exv10w26






EXHIBIT 10.26




EXECUTION COPY




 

 








U.S. $2,000,000,000




364-DAY REVOLVING CREDIT AGREEMENT




Dated as of March 17, 2009




Among




ORACLE CORPORATION

as the Borrower,




THE LENDERS NAMED HEREIN

as the Initial Lenders




and




WACHOVIA BANK, NATIONAL ASSOCIATION

as Administrative Agent




and




BNP PARIBAS

as Syndication Agent




and




BANK OF AMERICA, N.A.,

CITICORP USA, INC.,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. and

THE ROYAL BANK OF SCOTLAND PLC

as Documentation Agents




 

 








WACHOVIA CAPITAL MARKETS, LLC and

BNP PARIBAS SECURITIES CORP.

as Joint Lead Arrangers and Joint Bookrunners





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

	 
	 	 	 	 	 	 
	Section 1.01.
	 	Certain Defined Terms	 	 	1	 
	Section 1.02.
	 	Computation of Time Periods	 	 	16	 
	Section 1.03.
	 	Accounting Terms; Terms Generally	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES

	 
	 	 	 	 	 	 
	Section 2.01.
	 	The Advances	 	 	17	 
	Section 2.02.
	 	Making the Advances	 	 	17	 
	Section 2.03.
	 	Fees	 	 	18	 
	Section 2.04.
	 	Termination or Reduction of the Commitments	 	 	19	 
	Section 2.05.
	 	Optional Extension of the Termination Date	 	 	19	 
	Section 2.06.
	 	Repayment of Advances	 	 	20	 
	Section 2.07.
	 	Interest	 	 	20	 
	Section 2.08.
	 	Interest Rate Determination	 	 	21	 
	Section 2.09.
	 	Optional Conversion of Advances	 	 	22	 
	Section 2.10.
	 	Optional Prepayments of Advances	 	 	22	 
	Section 2.11.
	 	Increased Costs; Additional Reserve Requirements	 	 	       23	 
	Section 2.12.
	 	Illegality	 	 	24	 
	Section 2.13.
	 	Payments and Computations	 	 	24	 
	Section 2.14.
	 	Taxes	 	 	25	 
	Section 2.15.
	 	Mitigation Obligations; Replacement of Lenders	 	 	27	 
	Section 2.16.
	 	Sharing of Payments, Etc.	 	 	28	 
	Section 2.17.
	 	Compensation for Breakage Costs	 	 	28	 
	Section 2.18.
	 	Use of Proceeds	 	 	28	 
	Section 2.19.
	 	Evidence of Debt	 	 	29	 
	 
	 	 	 	 	 	 
	ARTICLE III

ARTICLE IV CONDITIONS TO LENDING

	 
	 	 	 	 	 	 
	Section 4.01.
	 	Conditions Precedent to Effective Date	 	 	29	 
	Section 4.02.
	 	Conditions Precedent to Each Borrowing	 	 	31	 
	Section 4.03.
	 	Determinations Under Section 4.01	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 	 	 
	Section 5.01.
	 	Representations and Warranties of the Borrower	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE VI COVENANTS OF THE BORROWER

	 
	 	 	 	 	 	 
	Section 6.01.
	 	Affirmative Covenants	 	 	34	 






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	Section 6.02.
	 	Negative Covenants	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE VII EVENTS OF DEFAULT

	 
	 	 	 	 	 	 
	Section 7.01.
	 	Events of Default	 	 	39	 
	 
	 	 	 	 	 	 
	ARTICLE VIII THE AGENT

	 
	 	 	 	 	 	 
	Section 8.01.
	 	Appointment and Authority	 	 	42	 
	Section 8.02.
	 	Rights as a Lender	 	 	42	 
	Section 8.03.
	 	Exculpatory Provisions	 	 	43	 
	Section 8.04.
	 	Reliance by Agent	 	 	43	 
	Section 8.05.
	 	Delegation of Duties	 	 	44	 
	Section 8.06.
	 	Resignation of Agent	 	 	44	 
	Section 8.07.
	 	Non-Reliance on Agent and Other Lenders	 	 	44	 
	Section 8.08.
	 	No Other Duties, etc.	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE IX MISCELLANEOUS

	 
	 	 	 	 	 	 
	Section 9.01.
	 	Amendments, Etc.	 	 	45	 
	Section 9.02.
	 	Notices; Effectiveness; Electronic Consent	 	 	46	 
	Section 9.03.
	 	No Waiver; Remedies	 	 	47	 
	Section 9.04.
	 	Expenses; Indemnity; Damage Waiver	 	 	47	 
	Section 9.05.
	 	Right of Set-off	 	 	49	 
	Section 9.06.
	 	Binding Effect	 	 	49	 
	Section 9.07.
	 	Assignments and Participations	 	 	49	 
	Section 9.08.
	 	Governing Law	 	 	53	 
	Section 9.09.
	 	Counterparts; Integration; Electronic Execution	 	 	53	 
	Section 9.10.
	 	Jurisdiction, Etc.	 	 	53	 
	Section 9.11.
	 	Waiver of Jury Trial	 	 	54	 
	Section 9.12.
	 	Confidentiality	 	 	54	 
	Section 9.13.
	 	Patriot Act Notice	 	 	55	 






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Schedules




	 	 	 
	Schedule 1A

	 	— List of Applicable Lending Offices
	 
	 	 
	Schedule 2.01

	 	— Commitments






Exhibits




	 	 	 
	Exhibit A

	 	— Form of Promissory Note
	 
	 	 
	Exhibit B

	 	— Form of Notice of Borrowing
	 
	 	 
	Exhibit C

	 	— Form of Assignment and Acceptance
	 
	 	 
	Exhibit D-1

	 	— Form of Opinion of In-House Counsel for the Borrower
	 
	 	 
	Exhibit D-2

	 	— Form of Opinion of Davis Polk & Wardwell, Counsel for the Borrower
	 
	 	 
	Exhibit E

	 	— Form of Extension Notice







iii











 





364-DAY REVOLVING CREDIT AGREEMENT




Dated as of March 17, 2009




          Oracle Corporation, a Delaware corporation (the “Borrower”), and the banks, financial
institutions, other institutional lenders (the “Initial Lenders”) listed on the signature
pages hereof, Wachovia Bank, National Association (“Wachovia”) as administrative agent (in
such capacity, the “Agent”), BNP Paribas (“BNP”), as syndication agent, and Bank of
America, N.A., Citicorp USA, Inc., The Bank of Tokyo-Mitsubishi UFJ, Ltd. and The Royal Bank of
Scotland plc, as documentation agents, and Wachovia Capital Markets, LLC and BNP Paribas Securities
Corp., as joint lead arrangers and joint bookrunners, 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):




          “Additional Permitted Liens” means Liens on the assets of the Borrower or any of its
Subsidiaries, not otherwise permitted hereunder, consisting solely of real property interests, cash
and cash equivalents and any proceeds thereof; provided that the aggregate value of all
assets subject to such Liens shall not exceed $500,000,000 at any time, based upon the book value
of such assets determined at the time such Lien attaches.




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




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




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




          “Agent” has the meaning specified in the introductory paragraph of this Agreement.




          “Agent’s Account” means an account at Wachovia designated in writing to the Borrower.




          “Agreement” means this Agreement.




 









 





          “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 Percentage” means at any time and with respect to any Lender, the
percentage of the total Commitments represented by such Lender’s Commitment at such time. If the
Commitments have terminated or expired, the Applicable Percentages shall be determined based upon
the Commitments most recently in effect, giving effect to any assignments.




          “Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a Fund, any
other Fund that is managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.




          “Assignment and Acceptance” means an assignment and acceptance entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section
9.07), and accepted by the Agent, in substantially the form of Exhibit C hereto or any other form
approved by the Agent.




          “Base Rate” means, at any time, the highest of




          (a) the Prime Rate,




          (b) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate and




          (c) the Market Rate Spread plus the rate equal to the Eurodollar Rate for deposits delivered
that day for an Interest Period of one month for each day that a Base Rate Advance is outstanding
(and in respect of any day that is not a Business Day, the Eurodollar Rate as in effect on the
immediately preceding Business Day).




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




          “BNP” has the meaning specified in the introductory paragraph of this Agreement.




          “Borrower” has the meaning specified in the introductory paragraph of this Agreement.




          “Borrowing” means a borrowing consisting of simultaneous Advances of the same Type
(or, in the case of Eurodollar Rate Advances, having the same Interest Period) 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 or Charlotte, North Carolina; provided that, if the
applicable Business Day relates to any Eurodollar Rate Advances, “Business Day” means a day of the
year on which banks are not required or authorized by law to




2









 







close in New York City and on which dealings are carried on in the London interbank market.




          “Capitalization Ratio” means, as of the last day of any fiscal quarter of the
Borrower, the ratio, expressed as a percentage, of (i) Total Consolidated Net Debt of the Borrower
and its Subsidiaries on such date to (ii) Total Capitalization of the Borrower and its Subsidiaries
on such date.




          “Category” means, when used with reference to Public Debt Ratings, the following
categories of ratings:




	 	 	 	 	 
	Category	 	S&P or Fitch Rating	 	Moody’s Rating
	Category 1
	 	3 A	 	3 A2
	Category 2
	 	< A	 	< A2





For purposes of the foregoing, (i) if both of Moody’s and S&P shall have in effect a rating for the
Public Debt Rating, then the Category shall be determined by reference to such Public Debt Ratings
and the Public Debt Rating of Fitch shall be disregarded, (ii) if only one of Moody’s and S&P shall
have in effect a rating for the Public Debt Rating, then the Category shall be determined by
reference to such Public Debt Rating and the Public Debt Rating of Fitch, (iii) if fewer than two
of Moody’s, S&P and Fitch shall have in effect a Public Debt Rating, then each rating agency that
does not have in effect a Public Debt Rating shall be deemed to have established a rating in
Category 2; and (iv) if the ratings established or deemed to have been established by Moody’s and
S&P (or, subject to the foregoing clauses of this paragraph, Fitch) for the Public Debt Rating
shall fall within different Categories, the applicable Category shall be based on the higher of the
two ratings unless one of the two ratings is two or more grades lower than the other (with each
ratings distinction comprising a separate grade, such that, e.g., BBB+ is two grades lower than A)
and in the lower Category, in which case the applicable Category shall be determined by reference
to a rating a single grade below the higher of the two ratings.




          “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.




          “CLO” means any entity (whether a corporation, partnership, trust or otherwise) that
is engaged in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered or managed by a
Lender or an Affiliate of such Lender.





3









 








          “Commitment” has the meaning specified in Section 2.01.




          “Commitment Fee” has the meaning assigned to such term in Section 2.03(a).




          “Commitment Period” means the period from and including the Effective Date to the
Termination Date.




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




          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.




          “Covenant Debt” of any Person means Debt of such Person and its Subsidiaries on such
date, as would be shown as debt or indebtedness of such Person on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and all guarantees of Debt of other Persons as
would be shown as debt or indebtedness of such Person on a balance sheet of such other Persons
prepared as of such date in accordance with GAAP, determined on a Consolidated basis.




          “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, 2.09 or 2.12.




          “Current Termination Date” has the meaning specified in Section 2.05.




          “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 such Person’s business
for which collection proceedings have not been commenced, provided that trade payables for
which collection proceedings have commenced shall not be included in the term “Debt” so long as the
payment of such trade payables is being contested in good faith and by proper proceedings and for
which appropriate reserves are being maintained) to the extent included on the Consolidated
balance sheet of the Borrower and its Subsidiaries in accordance with GAAP, (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 similar 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) to the extent included on the Consolidated balance sheet of the Borrower and
its Subsidiaries in accordance with GAAP, (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 of such Person in respect of acceptances, letters of credit with respect to




4









 







which to
such Person is the account party or similar extensions of credit to such Person, (g) the aggregate
net obligations of such Person in respect of Hedge Agreements;
provided that, for purposes of this clause (g), Debt of the Borrower and its
Subsidiaries shall only include net obligations of the Borrower and its Subsidiaries in respect of
Hedge Agreements in an aggregate amount in excess of $50,000,000 as set forth on the Consolidated
balance sheet of the Borrower and its Subsidiaries, as of the date of determination, in accordance
with GAAP, (h) all Debt of others referred to in clauses (a) through (g) above or clause (i) below
guaranteed, by such Person, or in effect guaranteed by such Person, directly or indirectly, through
a written agreement either (1) to pay or purchase such Debt or to advance or supply funds for the
payment or purchase of such Debt or (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 Debt or to assure the holder of such Debt against loss and (i) all Debt referred to in
clauses (a) through (h) above 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. In determining the amount of Debt of any
Person of the type referred to in clause (h) or (i) above, the amount thereof shall be equal to the
lesser of (i) the amount of the guarantee provided or the fair market value of collateral pledged
(as applicable) and (ii) the amount of the underlying Debt of such other Person so guaranteed or
secured.




          “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.




          “Defaulting Lender” means any Lender that (i) has defaulted in its obligation to fund
Advances hereunder, (ii) has notified the Borrower and Agent in writing that it does not intend to
fund Advances hereunder or (iii) is subject to a bankruptcy, insolvency or similar proceeding, or
to the appointment of the FDIC or other receiver, trustee or custodian; provided that a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of an
equity interest in such Lender or Affiliate thereof by any Governmental Authority.




          “Dollars” and the sign “$” means the lawful money of the United States of
America.




          “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 1A 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.




          “Effective Date” means the date that all conditions precedent set forth in Section
4.01 shall have been satisfied or waived.




          “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved
Fund, (d) a commercial bank organized under the laws of the United




5









 







States, or any State thereof,
and having a combined capital and surplus of at least $250,000,000; (e) a savings and loan
association or savings bank organized under the laws of the United
States, or any State thereof, and having a combined capital and surplus of at least
$250,000,000; (f) a commercial bank organized under the laws of any other country that is a member
of the OECD or has concluded special lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow or a political subdivision of any such country,
and having a combined capital and surplus of at least $250,000,000, so long as such bank is acting
through a branch or agency located in the United States; (g) a finance company, insurance company
or other financial institution or fund (whether a corporation, partnership, trust or other entity)
that is engaged in making, purchasing or otherwise holding commercial loans in the ordinary course
of its business and having a combined capital and surplus of at least $250,000,000 or an Approved
Fund thereof and (h) any other Person (other than a natural person) approved by (i) the Agent, and
(ii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval
not to be unreasonably withheld or delayed and such approval to be deemed to have been given if a
response is not received within fifteen Business Days from the date on which request for approval
was received by the applicable Person); provided that notwithstanding the foregoing,
“Eligible Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or
Subsidiaries.




          “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 relating in any way to 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 Authority for
enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any
Governmental 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.




          “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.




6









 





          “ERISA Event” means (a) 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; (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 incurrence by the Borrower or any of its ERISA Affiliates of any liability with
respect to 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 imposition of a lien under Section 302(f) of ERISA 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 is reasonably expected to result in 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 1A hereto or in
the Assignment and Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Agent.




          “Eurodollar Rate” means the rate per annum determined by the Agent at approximately
11:00 A.M. (London time) on the date which is two Business Days prior to the beginning of the
relevant Interest Period (as specified in the applicable Notice of Borrowing) by reference to the
British Bankers’ Association Interest Settlement Rates for deposits in Dollars (as set forth by any
service selected by the Agent which has been nominated by the British Bankers’ Association as an
authorized information vendor for the purpose of displaying such rates), for a period equal to such
Interest Period; provided that, to the extent that an interest rate is not ascertainable
pursuant to the foregoing provisions of this definition, the “Eurodollar Rate” shall be the
interest rate per annum determined by the Agent to be the average of the rates per annum at which
deposits in Dollars are offered for such relevant Interest Period to major banks in the London
interbank market in London, England by the Reference Lenders at approximately 11:00 A.M. (London
time) on the date which is two Business Days prior to the beginning of such Interest Period. If
any of the Reference Lenders shall be unable or shall otherwise fail to supply such rates to the
Agent upon its request, the rate of interest shall be determined on the basis of the quotations of
the remaining Reference Lender.




7









 





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




          “Event of Default” has the meaning specified in Section 7.01.




          “Excluded Taxes” means, with respect to the Agent, any Lender, or any other recipient
of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), and franchise taxes imposed
on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof)
under the laws of which such recipient is organized or in which its principal office is located or,
in the case of any Lender, in which its Applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrower under Section 2.15(b)), any withholding tax that
is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party hereto (or designates a new lending office) or is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with Section 2.14(e),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.14(a).




          “Existing Credit Agreement” means the Credit Agreement dated as of March 18, 2008
among the Borrower, the lenders party thereto, Wachovia, as administrative agent, and other agents,
providing for a credit facility in the original amount of $2,000,000,000 for a 364-day period.




          “Extending Lender” has the meaning specified in Section 2.05.




          “Extension Consent Date” has the meaning specified in Section 2.05.




          “Extension Notice” has the meaning specified in Section 2.05.




          “Federal Funds Effective Rate” means, for any period, a fluctuating interest rate
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 which 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 the Agent.




          “Fitch” means Fitch Ratings Ltd.




          “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For



8









 






purposes of this definition, the United States of America, each State thereof and the District
of Columbia shall be deemed to constitute a single jurisdiction.




          “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.




          “GAAP” has the meaning specified in Section 1.03.




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




          “Granting Lender” has the meaning specified in Section 9.07(g).




          “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,
statute or regulation.




          “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 currency exchange rate hedging agreements.




          “Immaterial Subsidiary” means any Subsidiary of the Borrower (determined, solely for
purposes of this definition, without regard to the last sentence of the definition thereof),
designated by the Borrower in writing to the Agent (a) the assets of which do not exceed 3% of the
total Consolidated assets of the Borrower and its Subsidiaries, (b) the net income of which does
not exceed 3% of the total Consolidated net income of the Borrower and its Subsidiaries and (c) the
revenues of which do not exceed 3% of the total Consolidated revenues of the Borrower and its
Subsidiaries, in each case as determined as of, or (as applicable) for the four fiscal quarters
most recently ended on, the last day of the most recently ended fiscal quarter of the Borrower and
in accordance with GAAP.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Indemnitee” has the meaning specified in Section 9.04(b).




          “Initial Lenders” has the meaning specified in the introductory paragraph of this
Agreement.




9









 





          “Intellectual Property” means all trademarks, service marks, trade names, Internet
domain names (as defined under 15 U.S.C. § 1127), designs, logos, slogans, and general intangibles
of like nature, together with all goodwill, registrations and applications related to the
foregoing; all inventions (whether patentable or unpatentable and whether or not reduced to
practice); patents and industrial designs (including any continuations, divisionals,
continuations-in-part, renewals, reissues, and applications for any of the foregoing); copyrights
(including any registrations and applications for any of the foregoing); Software; “mask works” (as
defined under 17 U.S.C. § 901) and any registrations and applications for “mask works”; technology,
trade secrets, know-how, processes, formulae, algorithms, models, methodologies, discoveries,
improvements, specifications and other proprietary or confidential information; database and data
rights; drawings, records, books or other indicia, however evidenced, of the foregoing; rights of
publicity and privacy relating to the use of the names, likenesses, voices, signatures and
biographical information of real persons; lists or other information relating to customers,
competitors, suppliers or any other Person; in each case the right to claims against another Person
relating to the Intellectual Property; and in each case owned by the Borrower or any of its
Subsidiaries on or after the Effective Date.




          “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, with respect
to Eurodollar Rate Advances, 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, 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 the Termination 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) 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




          (d) 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




10









 







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.




          “Joinder Agreement” has the meaning set forth in Section 2.05.




          “Lenders” means the Initial Lenders as set forth on Schedule 2.01 and each Person that
shall become a party hereto pursuant to Section 2.05 or 9.07.




          “Lien” means any lien, security interest or other charge or encumbrance of any kind.




          “Market Rate Spread” means, at any time, the 30-day moving average credit default swap
mid-rate spread of the Borrower for a one-year period beginning on the date of determination, as
published by the Market Rate Spread Source; provided that in any event the Market Rate
Spread shall be subject to the minimum and maximum rates which are set forth in the grid below
under the respective columns headed “Market Rate Spread Floor” and “Market Rate Spread Ceiling”
corresponding to the Category in effect on such date of determination:




	 	 	 	 	 	 	 	 	 
	 	 	Market Rate	 	Market Rate
	 	 	Spread Floor	 	Spread Ceiling
	Category	 	(basis points)	 	(basis points)
	Category 1
	 	 	50.0	 	 	 	200.0	 
	Category 2
	 	 	100.0	 	 	 	300.0	 





The Market Rate Spread will be (a) set for each Eurodollar Rate Advance two Business Days prior to
the first day of each Interest Period and (b) if the Base Rate is determined in accordance with
clause (c) of the definition of “Base Rate”, set for each Base Rate Advance on the last Business
Day of each calendar month for the next succeeding calendar month. If for any reason the Market
Rate Spread cannot be determined pursuant to the forgoing procedures, the Borrower and the Lenders
shall negotiate in good faith for a period of up to 30 days after the Market Rate Spread becomes
unavailable (such 30-day period, the “Negotiation Period”) to agree on an alternative
method for establishing the Market Rate Spread. The Market Rate Spread during the Negotiation
Period shall be the Market Rate Spread most recently determined pursuant to the first sentence of
this definition. If no such alternative method is agreed upon during the Negotiation Period, the
Market Rate Spread at any date of determination subsequent to the end of the Negotiation Period
shall be a rate per annum equal to (a) 2.00% if Category 1 is then in effect and (b) 3.00% if
Category 2 is then in effect.




11









 








          “Market Rate Spread Source” means, initially, Markit Group Limited or its successors;
provided, that if for any reason (i) Markit Group Limited or a successor thereof is not
publishing the 30-day moving average credit default swap mid-rate spread of the Borrower for a
one-year period, then the Market Rate Spread Source shall be page ORCLCP CDS USD SR 1YR or
successor page on Bloomberg or its successor for so long as it is publishing such information and
(ii) neither Markit Group Limited nor Bloomberg nor one of their respective successors is then
publishing such information, then the Market Rate Spread Source shall be a similar financial
services company selected by the Agent with the consent of the Borrower.




          “Material Adverse Effect” shall mean the result of one or more events, changes or
effects which, individually or in the aggregate, could reasonably be expected to have a material
adverse effect on (a) the results of operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole or (b) the validity or enforceability of this Agreement or the
rights, remedies and benefits available to the parties hereunder.




          “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 9.01.




          “Non-Extending Lender” has the meaning specified in Section 2.05.




          “Note” means a promissory note of the Borrower payable to the order of any Lender,
delivered pursuant to a request made under Section 2.19 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).




          “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.




          “Participant” has the meaning specified Section 9.07(d).




12









 





          “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).




          “Permitted Liens” means, with respect to any Person, (a) Liens for taxes, assessments
and governmental charges and levies to the extent not required to be paid under Section 6.01(b)
hereof; (b) pledges or deposits to secure obligations under workers’ compensation, unemployment,
insurance and other social security laws or similar legislation; (c) pledges or deposits to secure
performance in connection with bids, tenders, contracts (other than contracts for the payment of
money) or leases to which such Person is a party; (d) deposits to secure public or statutory
obligations of such Person; (e) materialmen’s, mechanics’, carriers’, workers’, repairmen’s and
other like Liens in the ordinary course of business, or deposits to obtain the release of such
Liens to the extent such Liens, in the aggregate, would not have a Material Adverse Effect; (f)
deposits to secure surety and appeal bonds to which such Person is a party; (g) other pledges or
deposits for similar purposes in the ordinary course of business, including pledges and deposits to
secure indemnity, performance or other similar bonds and in connection with insurance; (h) Liens
created by or resulting from any litigation or legal proceeding which at the time is currently
being contested in good faith by appropriate proceedings; (i) leases made, or existing on property
acquired, in the ordinary course of business; (j) landlords’ Liens under leases to which such
Person is a party; (k) zoning restrictions, easements, licenses, and restrictions on the use of
real property or minor irregularities in title thereto, which, with respect to property that is
material to the Borrower and its Subsidiaries, taken as a whole, do not materially impair the use
of such property in the operation of the business of such Person or the value of such property for
the purpose of such business; (l) Liens consisting of leases or subleases and licenses or
sublicenses granted to others in the ordinary course of business 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; (m) Liens in favor of
customs and revenue authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; and (n) Liens which constitute a lender’s rights of
set-off of a customary nature.




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




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




          “Prime Rate” means the rate of interest per annum announced or established from time
to time by Wachovia as its prime rate for dollars loaned in the United States in effect at its
principal office in Charlotte, North Carolina. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually




13









 







charged to any customer. Wachovia or any other Lender may make commercial loans or other
loans at rates of interest at, above or below the Prime Rate.




          “Prior Termination Date” has the meaning specified in Section 2.05.




          “Public Debt Rating” means, as of any date, the lowest rating that has been most
recently announced by any of S&P, Moody’s or Fitch, as the case may be, for any class of non-credit
enhanced long-term senior unsecured debt issued by the Borrower. For purposes of the foregoing,
(a) if any rating established by S&P, Moody’s or Fitch 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 (b) if S&P, Moody’s or Fitch shall change the basis on which ratings are
established, each reference to the Public Debt Rating announced by S&P, Moody’s or Fitch, as the
case may be, shall refer to the then equivalent rating by S&P, Moody’s or Fitch, as the case may
be.




          “Reference Lenders” means initially, Wachovia and BNP or, if Wachovia and BNP are
unable to furnish timely information in accordance with Section 2.08, then any other commercial
bank of recognized national standing designated by the Agent as constituting a “Reference Lender”
to replace Wachovia and/or BNP, as relevant.




          “Register” has the meaning specified in Section 9.07(c).




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




          “Required Lenders” means at any time Lenders (other than Defaulting Lenders) owed at
least a majority in interest of the then aggregate Revolving Credit Exposures or, if no Advances
are then outstanding, Lenders (other than Defaulting Lenders) having at least a majority in
interest of the Commitments.




          “Requisite Amount” has the meaning specified in Section 7.01(d).




          “Revolving Credit Exposure” means, with respect to any Lender at any time, the
outstanding aggregate principal amount of such Lender’s Advances at such time.




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




          “SEC” means the Securities and Exchange Commission.




          “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




14









 







have liability under Section 4069 of ERISA in the event such plan has been or were to be
terminated.




          “Software” means any and all (a) computer programs, including any and all software
implementation of algorithms, models and methodologies, whether in source code or object code form,
(b) databases and compilations, including any and all data and collections of data, and (c) all
documentation, including user manuals and training materials, relating to any of the foregoing.




          “SPC” has the meaning specified in Section 9.07(g).




          “Stockholders’ Equity” means, at any date, stockholders’ equity of the Borrower and
its Subsidiaries, determined on a Consolidated basis, on such date.




          “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. Notwithstanding the
foregoing, references to “Subsidiary” in this Agreement shall not include (i) Miracle Linux
Kabushikigaisha (also known as Miracle Linux Corporation), a Japanese Kabushikigaisha or (ii) any
other Person that would otherwise be a Subsidiary of the Borrower pursuant to the foregoing portion
of this definition and that the Borrower does not directly or indirectly Control; provided
that, in the case of any such Person in clause (i) or (ii), such Person is also an Immaterial
Subsidiary.




          “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.




          “Termination Date” means the earlier of March 16, 2010 (or, in case of an extension
pursuant to Section 2.05, the date which is three hundred sixty-four (364) days thereafter) and the
date of termination in whole of the Commitments pursuant to Section 2.04 or 7.01.




          “Total Capitalization” of any Person on any date, means the sum of (i) Total
Consolidated Net Debt of such Person on such date and (ii) shareholders’ equity of such Person on
such date, determined on a Consolidated basis.




          “Total Consolidated Net Debt” of any Person on any date, means (a) all Covenant Debt
of such Person minus (b) cash, cash equivalents and short term




15









 







investments reflected on the Consolidated balance sheet of the Borrower and its Subsidiaries
for such date.




          “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.




          “Wachovia” has the meaning specified in the introductory paragraph of this Agreement.




          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; Terms Generally. All terms of an accounting or
financial nature shall be construed in accordance with generally accepted accounting principles
(“GAAP”), as in effect in the United States from time to time, provided that, if
the Borrower notifies the Agent that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change, occurring after the date hereof, in GAAP or in the application
thereof (or if the Agent notifies the Borrower that the Required Lenders request an amendment of
any provision hereof for such purpose), regardless of whether such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be applied on the
basis of GAAP as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance herewith. The
definitions of terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be
followed by the phrase “without limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition
of or reference to any agreement, instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and
words of similar import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.




16









 





ARTICLE II




AMOUNTS AND TERMS OF THE ADVANCES




          Section 2.01. The Advances. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower in Dollars from time to time on any
Business Day during the Commitment Period in an aggregate amount that will not result in such
Lender’s Revolving Credit Exposure exceeding at any time the amount set forth opposite such
Lender’s name on Schedule 2.01 hereto or, if such Lender has entered into any Assignment and
Acceptance or Joinder Agreement, as set forth for such Lender in the Register maintained by the
Agent pursuant to Section 9.07(c), as such amount may be reduced pursuant to Section 2.04 (such
Lender’s “Commitment”). Each Borrowing shall be in an aggregate amount of $10,000,000 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 this Section 2.01, the Borrower may borrow under this Section 2.01, prepay pursuant to
Section 2.10 and reborrow under this Section 2.01.




          Section 2.02. Making the Advances. (a) The Borrower may borrow under the Commitments
during the Commitment Period on any Business Day, provided that each Borrowing shall be
made on notice, given not later than 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 a Borrowing consisting of Eurodollar
Rate Advances or the Business Day 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. Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone,
confirmed immediately in writing or by 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 (iv) remittance instructions and (v) 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 IV,
the Agent will make such funds available to the Borrower at the Agent’s address referred to in
Section 9.02.




               (b) [RESERVED].



               (c) [RESERVED].



               (d) [RESERVED].



               (e) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not
select Eurodollar Rate Advances for any Borrowing if the aggregate obligation of the Lenders to
make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 or 2.12 and (ii)
Eurodollar Rate



17









 







Advances may not be outstanding at any time as part of more than ten separate Borrowings.



               (f) 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 IV, including, without
limitation, any loss (excluding 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.



               (g) Unless the Agent shall have received notice from a Lender prior to the proposed time of
any Borrowing that such Lender will not make available to the Agent such Lender’s share of such
Borrowing, the Agent may assume that such Lender has made such share available on such date in
accordance with subsection (a) of this Section 2.02 and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Agent, then such Lender and the Borrower
severally agree to pay to the Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Agent, at (i) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Agent in
accordance with banking industry rules on interbank compensation and (ii) in the case of a payment
to be made by the Borrower, the interest rate applicable to Base Rate Advances. If the Borrower
and such Lender shall pay such interest to the Agent for the same or an overlapping period, the
Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for
such period. If such Lender pays such amount to the Agent, then such amount shall constitute such
Lender’s Advance included in such Borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have failed to make such
payment to the Agent.



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



          Section 2.03. Fees. (a) Commitment Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a commitment fee (the “Commitment Fee”) on the average
daily amount of such Lender’s unused Commitment from the Effective Date in the case of each Initial
Lender and from the effective date specified in the Assignment and Acceptance or Joinder Agreement
pursuant to which it became a Lender, in the case of each other Lender, in each case, until the
Termination Date at a rate




18









 







per annum equal to 0.10%, payable in arrears quarterly on the last Business Day of each March,
June, September and December before the Termination Date, commencing with June, 2009, and on the
Termination Date, but excluding, in the case of any Defaulting Lender, any period during which it
is a Defaulting Lender.




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



          Section 2.04. 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 reduce
ratably in part the unused portions of the respective Commitments of the Lenders, provided
that each partial reduction shall be in the aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and provided further that the aggregate amount of
the Commitments of the Lenders shall not be reduced to an amount that is less than the sum of the
total Revolving Credit Exposures then outstanding and provided further that once
terminated, a Commitment may not be reinstated.




          Section 2.05. Optional Extension of the Termination Date. (a) The Borrower may, not more than sixty (60) days and not less than thirty (30) days
prior to the Termination Date then in effect (the “Current Termination Date”), request
through written notice to the Agent substantially in the form of Exhibit E hereto (the
“Extension Notice”), that the Lenders extend the Current Termination Date for an additional
three hundred sixty-four (364) day period; provided, that in no event shall the Termination
Date be extended beyond March 15, 2011. The Agent shall promptly notify the Lenders of such
Extension Notice. Each Lender, acting in its sole discretion, shall, by notice to the Agent given
not earlier than the 45th day before the Current Termination Date and not later than the
later of (x) the 3rd Business Day after such 45th day or (y) the
10th Business Day following the date such Extension Notice is delivered to the Agent
(such later date, the “Extension Consent Date”), advise the Agent in writing of its desire
to extend (any such Lender, an “Extending Lender”) or not to so extend (any such Lender, a
“Non-Extending Lender”) the Current Termination Date. Any Lender that does not advise the
Agent by the Extension Consent Date shall be deemed to be a Non-Extending Lender. No Lender shall
be under any obligation or commitment to extend the Current Termination Date. The election of any
Lender to agree to such extension shall not obligate any other Lender to agree to such extension.




               (b) If (and only if) Lenders holding in the aggregate more than fifty percent (50%) of the
aggregate Commitments on the Extension Consent Date have agreed to such extension, then the Current
Termination Date applicable to the Extending Lenders shall be extended to the date that is three
hundred sixty-four (364) days after the Current Termination Date with respect to such Extending
Lenders. All Advances of each Non-Extending Lender shall be subject to the Current Termination
Date, without giving effect to such extension (such date, the “Prior Termination Date”).
In the event of an extension of the Current Termination Date pursuant to this Section 2.05, the
Borrower
shall have the right, at its own expense, to solicit commitments from existing Lenders



19









 







and/or
additional Eligible Assignees which meet the requirements set forth in Section 9.07(b) to replace
the Commitment of any Non-Extending Lenders for the remaining duration of this Agreement. Any such
financial institution (if not already a Lender hereunder) shall become a party to this Agreement as
a Lender pursuant to a joinder agreement (a “Joinder Agreement”) in form and substance
reasonably satisfactory to the Agent and the Borrower. The Commitment of each Non-Extending Lender
shall terminate on the Prior Termination Date, all Advances and other amounts payable hereunder to
such Non-Extending Lender shall be subject to the Prior Termination Date and, to the extent such
Non-Extending Lender’s Commitment is not replaced as provided above, the aggregate Commitments
shall be reduced by the amount of the Commitments of each such Non-Extending Lender so terminated
on the Prior Termination Date.



          Section 2.06. Repayment of Advances. The Borrower shall repay to the Agent for the
ratable account of the Lenders on the Termination Date the aggregate principal amount of the
Advances then outstanding.




          Section 2.07. Interest. (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 Base Rate in effect
from time to time, payable in arrears quarterly on the last Business Day of each
March, June, September and December during such periods, commencing with June,
2009, for the period beginning on the Effective Date and then ended.




               (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 Market Rate Spread for such
Advance, 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 Business 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. The Agent may with the consent, or shall at the direction, of
the Required Lenders require that the Borrower pay interest (“Default Interest”) on (i) the
unpaid principal amount of each overdue 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



20









 







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 7.01, Default
Interest shall accrue and be payable hereunder whether or not previously required by the Agent.



          Section 2.08. Interest Rate Determination. (a) Each Reference Lender agrees, if
requested by the Agent, to furnish to the Agent timely information for the purpose of determining
the Eurodollar Rate. If any of the Reference Lenders 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 Lenders. The
Agent shall give prompt notice to the Borrower and the Lenders of the (i) 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 Lender 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 (unless repaid) will automatically, on the last day of the then existing Interest Period
therefor, continue for a new Interest Period with the same duration as the Interest Period then
ending, subject to the definition of “Interest Period”.



               (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
$10,000,000 such Advances shall automatically Convert into Base Rate Advances.



               (e) Upon the occurrence and during the continuance of any Event of Default under Section
7.01(a), (i) each Eurodollar Rate Advance (unless repaid) 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.



21









 





               (f) If no Reference Lender determines and furnishes timely information to the Agent for
determining the Eurodollar Rate for any Eurodollar Rate Advances after the Agent has requested such
information:




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




               (ii) each such Advance (unless repaid) will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance (or
if such Advance is then a Base Rate Advance, will continue as a Base Rate
Advance), and




               (iii) the obligation of the Lenders to make 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 or a portion of all (comprising, in the case of any portion, a ratable portion of
the respective Advances of each Lender and in an aggregate amount not less than $10,000,000)
Advances of one Type comprising the same Borrowing made to the Borrower into Advances of the other
Type; provided, however, 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
and any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an amount not
less than $10,000,000. Each such notice of a Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the Advances (or portions thereof) 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 to the
Agent not later than 11:00 A.M. (New York City time) on the proposed prepayment date for Base Rate
Advances, and upon at least three Business Days’ notice for Eurodollar Rate Advances, in each case
stating the proposed date and aggregate principal amount of the prepayment, and if such notice is
given the Borrower shall, prepay in whole or ratably in part the outstanding principal amount of
the Advances comprising part of the same Borrowing made to the Borrower 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
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the event




22









 







of any such prepayment of Eurodollar Rate Advances, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 2.17.




          Section 2.11. Increased Costs; Additional Reserve Requirements. (a) If any Change in
Law shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender (except any reserve requirement referred to in clause (e) of this
Section 2.11); (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Eurodollar Rate Advance made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.14
and changes in the rate of any Excluded Tax payable by such Lender); or (iii) impose on any Lender
or the London interbank market any other condition, cost or expense affecting this Agreement or
Eurodollar Rate Advances made by such Lender; and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurodollar Rate Advance (or of
maintaining its obligation to make any such Advance) or receivable by such Lender hereunder
(whether of principal, interest or any other amount), then upon request of such Lender the Borrower
will pay to such Lender such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.




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



               (c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such
Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this
Section 2.11 and delivered to the Borrower shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after
receipt thereof.



               (d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
2.11 shall not constitute a waiver of such Lender’s right to demand such compensation,
provided that the Borrower shall not be required to compensate a Lender pursuant to this
Section 2.11 for any increased costs incurred or reductions suffered more than nine months prior to
the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if
the Change in Law giving rise to such increased costs or reductions is retroactive, then the
nine-month



23









 







period referred to above shall be extended to include the period of retroactive effect
thereof).



               (e) The Borrower shall pay to each Lender, so long as such Lender shall be required to
maintain reserves (including, without limitation, reserves in respect of Eurocurrency Liabilities)
with respect to Eurodollar Rate Advances, additional interest on the unpaid principal amount of any
such Eurodollar Rate Advance equal to the actual costs of such reserves allocated to such Advance
by such Lender (as determined by such Lender in good faith), which shall be due and payable on each
date on which interest is payable on such Advance, provided the Borrower shall have
received at least 10 days’ prior notice (with a copy to the Agent) of such additional interest from
such Lender. If a Lender fails to give notice 10 days prior to the relevant interest payment date,
such additional interest costs shall be due and payable 10 days from receipt of such notice.



          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 having relevant jurisdiction 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, (i) each Eurodollar Rate Advance will
Convert into a Base Rate Advance either (x) on the last day of the then current Interest Period
applicable to such Eurodollar Rate Advance if such Lender may lawfully maintain and fund such
Eurodollar Rate Advance to such date, or (y) immediately and automatically if such Lender shall
determine that it may not lawfully maintain and fund such Eurodollar Rate Advance to such date; and
(ii) 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 2.13. Payments and Computations. (a) The Borrower shall make each payment
hereunder and under the Notes not later than 11:00 A.M. (New York City time) on the day when due in
Dollars to the Agent at the Agent’s Account in same day funds, without set-off, counterclaim or
deduction, in each case as expressly provided herein. The Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest or Commitment Fees
ratably (other than amounts payable pursuant to Section 2.11, 2.14 or 2.17) 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.




               (b) All computations of interest based on the Base Rate (except when calculated by reference
to the Federal Funds Effective 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 Effective Rate and of Commitment Fees shall be made by the Agent on the basis of a
year of 360 days, in each



24









 







case for the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, Commitment Fees are payable. Each determination
by the Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent
error in the calculation of such interest rate.



               (c) Except as otherwise set forth herein, 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, or Commitment Fees, 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 Agent for the account of the Lenders hereunder that the Borrower will not
make such payment, the Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount
due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Agent forthwith on demand the amount so distributed to such
Lender, with interest thereon, for each day from and including the date such amount is distributed
to it to but excluding the date of payment to the Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Agent in accordance with banking industry rules on
interbank compensation.



          Section 2.14. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes, provided that if the Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then
(i) the sum payable shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 2.14) the Agent or
Lender, as the case may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
timely pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable law.




               (b) Without limiting the provisions of paragraph (a) above, the Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable law.



               (c) The Borrower shall indemnify the Agent and each Lender within 10 Business Days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section
2.14) paid by the Agent or such Lender, and any penalties, interest and reasonable expenses arising
therefrom or with



25









 







respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender (with a copy to the Agent), or
by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.



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



               (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty
to which such jurisdiction is a party, with respect to payments hereunder shall deliver to the
Borrower (with a copy to the Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower or the Agent, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the
Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to
determine whether or not such Lender is subject to backup withholding or information reporting
requirements. Without limiting the generality of the foregoing, in the event that the Borrower is
resident for tax purposes in the United States of America, any Foreign Lender shall deliver to the
Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time
to time thereafter upon the request of the Borrower or the Agent, but only if such Foreign Lender
is legally entitled to do so), whichever of the following is applicable: (i) duly completed
copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax
treaty to which the United States of America is a party, (ii) duly completed copies of Internal
Revenue Service Form W-8ECI, (iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect
that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code
and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or (iv) any other form
prescribed by applicable law as a basis for claiming exemption from or a reduction in United States
Federal withholding tax duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower to determine the withholding or deduction
required to be made.



               (f) If the Agent or a Lender determines, in its sole discretion, that it has received a refund
of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to
which the Borrower has paid additional



26









 







amounts pursuant to this Section 2.14, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 2.14 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Agent or such Lender, as the case may be, and
without interest (other than any interest paid by the relevant Governmental Authority with respect
to such refund), provided that the Borrower, upon the request of the Agent or such Lender,
agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Agent or such Lender in the event the Agent
or such Lender is required to repay such refund to such Governmental Authority. This paragraph
shall not be construed to require the Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the Borrower or any other
Person.



          Section 2.15. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.11, or requires the Borrower to pay
any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.14, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Advances hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.11 or 2.14, as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.




               (b) If any Lender requests compensation under Section 2.11, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.14, or if any Lender becomes a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 9.07), all of its interests, rights and obligations under
this Agreement and the related Notes to an Eligible Assignee that shall assume such obligations
(which Eligible Assignee may be another Lender, if a Lender accepts such assignment),
provided that (i) the Borrower shall have paid to the Agent the assignment fee specified
in Section 9.07, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder (including any amounts under Section 2.17) from such Eligible Assignee (to
the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts), (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.11 or payments required to be made pursuant to Section 2.14, such
assignment will result in a reduction in such compensation or payments thereafter, and (iv) such
assignment does not conflict with applicable law. A Lender shall not be required to make



27









 







any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease
to apply.



          Section 2.16. Sharing of Payments, Etc. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Advances or other obligations of
the Borrower hereunder resulting in such Lender’s receiving payment of a proportion of the
aggregate amount of its Advances and accrued interest thereon or other such obligations greater
than its pro rata share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Agent of such fact and (b) purchase (for cash at face value)
participations in the Advances and such other obligations of the other Lenders, or make such other
adjustments as shall be equitable, to the end that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest
on their respective Advances and other amounts owing them, provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment
of or sale of a participation in any of its Advances to any assignee or participant, other than to
the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.




          Section 2.17. Compensation for Breakage Costs. 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, prepayment or Conversion pursuant to this Agreement or
acceleration of the maturity of the Advances pursuant to Section 7.01, 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 (excluding 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.




          Section 2.18. Use of Proceeds. The proceeds of the Advances shall be available (and
the Borrower agrees that it shall use such proceeds) in order to “back-stop”
commercial paper, for working capital purposes and for other general corporate purposes,
provided that such proceeds shall not be used in any manner that would result





28












 




in violation of Regulation U or X, issued by the Board of Governors of the Federal Reserve System,
as now and from time to time hereafter in effect.




          Section 2.19. 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 Commitment of such Lender.



               (b) The Register maintained by the Agent pursuant to Section 9.07(c) shall include a control
account, and a subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by the Agent, (iii) the amount of any principal
or interest due and payable or to become due and payable from the Borrower to each Lender hereunder
and (iv) the amount of any sum received by the 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.



ARTICLE III




[RESERVED]




ARTICLE IV




CONDITIONS TO LENDING




          Section 4.01. Conditions Precedent to Effective Date.
The Effective Date shall occur upon the satisfaction of the following conditions precedent:



29









 





               (a) Since May 31, 2008 there shall not have occurred and be continuing any Material Adverse
Effect.



               (b) 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 in their reasonable discretion) 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.



               (c) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of
the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the
Agent required by this Agreement), to the extent invoices therefor have been received at least one
Business Day before such Effective Date.



               (d) On the Effective Date, the following statements shall be true and the Agent shall have
received on behalf of the Lenders 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 5.01 are true and
correct on and as of the Effective Date, and




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



               (e) The Borrower shall have paid all principal, interest, fees and other amounts which are
unpaid and accrued under the Existing Credit Agreement as of the Effective Date, and shall have
terminated all commitments under the Existing Credit Agreement (or such commitments shall have
terminated) effective on or prior to the Effective Date (and Wachovia, in its capacity as
administrative agent under the Existing Credit Agreement and each Lender that is also a “Lender”
under the Existing Credit Agreement hereby (i) waives any requirement of prior written notice of
the prepayment of any “Advances” or termination of “Commitments” under the Existing Credit
Agreement, in each case as defined therein, and (ii) agrees that the occurrence of the Effective
Date hereunder shall be deemed notice by the Borrower of the prepayment of any “Advances” and
termination of the “Commitments” under the Existing Credit Agreement, and hereby amends, by
agreement with Borrower, the provisions of the Existing Credit Agreement to the extent necessary to
effect such result).



               (f) The Agent shall have received on or before the Effective Date the following, each dated
the Effective Date, in form and substance satisfactory to the Agent:




               (i) A Note to the order of each Lender (if any) that has requested one
pursuant to Section 2.19.



30









 






               (ii) Certified copies of the resolutions of the Board of Directors of the
Borrower approving the transactions contemplated by this Agreement and the
execution and delivery of this Agreement and the Notes, if any, to be delivered by
the Borrower, and of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and such 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, if any, to be delivered by the
Borrower and the other documents to be delivered hereunder.




               (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form
of Exhibit D-1 and (ii) Davis Polk & Wardwell, counsel for the Borrower, in the
form of Exhibit D-2.




               (v) A certificate of a duly authorized officer of the Borrower dated the
Effective Date demonstrating compliance with the financial covenant contained in
Section 6.02(c) as of the end of the fiscal quarter most recently ended prior to
the Effective Date as to which financial statements are referred to in Section
5.01(e) or, if later, for which financial statements have been delivered to the
Lenders pursuant to Section 6.01(g).



          Section 4.02. Conditions Precedent to Each Borrowing. The obligation of each Lender to make an
Advance on the occasion of each Borrowing shall be subject to the conditions precedent (without
limitation of the conditions precedent to the Effective Date set forth in Section 4.01) that on the
date of such Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing
shall constitute a representation and warranty by the Borrower that on the date of such Borrowing
such statements are true):



               (a) the representations and warranties contained in Section 5.01 made by the Borrower (other
than the representations and warranties contained in clauses (f)(i) and (g) of Section 5.01) are
true and correct in all material respects on and as of the date of such Borrowing before and after
giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date (except to the extent that any such representation or warranty relates to a
specific earlier date in which case it was true as of such earlier date), and



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



31









 





          Section 4.03. Determinations Under Section 4.01. For purposes of determining compliance with the
conditions specified in Section 4.01, 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 Effective Date specifying its objection thereto. The Agent shall promptly
notify the Lenders and the Borrower of the anticipated Effective Date. The Agent shall notify all
parties promptly of the occurrence of the Effective Date, which notice shall be conclusive once
given.



ARTICLE V




REPRESENTATIONS AND WARRANTIES




          Section 5.01. 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 its incorporation.



               (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes,
if any, to be delivered by it, and the consummation of the transactions contemplated hereby and
thereby, 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 other equivalent
organizational documents), (ii) applicable law or (iii) any contract or instrument binding on the
Borrower or any of its properties or assets that is material to the Borrower and its Subsidiaries,
taken as a whole.



               (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, if any, to be
delivered by it.



               (d) This Agreement has been, and each of the Notes, if any, to be delivered by the Borrower
when delivered hereunder will have been, duly executed and delivered by the Borrower. Assuming
that this Agreement has been duly executed by the Agent and each of the Initial Lenders, this
Agreement is, and each of the Notes of the Borrower when delivered hereunder will be, the legal,
valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its 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.



32









 





               (e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at May 31, 2008,
and the related Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by the opinion(s) of one or more firms of
independent certified public accountants of recognized national standing, as filed with the
Securities and Exchange Commission on Form 10-K with respect to its year ended May 31, 2008, and
the Consolidated balance sheet of the Borrower and its Subsidiaries as at November 30, 2008, and
the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries
for the six months then ended, as filed with the Securities and Exchange Commission on Form 10-Q
with respect to its fiscal quarter ended November 30, 2008, fairly present, subject, in the case of
said balance sheet at November 30, 2008, and said statements of income and cash flows for the six
months then ended, to absence of footnotes and 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 GAAP consistently applied.



               (f) There is no pending or (to the knowledge of the Borrower) threatened action, investigation
or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or
any of its Subsidiaries before any court, governmental agency or arbitrator that is initiated by
any Person other than a Lender in its capacity as a Lender (i) that is reasonably likely to have a
Material Adverse Effect or (ii) that purports to affect the legality, validity or enforceability of
this Agreement or any Note or the consummation of the transactions contemplated hereby.



               (g) Since May 31, 2008, there has not occurred any Material Adverse Effect which is
continuing.



               (h) None of the Borrower or any of its Subsidiaries is an Investment Company, as such term is
defined in the Investment Company Act of 1940, as amended.



               (i) No part of the proceeds of any Advances will be used in any manner that would result in a
violation of Regulation U or X, issued by the Board of Governors of the Federal Reserve System, as
in effect at any time this representation is made or deemed made.



               (j) The proceeds of the Advances shall be used by the Borrower in accordance with the
provisions of Section 2.18.



               (k) No report, financial statement or other written information furnished by or on behalf of
the Borrower to the Agent or any Lender pursuant to
subsection 6.01(g) (as modified or supplemented by any other information provided to the Agent
or any Lender) contains or will contain any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in light of the circumstances under which
they were, are or will be made, not misleading, except to the extent that the facts (whether
misstated or omitted) do not result in a Material Adverse



33









 







Effect; provided that with
respect to any projected financial information, the Borrower represents only that such information
has been (or will be) prepared in good faith based on assumptions believed to be reasonable at the
time.



               (l) The Borrower is in compliance with all material provisions of ERISA, except to the extent
that all failures to be in compliance could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.



               (m) The claims of the Agent and the Lenders against the Borrower under this Agreement rank at
least pari passu with the claims of all its unsecured creditors, save those whose
claims are preferred solely by the laws of general application having effect in relation to
bankruptcy, insolvency, liquidation or other similar events.



               (n) The Borrower and its Subsidiaries have filed all United States federal tax returns and all
other tax returns that are material to the Borrower and its Subsidiaries, taken as a whole, which
are required to be filed and have paid all United States federal taxes and all other taxes that are
material to the Borrower and its Subsidiaries, taken as a whole, in each case, that are due
pursuant to said returns or pursuant to any material assessment received by the Borrower or any of
its Subsidiaries, except in respect of such taxes, if any, as are being contested in good faith and
by proper proceedings and to which appropriate reserves are being maintained.



ARTICLE VI




COVENANTS OF THE BORROWER




          Section 6.01. Affirmative Covenants. So long as any Advance shall remain unpaid or any Lender shall
have any Commitment hereunder the Borrower will (and shall cause each of its Subsidiaries to):



               (a) Compliance with Laws, Etc. Comply in all material respects, with all applicable laws,
rules, regulations and orders (such compliance to include, without limitation, compliance with
ERISA, Environmental Laws and the Patriot Act) except where the failure to so comply would not have
a Material Adverse Effect.



               (b) Payment of Taxes, Etc. 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 none of the Borrower or 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 are being maintained,
unless and until any Lien resulting therefrom attaches to its property and becomes enforceable
against its other creditors and the aggregate of such Liens would have a Material Adverse Effect.



34









 





               (c) Preservation of Corporate Existence, Etc. Preserve and maintain its corporate
existence, rights (charter and statutory) and franchises; provided, however, that
the Borrower and its Subsidiaries may consummate any transaction permitted under Section 6.02(b)
and provided further that none of the Borrower and its Subsidiaries shall be
required to preserve any right or franchise, and no Subsidiary shall be required to preserve and
maintain its corporate existence, if the senior management of the Borrower or of such Subsidiary
(or any Person authorized by the Borrower or such Subsidiary) shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Borrower and its Subsidiaries,
taken as a whole, and that the loss thereof is not disadvantageous in any material respect to the
Borrower and its Subsidiaries, taken as a whole.



               (d) Visitation Rights. During normal business hours and upon not less than five days’
notice, 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 (excluding any
confidential information), 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
the appropriate representatives of the Borrower and together with the appropriate representatives
of the Borrower’s independent certified public accountants, provided, however, that
examination of the records of the Borrower and any of its Subsidiaries shall occur only at times
when an Advance or Advances shall be outstanding to the Borrower and provided,
further, that the Agent and the Lenders may make copies of and abstracts from the records
and books of account only at times when an Event of Default has occurred and is continuing.



               (e) Keeping of Books. 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 Subsidiary in accordance with generally accepted accounting principles in effect
from time to time.



               (f) Transactions with Affiliates. Conduct all transactions otherwise permitted under
this Agreement with any of its Affiliates (other than the Borrower and its Subsidiaries) on terms
that are fair and reasonable and no less favorable to the Borrower or its Subsidiaries than it
would obtain in a comparable arm’s-length
transaction with a Person not an Affiliate except where the failure to do so, in the
aggregate, would not have a Material Adverse Effect.



               (g) Reporting Requirements. Furnish to the Lenders:




               (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 (or such
shorter period as required by the SEC), the Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such quarter and the 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



35









 







officer, treasurer or controller of the Borrower as having been
prepared in accordance with GAAP;




               (ii) as soon as available and in any event within 90 days after the end of
each fiscal year of the Borrower (or such shorter period as required by the SEC),
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 the Consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for such fiscal year,
in each case accompanied by the opinion(s) of Ernst & Young LLP or one or more
other firms of independent certified public accountants of nationally recognized
standing reasonably acceptable to the Agent;




               (iii) concurrently with subsections (g)(i) and (g)(ii) of this Section 6.01,
a certificate of the chief financial officer, treasurer or controller of the
Borrower certifying that to the best of his or her knowledge no Event of Default
is continuing at such date or specifying any Event of Default that is continuing
at such date and specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto;




               (iv) as soon as possible and in any event within five Business Days after a
Board-appointed officer of the Borrower becomes aware of the occurrence of each
Default continuing on the date of such statement, a statement of the chief
financial officer, treasurer or controller of the Borrower setting forth details
of such Default and the action that the Borrower has taken and proposes to take
with respect thereto;




               (v) promptly after the sending or filing thereof, copies of all quarterly and
annual reports and proxy solicitations that the Borrower sends to any of its
security holders, and copies of all reports on Form 8-K that the Borrower files
with the SEC) (other than reports on
Form 8-K filed solely for the purpose of incorporating exhibits into a
registration statement previously filed with the SEC);




               (vi) prompt 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 5.01(f); and




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



          Reports required to be delivered pursuant to clauses (i), (ii) and (v) above for the Borrower
shall be deemed to have been delivered on the date on which the



36









 







Borrower posts such reports on the
Borrower’s website on the Internet at the website address listed for the Borrower on the signature
pages hereof or when such report is posted on the SEC’s website at www.sec.gov and such posting
shall be deemed to satisfy the reporting requirements of clauses (i), (ii) and (v) above;
provided that the Borrower shall deliver paper copies of the reports referred to in clauses
(i), (ii) and (v) above to the Agent or any Lender who requests the Borrower to deliver such paper
copies until written notice to cease delivering paper copies is given by the Agent or such Lender
and provided further, that in every instance the Borrower shall provide paper
copies of the certificate required by clauses (iii) and (iv) above to the Agent and each of the
Lenders until such time as the Agent shall have provided the Borrower written notice otherwise.



               (h) Use of Proceeds. Use the proceeds of the Advances in accordance with the
provisions of Section 2.18.



          Section 6.02. Negative Covenants. So long as any Advance shall remain unpaid or any Lender shall
have any Commitment hereunder:



               (a) Liens, Etc. None of the Borrower or any of its Subsidiaries will create or suffer
to exist any Lien on or with respect to any of its properties, whether now owned or hereafter
acquired, or on any of the income or profits therefrom unless it shall have made effective
provision whereby the Advances shall be secured by such Lien equally and ratably with any and all
obligations and Debt so secured so long as such obligations and Debt are so secured;
provided that nothing in this Section 6.02 shall be construed to prevent or restrict the
following:




               (i) Permitted Liens,




               (ii) purchase money Liens upon or in any real property or equipment acquired
or held by the Borrower or any of its Subsidiaries in the ordinary course of
business to secure the purchase price of such property or equipment or to secure
Debt incurred solely for the
purpose of financing the acquisition of such property or equipment, or Liens
existing on such property or equipment at the time of its acquisition or
conditional sales or other similar title retention agreements with respect to
property hereafter acquired 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 any improvements thereto or
proceeds thereof, 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,




               (iv) Liens on property of a Person existing at the time such Person becomes a
Subsidiary of the Borrower or any other Subsidiary of the Borrower or is merged
into or consolidated with the



37









 







Borrower or any Subsidiary of the Borrower;
provided that (A) to the extent such Liens were created at a time when
such Person was a Subsidiary or an Affiliate of the Borrower, such Liens attach
solely to the properties or assets subject to such Liens immediately prior to such
merger, consolidation or acquisition and (B) any such Liens that were created
during the period immediately prior to such merger, consolidation or acquisition
were not created in contemplation of the merger, consolidation or acquisition,




               (v) Liens to secure Debt issued by the Borrower in connection with a
consolidation or merger of the Borrower with or into any of its Affiliates in
exchange for or otherwise in substitution for long-term senior secured Debt of
such Affiliate (without increase in the amount or extension of the final maturity
date of the Debt of such Affiliate),




               (vi) Liens on margin stock (within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System),




               (vii) the replacement, extension or renewal of any Lien permitted by clauses
(iii) and (iv) above upon or in the same property theretofore subject thereto or
the replacement, extension or renewal (without increase in the amount) of the Debt
secured thereby,




               (viii) Liens to secure intercompany Debt obligations among Borrower and its
Subsidiaries,




               (ix) Additional Permitted Liens,




               (x) Liens arising from any receivables financing accounted for under GAAP as
a sale by the Borrower or any of its
Subsidiaries to a Person other than the Borrower or any of its Subsidiaries,
provided that (a) such financing shall be limited recourse or non-recourse
to the Borrower and its Subsidiaries except to the extent customary for such
transactions, and (b) such Liens do not encumber any assets other than the
receivables being financed, the property securing or otherwise relating to such
receivables, and the proceeds thereof, and




               (xi) Liens, not otherwise subject to any of clauses (i) through (x) above, on
assets, other than Intellectual Property, granted to secure Debt or other
obligations in an aggregate principal amount that, together with any Covenant Debt
of a Subsidiary of the Borrower outstanding pursuant to Section 6.02(d)(iii),
shall not exceed the amount specified in Section 6.02(d)(iii).



               (b) Mergers, Etc. The Borrower will not merge or consolidate with or into, and will
not, and will not permit its Subsidiaries to, convey, transfer, lease or



38









 







otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets
of the Borrower and its Subsidiaries taken as a whole (whether now owned or hereafter acquired) to,
any Person, except that (i) any Person may merge with or into the Borrower in a transaction in
which the Borrower is the survivor; (ii) any Subsidiary of the Borrower may dispose of assets to
any other Subsidiary of the Borrower; (iii) any Subsidiary of the Borrower may dispose of assets to
the Borrower; (iv) the Borrower may merge into any of its Subsidiaries for the purpose of effecting
a change in its state of incorporation from Delaware to any other state in the United States if (A)
such Subsidiary is incorporated in such other state solely for the purposes of such merger and,
immediately prior to the effectiveness of such merger, has positive stockholders’ equity, and (B)
such merger would not reasonably be expected to result in a Material Adverse Effect; (v) any
Subsidiary or group of Subsidiaries of the Borrower may dispose of assets to Persons other than the
Borrower and its Subsidiaries, so long as, after giving effect to such transaction, such Subsidiary
or Subsidiaries, taken as a consolidated whole, has not disposed of, in one transaction or a series
of related transactions, more than 10% of the Consolidated assets of the Borrower and its
Subsidiaries, taken as a whole and (vi) any Person may sell margin stock (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System).



               (c) Financial Covenant. The Borrower shall not permit the Capitalization Ratio to
exceed 45%.



               (d) Subsidiary Indebtedness. The Borrower will not permit any of its Subsidiaries to
incur or permit to remain outstanding any Covenant Debt other than (i) Debt of a Subsidiary
outstanding on the Effective Date and refinancings, refundings, renewals or extensions thereof,
(ii) Debt owed to the Borrower or another Subsidiary of the Borrower and (iii) Covenant Debt not
referenced in clauses (i) and (ii) above in an aggregate outstanding principal amount that,
together with any Debt or other obligations secured by Liens referred to in Section 6.02(a)(xi),
shall not exceed the greater of (x) $1,500,000,000 and (y) 25% of Stockholders’ Equity determined
at such time.



ARTICLE VII




EVENTS OF DEFAULT




          Section 7.01. Events of Default. If any of the following events (“Event of Default”) shall
occur and be continuing with respect to the Borrower or any of its Subsidiaries:



               (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 within three Business Days
after the same becomes due and payable; or the Borrower shall fail to pay any fees payable
hereunder within ten Business Days after the same become due and payable; or the Borrower shall
fail to pay any other amount



39









 







payable under this Agreement or any Note within ten Business Days
after receipt by the Borrower of written demand therefor; or



               (b) Any representation or warranty made or deemed 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 deemed made; or



               (c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 6.01(c),(f),(g)(iii),(g)(iv), (g)(vi) or (h) or 6.02, (ii) the Borrower shall
fail to perform or observe any term, covenant or agreement contained in Section 6.01(g) (other than
clauses (iv) and (vi) thereof) if such failure shall remain unremedied for fifteen (15) Business
Days after written notice thereof shall have been given to the Borrower by the Agent or any Lender
or (iii) 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 thirty (30) 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, in the case of Hedge Agreements, net
amount, of at least $200,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the
Borrower or such Subsidiary (as the case may be) (the “Requisite Amount”), when the same
becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the later of five (5) Business Days and the
applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or
any such Debt aggregating the Requisite Amount shall be declared due and payable or any other
breach or default with respect to any other material term shall occur or shall exist under any
agreement or instrument relating to any such Debt aggregating the Requisite Amount and shall
continue after the applicable grace period, if any, specified in such agreement or
instrument if the effect of such breach or default is to accelerate the maturity of such Debt;
or any such Debt aggregating the Requisite Amount shall be required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption), purchased or defeased, in
each case prior to the stated maturity thereof where the cause of such prepayment, redemption,
purchase or defeasance is the occurrence of an event or condition that is premised on a material
adverse deterioration of the financial condition, results of operations or properties of the
Borrower or such Subsidiary; provided that with respect to Debt aggregating the Requisite
Amount of the types described in clauses (h) or (i) of the definition of “Debt” and to the extent
such Debt relates to the obligations of any Person other than a Subsidiary, no Event of Default
shall occur so long as the payment of such Debt is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained; or



               (e) The Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries) shall
generally not pay its respective debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a



40









 







general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower or any of its
Subsidiaries (other than Immaterial Subsidiaries) seeking to adjudicate it as 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 sixty (60) days,
or any of the actions sought in such proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or the Borrower or any
of its Subsidiaries (other than Immaterial Subsidiaries) shall take any corporate action to
authorize any of the actions set forth in this subsection (e) under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors; or



               (f) Any judgment or order for the payment of money in excess of $100,000,000 shall be rendered
against the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries) and such
judgment shall remain undischarged, unvacated, unbonded or unstayed for a period of thirty (30)
days and enforcement proceedings shall have been commenced by any creditor upon such judgment or
order; provided, however, that any such judgment or order shall not be an Event of
Default under this Section 7.01(f) if and for so long as and to the extent that (i) the amount of
such judgment or order is covered (subject to standard deductibles) by a valid and binding policy
of insurance between the defendant and the insurer or insurers covering payment thereof, (ii) such
insurer shall be rated, or, if more than one insurer, at least 90% of such insurers as measured by
the amount of risk insured shall be rated, at least “A-” by A.M. Best Company or its successor or
its successors and (iii) such insurer(s) has been notified of, and has not refused to defend 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 SEC 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 more than 50% of the combined voting power of all Voting Stock of the
Borrower; or (ii) during any period of up to twenty-four (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 (other than solely as a result of (A) death or
disability or (B) voluntary retirement or resignation of any individual in the ordinary course and
not for reasons related to an actual or proposed change of control of the Borrower) to constitute a
majority of the Board of Directors of the Borrower; or



               (h) The Borrower or its ERISA Affiliates shall incur, or shall be reasonably likely to incur,
liability that would have a Material Adverse Effect as a result of one or more of the following:
(i) the occurrence of any ERISA Event; (ii) the partial or



41









 







complete withdrawal of the Borrower or
its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan; or



               (i) This Agreement ceases to be in full force and effect or shall be declared null and void or
the Borrower shall contest the validity or enforceability of this Agreement in writing or deny in
writing that it has any further liability, including with respect to future Advances by Lenders,
under this Agreement;


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
to the Borrower 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
all or a portion of the Advances, all interest thereon and all other amounts payable under this
Agreement by the Borrower to be forthwith due and payable, whereupon such Advances, all such
interest and all such other amounts shall become and be forthwith due and payable by the Borrower,
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 U.S. Bankruptcy Code,
(A) the obligation of each Lender to make Advances to the Borrower shall automatically be
terminated and (B) the Advances, all such interest and all such other amounts shall automatically
become and be due and payable by the Borrower without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower.




ARTICLE VIII




THE AGENT




          Section 8.01. Appointment and Authority.
Each of the Lenders hereby irrevocably appoints Wachovia as its agent hereunder and
authorizes the Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this Article are solely for the benefit of the
Agent and the Lenders and the Borrower shall not have rights as a third party beneficiary of any of
such provisions.



          Section 8.02. Rights as a Lender. The Person serving as the Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may exercise the same as
though it were not the Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving as the Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity for and generally
engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if
such



42









 







Person were not the Agent hereunder and without any duty to account therefor to the Lenders.



          Section 8.03. Exculpatory Provisions. The Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the foregoing, the Agent (a)
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers expressly contemplated
hereby that the Agent is required to exercise as directed in writing by the Required Lenders (or
such other number or percentage of the relevant Lenders as shall be necessary under the
circumstances as provided in Section 9.01), provided that the Agent shall not be required
to take any action that, in its opinion or the opinion of its counsel, may expose the Agent to
liability or that is contrary to any applicable law, and (c) shall not, except as expressly set
forth herein have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is communicated to or obtained
by the person serving as the Agent or any of its Affiliates in any capacity. The Agent shall not
be liable for any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.01) or in the absence of its own gross negligence or willful
misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until notice
thereof is given to the Agent by the Borrower or a Lender. The Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement, instrument or document or
(v) the satisfaction of any
condition set forth herein, other than to confirm receipt of items expressly required to be
delivered to the Agent.



          Section 8.04. Reliance by Agent. The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, posting to an Internet or intranet
website or other distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper Person, and shall not
incur any liability for relying thereon. In determining compliance with any condition hereunder to
the making of an Advance that by its terms must be fulfilled to the satisfaction of a Lender, the
Agent may presume that such condition is satisfactory to such Lender unless the Agent shall have
received notice to the contrary from such Lender prior to the making of such Advance. The Agent
may consult with legal counsel (who may be counsel for the Borrower), independent accountants and
other experts selected by it, and shall not be



43









 







liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.



          Section 8.05. Delegation of Duties. The Agent may perform any and all of its duties and exercise
its rights and powers hereunder by or through any one or more sub-agents appointed by the Agent.
The Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory provisions of this Article
shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent,
and shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.



          Section 8.06. Resignation of Agent. The Agent may at any time give notice of its resignation to the
Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a
bank with an office in New York, or an Affiliate of any such bank with an office in New York. If
no such successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its resignation, then the
retiring Agent may on behalf of the Lenders, appoint a successor Agent meeting the qualifications
set forth above, provided that if the Agent shall notify the Borrower and the Lenders that
no such successor is willing to accept such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (1) the retiring Agent shall be discharged from
its duties and obligations hereunder and (2) all payments, communications and determinations
provided to be made by, to or through the Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor Agent as
provided for above in this paragraph. Upon the acceptance of a successor’s appointment as
Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be
discharged from all of its duties and obligations hereunder. The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Agent’s resignation hereunder, the
provisions of this Article and Section 8.04 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Agent was acting as Agent.



          Section 8.07. Non-Reliance on Agent and Other Lenders. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender or any of their Related
Parties and based on such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any Note or any related agreement or any document furnished hereunder or thereunder.



44









 





          Section 8.08. No Other Duties, etc. Anything herein to the contrary notwithstanding, none of the
joint lead arrangers, bookrunner, syndication agent or documentation agents listed on the cover
page hereof shall have any powers, duties or responsibilities under this Agreement, except in its
capacity, as applicable, as the Agent or a Lender hereunder.



ARTICLE IX




MISCELLANEOUS




          Section 9.01. Amendments, Etc. (a) No amendment or waiver of any provision of this Agreement or
any 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 Borrower and 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 (i) 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 4.01, (B) change the percentage of the Commitments or of
the Revolving Credit Exposures or the number of Lenders that shall be required for the Lenders or
any of them to take any action
hereunder, or (C) amend this Section 9.01; and (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Required Lenders and each Lender that has a Commitment or has
or is owed obligations under this Agreement or the Notes that is or are modified by such amendment,
waiver or consent, (A) increase the Commitment of such Lender or subject such Lender to any
additional obligations, (B) reduce the principal of, or interest on, the Advances made by such
Lender or any fees or other amounts payable hereunder to such Lender, (C) postpone any date fixed
for any payment of interest on the Advances made by such Lender or any fees or other amounts
payable hereunder to such Lender, (D) extend the Termination Date (except pursuant to Section 2.05)
or (E) amend or waive the application of Section 2.16.



               (b) Each Lender grants (x) to the Agent the right to purchase all (but not less than all) of
such Lender’s Commitments and Advances owing to it and the Notes held by it and all of its rights
and obligations hereunder, and (y) to the Borrower the right to cause an assignment of all (but not
less than all) of such Lender’s Commitments and Advances owing to it, its participations in the
Notes held by it and all of its rights and obligations hereunder to Eligible Assignees, which right
may be exercised by the Agent or the Borrower, as the case may be, if such Lender (a
“Non-Consenting Lender”) refuses to execute any amendment, waiver or consent which requires
the written consent of all or all affected Lenders under clause (i) or (ii) in paragraph (a) above
or, alternatively, is unable to execute and/or deliver such amendment, waiver or consent which
requires the written consent of all or all affected Lenders under clause (i) or (ii) in paragraph
(a) above within the time period specified by the Agent, the Required Lenders and the Borrower and
to which the Required Lenders, and the Borrower have otherwise agreed; provided that such
Non-Consenting Lender shall receive, in connection with such assignments, payment equal to the
aggregate



45









 







amount of outstanding Advances owed to such Lender (together with all accrued and unpaid
interest, fees and other amounts owed to such Lender, including any amounts under Section 2.17).
Each Lender agrees that if the Agent or the Borrower, as the case may be, exercises their option
hereunder, it shall promptly execute and deliver all agreements and documentation reasonably
necessary to effectuate such assignment, without recourse, as set forth in Section 9.07 at the
Borrower’s expense. If the Borrower has requested that a Lender execute such agreement or
documentation and the Non-Consenting Lender does not comply with the request within two Business
Days after such request is made to execute and deliver such assignment, then the Borrower shall be
entitled (but not obligated) to execute and deliver such agreement and documentation on such
Non-Consenting Lender’s behalf and any such agreement and/or documentation so executed by the
Borrower (in substantially the form of Exhibit C hereto) shall be effective for purposes of
effectuating an assignment pursuant to Section 9.07; provided, all amounts due and owing to
the Non-Consenting Lender have been paid and the Borrower shall not be permitted to add any
obligations or liabilities to such Non-Consenting Lender.



          Section 9.02. Notices; Effectiveness; Electronic Consent.
(a) Except in the case of notices and other communications expressly permitted to be given by
telephone (and except as provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier as follows: (i) if to the
Borrower, to it at Oracle Corporation, 500 Oracle Parkway, Redwood Shores, CA 94065, Attention of
the Treasurer (Telecopier No. (650) 633-0171; Telephone No. (650) 506-4118), with a copy to the
General Counsel at Oracle Corporation (Telecopier No. (650) 506-7114; Telephone No. (650)
506-5500); (ii) if to the Agent, to Wachovia at 301 South College Street, TW15, Charlotte, North
Carolina 28288, Attention: Mark Felker (Telecopier No. (704) 383-7611; Telephone No. (704)
374-7074), with a copy to Syndications (Telecopier No. (704) 590-3481; Telephone No. (704)
590-2702; and (iii) if to a Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire. Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when receipt thereof is confirmed electronically
(except that, if not given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the recipient). Notices
delivered through electronic communications to the extent provided in paragraph (b) below, shall be
effective as provided in said paragraph (b).



               (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Agent, provided that the foregoing shall not apply to
notices to any Lender pursuant to Section 2.02 if such Lender has notified the Agent that it is
incapable of receiving notices under such Article by electronic communication. The Agent or the
Borrower may, in its discretion, agree to



46









 







accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it, provided that approval
of such procedures may be limited to particular notices or communications. Unless the Agent
otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be
deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such
as by the “return receipt requested” function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is not sent during
the normal business hours of the recipient, such notice or communication shall be deemed to have
been sent at the opening of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause
(i) of notification that such notice or communication is available and identifying the website
address therefor. Electronic mail and Internet and intranet websites may be used by the Agent to
distribute communications, such as financial statements and other information as provided in this
Agreement, and to distribute documents for execution by the parties thereto, and the Agent shall
not be responsible for any losses, costs, expenses and liabilities that may arise by reason of the
use thereof, except for its own gross negligence or willful misconduct.
The Agent and the Lenders shall be entitled to rely and act in good faith upon any notices
(including telephonic notices) purportedly given by or on behalf of the Borrower.



               (c) Any party hereto may change its address or telecopier number or email address for notices
and other communications hereunder by notice to the other parties hereto.



          Section 9.03. 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 9.04. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all reasonable
and documented out-of-pocket expenses incurred by the Agent and its Affiliates, including the
reasonable and documented fees, charges and disbursements of counsel for the Agent (and reasonable,
documented fees and time charges for attorneys who may be employees of the Agent), in connection
with the syndication of the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated) and (ii) all reasonable and documented out-of-pocket expenses
incurred by the Agent or any Lender, including the reasonable and documented fees, charges and
disbursements of any counsel for the Agent or any Lender (and reasonable and documented fees and
time charges for attorneys who may be employees of the Agent), in connection with the enforcement
or protection of its rights in connection with this Agreement and the Notes, including its rights
under this Section 9.04, or in connection with the Advances made, including all



47









 







such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Advances.



               (b) The Borrower shall indemnify the Agent (and any sub-agent thereof), each Lender and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees, charges and disbursements
of any counsel for any Indemnitee (and reasonable fees and time charges for attorneys who may be
employees of the Agent or any Lender), incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of
their respective obligations hereunder or the consummation of the transactions contemplated hereby
or thereby, (ii) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Action
related in any way to the Borrower or any of its Subsidiaries,
or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory, whether brought by the
Borrower, any of its shareholders or creditors, an Indemnitee or any other Person, and regardless
of whether any Indemnitee is a party thereto, provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or to
the extent that, in any action brought by the Borrower, the Borrower prevails.



               (c) To the extent that the Borrower fails to pay any amount required under paragraph (a) or
(b) of this Section 9.04 to be paid by it to the Agent (or any sub-agent thereof) or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such
sub-agent) or such Related Party, as the case may be, such Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or asserted against the
Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the
foregoing acting for the Agent (or any such sub-agent) in connection with such capacity. The
obligations of the Lenders under this paragraph (c) are subject to the provisions of Section
2.02(h).



               (d) To the fullest extent permitted by applicable law, the Borrower shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Advance or the use of the proceeds
thereof. No Indemnitee referred to in paragraph (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed by



48









 







it through telecommunications, electronic or other information transmission systems in connection with
this Agreement or the transactions contemplated hereby or thereby.



               (e) All amounts due under this Section 9.04 shall be payable promptly after written demand
therefor.



               (f) 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 this Section 9.04
shall survive the payment in full of principal, interest and all other amounts payable hereunder
and under the Notes.



          Section 9.05. Right of Set-off. If an Event of Default shall have occurred and be continuing, each
Lender and each of their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such
Lender or any 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 to such
Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement
and although such obligations of the Borrower may be contingent or unmatured or are owed to a
branch or office of such Lender different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender and their respective Affiliates under
this Section 9.05 are in addition to other rights and remedies (including other rights of setoff)
which such Lender or their respective Affiliates may have. Each Lender agrees promptly to notify
the Borrower and the Agent after any such setoff and application, provided that the failure
to give such notice shall not affect the validity of such setoff and application.



          Section 9.06. Binding Effect. This Agreement shall become effective when it shall have been
executed by the Agent and when the Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns.



          Section 9.07. Assignments and Participations. (a) No Lender may assign or otherwise transfer any
of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of paragraph (b) of this Section 9.07, (ii) by way of participation in accordance with
the provisions of paragraph (d) of this Section 9.07 or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of paragraph (f) of this Section 9.07 (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in paragraph (d) of this Section 9.07 and, to the extent expressly contemplated
hereby, the Related Parties of each of the Agent and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.



49









 





               (b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Commitment and
Revolving Credit Exposure at the time owing to it); provided that (i) except in the case of
an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Revolving
Credit Exposure at the time owing to it or in the case of an assignment to a Lender or an Affiliate
of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Advances outstanding thereunder) or, if the applicable Commitment
is not then in effect, the principal outstanding balance of the Advance of the assigning Lender
subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less
than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, unless each of the Agent
and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consent
(each such consent not to be unreasonably withheld or delayed and such approval to be deemed to
have been given if a response is not received within fifteen Business Days from the date on which
request for approval was received by the applicable Person); (ii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Advance or the Commitment assigned; (iii) any assignment
must be approved with the prior written consent of (A) the Agent and (B) the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that no consent of the
Borrower or the Agent shall be required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, in the case of the Borrower, if an Event of Default has occurred and is
continuing; (iv) the parties to each assignment shall (1) electronically execute and deliver to the
Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Agent or
(2) manually execute and deliver to the Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500; provided that only one such fee shall be payable
in connection with simultaneous assignments to or by two or more Approved Funds; and (v) the
Eligible Assignee, if it shall not be a Lender, shall deliver to the Agent an Administrative
Questionnaire and if required, applicable tax forms.



          Subject to acceptance and recording thereof by the Agent pursuant to paragraph (c) of this
Section 9.07, from and after the effective date specified in each Assignment and Acceptance, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Section 2.11, 2.14 and 9.04 with respect to facts and circumstances
occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this paragraph shall be
treated for purposes of this Agreement as a



50









 







sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (d) of this Section 9.07.



               (c) The Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at
one of its offices in New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitments of, and
principal amounts of the Advances owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive, and the Borrower,
the Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the Borrower at any
reasonable time and from time to time upon reasonable prior notice. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’s
completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder),
the processing and recordation fee referred to in paragraph (b) of this Section 9.07 and any
written consent to such assignment required by paragraph (b) of this Section 9.07, the Agent shall
accept such Assignment and Assumption and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.



               (d) Any Lender may at any time, without the consent of, or notice to, the Borrower or the
Agent, sell participations to any Person (other than a natural person or the Borrower or any of the
Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Agreement (including all or a portion of its
Commitment and/or Revolving Credit Exposure owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) 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. Any agreement
or instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver with respect to (A) reducing the principal of, or interest on, the Advances
made by such Lender or any fees or other amounts payable hereunder to such Lender, (B) postponing
any date fixed for any payment of interest on the Advances made by such Lender or any fees or other
amounts payable hereunder to such Lender that affects such Participant or (c) extending the
Termination Date. Subject to paragraph (e) of this Section 9.07, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.11 and 2.14 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section
9.07. To the extent permitted by law, each Participant also shall be entitled to the benefits of
Section 9.05 as though it were a



51









 







Lender, provided such Participant agrees to be subject to
Section 2.16 as though it were a Lender.



               (e) A Participant shall not be entitled to receive any greater payment under Sections 2.11 and
2.14 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.14 unless the Borrower is notified
of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.14(e) as though it were a Lender.



               (f) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto. Notwithstanding
anything to the contrary contained herein, any Lender that is a Fund may create a security interest
in all or any portion of the Advances owing to it and the Notes, if any, held by it to the trustee
for holders of obligations owed, or securities issued, by such Fund as security for such
obligations or securities, provided that unless and until such trustee actually becomes a
Lender in compliance with the other provisions of this Section 9.07, (i) no such pledge shall
release the pledging Lender from any of its obligations under this Agreement and (ii) such trustee
shall not be entitled to exercise any of the rights of a Lender under this Agreement and the Notes
even though such trustee may have acquired ownership rights with respect to the pledged interest
through foreclosure or otherwise.



               (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (a “SPC”), identified as such
in writing from time to time by the Granting Lender to the Agent and the Borrower, the option to
provide to the Borrower all or any part of any Advance that such Granting Lender would otherwise be
obligated to make the Borrower pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to make any Advance and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part of such Advance,
the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The
making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Advance were made by such Granting Lender. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United States or any State



52









 







thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.07, any
SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Agent
and without paying any processing fee therefore, assign all or a portion of its interests in any
Advances to the Granting Lender or to any financial institutions (consented to by the Borrower and
Agent) providing liquidity and/or credit support to or for the account of such SPC to support the
funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public
information relating to its Advances to any rating agency, commercial paper dealer or provider of
any surety,
guarantee or credit or liquidity enhancement to such SPC. This Section 9.07 may not be
amended without the written consent of each SPC that holds any Advances at the time of the proposed
amendment.



               (h) Notwithstanding the foregoing to the contrary, the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written consent of each Lender
and the Agent.



          Section 9.08. 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 9.09. Counterparts; Integration; Electronic Execution. (a) This Agreement may be executed
in counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and any separate letter agreements with respect to fees payable to the Agent
constitute the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Delivery of an executed counterpart of a signature page of this Agreement
or any document or instrument delivered in connection herewith by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement or such other document or instrument,
as applicable.



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



          Section 9.10. Jurisdiction, Etc. (a) The Borrower irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the courts of the State of New York
sitting in New York City and of the United States District Court 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 for recognition or enforcement of any judgment, and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be



53









 







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



               (b) The Borrower irrevocably and unconditionally waives, to the fullest extent permitted by
applicable law, any objection which it may now or hereafter have to the laying of venue of any
action or proceeding arising out of or relating to this Agreement or the Notes in any court
referred to in paragraph (a) of this Section 9.10. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.



               (c) Each party hereto irrevocably consents to service of process in the manner provided for
notices in Section 9.02. Nothing in this Agreement will affect the right of any party hereto to
serve process in any other manner permitted by applicable law.



          Section 9.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE NOTES BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.



          Section 9.12. Confidentiality. Each of the Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to it, its Affiliates’ and their respective partners, directors, officers, employees, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under



54









 







the Notes or any action or proceeding
relating to this Agreement or the Notes or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as those of this Section
9.12, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, (g) with the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) or (h) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section 9.12 or (y) becomes available to the Agent or any Lender on a
nonconfidential basis from a source other than the Borrower.



          For purposes of this Section 9.12, “Information” means all information received from
(or on behalf of) the Borrower or any of its Subsidiaries relating to the Borrower or any of its
Subsidiaries or any of their respective businesses, other than any such information that is
available to the Agent or any Lender on a nonconfidential basis prior to disclosure by the
Borrower, provided that, in the case of information received from the Borrower after the
date hereof, such information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in this Section 9.12
shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would accord
to its own confidential information.



          Section 9.13. 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.



[Remainder of page intentionally left blank]





55









 








          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.



	 	 	 	 	 
	 	ORACLE CORPORATION

 	 
	 	By
 	/s/ Eric R. Ball 	 	 
	 	Name:  	Eric R. Ball 	 
	 	Title:  	Vice President and Treasurer 	 
	 
	 	WACHOVIA BANK, NATIONAL 

ASSOCIATION, as Agent

 	 
	 	By
 	/s/ Mark B. Felker 	 	 
	 	Name:  	Mark B. Felker 	 
	 	Title:  	Managing Director 	 
	 
	 	BNP PARIBAS, as

Syndication Agent and as a Lender

 	 
	 	By
 	/s/ Jamie Dillon 	 
	 	Name:  	Jamie Dillon 	 
	 	Title:  	Managing Director 	 
	 	 	 
	 	By 	/s/ Joseph Mack 	 
	 	Name:  	Joseph Mack 	 
	 	Title:  	Vice President 	 
	 
	 	WELLS FARGO BANK, NATIONAL 

ASSOCIATION, as a Lender

 	 
	 	By
 	/s/ Meggie Chichioco	 
	 	Name:  	Meggie Chichioco 	 
	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



Schedule 2.01




COMMITMENTS




	 	 	 	 	 
	Wells Fargo Bank, National Association, as a Lender
	 	$	263,000,000	 
	BNP Paribas, as Syndication Agent and as a Lender
	 	$	250,000,000	 
	Bank of America, N.A., as Documentation Agent and as a
Lender
	 	$	220,000,000	 
	Citicorp USA, Inc., as Documentation Agent and as a Lender
	 	$	200,000,000	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Documentation
Agent and as a Lender
	 	$	200,000,000	 
	The Royal Bank of Scotland plc, as Documentation Agent and
as a Lender.
	 	$	200,000,000	 
	HSBC Bank USA, National Association, as a Lender
	 	$	150,000,000	 
	Mizuho Corporate Bank, Ltd., as a Lender
	 	$	150,000,000	 
	Morgan Stanley Bank, as a Lender
	 	$	150,000,000	 
	Credit Suisse, as a Lender
	 	$	85,000,000	 
	Societe Generale, as a Lender
	 	$	67,000,000	 
	U.S. Bank National Association, as a Lender
	 	$	50,000,000	 
	The Bank of New York Mellon, as a Lender
	 	$	15,000,000	 
	Total
	 	$	2,000,000,000