitments of the lenders and repaid or
prepaid all of the obligations under, the Bridge Credit Agreement dated as of January 31,
2007 among the Borrower, the lenders parties thereto and Citicorp North America, Inc., as
administrative agent, and each of the Lenders that is a party to such credit facility
hereby waives, upon execution of this Agreement, any notice required by said Credit
Agreement relating to the termination of commitments thereunder.



          SECTION 3.02. Conditions Precedent to Each Borrowing, Issuance, Commitment Increase and
Extension Date. The obligation of each Lender to make an Advance
on the occasion of each Borrowing, each Issuance, each Commitment Increase and each extension of
Commitments pursuant to Section 2.19 shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Borrowing, Issuance, the applicable
Increase Date or the applicable Extension Date the following statements shall be true (and each of
the giving of the applicable Notice of Borrowing, Notice of Issuance, request for Commitment
Increase, request for Commitment extension and the acceptance by the Borrower of the proceeds of
such Borrowing or Letter of Credit shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing, such Issuance, such Increase Date or such Extension Date such
statements are true):





     (a) the representations and warranties contained in Section 4.01 (except the
representations set forth in the last sentence of subsection (e) thereof and in subsection
(f)(i) thereof) are correct on and as of such date, before and after giving effect to such
Borrowing, such Issuance, such Commitment Increase or such Extension Date and to the
application of the proceeds therefrom, as though made on and as of such date, and




     (b) no event has occurred and is continuing, or would result from such Borrowing, such
Issuance, such Commitment Increase or such Extension Date or from the application of the
proceeds therefrom, that constitutes a Default;



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




ARTICLE IV




REPRESENTATIONS AND WARRANTIES




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





     (a) The Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.




     (b) The execution, delivery and performance by the Borrower of this Agreement and the
Notes to be delivered by it, and the consummation of the transactions contemplated hereby,
are within the Borrower’s corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Borrower’s charter or by-laws or (ii) law
or any contractual restriction binding on or affecting the Borrower, other than violations
of contractual restrictions that could not reasonably be expected to result in a Material
Adverse Effect or result in the imposition of any Lien on any asset of the Borrower or any
of its Subsidiaries.



25









 






     (c) No authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is required for the
due execution, delivery and performance by the Borrower of this Agreement or the Notes to
be delivered by it.




     (d) This Agreement has been, and each of the Notes to be delivered by it when
delivered hereunder will have been, duly executed and delivered by the Borrower. This
Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in accordance with
their respective terms subject to (i) bankruptcy, insolvency, reorganization, moratorium
and other similar laws of general application affecting the rights and remedies of
creditors and (ii) general principles of equity, regardless of whether applied in
proceedings in equity or at law.




     (e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at July 31,
2006, and the related Consolidated statements of income and cash flows of the Borrower and
its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young
LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and
its Subsidiaries as at October 31, 2006, and the related Consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly
certified by the chief financial officer of the Borrower as contemplated by Item
601(b)(3)(i) of Regulation S-K under the Securities Exchange Act of 1934, as amended,
copies of which have been furnished to each Lender, fairly present, subject, in the case of
said balance sheet as at October 31, 2006, and said statements of income and cash flows for
the three months then ended, to year-end audit adjustments, the Consolidated financial
condition of the Borrower and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Borrower and its Subsidiaries for the periods ended on
such dates, all in accordance with generally accepted accounting principles consistently
applied. Since July 31, 2006, there has been no Material Adverse Change.




     (f) There is no pending or threatened action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action, affecting the Borrower
or any of its Subsidiaries before any court, governmental agency or arbitrator that (i)
would have a
Material Adverse Effect (other than the Disclosed Litigation), and there has been no
adverse change in the status, or financial effect on the Borrower or any of its
Subsidiaries, of the Disclosed Litigation from that described in the Borrower’s filings
made prior to the date hereof with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, or (ii) could reasonably be expedited to
affect the legality, validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.




     (g) The Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board
of Governors of the Federal Reserve System). Following application of the proceeds of each
Advance, not more than 25 percent of the value of the assets (either of the Borrower only
or of the Borrower and its Subsidiaries on a Consolidated basis) subject to the provisions
of Section 5.02(a) or subject to any restriction contained in any agreement or instrument
between the Borrower and any Lender or any Affiliate of any Lender relating to Debt and
within the scope of Section 6.01(d) will be margin stock (within the meaning of Regulation
U issued by the Board of Governors of the Federal Reserve System).




     (h) The Borrower is not an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940, as amended.




     (i) Neither the Information Memorandum nor any other information, exhibits and reports
furnished by or on behalf of the Borrower to the Agent or any Lender in connection with the
negotiation and syndication of this Agreement or pursuant to the terms of this Agreement,
taken as a whole, contain any untrue statement of a material fact and do omit to state a
material fact necessary to make the statements made therein not misleading;
provided that with respect to any projected financial information, the Borrower
represents only that such information was prepared in good faith based on assumptions
believed to be reasonable at the time made.



26









 






     (j) The Borrower is, individually and together with its Subsidiaries, Solvent.



ARTICLE V




COVENANTS OF THE BORROWER




          SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid, any Letter of Credit is outstanding or any Lender shall have any
Commitment hereunder, the Borrower will:





     (a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all material applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with ERISA,
Environmental Laws and the Patriot Act.




     (b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its property and
(ii) all lawful claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which appropriate
reserves under generally applicable accounting principles are being maintained, unless and
until any Lien resulting therefrom attaches to its property and becomes enforceable against
its other creditors.




     (c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to
maintain, insurance with responsible and reputable insurance companies or associations in
such amounts and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the Borrower or
such Subsidiary operates; provided, however, that the Borrower and its
Subsidiaries may self-insure to the same extent as other companies engaged in similar
businesses and owning similar properties in the same general areas in which the Borrower or
such Subsidiary operates and to the extent consistent with prudent business practice.




     (d) Preservation of Corporate Existence, Etc. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its corporate existence, rights
(charter and statutory) and franchises; provided, however, that the
Borrower and its Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(b) and provided further that neither the Borrower nor any of
its Subsidiaries shall be required to preserve any right or franchise, or the corporate
existence of any Subsidiary, if the Board of Directors of the Borrower or such Subsidiary
shall determine that the preservation thereof is no longer desirable in the conduct of the
business of the Borrower or such Subsidiary, as the case may be, and that the loss thereof
is not disadvantageous in any material respect to the Borrower, such Subsidiary or the
Lenders.




     (e) Visitation Rights. At any reasonable time and from time to time, permit
the Agent or any of the Lenders or any agents or representatives thereof, to examine and
make copies of and abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with any of their
officers or directors and with their independent certified public accountants.




     (f) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Borrower and each such Subsidiary
in accordance with, and to the extent required by, generally accepted accounting principles
in effect from time to time (or local accounting requirements).



27









 






     (g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of
its Subsidiaries to maintain and preserve, all of its properties that are used or useful in
the conduct of its business in good working order and condition, ordinary wear and tear
excepted.




     (h) Transactions with Affiliates. Conduct, and cause each of its Subsidiaries
to conduct, all material transactions otherwise permitted under this Agreement with any of
their Affiliates on terms that are fair and reasonable and no less favorable to the
Borrower or such Subsidiary than it would obtain in a comparable arm’s-length transaction
with a Person not an Affiliate, other than (i) transactions between the Borrower and its
Subsidiaries, or between two or more Subsidiaries, (ii) compensation arrangements for
directors or executive officers approved by the Board of Directors or the compensation
committee of the board of directors and (iii) transactions incurred in the ordinary course
of business with Persons that have directors who are also directors or executive officers
of the Borrower.




     (i) Reporting Requirements. Furnish to the Agent:




     (i) as soon as available and in any event within 45 days after the end of each
of the first three quarters of each fiscal year of the Borrower, the Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such quarter
and Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous fiscal year and
ending with the end
of such quarter, duly certified (subject to year-end audit adjustments) by the
chief financial officer of the Borrower as having been prepared in accordance with
generally accepted accounting principles (subject to normal year-end audit
adjustments and the absence of footnotes) and certificates of the chief financial
officer, chief accounting officer, controller or treasurer of the Borrower as to
compliance with the terms of this Agreement and setting forth in reasonable detail
the calculations necessary to demonstrate compliance with Section 5.03,
provided that in the event of any change in generally accepted accounting
principles used in the preparation of such financial statements, the Borrower shall
also provide, if necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements to GAAP;




     (ii) as soon as available and in any event within 90 days after the end of
each fiscal year of the Borrower, a copy of the annual audit report for such year
for the Borrower and its Subsidiaries, containing the Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal year, in each case accompanied by an opinion by Ernst
& Young LLP or other independent public accountants of recognized national
standing that does not include any “going concern” or similar qualification, or any
qualification as to the scope of their audit) and certificates of the chief
financial officer, chief accounting officer, controller or treasurer of the
Borrower as to compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate compliance with Section
5.03, provided that in the event of any change in generally accepted
accounting principles used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming such financial statements to
GAAP;




     (iii) as soon as possible and in any event within five days after the
occurrence of each Default continuing on the date of such statement, a statement of
the chief financial officer of the Borrower setting forth details of such Default
and the action that the Borrower has taken and proposes to take with respect
thereto;




     (iv) promptly after the sending or filing thereof, copies of all reports that
the Borrower sends to its securityholders generally, and copies of all reports on
Form 10-K, 10-Q or 8-K (other than pursuant to Rule 14a-12 of the Securities
Exchange Act of 1934, as amended) and registration statements for the public
offering (other than pursuant to employee Plans) of securities



28









 






of the Borrower that
the Borrower or any Subsidiary files with the Securities and Exchange Commission or
any national securities exchange;




     (v) promptly after the commencement thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator affecting the
Borrower or any of its Subsidiaries of the type described in Section 4.01(f); and




     (vi) such other information respecting the Borrower or any of its Subsidiaries
as any Lender through the Agent may from time to time reasonably request.



          SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit is outstanding or any Lender shall have any Commitment
hereunder, the Borrower will not:





     (a) Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries
to create or suffer to exist, any Lien on or with respect to any of its properties, whether
now owned or
hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right
to receive income, other than:




     (i) Permitted Liens,




     (ii) purchase money Liens upon or in any real property or equipment acquired
or held by the Borrower or any Subsidiary to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the purpose of
financing the acquisition, construction or improvement of such property or
equipment and related expenses, or Liens existing on any property or equipment at
the time of its acquisition (other than any such Liens created in contemplation of
such acquisition that were not incurred to finance the acquisition of such
property) or extensions, renewals or replacements of any of the foregoing for the
same or a lesser amount, provided, however, that no such Lien shall
extend to or cover any properties of any character other than the real property or
equipment being acquired, and no such extension, renewal or replacement shall
extend to or cover any properties not theretofore subject to the Lien being
extended, renewed or replaced,




     (iii) the Liens existing on the Effective Date and described on Schedule
5.02(a) hereto,




     (iv) Liens on property of a Person existing at the time such Person is merged
into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes
a Subsidiary of the Borrower; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do not extend to any
assets other than those of the Person so merged into or consolidated with the
Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary,




     (v) Liens on cash collateral or government securities to secure obligations
under Hedge Agreements and letters of credit, provided that the aggregate value of
any collateral so pledged does not exceed $25,000,000 in the aggregate at any time,




     (vi) assignments of the right to receive income effected as a part of the sale
of a business unit or for collection purposes,




     (vii) other Liens securing Debt in an aggregate principal amount not to exceed
the amount specified in Section 5.02(d)(vi) at any time outstanding, and




     (viii) the replacement, extension or renewal of any Lien permitted by clause
(iii) or (iv) above upon or in the same property theretofore subject thereto or the
replacement, extension



29









 






or renewal (without increase in the amount or change in any
direct or contingent obligor) of the Debt secured thereby.




     (b) Mergers, Etc. Merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of transactions)
all or substantially all of its assets (whether now owned or hereafter acquired) to, any
Person, or permit any of its Subsidiaries to do so, except that (i) any Subsidiary of the
Borrower may merge or consolidate with or into, or dispose of assets to, any other
Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower may merge into or dispose
of assets to the Borrower, (iii) any Subsidiary of the Borrower may merge into or dispose
of assets to any other Person so long as the Borrower delivers to the Agent a certificate
demonstrating pro forma compliance with Section 5.03 after giving effect to such
transaction, (iv) any Subsidiary of the Borrower may merge with any other Person so long as
such Subsidiary is the surviving corporation and (v) the Borrower may merge with any other
Person so long as the Borrower is the surviving corporation, provided, in each
case, that no
Default shall have occurred and be continuing at the time of such proposed transaction
or would result therefrom.




     (c) Accounting Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in accounting policies or reporting practices, except as
required or permitted by generally accepted accounting principles.




     (d) Subsidiary Debt. Permit any of its Subsidiaries to create or suffer to
exist, any Debt other than:




     (i) Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower,




     (ii) Debt existing on the Effective Date and described on Schedule 5.02(d)
hereto (the “Existing Debt”), and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, the Existing Debt, provided
that the principal amount of such Existing Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such extension, refunding
or refinancing, and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension, refunding or
refinancing,




     (iii) Debt of a Person existing at the time such Person is merged into or
consolidated with the any Subsidiary of the Borrower or becomes a Subsidiary of the
Borrower (the “Assumed Debt”) and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, the Assumed Debt; provided
that (A) such Debt was not created in contemplation of such merger, consolidation
or acquisition and (B) that the principal amount of such Assumed Debt shall not be
increased above the principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and contingent obligors
therefor shall not be changed, as a result of or in connection with such extension,
refunding or refinancing,




     (iv) Debt of the type permitted to be secured by Liens pursuant to Section
5.02(a)(ii),




     (v) endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business, and




     (vi) other Debt aggregating for all of the Subsidiaries of the Borrower,
together with Debt secured by Liens permitted under Section 5.02(a)(vii), an amount
not to exceed 5% of Consolidated total assets at any time outstanding (determined
as of the date such Debt or Lien was incurred).




     (e) Speculative Transactions. Engage, or permit any of its Subsidiaries to
engage, in any transaction involving commodity options or futures contracts or Hedge
Agreements except in the ordinary course of business and not for speculative purposes.



30









 






     (f) Change in Nature of Business. Make, or permit any of its Subsidiaries to
make, any material change in the nature of the business carried on by the Borrower and its
Subsidiaries considered as a whole at the date hereof.



          SECTION 5.03. Financial Covenants. So long as any
Advance shall remain unpaid, any Letter of Credit is outstanding or any Lender shall have any
Commitment hereunder, the Borrower will:





     (a) Leverage Ratio. Maintain, as of any date, a ratio of Consolidated Debt for
Borrowed Money as at such date to Consolidated EBITDA of the Borrower and its Subsidiaries for the
period of four consecutive fiscal quarters most recently ended of not greater than 3.25 to 1.00.




     (b) Interest Coverage Ratio. Maintain, as of the last day of each fiscal
quarter, a ratio of Consolidated EBITDA of the Borrower and its Subsidiaries for the period
of four consecutive fiscal quarters then ended to interest payable on, and amortization of
debt discount in respect of, all Debt for Borrowed Money during such period by the Borrower
and its Subsidiaries of not less than 3.00 to 1.00.



ARTICLE VI




EVENTS OF DEFAULT




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





     (a) The Borrower shall fail to pay any principal of any Advance when the same becomes
due and payable; or the Borrower shall fail to pay any interest on any Advance or make any
other payment of fees or other amounts payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or




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




     (c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(d), (e), (h) or (i), 5.02 or 5.03, or (ii) the Borrower shall
fail to perform or observe any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if such failure shall remain unremedied
for 10 days after written notice thereof shall have been given to the Borrower by the Agent
or any Lender; or




     (d) The Borrower or any of its Subsidiaries shall fail to pay any principal of or
premium or interest on any Debt that is outstanding in a principal or notional amount of at
least $75,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the
Borrower or such Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate the maturity of such Debt; or any
such Debt shall be declared to be due and payable, or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or




     (e) The Borrower or any of its Subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or



31









 






any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 30 days, or any of the
actions sought in such proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or the Borrower
or any of its Subsidiaries shall take any corporate action to authorize any of the actions
set forth above in this subsection (e); or




     (f) Judgments or orders for the payment of money in excess of $75,000,000 in the
aggregate shall be rendered against the Borrower or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; provided, however, that any such judgment or order shall
not be an Event of Default under this Section 6.01(f) if and for so long as (i) the amount
of such judgment or order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer, which shall be
rated at least “A” by A.M. Best Company, has been notified of, and has not disputed the
claim made for payment of, the amount of such judgment or order; or




     (g) (i) Any Person or two or more Persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Borrower (or other securities convertible into such Voting Stock) representing
35% or more of the combined voting power of all Voting Stock of the Borrower; or (ii)
during any period of up to 24 consecutive months, commencing after the date of this
Agreement, individuals who at the beginning of such 24-month period were directors of the
Borrower shall cease for any reason to constitute a majority of the board of directors of
the Borrower; or (iii) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract or arrangement
that, upon consummation, will result in its or their acquisition of the power to direct the
management or policies of the Borrower; or




     (h) The Borrower or any of its ERISA Affiliates shall incur, or shall be reasonably
likely to incur liability in excess of $75,000,000 in the aggregate as a result of one or
more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete
withdrawal of the Borrower or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan;


then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances
(other than Advances to be made by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of
the Issuing Banks to issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the Advances, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and
all such amounts shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed entry of an order for
relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances (other than Advances to be made by an Issuing Bank or a Lender pursuant to
Section 2.03(c)) and of the Issuing Banks to issue Letters of Credit shall automatically be
terminated and (B) the Advances, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.




32









 








          SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If any Event
of Default shall have occurred and be continuing, the Agent may with the consent, or shall at the
request, of the Required
Lenders, irrespective of whether it is taking any of the actions described in Section 6.01 or
otherwise, make demand upon the Borrower to, and forthwith upon such demand the Borrower will, (a)
pay to the Agent on behalf of the Lenders in same day funds at the Agent’s office designated in
such demand, for deposit in the L/C Cash Deposit Account, an amount equal to the aggregate
Available Amount of all Letters of Credit then outstanding or (b) make such other arrangements in
respect of the outstanding Letters of Credit as shall be acceptable to the Required Lenders and not
more disadvantageous to the Borrower than clause (a); provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to the Borrower under
the Federal Bankruptcy Code, an amount equal to the aggregate Available Amount of all outstanding
Letters of Credit shall be immediately due and payable to the Agent for the account of the Lenders
without notice to or demand upon the Borrower, which are expressly waived by the Borrower, to be
held in the L/C Cash Deposit Account. If at any time an Event of Default is continuing the Agent
determines that any funds held in the L/C Cash Deposit Account are subject to any right or claim of
any Person other than the Agent and the Lenders or that the total amount of such funds is less than
the aggregate Available Amount of all Letters of Credit, the Borrower will, forthwith upon demand
by the Agent, pay to the Agent, as additional funds to be deposited and held in the L/C Cash
Deposit Account, an amount equal to the excess of (a) such aggregate Available Amount over (b) the
total amount of funds, if any, then held in the L/C Cash Deposit Account that the Agent determines
to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit, to the
extent funds are on deposit in the L/C Cash Deposit Account, such funds shall be applied to
reimburse the Issuing Banks to the extent permitted by applicable law. After all such Letters of
Credit shall have expired or been fully drawn upon and all other obligations of the Borrower
hereunder and under the Notes shall have been paid in full, the balance, if any, in such L/C Cash
Deposit Account shall be returned to the Borrower.




ARTICLE VII




THE AGENT




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




          SECTION 7.02. Agent’s Reliance, Etc. Neither the Agent
nor any of its directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement, except for its or
their own gross negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Agent: (i) may treat the Lender that made any Advance as the holder of
the Debt resulting therefrom until the Agent receives and accepts an Assumption Agreement entered
into by an Assuming Lender as provided in Section 2.18 or 2.19, as the case may be, or an
Assignment and Acceptance entered into by such Lender, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 8.07; (ii) may consult with legal counsel (including counsel for
the Borrower), independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or the existence at
any time of any Default or to inspect the property (including the books and records) of the
Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created under or
in connection with, this Agreement or any other instrument or document furnished pursuant hereto;
and





33









 







(vi) shall incur no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier or telegram)
believed by it to be genuine and signed or sent by the proper party or parties.




          SECTION 7.03. CUSA and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, CUSA shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as though it were not the
Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include CUSA
in its individual capacity. CUSA and its Affiliates may accept deposits from, lend money to, act
as trustee under indentures of, accept investment banking engagements from and generally engage in
any kind of business with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if CUSA were not the Agent
and without any duty to account therefor to the Lenders. The Agent shall have no duty to disclose
any information obtained or received by it or any of its Affiliates relating to the Borrower or any
of its Subsidiaries to the extent such information was obtained or received in any capacity other
than as Agent. In the event that CUSA or any of its Affiliates shall be or become an indenture
trustee under the Trust Indenture Act of 1939 (as amended, the “Trust Indenture Act”) in respect of
any securities issued or guaranteed by the Borrower, the parties hereto acknowledge and agree that
any payment or property received in satisfaction of or in respect of any obligation of the Borrower
hereunder or under any other Loan Document by or on behalf of CUSA in its capacity as the Agent for
the benefit of any Lender under this Agreement or any Note (other than CUSA or an Affiliate of
CUSA) and which is applied in accordance with this Agreement shall be deemed to be exempt from the
requirements of Section 311 of the Trust Indenture Act pursuant to Section 311(b)(3) of the Trust
Indenture Act.




          SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the Agent or any other
Lender and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under this Agreement.




          SECTION 7.05. Indemnification. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the Advances then owed to each of them (or if no Advances are at
the time outstanding, ratably according to the respective amounts of their Revolving Credit
Commitments), from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by the Agent in its capacity as such under this
Agreement (collectively, the “Indemnified Costs”), provided that no Lender shall be
liable for any portion of the Indemnified Costs resulting from the Agent’s gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse the Agent
promptly upon demand for its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to
the extent that the Agent is not reimbursed for such expenses by the Borrower. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05
applies whether any such investigation, litigation or proceeding is brought by the Agent, any
Lender or a third party.




          (b) Each Lender severally agrees to indemnify the Issuing Banks (to the extent not promptly
reimbursed by the Borrower) from and against such Lender’s Ratable Share of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against any such Issuing Bank in any way relating to or arising out of the Loan Documents
or any action taken or omitted by such Issuing Bank hereunder or in connection herewith;
provided, however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Issuing Bank’s gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon
demand for its Ratable Share of any costs and expenses (including, without




34









 







limitation, fees and
expenses of counsel) payable by the Borrower under Section 8.04, to the extent that such Issuing
Bank is not promptly reimbursed for such costs and expenses by the Borrower.




          (c) The failure of any Lender to reimburse the Agent or any Issuing Bank promptly upon demand
for its Ratable Share of any amount required to be paid by the Lenders to the Agent as provided
herein shall not relieve any other Lender of its obligation hereunder to reimburse the Agent or any
Issuing Bank for its Ratable Share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse the Agent or any Issuing Bank for such other Lender’s
Ratable Share of such amount. Without prejudice to the survival of any other agreement of any
Lender hereunder, the agreement and obligations of each Lender contained in this Section 7.05 shall
survive the payment in full of principal, interest and all other amounts payable hereunder and
under the Notes. Each of the Agent and each Issuing Bank agrees to return to the Lenders their
respective Ratable Shares of any amounts paid under this Section 7.05 that are subsequently
reimbursed by the Borrower.




          SECTION 7.06. Successor Agent. The Agent may resign at
any time by giving written notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent’s giving of notice of resignation or the Required Lenders’ removal of
the retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent’s resignation or removal hereunder as
Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement.




          SECTION 7.07. Other Agents. Each Lender hereby
acknowledges that neither the documentation agent nor any other Lender designated as any “Agent” on
the signature pages hereof has any liability hereunder other than in its capacity as a Lender.




ARTICLE VIII




MISCELLANEOUS




          SECTION 8.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all the Lenders, do any of the following:
(a) waive any of the conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders other than in accordance with Section 2.18, (c) reduce the principal of, or interest on,
the Advances or any fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Advances or any fees or other amounts payable
hereunder other than in accordance with Section 2.19, (e) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the Advances, or the number of Lenders, that shall
be required for the Lenders or any of them to take any action hereunder or (f) amend this
Section 8.01; and provided further that (x) no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders required above to take
such action, affect the rights or duties of the Agent under this Agreement or any Note and (y) no
amendment, waiver or consent shall, unless in writing and signed by the Issuing Banks in addition
to the Lenders required above to take such action, adversely affect the rights or obligations of
the Issuing Banks in their capacities as such under this Agreement.




          SECTION 8.02. Notices, Etc. (a) All notices and other communications provided for
hereunder shall be either (x) in writing (including telecopier or telegraphic communication) and
mailed, telecopied or delivered or (y) as and to the extent set forth in Section 8.02(b) and in the
proviso to this Section 8.02(a), if to the Borrower, at





35









 







its address at 2700 Coast Avenue, Mountain
View, California 94043, Attention: Vice President, Finance; if to any Initial Lender, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender,
at its Domestic Lending Office specified in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Agent, at its address at Two Penns
Way, New Castle, Delaware 19720, Attention: Bank Loan Syndications Department; or, as to the
Borrower or the Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent, provided that
materials required to be delivered pursuant to Section 5.01(i)(i), (ii) or (iv) shall be delivered
to the Agent as specified in Section 8.02(b) or as otherwise specified to the Borrower by the
Agent. All such notices and communications shall, when mailed, telecopied or e-mailed, be
effective when deposited in the mails, telecopied or confirmed by e-mail, respectively, except that
notices and communications to the Agent pursuant to Article II, III or VII shall not be effective
until received by the Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and
delivered hereunder shall be effective as delivery of a manually executed counterpart thereof.




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




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




          SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.




          SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand all
reasonable documented out of pocket costs and expenses of the Agent in connection with the
preparation, execution, delivery, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and expenses of
counsel for the Agent with respect thereto and with respect to advising the Agent as to its rights
and responsibilities under this Agreement. The Borrower further agrees to pay on demand all costs
and expenses of the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, reasonable fees and expenses of counsel for the Agent and
each Lender in connection with the enforcement of rights under this Section 8.04(a).




36









 








          (b) The Borrower agrees to indemnify and hold harmless the Agent and each Lender and each of
their Affiliates and their officers, directors, employees, agents and advisors (each, an
“Indemnified Party”) from and against any and all claims, damages, losses, penalties,
liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel)
incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in connection therewith) (i)
the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances or (ii) the actual or alleged presence of Hazardous Materials
on any property of the Borrower or any of its Subsidiaries or any Environmental Action relating in
any way to the Borrower or any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, equityholders or creditors or
an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are consummated. The Borrower also
agrees not to assert any claim for special, indirect, consequential or punitive damages against the
Agent, any Lender, any of their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, arising out of or otherwise relating
to the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances.




          (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by
the Borrower to or for the account of a Lender other than on the last day of the Interest Period
for such Advance, as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10
or 2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other
reason, or by an Eligible Assignee to a Lender other than on the last day of the Interest Period
for such Advance upon an assignment of rights and obligations under this Agreement pursuant to
Section 8.07 as a result of a demand by the Borrower pursuant to Section 8.07(a), the Borrower
shall, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for
the account of such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.




          (d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in Sections 2.11, 2.14 and 8.04 shall survive
the payment in full of principal, interest and all other amounts payable hereunder and under the
Notes.




          SECTION 8.05. Right of Set-off. Upon either (a) the
occurrence and during the continuance of any Event of Default under Section 6.01(a) or 6.01(e) or
(b) (i) the occurrence and during the continuance of any other Event of Default and (ii) the making
of the request or the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01, 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 and other indebtedness at any time owing by such Lender or
such Affiliate to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and the Note held by
such Lender, whether or not such Lender shall have made any demand under this Agreement or such
Note and although such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights of each Lender
and its Affiliates under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender and its Affiliates may have.




          SECTION 8.06. Binding Effect. This Agreement shall
become effective (other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been executed by the
Borrower and the Agent and when the Agent shall have been notified by each Initial Lender that such
Initial Lender has executed it and thereafter shall be binding upon and inure to the benefit of the





37









 







Borrower, the Agent and each Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.




          SECTION 8.07. Assignments and Participations. (a) Each
Lender may with the consent of each Issuing Bank (which consent shall not be unreasonably withheld
or delayed) and, if demanded by the Borrower (so long as no Default shall have occurred and be
continuing and following a demand by such Lender pursuant to Section 2.11 or 2.14) upon at least
five Business Days’ notice to such Lender and the Agent, will, assign to one or more Persons all or
a portion of its rights and obligations under this Agreement (including, without limitation, all or
a portion of its Revolving Credit Commitment, its Unissued Letter of Credit Commitment, the
Advances owing to it, its participations in Letters of Credit and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of
an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment
of all of a Lender’s rights and obligations under this Agreement, the amount of (x) the Revolving
Credit Commitment of the assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such assignment) shall
in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y)
the Unissued Letter of Credit Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof, in each case, unless the Borrower and the Agent otherwise agree (iii) each such
assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand
by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after
consultation with the Agent and shall be either an assignment of all of the rights and obligations
of the assigning Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such assignments that together
cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender
shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to
this Section 8.07(a) unless and until such Lender shall have received one or more payments from
either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued
interest thereon to the date of payment of such principal amount and all other amounts accrued or
payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with any Note subject to such assignment and a processing and recordation
fee of $3,500 payable by the parties to each such assignment, provided, however,
that in the case of each assignment made as a
result of a demand by the Borrower, such recordation fee shall be payable by the Borrower
except that no such recordation fee shall be payable in the case of an assignment made at the
request of the Borrower to an Eligible Assignee that is an existing Lender. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified in each Assignment
and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have
the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to
the extent that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.11, 2.14
and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)
and be released from its obligations (other than its obligations under Section 7.05 to the extent
any claim thereunder relates to an event arising prior to such assignment) under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).




          (b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder
and the assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created under or in connection
with, this Agreement or any other instrument or document furnished pursuant hereto; (ii) such
assigning Lender makes no representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by the Borrower of any of
its obligations under this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy






38









 







 of this
Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter into such Assignment
and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of the obligations
that by the terms of this Agreement are required to be performed by it as a Lender.




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




          (d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and the Commitment of, and principal amount of the Advances
owing to, each Lender from time to time (the “Register”). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the
Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior
notice.




          (e) Each Lender may sell participations to one or more banks or other entities (other than the
Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Commitment, the Advances
owing to it and any Note or Notes held by it); provided, however, that (i) such
Lender’s obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of this Agreement or any Note, or any consent to
any departure by the Borrower therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.




          (f) Any Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower furnished to such Lender by or on
behalf of the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the confidentiality of any
Borrower Information relating to the Borrower received by it from such Lender.




          (g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any
time create a security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and any Note or Notes held by it) in
favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.




          SECTION 8.08. Confidentiality. Neither the Agent nor any
Lender may disclose to any Person any confidential, proprietary or non-public information of the
Borrower furnished to the Agent or the Lenders by the Borrower (such information being referred to
collectively herein as the “Borrower Information”), except that each of the Agent and each
of the Lenders may disclose Borrower Information (i) to its and its affiliates’ employees,





39










 




officers, directors, agents and advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Borrower Information and
instructed to keep such Borrower Information confidential on substantially the same terms as
provided herein), (ii) to the extent requested by any regulatory authority, (iii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal process, (iv) to any
other party to this Agreement, (v) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi)
subject to an agreement containing provisions substantially the same as those of this Section 8.08,
to any assignee or participant or prospective assignee or participant or to any direct, indirect,
actual or prospective counterparty (and its advisor) to any swap, derivative or securitization
transaction related to the obligations of the Borrower under this Agreement, (vii) to the extent
such Borrower Information (A) is or becomes generally available to the public on a non-confidential
basis other than as a result of a breach of this Section 8.08 by the Agent or such Lender, or (B)
is or becomes available to the Agent or such Lender on a nonconfidential basis from a source other
than the Borrower and (viii) with the consent of the Borrower.




     SECTION 8.09. Governing Law. This Agreement and
the Notes shall be governed by, and construed in accordance with, the laws of the State of New
York.



     SECTION 8.10. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement.



     SECTION 8.11. Jurisdiction, Etc. (a) Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the Notes, 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 or proceeding may be heard and determined in
any such New York State court or, to the extent permitted by law, in such federal court. The
Borrower hereby further consents to the service of process in any action or proceeding in such
courts by the mailing thereof by any parties hereto by registered or certified mail, postage
prepaid, to the Borrower at its address specified pursuant to Section 8.02. 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 any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of any jurisdiction.



     (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that 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 or the
Notes in any New York State or federal court. 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.



     SECTION 8.12. No Liability of the Issuing Banks. The Borrower assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letter of Credit. Neither an
Issuing Bank nor any of its officers or directors shall be liable or responsible for: (a) the use
that may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee
in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (c) payment by such Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter of Credit, except
that the Borrower shall have a claim against such Issuing Bank, and such Issuing Bank shall be
liable to the Borrower, to the extent of any direct, but not consequential, damages suffered by the
Borrower that the Borrower proves were caused by such Issuing Bank’s willful misconduct or gross
negligence when determining whether drafts and other documents presented under a Letter of Credit
comply with the terms
thereof. In furtherance and not in limitation of the foregoing, such



40









 







Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary; provided that
nothing herein shall be deemed to excuse such Issuing Bank if it acts with gross negligence or
willful misconduct in accepting such documents.



     SECTION 8.13. Patriot Act Notice. Each
Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Agent, as applicable, to identify
the Borrower in accordance with the Patriot Act. The Borrower shall provide, to the extent
commercially reasonable, such information and take such actions as are reasonably requested by the
Agent or any Lenders in order to assist the Agent and the Lenders in maintaining compliance with
the Patriot Act.



41









 





     SECTION 8.14. Waiver of Jury Trial. Each
of the Borrower, the Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out
of or relating to this Agreement or the Notes or the actions of the Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.



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



	 	 	 	 	 	 	 	 	 
	 	 	 	 	INTUIT INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	CITICORP USA, INC.,	 	 
	 	 	 	 	as Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Initial Issuing Bank	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	CITICORP USA, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Initial Lenders	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	CITICORP USA, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	BANK OF AMERICA, N.A.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	THE BANK OF NOVA SCOTIA	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	JPMORGAN CHASE BANK, N.A.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 






42









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	KEYBANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	MORGAN STANLEY BANK	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	CITY NATIONAL BANK	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	BNP PARIBAS	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	UNION BANK OF CALIFORNIA, N.A.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	U.S. BANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 






43









 





SCHEDULE I

INTUIT INC.

FIVE YEAR CREDIT AGREEMENT

APPLICABLE LENDING OFFICES




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name of Initial	 	Revolving Credit	 	 	Letter of Credit	 	 	 	 	 
	Lender	 	Commitment	 	 	Commitment	 	 	Domestic Lending Office	 	Eurodollar Lending Office
	Bank of America,
	 	$	50,000,000	 	 	 	 	 	 	2001 Clayton Road – Building B	 	2001 Clayton Road – Building B
	N.A.
	 	 	 	 	 	 	 	 	 	Concord CA  94520	 	Concord CA  94520
	 
	 	 	 	 	 	 	 	 	 	Attn:  Rosilind Meshack	 	Attn:  Rosilind Meshack
	 
	 	 	 	 	 	 	 	 	 	T:  925 675-8448	 	T:  925 675-8448
	 
	 	 	 	 	 	 	 	 	 	F:  888 969-2285	 	F:  888 969-2285
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	The Bank of Nova

	 	$	50,000,000	 	 	 	 	 	 	600 Peachtree Street, NE, Suite 2700	 	600 Peachtree Street, NE, Suite 2700
	Scotia 
	 	 	 	 	 	 	 	 	 	Atlanta, GA 30308	 	Atlanta, GA 30308
	 
	 	 	 	 	 	 	 	 	 	Attn: Rabbana Omar	 	Attn: Rabbana Omar
	 
	 	 	 	 	 	 	 	 	 	T: 212-225-5705	 	T: 212-225-5705
	 
	 	 	 	 	 	 	 	 	 	F: 212-225-5709	 	F: 212-225-5709
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	BNP Paribas
	 	$	50,000,000	 	 	 	 	 	 	919 3rd Avenue	 	919 3rd Avenue
	 
	 	 	 	 	 	 	 	 	 	New York, NY  10022	 	New York, NY  10022
	 
	 	 	 	 	 	 	 	 	 	Attn:  Anthony Narciso	 	Attn:  Anthony Narciso
	 
	 	 	 	 	 	 	 	 	 	T:  212 471-6905	 	T:  212 471-6905
	 
	 	 	 	 	 	 	 	 	 	F:  212 841-2682	 	F:  212 841-2682
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Citicorp USA, Inc.
	 	$	65,000,000	 	 	$	100,000,000	 	 	Two Penns Way	 	Two Penns Way
	 
	 	 	 	 	 	 	 	 	 	New Castle, DE  19720	 	New Castle, DE  19720
	 
	 	 	 	 	 	 	 	 	 	T:  302 894-6016	 	T:  302 894-6016
	 
	 	 	 	 	 	 	 	 	 	F:  212 994-0961	 	F:  212 994-0961
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	City National Bank
	 	$	25,000,000	 	 	 	 	 	 	400 North Roxbury	 	400 North Roxbury
	 
	 	 	 	 	 	 	 	 	 	Beverly Hills, CA  90210	 	Beverly Hills, CA  90210
	 
	 	 	 	 	 	 	 	 	 	Attn:  Pam Terry	 	Attn:  Pam Terry
	 
	 	 	 	 	 	 	 	 	 	T:  310 297-8055	 	T:  310 297-8055
	 
	 	 	 	 	 	 	 	 	 	F:  310 297-8062	 	F:  310 297-8062
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase
	 	$	65,000,000	 	 	 	 	 	 	10 South Dearborn, Floor 7	 	10 South Dearborn, Floor 7
	Bank, N.A.
	 	 	 	 	 	 	 	 	 	Chicago, IL 60603-2003	 	Chicago, IL 60603-2003
	 
	 	 	 	 	 	 	 	 	 	Attn: Cecily Roland	 	Attn: Cecily Roland
	 
	 	 	 	 	 	 	 	 	 	P:  312-732-2016	 	P:  312-732-2016
	 
	 	 	 	 	 	 	 	 	 	F:  312-661-0116	 	F:  312-661-0116
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	KeyBank National
	 	$	40,000,000	 	 	 	 	 	 	3 Embarcadero Center	 	3 Embarcadero Center
	Association
	 	 	 	 	 	 	 	 	 	Suite 2900	 	Suite 2900
	 
	 	 	 	 	 	 	 	 	 	San Francisco, Ca  94111	 	San Francisco, Ca  94111
	 
	 	 	 	 	 	 	 	 	 	Attn:  Lisa Wright	 	Attn:  Lisa Wright
	 
	 	 	 	 	 	 	 	 	 	T:  216 689-5023	 	T:  216 689-5023
	 
	 	 	 	 	 	 	 	 	 	F:  216 689-5962	 	F:  216 689-5962
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Morgan Stanley Bank
	 	$	50,000,000	 	 	 	 	 	 	2500 Lake Park Blvd.	 	2500 Lake Park Blvd.
	 
	 	 	 	 	 	 	 	 	 	Suite 300 C	 	Suite 300 C
	 
	 	 	 	 	 	 	 	 	 	West Valley City, UT  84120	 	West Valley City, UT  84120
	 
	 	 	 	 	 	 	 	 	 	Attn:  Zoe Marnerou	 	Attn:  Zoe Marnerou
	 
	 	 	 	 	 	 	 	 	 	T:  718 754-4066	 	T:  718 754-4066
	 
	 	 	 	 	 	 	 	 	 	F:  718 233-2140	 	F:  718 233-2140
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Union Bank of
	 	$	25,000,000	 	 	 	 	 	 	1980 Saturn Street	 	1980 Saturn Street
	California, N.A.
	 	 	 	 	 	 	 	 	 	First Floor	 	First Floor
	 
	 	 	 	 	 	 	 	 	 	Monterey Park, CA 91755	 	Monterey Park, CA 91755
	 
	 	 	 	 	 	 	 	 	 	Attn: Wanda Pace-Rodgers	 	Attn: Wanda Pace-Rodgers
	 
	 	 	 	 	 	 	 	 	 	T:  323-720-2682	 	T:  323-720-2682
	 
	 	 	 	 	 	 	 	 	 	F:  323- 824-6198	 	F:  323- 824-6198







44









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name of Initial	 	Revolving Credit	 	 	Letter of Credit	 	 	 	 	 
	Lender	 	Commitment	 	 	Commitment	 	 	Domestic Lending Office	 	Eurodollar Lending Office
	U.S. Bank National
	 	$	40,000,000	 	 	 	 	 	 	555 S.W. Oak Street	 	555 S.W. Oak Street
	Association
	 			 	 	 	 	 	 	Suite 400	 	Suite 400
	 
	 	 	 	 	 	 	 	 	 	Mail Code:  PD-OR-P4CB	 	Mail Code:  PD-OR-P4CB
	 
	 	 	 	 	 	 	 	 	 	Portland, OR  97204	 	Portland, OR  97204
	 
	 	 	 	 	 	 	 	 	 	Attn:  Patty Abel	 	Attn:  Patty Abel
	 
	 	 	 	 	 	 	 	 	 	T:  503 275-7137	 	T:  503 275-7137
	 
	 	 	 	 	 	 	 	 	 	F:  503 275-4600	 	F:  503 275-4600
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Wachovia Bank,
	 	$	40,000,000	 	 	 	 	 	 	301 South College Street	 	301 South College Street
	National
	 	 	 	 	 	 	 	 	 	Charlotte, NC  28288	 	Charlotte, NC  28288
	Association
	 	 	 	 	 	 	 	 	 	Attn:  Joseph Feheley	 	Attn:  Joseph Feheley
	 
	 	 	 	 	 	 	 	 	 	T:  704 383-8048	 	T:  704 383-8048
	 
	 	 	 	 	 	 	 	 	 	F:  704 715-0094	 	F:  704 715-0094
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total:
	 	$	500,000,000	 	 	$	100,000,000	 	 	 	 	 







45









 





SCHEDULE 5.02(a)




Existing Liens




None




 









 





SCHEDULE 5.02(d)




Existing Subsidiary Debt




None




 









 





EXHIBIT A — FORM OF

REVOLVING CREDIT

PROMISSORY NOTE




						
	U.S.$                                        
	 	Dated:
	 	                                        , 200                    	 






     FOR VALUE RECEIVED, the undersigned, INTUIT INC., a Delaware corporation (the
“Borrower”), HEREBY PROMISES TO PAY to the order of                                                              (the
“Lender”) for the account of its Applicable Lending Office on the Termination Date
applicable to such Lender (each as defined in the Credit Agreement referred to below) the principal
sum of U.S.$[amount of the Lender’s Commitment in figures] or, if less, the aggregate principal
amount of the Advances made by the Lender to the Borrower pursuant to the Credit Agreement dated as
of March 22, 2007 among the Borrower, the Lender and certain other lenders parties thereto,
JPMorgan Chase Bank, N.A., as syndication agent, and Citicorp USA, Inc. as Agent for the Lender and
such other lenders (as amended or modified from time to time, the “Credit Agreement”; the
terms defined therein being used herein as therein defined) outstanding on such Termination Date.



     The Borrower promises to pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.



     Both principal and interest are payable in lawful money of the United States of America to
CUSA, as Agent, at 388 Greenwich Street, New York, New York 10013, in same day funds. Each Advance
owing to the Lender by the Borrower pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note.



     This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,
the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of
Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Promissory Note and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain stated events and
also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.



	 	 	 	 	 
	 	INTUIT INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




 









 





ADVANCES AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	 	 	 
	 	 	Amount of	 	Principal Paid	 	Unpaid Principal	 	Notation
	Date	 	Advance	 	or Prepaid	 	Balance	 	Made By
	 
	 	 	 	 	 	 	 	 






2









 





EXHIBIT B — FORM OF NOTICE OF

BORROWING




Citicorp USA, Inc., as Agent
 for
the Lenders parties
 to
the Credit Agreement
 referred
to below
 Two
Penns Way
 New
Castle, Delaware 19720




[Date]



Attention: Bank Loan Syndications Department



Ladies and Gentlemen:




     The undersigned, Intuit Inc., refers to the Credit Agreement, dated as of March 22, 2007 (as
amended or modified from time to time, the “Credit Agreement”, the terms defined therein
being used herein as therein defined), among the undersigned, certain Lenders parties thereto,
JPMorgan Chase Bank, N.A., as syndication agent, and Citicorp USA, Inc., as Agent for said Lenders,
and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the “Proposed Borrowing”) as
required by Section 2.02(a) of the Credit Agreement:



          (i) The Business Day of the Proposed Borrowing is                     , 200  .




          (ii) The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances]
[Eurodollar Rate Advances].




          (iii) The aggregate amount of the Proposed Borrowing is $                    .




          [(iv) The initial Interest Period for each Eurodollar Rate Advance made as part of the
Proposed Borrowing is            month[s].]




          The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:





          (A) the representations and warranties contained in Section 4.01 of the Credit
Agreement (except the representations set forth in the last sentence of subsection (e)
thereof and in subsection (f)(i) thereof) are correct, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds therefrom, as though made on and
as of such date; and



 









 






          (B) no event has occurred and is continuing, or would result from such Proposed
Borrowing or from the application of the proceeds therefrom, that constitutes a Default.



	 	 	 	 	 
	 	Very truly yours,



INTUIT INC.

 	 
	 	By  	 	 
	 	 	Title:. 	 
	 	 	 	 
	 




2









 





EXHIBIT C — FORM OF

ASSIGNMENT AND ACCEPTANCE




     Reference is made to the Credit Agreement dated as of March 22, 2007 (as amended or modified
from time to time, the “Credit Agreement”) among INTUIT INC., a Delaware corporation (the
“Borrower”), the Lenders (as defined in the Credit Agreement), JPMorgan Chase Bank, N.A.,
as syndication agent, and Citicorp USA, Inc., as agent for the Lenders (the “Agent”).
Terms defined in the Credit Agreement are used herein with the same meaning.



     The “Assignor” and the “Assignee” referred to on Schedule I hereto agree as follows:



     1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, an interest in and to the Assignor’s rights and obligations under
the [Credit Agreement as of the date hereof] [the Letter of Credit Facility] equal to the
percentage interest specified on Schedule 1 hereto of [all outstanding rights and obligations under
the Credit Agreement together with participations in Letters of Credit held by the Assignor on the
date hereof] [such Assignor’s Unissued Letter of Credit Commitment]. After giving effect to such
sale and assignment, the Assignee’s [Revolving Credit Commitment and the amount of the Advances
owing to the Assignee] [Letter of Credit Commitment] will be as set forth on Schedule 1 hereto.



     2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created under or
in connection with, the Credit Agreement or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by the Borrower of any of
its obligations under the Credit Agreement or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Note[, if any,] held by the Assignor [and requests that the Agent
exchange such Note for a new Note payable to the order of [the Assignee in an amount equal to the
Revolving Credit Commitment assumed by the Assignee pursuant hereto or new Notes payable to the
order of the Assignee in an amount equal to the Revolving Credit Commitment assumed by the Assignee
pursuant hereto and] the Assignor in an amount equal to the Revolving Credit Commitment retained by
the Assignor under the Credit Agreement[, respectively,] as specified on Schedule 1 hereto].



     3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in Section 4.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers and discretion as are reasonably incidental thereto; (v)
agrees that it will perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender; and (vi) attaches any U.S.
Internal Revenue Service forms required under Section 2.14 of the Credit Agreement.



     4. Following the execution of this Assignment and Acceptance, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective date for this Assignment and
Acceptance (the “Effective Date”) shall be the date of acceptance hereof by the Agent,
unless otherwise specified on Schedule 1 hereto.



 









 





     5. Upon such acceptance and recording by the Agent, as of the Effective Date, (i) the Assignee
shall be a party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement.



     6. Upon such acceptance and recording by the Agent, from and after the Effective Date, the
Agent shall make all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods prior to the Effective
Date directly between themselves.



     7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the
laws of the State of New York.



     8. This Assignment and Acceptance may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by telecopier
shall be effective as delivery of a manually executed counterpart of this Assignment and
Acceptance.



     IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to this Assignment
and Acceptance to be executed by their officers thereunto duly authorized as of the date specified
thereon.



2









 





Schedule 1

to

Assignment and Acceptance




	 	 	 	 	 
	Percentage interest assigned:

	 	 	 	                    %
	 
	Assignee’s Commitment:

	 	 	 	$                    
	 
	Aggregate outstanding principal amount of Advances assigned:

	 	$                    	 	 
	 
	Principal amount of Note payable to Assignee:

	 	$                    	 	 
	 
	Principal amount of Note payable to Assignor:

	 	$                    	 	 
	 
	Effective Date*:                                         , 200  
	 	 	 	 






	 	 	 
	 

	 	[NAME OF ASSIGNOR], as Assignor
	 
	 	 
	 

	 	By       
          
         
          
         
          
         
            
     
	 

	 	Title:
	 
	 	 
	 

	 	Dated:                                         , 200  
	 
	 	 
	 

	 	[NAME OF ASSIGNEE], as Assignee
	 
	 	 
	 

	 	By      
           
         
          
         
          
         
         
        
	 

	 	Title:
	 
	 	 
	 

	 	Dated:                                         , 200  
	 
	 	 
	 

	 	Domestic Lending Office:
	 

	 	           [Address]
	 
	 	 
	 

	 	Eurodollar Lending Office:
	 

	 	           [Address]








 




			
	*	 	This date should be no earlier than five Business Days after the delivery of this Assignment and Acceptance to the Agent.





3









 





Accepted [and Approved] **  this



                     day of                                         , 200  




CITICORP USA, INC., as Agent




By
           
          
           
            
          
          
         
       
     




           Title:




[Approved this                      day

of                                         , 200  




INTUIT INC.




By
         
         
        
         
        
       
        
          
        
         ] *




          Title:






 




			
	**	 	Required if the Assignee is an Eligible Assignee solely by reason of clause (iii) of the definition of “Eligible Assignee”.
	 
	*	 	Required if the Assignee is an Eligible Assignee solely by reason of clause (iii) of the definition of “Eligible Assignee”.





4









 





EXHIBIT D — FORM OF

OPINION OF COUNSEL

FOR THE BORROWER




[Effective Date]




To each of the Lenders parties
 to
the Credit Agreement described below, and
 to
Citicorp USA, Inc., as Agent




Intuit Inc.



Ladies and Gentlemen:




          This opinion is furnished to you pursuant to Section 3.01(h)(iv) of the Credit Agreement,
dated as of March 22, 2007 (the “Credit Agreement”), by and among Intuit Inc., a Delaware
corporation (the “Borrower”), the Lenders parties thereto, JPMorgan Chase Bank, N.A., as
syndication agent (the “Syndication Agent”), and Citicorp USA, Inc., as administrative
agent (the “Agent”) for said Lenders. Unless otherwise defined herein (including but not
limited to the Exhibits hereto), terms defined in the Credit Agreement are used herein as therein
defined.




          We have acted as counsel for the Borrower in connection with the negotiation, execution and
delivery of the Credit Agreement.




          In rendering this opinion, we have examined such matters of law as we considered necessary for
the purpose of rendering this opinion. As to matters of fact material to the opinions expressed
herein, we have relied solely upon the representations and warranties as to factual matters
contained in, and made by Borrower pursuant to, the Management Certificate (defined on Exhibit
A) and upon our examination of the documents identified on Exhibit A (collectively,
“Reviewed Documents”). We have not examined, and we express no opinion with respect to,
any documents other than those described on Exhibit A or made any independent factual
investigation. Except as described on Exhibit A, bring-down certificates, telegrams or
telephonic advice of the public officials referred to on Exhibit A were not obtained as of
the date hereof. Except as described on Exhibit A, we have not caused the search of any
record of any governmental agency or third party.




          In our examination of documents, we have assumed the current accuracy and completeness of (a)
the information obtained from public officials and records included in the documents identified on
Exhibit A and (b) the representations and warranties made by representatives of Borrower to
us, including, without limitation, those set forth in the Management Certificate. We have also
assumed that all the representations and warranties made by Borrower in, or pursuant to, the Credit
Agreement are true and complete as to factual matters in all material respects. We have made no
attempt to verify the accuracy of any of such information, representations or warranties or to
determine the existence or non-existence of any factual matters other than those described above.




          In our examination of documents for purposes of this opinion, we have assumed, and express no
opinion as to, the genuineness of all signatures on original documents, the authenticity and
completeness of all documents submitted to us as originals, the conformity to originals and
completeness of all documents submitted to us as copies, the lack of any undisclosed termination,
modification, waiver or amendment to any document reviewed by us, the legal competence and capacity
of all persons or entities (other than the Borrower) executing the same and (except with respect to
due authorization of the Credit Agreement and the Notes by Borrower) the due authorization,
execution and delivery of all documents where due authorization, execution and delivery are
prerequisites to the effectiveness thereof.




 









 





          For the purposes of this opinion, we have also assumed, without independent investigation,
that: (a) the Credit Agreement and the Notes (together with the related commitment letter) reflect
the complete understanding and agreement of the parties concerning the subject matter thereof; (b)
the Credit Agreement is a legal, valid and binding obligation of the Agent, the Syndication Agent
and the Lenders, enforceable against such parties in accordance with its terms; and (c) Borrower is
not insolvent and by executing and delivering the Credit Agreement and the Notes will not become
insolvent and has not intended to incur, and will not have believed that it has incurred, debts
beyond its ability to pay them as they mature.




          As used in this opinion, the phrases “to our knowledge,” “we are not aware,” “known to us” or
“to our actual knowledge” or words of similar import refer only to the current actual knowledge of
the attorneys within this firm representing Borrower in connection with the execution and delivery
of the Credit Agreement and indicate that we have not undertaken any independent investigation with
respect to the statements being qualified by such knowledge limitation other than our examination
of the Reviewed Documents.




          We do not assume any responsibility for the accuracy, completeness or fairness of any
information, including, but not limited to, financial information, furnished to you by Borrower (or
any of its agents or representatives) concerning the business, assets, operations, financial
condition or affairs of Borrower or any of its Subsidiaries or any other information furnished to
you by Borrower or any of its agents or representatives.




          Where statements in this opinion are qualified by the term “material,” or
“material adverse effect” those statements involve judgments and opinions as to the
materiality or lack of materiality of certain matters upon the financial condition or operations of
the Borrower and its Subsidiaries taken as a whole, which judgments and opinions are entirely those
of Borrower and its officers, after having been advised by us as to the legal effect and
consequences of such matters.




          This opinion is subject to, and we render no opinion with respect to, general limitations and
exceptions applicable to all contracts. Without limitation, this opinion is subject to, and we
render no opinion with respect to, the effect of the following:





     (a) the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium, bulk
sales, fraudulent conveyance and other similar laws now or hereafter in effect relating to
or affecting the rights and remedies of creditors generally, including, without limitation,
the effect of statutory or other law regarding fraudulent conveyances, preferential
transfers and equitable subordination;




     (b) the effect of general principles of equity, including but not limited to judicial
decisions holding that certain provisions are unenforceable when their enforcement would
violate the implied covenant of good faith and fair dealing, or would be commercially
unreasonable or involve undue delay, whether or not such principles or decisions have been
codified by statute, concepts of materiality, reasonableness, good faith and fair dealing,
unconscionability and the possible unavailability of specific performance, injunctive relief
or other equitable remedies, regardless of whether considered in a proceeding in equity or
at law;




     (c) the effect of limitations imposed by reason of generally applicable public policy
principles or considerations or limitations imposed by or resulting from the exercise by any
court of its discretion;




     (d) the existence or effect of any implied duty or covenant of good faith and fair
dealing to which Agent or any Lender may have been or may be subject;




     (e) the effect of any applicable law or court decisions that requires a lender to
enforce its remedies in a commercially reasonable manner;




     (f) any federal or state securities laws;



2









 






     (g) the effect of state and federal laws and judicial decisions that provide, among
other things, (i) that oral modifications to a contract or waivers of contractual provisions
may be enforceable, if the modification was performed, notwithstanding any express provision
in the agreement that the agreement may only be modified or an obligation thereunder waived
in writing, or (ii) that an implied agreement may be created from trade practices or course
of conduct;




     (h) the enforceability of any provision purporting to waive rights to trial by jury,
service of process or objections to the laying of venue or to forum on the basis of
forum non conveniens in connection with any litigation arising out
of or pertaining to the Credit Agreement or the Notes;




     (i) the effect of judicial decisions that may permit the introduction of extrinsic
evidence to modify the terms or the interpretation of the Credit Agreement or the Notes;




     (j) the effect of equitable principles on the enforceability of any provisions of the
Credit Agreement or the Notes providing that (i) rights or remedies are not exclusive, (ii)
rights or remedies may be exercised without notice, (iii) every right or remedy is
cumulative and may be exercised in addition to or with any other right or remedy, or (iv)
the failure to exercise, or any delay in exercising, rights or remedies available under the
Credit Agreement or the Notes will not operate as a waiver of any such right or remedy;




     (k) applicable statutes and judicial decisions which provide, among other things, that
a court may limit the granting of attorneys’ fees to those attorneys’ fees which are
determined by the court to be reasonable and that attorneys’ fees may be granted only to a
prevailing party and that a contractual provision for attorneys’ fees is deemed to extend to
both parties (notwithstanding that such provision by its express terms benefits only one
party);




     (l) the effect of equitable principles on the enforceability of any provision in the
Credit Agreement or the Notes that permits or authorizes the Agent or the Lenders to
exercise remedies or impose penalties or an increase in interest rate for late payment or
other default if it is determined that the default is not material, the remedies or
penalties bear no reasonable relation to the damage suffered by the Agent or the Lenders as
a result of the default or it cannot be demonstrated that the enforcement of the remedies or
penalties is reasonably necessary for the protection of the Agent or the Lenders;




     (m) the enforceability of any provisions in the Credit Agreement or the Notes releasing
or exonerating a party from liability or providing for indemnification or contribution,
to the extent enforcement of such provisions would be contrary to public policy or
indemnify a party against liability for the party’s own fraud or wrongful or negligent acts
or omissions.




     (o) the enforceability of any waiver of the Borrower’s right to assert counterclaims or
other claims or defenses; and




     (p) Section 2.15 of the Credit Agreement insofar as it provides that any Lender
purchasing a participation from another Lender pursuant thereto may exercise set-off or
similar rights with respect to such participation.



          With respect to our opinion expressed in paragraph 1 below that Borrower is in good standing
under the laws of the State of Delaware, we have relied exclusively on the Delaware Certificate of
Good Standing.




          With respect to our opinion in paragraph 2 below, we have relied solely upon Borrower’s
certification in the Management Certificate identifying those agreements of Borrower that Borrower
considers to be material with respect to the Credit Agreement and the Notes and the transactions
contemplated to be carried out in accordance with and pursuant to the Credit Agreement and copies,
supplied to us by Borrower, of such Material Agreements that are expressly listed and identified as
“Material Agreements” on Exhibit B hereto and in the Management Certificate. We have not
undertaken any independent investigation of such matters.




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          With respect to our opinion in paragraph 3 below, we note that the Credit Agreement and/or the
Notes may be required to be filed and/or disclosed in a current report on Form 8-K by Borrower with
the Securities and Exchange Commission.




     We are admitted to practice law in the State of California and in the State of New York. The
opinions expressed herein are limited to the existing internal laws of the State of California, the
existing laws of the State of New York, the Delaware General Corporation Law as in effect on the
date hereof (the “DGCL”), and the existing federal laws of the United States of America, assuming
that such laws apply to the matters expressed herein. To the extent that any of the Reviewed
Documents (other than the Credit Agreement and the Notes) are governed by the laws of any
jurisdiction other than the States of California or New York, or the United States federal law as
described above, we have assumed with your permission that those laws are the same as the relevant
laws of the State of California and our opinion relating to those documents is based solely upon
the apparent meaning of the language, without regard to interpretation or construction that might
be indicated by the laws governing those agreements. Our opinion is limited to such
California and New York state and United States federal statutes, laws, rules or regulations,
and provisions of the DGCL, as in our experience are of general application to transactions of the
sort contemplated by the Credit Agreement.



          With respect to our enforceability opinion in paragraph 4 below, our opinion is limited to the
existing laws of the State of New York. With respect to the Credit Agreement and the Notes, we
have assumed that in a proceeding outside of New York that the choice of New York state law would
be given effect and would exclusively apply to and govern the Credit Agreement.




          In rendering the opinions below, we are opining only as to the specific legal issues expressly
set forth therein, and no opinion shall be inferred as to any other matter or matters.




          Based upon and subject to the foregoing, and subject to all of the assumptions,
qualifications, exceptions and limitations contained herein, we are of the following opinion:





     1. The Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware.




     2. The execution, delivery and performance by the Borrower of the Credit Agreement and
the Notes, and the consummation of the transactions contemplated thereby, are within the
Borrower’s corporate powers, have been duly authorized by all necessary corporate action on
the part of Borrower’s Board of Directors and, where required, its shareholders, and do not
(i) violate the terms of the Charter or the By-laws, (ii) violate any California State, New
York State or United States federal law, rule or regulation applicable to the Borrower
(including, without limitation, Regulation X of the Board of Governors of the Federal
Reserve System) or (iii) result in the breach of any Material Agreement. The Credit
Agreement and the Notes have been duly executed and delivered on behalf of the Borrower.




     3. No authorization, approval or other action by, and no notice to or filing with, any
California State, New York State, or United States federal, governmental authority or
regulatory body, or pursuant to the DGCL to any governmental authority or regulatory body,
is required for the due execution, delivery and performance, as of the date hereof, by the
Borrower of the Credit Agreement and the Notes.




     4. The Credit Agreement is, and after giving effect to the initial Borrowing, the Notes
will be, legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.



          In rendering the opinions above, we are opining only as to the specific legal issues expressly
set forth herein, and no opinion shall be inferred as to other matters. This opinion is intended
solely for the use of the Lenders and the Agent for the purpose of the above transaction, and is
not to be relied upon for any other purpose or by any other person or entity, without our prior
written consent, except that a copy of this opinion may be delivered by any Lender to any person or
entity that is a permitted Assignee of a Lender, and becomes a Lender in accordance with the
provisions of the Credit Agreement. Any such person may rely on the opinion expressed above as if
such


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          person were a Lender, and this opinion were addressed and delivered to such person, on the
date hereof. We assume no obligation to advise you of any fact, circumstance, event or change in
the law or the facts that may hereafter be brought to our attention whether or not such occurrence
would affect or modify the opinions expressed herein.




Very truly yours,





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EXHIBIT A




REVIEWED DOCUMENTS




     (1) The Credit Agreement.



     (2) The documents furnished by the Borrower pursuant to Article III of the Credit
Agreement.



     (3) The Certificate of Incorporation of the Borrower and all amendments thereto (the
“Charter”).



     (4) The
by-laws of the Borrower and all amendments thereto (the
“By-laws”).



     (5) A certificate of the Secretary of State of Delaware, dated ___, 2007,
attesting to the continued corporate existence and good standing of the Borrower in that
State (the “Delaware Certificate of Good Standing”).



     (6) A Management Certificate addressed to us, dated of even date herewith and executed
by Borrower (“Management Certificate”).



     (7) A certificate of the Secretary of Borrower, certifying (i) the names and true
signatures of the officers of the Borrower authorized to sign the Credit Agreement and the
Notes and the other documents to be delivered under the Credit Agreement, and (ii) the
attached copies of the resolutions of the Board of Directors of the Borrower approving the
Credit Agreement and the Notes.



     (8) Copies
of the agreements, each of which is listed on Exhibit B to this letter, that
have been identified to us by Borrower in the Management Certificate to be the only material
agreements of Borrower to which Borrower is a party or by which Borrower’s assets are bound
that Borrower considers to be material with respect to the Credit Agreement and the Notes
and the transactions contemplated to be carried out in accordance with and pursuant to the
Credit Agreement (the “Material Agreements”).



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 EXHIBIT B




 MATERIAL AGREEMENTS




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, 2007




To each of the Lenders parties

    to the Credit Agreement described below, and

    to Citicorp USA, Inc., as Agent



Re:  Intuit Inc.




Ladies and Gentlemen:




     I am Vice President, General Counsel and Corporate Secretary of Intuit Inc., a Delaware
corporation (the “Company”). This opinion is furnished to you pursuant to the Five Year Credit
Agreement, dated as of March 22, 2007 (the “Credit Agreement”), by and among the Company, the
Lenders parties thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as syndication agent, and
Citicorp USA, Inc., as administrative agent (the “Agent”) for said Lenders. Except as otherwise
defined herein, capitalized terms used herein shall have the meanings ascribed to them in the
Credit Agreement.



     In order to render this opinion, I have examined such matters and questions of law as I deem
advisable under the circumstances. Please note that I have not conducted a docket search in any
jurisdiction with respect to litigation that may be pending against the Company.



     As used in this opinion, the phrase “to my knowledge” or words of similar import, refer only
to my current actual knowledge without having conducted any special investigation other than to
engage in discussions with and receive regular updates from legal services personnel of the
Company, including personnel with oversight of litigation matters and intellectual property matters
and who report directly to me in my capacity as general counsel and an officer of the Company.



     Where
statements in this opinion are qualified by the term “material adverse effect”, those
statements involve factual judgments by the Company as to the materiality or lack of materiality of
certain matters upon the financial condition and operations of the Company and its Subsidiaries
taken as a whole.



     This opinion is limited to the existing internal laws of the State of California and the
existing federal laws of the United States of America, assuming that such laws apply to the matters
expressed herein. I express no opinion herein with respect to any other laws, rules or
regulations. In rendering the opinions expressed herein, I am opining only as to the specific
legal issues expressly set forth herein, and no opinion shall be inferred as to any other matter or
matters.



     In accordance with Section 95 of the American Law Institute’s Restatement (Third) of the Law
Governing Lawyers (2000), this opinion letter is to be interpreted in accordance with customary
practices of lawyers rendering opinions to third parties in transactions of the type provided for
in the Credit Agreement.



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     Based upon and subject to the foregoing, to my knowledge, there are no lawsuits, governmental
investigations or arbitration proceedings pending, or threatened in writing, against the Company or
any of its Subsidiaries before any U.S. federal court or governmental agency, before any Delaware
State or California State court or governmental agency or before any arbitrator that (i) purport to
affect the legality, validity, binding effect or enforceability of the Credit Agreement or any of
the Notes or the consummation of the transactions provided for therein, or (ii) except as described
in the Borrower’s filings made with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, are likely to have a material adverse effect upon the
financial condition or operations of the Company and its Subsidiaries taken as a whole.



     This opinion is furnished by me as general counsel for the Company to you and at the request
of the Company. This opinion is intended solely for the use of the Lenders and the Agent for the
purpose of the above transaction, and is not to be relied upon for any other purpose or by any
other person or entity, without my prior written consent, except that a copy of this opinion may be
delivered by any Lender to any person or entity that is a permitted Assignee of a Lender, and
becomes a Lender in accordance with the provisions of the Credit Agreement. Any such person may
rely on the opinion expressed above as if such person were a Lender, and this opinion were
addressed and delivered to such person, on the date hereof. I assume no obligation to advise you
of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to
my attention whether or not such occurrence would affect or modify the opinions expressed herein.



	 	 	 	 	 
	 	Very truly yours,



Laura A. Fennell

General Counsel

Intuit Inc.

 	 
	 	 	 
	 	 	 
	 	 	 
	 




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