Purchase Agreement



 Exhibit 10.5 
 EXECUTION COPY 
 BROCADE COMMUNICATIONS SYSTEMS, INC.

 $300,000,000 
 6.625% Senior Secured Notes due 2018 
 $300,000,000 
 6.875% Senior Secured Notes due 2020 
 Purchase Agreement

 January 13, 2010 
 J.P. Morgan Securities Inc. 
   As Representative of the 
   several Initial Purchasers listed 
   in Schedule 1 hereto 
 c/o J.P. Morgan Securities Inc. 
 270 Park Avenue 
 New York, NY 10179 
 Ladies and Gentlemen: 
 Brocade Communications Systems, Inc., a Delaware
corporation (the “Company”), proposes to issue and sell to the several initial purchasers listed in Schedule 1 hereto (the “Initial Purchasers”), for whom you are acting as representative (the “Representative”),
$300,000,000 principal amount of its 6.625% Senior Secured Notes due 2018 (the “2018 Notes”) and $300,000,000 principal amount of its 6.875% Senior Secured Notes due 2020 (the “2020 Notes”, and together with the 2018 Notes, the
“Securities”). The 2018 Notes will be issued pursuant to an Indenture to be dated as of the Closing Date (as defined below) (the “2018 Indenture”) among the Company, the guarantors listed in Schedule 2 hereto (the
“Guarantors”) and Wells Fargo Bank, National Association (“Wells Fargo”), as trustee (the “2018 Trustee”), and the 2020 Notes will be issued pursuant to an Indenture to be dated as of the Closing Date (the “2020
Indenture”, and together with the 2018 Indenture, the “Indentures”) among the Company, the Guarantors and Wells Fargo, as trustee (the “2020 Trustee”, and together with the 2018 Trustee, the Trustees). The Securities will be
guaranteed on a secured senior basis by each of the Guarantors (the “Guarantees”). 
 The Securities and the
Guarantees will be secured by a lien, subject to Permitted Exceptions (as defined below) on all the Company’s and the Guarantors’ assets that secure that certain Credit Agreement, dated as of October 7, 2008 (as amended, supplemented
or otherwise modified from time to time, the “Senior Secured Credit Facility”), among the Company, the lenders party thereto and Bank of America, N.A., as administrative agent (the “Administrative Agent”) (such assets,
collectively, the “Collateral”). 







 The portion of the Collateral relating to real property and fixtures shall be described in
the mortgages, deeds of trust or deeds to secure debt delivered pursuant to Section 4(p) hereof in form and substance reasonably satisfactory to the Representative (collectively, the “Mortgages”) with respect to each property listed
on Annex D hereto (each, a “Mortgaged Property” and, collectively, the “Mortgaged Properties”) and the portion of the Collateral other than real property shall be described in the Security Agreement for the 2018 Notes (the
“2018 Security Agreement”) and the Security Agreement for the 2020 Notes (the “2020 Security Agreement”), each to be dated the Closing Date (collectively, the “Security Agreements” and, together with the Mortgages, the
“Collateral Documents”). Each of the Collateral Documents shall be delivered to Wells Fargo, acting as collateral agent (the “Collateral Agent”), granting a security interest with respect to the Collateral, subject to Permitted
Exceptions, for the benefit of the Trustees and each holder of the Securities and the successors and assigns of the foregoing. The rights of the holders of the Securities with respect to the Collateral shall be further governed by the Intercreditor
Agreement to be dated the Closing Date (the “Intercreditor Agreement”) among the Company, the Guarantors, the Administrative Agent and the Collateral Agent. 
 The Securities will be sold to the Initial Purchasers without being registered under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon an exemption therefrom. The
Company and the Guarantors have prepared a preliminary offering memorandum dated January 8, 2010 (the “Preliminary Offering Memorandum”) and will prepare an offering memorandum dated the date hereof (the “Offering
Memorandum”) setting forth information concerning the Company and the Securities. Copies of the Preliminary Offering Memorandum have been, and copies of the Offering Memorandum will be, delivered by the Company to the Initial Purchasers
pursuant to the terms of this Agreement. The Company hereby confirms that it has authorized the use of the Preliminary Offering Memorandum, the other Time of Sale Information (as defined below) and the Offering Memorandum in connection with the
offering and resale of the Securities by the Initial Purchasers in the manner contemplated by this Agreement. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Preliminary Offering Memorandum.
References herein to the Preliminary Offering Memorandum, the Time of Sale Information and the Offering Memorandum shall be deemed to refer to and include any document incorporated by reference therein. 
 At or prior to the time when sales of the Securities were first made (the “Time of Sale”), the following information shall have
been prepared (collectively, the “Time of Sale Information”): the Preliminary Offering Memorandum, as supplemented and amended by the written communications listed on Annex A hereto. 
 Holders of each of the 2018 Notes and the 2020 Notes (including the Initial Purchasers and their direct and indirect transferees) will be
entitled to the benefits of a Registration Rights Agreement, to be dated the Closing Date and substantially in the form attached hereto as Exhibit A (each, a “Registration Rights Agreement”, and collectively, the “Registration Rights
Agreements”), pursuant to which the Company and the Guarantors will agree to file one or more registration statements with the Securities and Exchange Commission (the “Commission”) providing for the registration under the Securities
Act of such Securities or the Exchange Securities referred to (and as defined) in the applicable Registration Rights Agreement. 
  

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 The Company hereby confirms its agreement with the several Initial Purchasers concerning the
purchase and resale of the Securities, as follows: 
 1. Purchase and Resale of the Securities. (a) The Company
agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set
forth herein, agrees, severally and not jointly, to purchase from the Company (i) the respective principal amount of 2018 Notes set forth opposite such Initial Purchaser’s name in Schedule 1 hereto under the caption “2018 Notes”
at a price equal to 97.559% of the principal amount thereof plus accrued interest, if any, from January 20, 2010 to the Closing Date and (ii) the respective principal amount of 2020 Notes set forth opposite such Initial Purchaser’s
name in Schedule 1 hereto under the caption “2020 Notes” at a price equal to 97.434% of the principal amount thereof plus accrued interest, if any, from January 20, 2010 to the Closing Date. The Company will not be obligated to
deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein. 
 (b) The Company
understands that the Initial Purchasers intend to offer the Securities for resale on the terms set forth in the Time of Sale Information. Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that: 
 (i) it is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a “QIB”) and an
accredited investor within the meaning of Rule 501(a) under the Securities Act; 
 (ii) it has not solicited
offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act
(“Regulation D”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and 
 (iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering except: 
 (A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under
the Securities Act (“Rule 144A”) and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; or

 (B) in accordance with the restrictions set forth in Annex C hereto. 
  

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 (c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the
opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f) and 6(g), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial
Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C hereto), and each Initial Purchaser hereby consents to such reliance. 
 (d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial
Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser, subject to compliance by the Initial Purchasers with their agreements contained in Section 1(b) above, including Annex C
hereto. 
 (e) The Company and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the
capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial
advisors or fiduciaries to, or agents of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of
the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by any Representative or any other
Initial Purchaser of the Company, the Guarantors and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Representative or such Initial Purchaser, as the case may be,
and shall not be on behalf of the Company, the Guarantors or any other person. The Company and the Guarantors agree that they will not claim that the Initial Purchasers, or any of them, has rendered advisory services of any nature or respect, or
owes a fiduciary or similar duty to the Company or the Guarantors, in connection with such transactions or the process leading thereto. 
 2. Payment and Delivery. (a) Payment for and delivery of the Securities will be made at the offices of Simpson Thacher & Bartlett LLP, 2550 Hanover Street, Palo Alto, CA 94304, at
10:00 A.M., New York City time, on January 20, 2010, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as J.P. Morgan Securities Inc. and the Company may agree upon in writing. The
time and date of such payment and delivery is referred to herein as the “Closing Date”. 
 (b) Payment for the
Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to J.P. Morgan Securities Inc. against delivery to the nominee of The Depository Trust Company, for the account of the Initial
Purchasers, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representative not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date. 
  

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 3. Representations and Warranties of the Company and the Guarantors. The Company and
the Guarantors jointly and severally represent and warrant to each Initial Purchaser that: 
 (a) Preliminary Offering
Memorandum, Time of Sale Information and Offering Memorandum. The Preliminary Offering Memorandum, as of its date, did not, the Time of Sale Information, at the Time of Sale, did not, and at the Closing Date, will not, and the Offering
Memorandum, in the form first used by the Initial Purchasers to confirm sales of the Securities and as of the Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance
upon and in conformity with information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through the Representative expressly for use in the Preliminary Offering Memorandum, the Time of Sale Information
or the Offering Memorandum. 
 (b) Additional Written Communications. The Company (including its agents and
representatives, other than the Initial Purchasers in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication that
constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an
“Issuer Written Communication”) other than (i) the Preliminary Offering Memorandum, (ii) the Offering Memorandum, (iii) the documents listed on Annex A hereto, including a term sheet substantially in the form of Annex B
hereto, which constitute part of the Time of Sale Information, and (iv) any electronic road show or other written communications, in each case used in accordance with Section 4(c) hereof. Each such Issuer Written Communication, when taken
together with the Time of Sale Information, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Written Communication in reliance upon and in
conformity with information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through the Representative expressly for use in any Issuer Written Communication. 
 (c) Incorporated Documents. The documents incorporated by reference in each of the Time of Sale Information and the Offering
Memorandum, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and did not and will not contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. 
  

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 (d) Financial Statements. The financial statements and the related notes thereto
included or incorporated by reference in each of the Time of Sale Information and the Offering Memorandum present fairly in all material respects the financial position of the Company and its subsidiaries as of the dates indicated and the results of
their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods covered
thereby (subject, in the case of interim financial statements, to normal recurring year-end adjustments); the other financial information included or incorporated by reference in each of the Time of Sale Information and the Offering Memorandum has
been derived from the accounting records of the Company and its subsidiaries and fairly presents the information shown thereby in all material respects; and the pro forma financial information and the related notes thereto included or
incorporated by reference in each of the Time of Sale Information and the Offering Memorandum has been prepared in accordance with the Commission’s rules and guidance with respect to pro forma financial information, and the assumptions
underlying such pro forma financial information are reasonable. 
 (e) No Material Adverse Change. Since the date
of the most recent financial statements of the Company included or incorporated by reference in each of the Time of Sale Information and the Offering Memorandum (i) there has not been any material changes in the capital stock (other than the
issuance of shares of the Company’s common stock pursuant to the Company’s employee stock purchase plans, the vesting of restricted stock units and upon exercise of stock options and warrants described as outstanding in, and the grant of
options and awards under existing equity incentive plans described in, the Time of Sale Information and the Offering Memorandum) or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set
aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development that would reasonably be expected to result in a material adverse change, in or affecting the business, properties,
financial position or results of operations of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement (other than agreements entered into with
original equipment manufacturers in the ordinary course of business consistent with past practice and the sale and leaseback of the Company’s building and property located at 1600 Technology Drive, San Jose, CA 95110) that is material to the
Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has
sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or
governmental or regulatory authority, except in each case as otherwise disclosed in the Time of Sale Information. 
 (f)
Organization and Good Standing. The Company, each Guarantor and each of its Significant Subsidiaries (as defined below) have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of
organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the
aggregate, have a material adverse effect on the business, properties, financial position,

  

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results of operations of the Company and its subsidiaries taken as a whole or on the performance by the Company and the Guarantors of their obligations under the Securities and the Guarantees (a
“Material Adverse Effect”). The subsidiaries listed in Schedule 3 to this Agreement are the only significant subsidiaries (as defined in Rule 1-02 of Regulation S-X under the Exchange Act) of the Company (the “Significant
Subsidiaries”) and no other subsidiary or subsidiaries of the Company, individually or in the aggregate, constitutes or constitute a significant subsidiary (as defined in Rule 1-02 of Regulation S-X under the Exchange Act) of the Company.

 (g) Capitalization. The Company has and, as of October 31, 2009, after giving effect to the offering of the
Securities, the Company would have had, an authorized capitalization as set forth in each of the Time of Sale Information and the Offering Memorandum under the heading “Capitalization”; and all the outstanding shares of capital stock or
other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign subsidiary, for directors’ qualifying shares and except as
otherwise disclosed in each of the Time of Sale Information and the Offering Memorandum) and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or
any other claim of any third party, other than as expressly permitted in the Security Agreements or Indentures and, after giving effect to the offering of the Securities, under or pursuant to the Collateral Documents. 
 (h) Stock Options. With respect to the outstanding stock options (the “Stock Options”) granted pursuant to the stock-based
compensation plans of the Company and its subsidiaries (the “Company Stock Plans”), except as otherwise disclosed in the Time of Sale Information and the Offering Memorandum, (i) each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the Code so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock Option was by its terms to be effective (the
“Grant Date”) by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary
number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the terms of the Company Stock Plans, the
Exchange Act and the rules of the Nasdaq Global Select Market, (iv) the per share exercise price of each Stock Option was equal to the fair market value of a share of Common Stock (as defined in the applicable Company Stock Plan) on the
applicable Grant Date and (v) each such grant was properly accounted for in accordance with U.S. generally accepted accounting principles in the financial statements (including the related notes) of the Company and disclosed in the
Company’s filings with the Commission in accordance with the Exchange Act and all other applicable laws, except in the case of clauses (i)-(v) in such instances that are reasonably expected to not have a Material Adverse Effect. Except as
otherwise disclosed in the Time of Sale Information and the Offering Memorandum, the Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Stock Options prior to the release or other public
announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects, except in such instances that are reasonably expected to not have a Material Adverse Effect. 
  

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 (i) Due Authorization. The Company and each of the Guarantors have full right, power
and authority to execute and deliver this Agreement, the Securities, the Indentures (including each Guarantee set forth therein), each of the Collateral Documents, the Intercreditor Agreement, the Exchange Securities and the Registration Rights
Agreements (collectively, the “Transaction Documents”) and to perform their respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken. 
 (j)
The Indentures. Each of the Indentures has been duly authorized by the Company and each of the Guarantors and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally
binding agreement of the Company and each of the Guarantors enforceable against the Company and each of the Guarantors in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”); and on the Closing Date, each of the Indentures will conform in all
material respects to the requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder. 
 (k) The Securities and the Guarantees. The Securities have been duly authorized by the Company and, when duly executed,
authenticated, issued and delivered as provided in the applicable Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against
the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the applicable Indenture; and the Guarantees have been duly authorized by each of the Guarantors and, when the Securities
have been duly executed, authenticated, issued and delivered as provided in the applicable Indenture and paid for as provided herein, will be valid and legally binding obligations of each of the Guarantors, enforceable against each of the Guarantors
in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the applicable Indenture. 
 (l) The Exchange Securities. On the Closing Date, the Exchange Securities (including the related guarantees) will have been duly authorized by the Company and, when duly executed, authenticated,
issued and delivered as contemplated by the applicable Registration Rights Agreement, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company, as issuer, and each of the Guarantors, as
guarantor, enforceable against the Company and each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the applicable Indenture. 
 (m) Purchase and Registration Rights Agreements. This Agreement has been duly authorized, executed and delivered by the Company and
each of the Guarantors; and each of the Registration Rights Agreements has been duly authorized by the Company and each of the Guarantors and on the Closing Date will be duly executed and delivered by the Company and each of the Guarantors and, when
duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company and each of the Guarantors enforceable against the Company and each of the Guarantors in
accordance with its terms, subject to the Enforceability Exceptions, and except that rights to indemnity and contribution thereunder may be limited by applicable law and public policy. 
  

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 (n) Collateral Documents and Intercreditor Agreement. Each of the Collateral
Documents and the Intercreditor Agreement has been duly authorized by the Company and each of the Guarantors, in each case, to the extent a party thereto, and, when duly executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the Company and each of the Guarantors, in each case, to the extent a party thereto, enforceable against the Company and each of the Guarantors, to the extent a party thereto, in
accordance with its terms, subject to the Enforceability Exceptions. The Collateral conforms in all material respects to the description thereof contained in the Time of Sale Information and the Offering Memorandum. Schedule 5 hereto sets forth, as
of the date of this Agreement and as of the Closing Date: all agreements or instruments of indebtedness for borrowed money of the Company, the Guarantors and each other subsidiary of the Company. 
 (o) Mortgages. Upon execution and delivery, the Mortgages will be effective to grant a legal, valid and enforceable mortgage lien on
each mortgagor’s right, title and interest in the property described therein. When the Mortgages are duly recorded in the proper recorders’ offices or appropriate public records and the mortgage recording fees and taxes, if any, in respect
thereof are paid and compliance is otherwise had with the formal requirements of state law applicable to the recording of real estate mortgages generally, each such Mortgage shall constitute a validly perfected and enforceable lien and security
interest in the related portion of the Mortgaged Property constituting real property or fixtures for the benefit of the Trustees and the holders of the Securities, pari passu with the security interest in such property in favor of the Administrative
Agent for the benefit of the lenders under the Senior Secured Credit Facility, subject only to the encumbrances and exceptions to title expressly permitted in the Mortgages or Indentures (including those liens expressly permitted to be incurred or
which exist on the Collateral pursuant to the Indentures) or expressly set forth as an exception to the policies of title insurance obtained to insure the lien of each Mortgage with respect to each of the Mortgaged Properties, including, without
limitation, the mortgages securing the Senior Secured Credit Facility (such encumbrances and exceptions, the “Mortgage Permitted Exceptions”), and to the Enforceability Exceptions. 
 (p) Security Agreement. The 2018 Security Agreement and the 2020 Security Agreement, as applicable, when duly executed and delivered
in accordance with its terms by each of the parties thereto, will be effective to grant a valid and enforceable security interest, in favor of the Collateral Agent for the benefit of the Trustees and the holders of, as applicable, the 2018 Notes or
the 2020 Notes, in each grantor’s right, title and interest in the Collateral (other than the Mortgaged Properties), subject to the Enforceability Exceptions. 
 (q) Personal Property Collateral. Upon the proper filing of financing statements, or Mortgages, or to the extent applicable, appropriate filings in the U.S. Patent and Trademark Office and the U.S.
Copyright Office in order to perfect the security interest in the United States registrations or applied for intellectual property which is part of the Collateral, as applicable, with respect to the Collateral described in the Security Agreements
and the fixtures and certain personal property described in the Mortgages (the “Personal Property Collateral”), in each case, in the proper recording office, the security interests granted thereby will constitute valid,

  

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perfected liens and security interests in the Collateral of each grantor or mortgagor, for the benefit of the Trustees and the holders of the Securities, enforceable in accordance with the terms
contained therein, to the extent such security interests can be perfected by filing a financing statement under the UCC of the jurisdiction of organization of such grantor or by filing a mortgage under the local law of the jurisdiction in which the
fixtures are located, and subject only to the encumbrances and exceptions to title expressly permitted in the Security Agreements or Indentures (including those liens expressly permitted to be incurred or which exist on the Collateral pursuant to
the Indentures or the Collateral Documents) (such encumbrances and exceptions, together with the Mortgage Permitted Exceptions, the “Permitted Exceptions”), and to the Enforceability Exceptions. 
 (r) Ownership of Collateral. The Company and the Guarantors collectively own, have rights in, or have the power and authority to
collaterally assign rights in, the Collateral, free and clear of any liens other than the Permitted Exceptions and liens pursuant to the Senior Secured Credit Facility. 
 (s) Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof contained in each of the Time of Sale Information and the
Offering Memorandum. 
 (t) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) with
respect to the Company, any Guarantor or any Significant Subsidiary, in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse
Effect. 
 (u) No Conflicts. The execution, delivery and performance by the Company and each of the Guarantors of each of
the Transaction Documents to which each is a party, the issuance and sale of the Securities (including the Guarantees) and compliance by the Company and each of the Guarantors with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents will not (i) breach or violate any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, except liens, charges or encumbrances created or imposed pursuant to the Collateral Documents or as may have been waived or otherwise approved
pursuant to such indenture, mortgage, deed of trust, loan agreement or other agreement or instrument, (ii) result in the violation of the provisions of the charter or by-laws or similar organizational documents of

  

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the Company, any Guarantor or any of the Company’s Significant Subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect.

 (v) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any
court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company and each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the
Securities (including the Guarantees) and compliance by the Company and each of the Guarantors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for (x) such consents, approvals,
authorizations, orders and registrations or qualifications as may be required (i) under applicable state securities laws in connection with the purchase and resale of the Securities by the Initial Purchasers, (ii) to perfect the Collateral
Agent’s security interests granted pursuant to the Collateral Documents and the related financing statements and (iii) with respect to the Exchange Securities (including the related guarantees) under the Securities Act, the Trust Indenture
Act and applicable state securities laws as contemplated by the Registration Rights Agreements, (y) such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or (z) such consents, approvals,
authorizations, orders and registrations or qualifications the failure of which to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or have a material adverse effect on the consummation of
offering of the Securities or the transactions contemplated by the Transaction Documents. 
 (w) Legal Proceedings.
Except as otherwise disclosed in each of the Time of Sale Information and the Offering Memorandum, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company or any of its subsidiaries is or may be the subject that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect; and no such investigations,
actions, suits or proceedings are, to the knowledge of the Company and each of the Guarantors, overtly threatened. 
 (x)
Independent Accountants. KPMG LLP, who has audited certain financial statements of the Company and its subsidiaries, are independent registered accountants with respect to the Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act. 
 (y) Title to Real and Personal Property. The Company and its subsidiaries have good and marketable title to, or have valid rights to lease or otherwise use, all items of real and personal property
that are material to the respective businesses of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except Permitted Exceptions and those that (i) do not
materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries or (ii) could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. 
  

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 (z) Title to Intellectual Property. The Company and its subsidiaries own or possess
adequate rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses, except in any such instances that, individually or in the aggregate, are not reasonably expected to have a Material Adverse
Effect; and the conduct of their respective businesses will not conflict in any material respect with any such rights of others, and, except as otherwise disclosed in the Time of Sale Information and the Offering Memorandum, the Company and its
subsidiaries have not received any notice of any claim of infringement of or conflict with any such rights of others, except in any such instances that, individually or in the aggregate, are not reasonably expected to have a Material Adverse Effect.

 (aa) No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of
its subsidiaries, on the one hand, and the directors, officers, a person who is known to the Company to be the beneficial owner of more than five percent of any class of the Company’s voting securities or any other affiliate of the Company or
any of its subsidiaries, on the other, that would be required by the Securities Act to be described in a registration statement filed with the Commission and that is not so described in each of the Time of Sale Information and the Offering
Memorandum. 
 (bb) Investment Company Act. Neither the Company nor any of its subsidiaries is, and after giving effect
to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Time of Sale Information and the Offering Memorandum none of them will be, an “investment company” or an entity
“controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company Act”).

 (cc) Taxes. Except as otherwise disclosed in the Time of Sale Information and the Offering Memorandum, the Company and
its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date hereof and has paid all taxes shown as due on such returns, except in such instances that are reasonably expected to not have a
Material Adverse Effect; the Company and its subsidiaries have either paid or appropriately reserved under generally accepted accounting principals (“GAAP”) for all federal, state, local and foreign taxes required to be paid through the
date hereof, except in such instances that are reasonably expected to not have a Material Adverse Effect; and except as otherwise disclosed in each of the Time of Sale Information and the Offering Memorandum, there is no material tax deficiency that
has been, or that is expected to be, asserted against the Company or any of its Significant Subsidiaries or any Guarantor or any of their respective properties or assets. 
 (dd) Licenses and Permits. The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the
appropriate federal, state, local or foreign governmental or regulatory authorities

  

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that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in each of the Time of Sale Information and the Offering
Memorandum, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as otherwise disclosed in each of the Time of Sale Information and the Offering Memorandum,
neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such material license, certificate, permit or authorization or has any reason to believe that any such material license, certificate, permit
or authorization will not be renewed in the ordinary course. 
 (ee) No Labor Disputes. No labor disturbance by or
dispute with employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company and each of the Guarantors, is threatened, except as would not have a Material Adverse Effect. 
 (ff) Compliance With Environmental Laws. Except as otherwise disclosed in the Time of Sale Information and the Offering Memorandum,
(i) the Company and its subsidiaries (x) are in compliance with all applicable federal, state, local and foreign laws, statutes, rules, regulations, requirements, decisions and orders relating to the protection of the environment or
natural resources, or to hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”), (y) have received and are in compliance with all permits, licenses, certificates or other
authorizations or approvals required of them under applicable Environmental Laws to conduct their respective businesses, and (z) have not received written notice of any actual or potential liability under or relating to any Environmental Laws,
including for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or condition that would reasonably be expected to result in any such
notice, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company or its subsidiaries, except in the case of each of (i) and (ii) above, for any such failure to comply, or failure to
receive required permits, licenses or approvals, or cost or liability, as would not, individually or in the aggregate, have a Material Adverse Effect; and (iii) except as otherwise disclosed in the Time of Sale Information and the Offering
Memorandum, (x) there are no proceedings that are pending, or that are known to be contemplated, against the Company or any of its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such
proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its subsidiaries are not aware of any issues regarding compliance with, or liabilities or other obligations
under, Environmental Laws that could reasonably be expected to have a Material Adverse Effect, and (z) none of the Company and its subsidiaries anticipates material capital expenditures relating to any Environmental Laws other than customary
amounts incurred in the ordinary course of business during the construction of the Company’s new corporate headquarters in San Jose, California. 
 (gg) Hazardous Substances. There has been no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of any kind of toxic wastes or hazardous
substances, including, but not limited to, any naturally occurring radioactive materials, brine, drilling mud, crude oil, natural gas liquids and other petroleum materials, by, due to or caused by the Company or any of its subsidiaries (or, to the
Company’s or any Guarantor’s knowledge, any other entity (including any predecessor) for whose acts or omissions the Company or any of its subsidiaries is or could reasonably be expected to be liable) upon any of

  

 13 








 
the property now or previously owned or leased by the Company or any of its subsidiaries, or upon any other property, in violation of any Environmental Laws or in a manner or to a location that
could reasonably be expected to give rise to any liability under the Environmental Laws, except for any violation or liability which would not, individually or in the aggregate, have a Material Adverse Effect. 
 (hh) Compliance With ERISA. Except as otherwise disclosed in the Time of Sale Information and the Offering Memorandum or as would not
have a Material Adverse Effect, (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its
“Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any
liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii) no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each Plan that
is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code, whether or not waived, has occurred or is reasonably expected to
occur; (iv) the fair market value of the assets of each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (v) no “reportable event” (within the
meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur; and (vi) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA
(other than contributions to the Plan or premiums to the PBGC, in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA). 
 (ii) Disclosure Controls. The Company and its subsidiaries maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act. 
 (jj) Accounting Controls. The Company and its subsidiaries maintain systems of “internal control over financial reporting”
(as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons
performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company and its subsidiaries maintain
internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with

  

 14 








 
management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in each of the Time of Sale Information and the Offering Memorandum, there are no material weaknesses or significant
deficiencies in the Company’s internal controls. The Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material weaknesses in the design or
operation of internal controls over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. 
 (kk) Insurance. The Company, the Guarantors and the Significant Subsidiaries have insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance, which insurance is in
amounts and insures against material losses and risks and are reasonably believed to be adequate to protect the Company, the Guarantors and the Significant Subsidiaries and their respective businesses; and neither the Company, nor the Guarantors nor
any of the Significant Subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any
reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business. 
 (ll) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company and each of the
Guarantors, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment. 
 (mm) Compliance with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Guarantor, overtly threatened. 
  

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 (nn) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the
knowledge of the Company or any Guarantor, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. 
 (oo) Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in each of
the Time of Sale Information and the Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the fair value of the assets of the Company and
its consolidated subsidiaries taken as a whole is not less than the total amount of liabilities of the Company and its consolidated subsidiaries taken as a whole; (ii) the Company is able to pay its debts and other liabilities, contingent
obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Time of Sale Information and the Offering
Memorandum, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or
transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged.
 (pp) Senior Indebtedness. The Securities constitute “senior indebtedness” as such term is defined in any indenture or
agreement governing any outstanding subordinated indebtedness of the Company. 
 (qq) No Restrictions on Subsidiaries.
Except pursuant to the Senior Secured Credit Facility, no subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the
Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to
the Company or any other subsidiary of the Company. 
 (rr) No Broker’s Fees. Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement and the agreement dated January 7, 2010 between the Company and Qatalyst Partners LP) that would give rise to a valid claim against
any of them or any Initial Purchaser for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities, other than in connection with the amendment to Senior Secured Credit Facility. Without
derogation of the reimbursement obligation of the Initial Holders contemplated by Section 10 below, the Company is responsible for payment of any such payments to Qatalyst Partners LP. 
  

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 (ss) Rule 144A Eligibility. On the Closing Date, the Securities will not be of the
same class as securities listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in an automated inter-dealer quotation system; and each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contains or will contain all the information that, if requested by a prospective purchaser of the Securities, would be required to be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the
Securities Act. 
 (tt) No Integration. Neither the Company nor any of its affiliates (as defined in Rule 501(b) of
Regulation D) has, directly or through any agent (including, without limitation, any financial advisor to the Company), sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities
Act), that is or will be integrated with the sale of the Securities in a manner that would require registration of the Securities under the Securities Act. 
 (uu) No General Solicitation or Directed Selling Efforts. None of the Company or any of its affiliates or any other person (including, without limitation, any financial advisor to the Company)
acting on its or their behalf (other than the Initial Purchasers, as to which no representation is made) has (i) solicited offers for, or offered or sold, the Securities by means of any form of general solicitation or general advertising within
the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engaged in any directed selling efforts within the meaning of Regulation S under the
Securities Act (“Regulation S”), and all such persons have complied with the offering restrictions requirement of Regulation S. 
 (vv) Securities Law Exemptions. Assuming the accuracy of the representations and warranties of the Initial Purchasers contained in Section 1(b) (including Annex C hereto) and their compliance
with their agreements set forth therein, it is not necessary, in connection with the issuance and sale of the Securities to the Initial Purchasers and the offer, resale and delivery of the Securities by the Initial Purchasers in the manner
contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum, to register the Securities under the Securities Act or to qualify the Indentures under the Trust Indenture Act. 
 (ww) No Stabilization. Neither the Company nor any of the Guarantors nor any person acting on their behalf (including, without
limitation, any financial advisor to the Company) has taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities. 
 (xx) Margin Rules. Neither the issuance, sale and delivery of the Securities and the Guarantees by the Company and the Guarantors nor
the application of the proceeds thereof by the Company as described in each of the Time of Sale Information and the Offering Memorandum will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation
of such Board of Governors. 
 (yy) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in any of the Time of Sale Information or the Offering Memorandum has been made or reaffirmed without a reasonable basis or has been disclosed other than in
good faith. 
  

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 (zz) Statistical and Market Data. Nothing has come to the attention of the Company or
the Guarantors that has caused the Company or any Guarantor to believe that the statistical and market-related data included or incorporated by reference in each of the Time of Sale Information and the Offering Memorandum is not based on or derived
from sources that are reliable and accurate in all material respects. 
 (aaa) Sarbanes-Oxley Act. There is and has been
no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith
(the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications. 
 4. Further Agreements of the Company and the Guarantors. The Company and each of the Guarantors jointly and severally covenant and agree with each Initial Purchaser that: 
 (a) Delivery of Copies. The Company will deliver, without charge, to the Initial Purchasers as many copies of the Preliminary
Offering Memorandum, any other Time of Sale Information, any Issuer Written Communication and the Offering Memorandum (including all amendments and supplements thereto) as the Representative may reasonably request. 
 (b) Offering Memorandum, Amendments or Supplements. Before finalizing the Offering Memorandum or making or distributing any amendment
or supplement to any of the Time of Sale Information or the Offering Memorandum or filing with the Commission any document that will be incorporated by reference therein, the Company will furnish to the Representative and counsel for the Initial
Purchasers a copy of the proposed Offering Memorandum or such amendment or supplement or document to be incorporated by reference therein for review, and will not distribute any such proposed Offering Memorandum, amendment or supplement or file any
such document with the Commission to which the Representative reasonably objects, provided that nothing is this section shall prevent the Company from complying with its obligations under law or the rules of the NASDAQ Global Select Market (the
“Exchange”). 
 (c) Additional Written Communications. Before making, preparing, using, authorizing, approving
or referring to any Issuer Written Communication, the Company will furnish to the Representative and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to
any such written communication to which the Representative reasonably objects. 
 (d) Notice to the Representative. The
Company will advise the Representative promptly, and confirm such advice in writing, (i) of the issuance by any governmental or regulatory authority of any order preventing or suspending the use of any of the Time of Sale Information, any
Issuer Written Communication or the Offering Memorandum or the initiation or threatening of any proceeding for that purpose; (ii) of the occurrence of any event at any time prior to the completion of the initial offering of the Securities as a
result of which any of the

  

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Time of Sale Information, any Issuer Written Communication or the Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances existing when such Time of Sale Information, Issuer Written Communication or the Offering Memorandum is delivered to a purchaser, not misleading; and
(iii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company
will use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of any of the Time of Sale Information, any Issuer Written Communication or the Offering Memorandum or suspending any such qualification
of the Securities and, if any such order is issued, will use its reasonable best efforts to obtain as soon as possible the withdrawal thereof. 
 (e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Time of Sale Information as then
amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or
(ii) it is necessary to amend or supplement any of the Time of Sale Information to comply with law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to paragraph (b) above, furnish to
the Initial Purchasers such amendments or supplements to any of the Time of Sale Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of
Sale Information as so amended or supplemented will not, in light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with law. 
 (f) Ongoing Compliance of the Offering Memorandum. If at any time prior to the completion of the initial offering of the Securities
(i) any event shall occur or condition shall exist as a result of which the Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances existing when the Offering Memorandum is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Offering Memorandum to comply with law, the Company
will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to paragraph (b) above, furnish to the Initial Purchasers such amendments or supplements to the Offering Memorandum (or any document to be filed with the
Commission and incorporated by reference therein) as may be necessary so that the statements in the Offering Memorandum as so amended or supplemented (including such document to be incorporated by reference therein) will not, in the light of the
circumstances existing when the Offering Memorandum is delivered to a purchaser, be misleading or so that the Offering Memorandum will comply with law. 
 (g) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States of America or Canada as the
Representative shall reasonably request and will continue such qualifications in effect so long as required for the offering and resale of the Securities; provided that neither the

  

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Company nor any of the Guarantors shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise
be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. 
 (h) Clear Market. During the period from the date hereof through and including the date that is 90 days after the date hereof, the
Company and each of the Guarantors will not, without the prior written consent of J.P. Morgan Securities Inc., offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or any of the Guarantors and
having a tenor of more than one year. 
 (i) Use of Proceeds. The Company will apply the net proceeds from the sale of
the Securities as described in the Time of Sale Information and the Offering Memorandum under the heading “Use of proceeds”. 
 (j) Supplying Information. While the Securities remain outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company and each of the Guarantors will, during
any period in which the Company is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon the request of
such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. 
 (k) DTC. The Company will assist the Initial Purchasers in arranging for the Securities to be eligible for clearance and settlement through The Depository Trust Company (“DTC”).

 (l) No Resales by the Company. The Company will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Securities that have been acquired by any of them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act. 

(m) No Integration. Neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D) will, directly or
through any agent (including, without limitation, any financial advisor to the Company), sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the Securities Act), that is or will be integrated
with the sale of the Securities in a manner that would require registration of the Securities under the Securities Act. 
 (n)
No General Solicitation or Directed Selling Efforts. None of the Company or any of its affiliates or any other person (including, without limitation, any financial advisor to the Company) acting on its or their behalf (other than the Initial
Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions
requirement of Regulation S. 
  

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 (o) No Stabilization. Neither the Company nor any of the Guarantors will take,
directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities. 
 (p) Collateral Filings. Within the time periods set forth on Schedule 4, the Company and the Guarantors shall deliver, furnish and/or
cause to be furnished all of the documents set forth on Schedule 4. 
 5. Certain Agreements of the Initial Purchasers.
Each Initial Purchaser hereby represents and agrees that it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any written communication that constitutes an offer to sell or the solicitation of an offer
to buy the Securities other than (i) the Preliminary Offering Memorandum and the Offering Memorandum, (ii) a written communication that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that
was not included (including through incorporation by reference) in the Preliminary Offering Memorandum or the Offering Memorandum, (iii) any written communication listed on Annex A or prepared pursuant to Section 4(c) above (including any
electronic road show), (iv) any written communication prepared by such Initial Purchaser and approved by the Company in advance in writing or (v) any written communication relating to or that contains the terms of the Securities and/or
other information that was included (including through incorporation by reference) in the Preliminary Offering Memorandum or the Offering Memorandum. 
 6. Conditions of Initial Purchasers’ Obligations. The obligation of each Initial Purchaser to purchase Securities on the Closing Date as provided herein is subject to the performance by the
Company and each of the Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions: 
 (a) Representations and Warranties. The representations and warranties of the Company and the Guarantors contained herein shall be true and correct on the date hereof and on and as of the Closing
Date; and the statements of the Company, the Guarantors and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date. 
 (b) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement,
(i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating
organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).

  

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 (c) No Material Adverse Change. No event or condition of a type described in
Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Offering Memorandum (excluding any amendment or
supplement thereto) the effect of which in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the
Time of Sale Information and the Offering Memorandum. 
 (d) Officer’s Certificate. The Representative shall have
received on and as of the Closing Date a certificate of an executive officer of the Company and of each Guarantor who has specific knowledge of the Company’s or such Guarantor’s financial matters and is satisfactory to the Representative
(i) confirming that such officer has carefully reviewed the Time of Sale Information and the Offering Memorandum and, to the knowledge of such officer, the representations set forth in Sections 3(a) and 3(b) hereof are true and correct,
(ii) confirming that the other representations and warranties of the Company and the Guarantors in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such
representations, warranties and statements shall be true and correct in all respects) and that the Company and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or
prior to the Closing Date and (iii) to the effect set forth in paragraphs (b) and (c) above. 
 (e) Comfort
Letters. On the date of this Agreement and on the Closing Date, KPMG LLP shall have furnished to the Representative, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers,
in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in each of the Time of Sale Information and the Offering Memorandum; provided, that the letters delivered on the Closing Date shall use a “cut-off” date no more than
three business days prior to the Closing Date. 
 (f) Opinion and 10b-5 Statement of Counsel for the Company. Cooley
Godward Kronish LLP, counsel for the Company, shall have furnished to the Representative, at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Initial Purchasers, in the form agreed
between the Company and the Representative. 
 (g) Opinion and 10b-5 Statement of Counsel for the Initial Purchasers. The
Representative shall have received on and as of the Closing Date an opinion and 10b-5 statement of Simpson Thacher & Bartlett LLP, counsel for the Initial Purchasers, with respect to such matters as the Representative may reasonably
request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters. 
 (h) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees in the United States, Canada or any jurisdiction in

  

 22 








 
which the Securities have been sold by the Initial Purchasers; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent
the issuance or sale of the Securities or the issuance of the Guarantees in the United States, Canada or any jurisdiction in which the Securities have been sold by the Initial Purchasers. 
 (i) Good Standing. The Representative shall have received on and as of the Closing Date satisfactory evidence of
the good standing of the Company and the Guarantors in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such jurisdictions. 
 (j) Registration Rights
Agreement. The Initial Purchasers shall have received a counterpart of each of the Registration Rights Agreements that shall have been executed and delivered by a duly authorized officer of the Company and each of the Guarantors 
 (k) DTC. The Securities shall be eligible for clearance and settlement through DTC. 
 (l) Collateral Filings. Except as otherwise contemplated by the Security Agreements, each document (including any Uniform Commercial
Code financing statement) required by the Security Agreements, or under law or reasonably requested by the Representative, in each case, to be filed, registered or recorded, or delivered for filing on or prior to the Closing Date, in order to create
in favor of the Trustees, for the benefit of the holders of the Securities, a perfected lien and security interest in the Personal Property Collateral, which is conveyed by the Security Agreements and which can be perfected by the making of such
filings, registrations or recordations, prior and superior to the right of any other person (other than Permitted Exceptions), shall be in proper form for filing, registration or recordation. 
 (m) CFO Certificate. On the Closing Date, the Chief Financial Officer of the Company shall have delivered to the Representative a
certificate, in form and substance reasonably satisfactory to the Representative, as to certain matters disclosed in the Preliminary Offering Memorandum and the Offering Memorandum. 
 (n) Insurance. On or prior to the Closing Date, the Initial Purchasers shall have received satisfactory evidence that the Company and
the Guarantors maintain insurance with respect to the Collateral as specified by applicable terms of the Indentures. 
 (o)
Senior Secured Credit Facility. Concurrently with or prior to the Closing Date, (i) the Senior Secured Credit Facility shall be amended to permit, among other things, the issuance of the Securities and the Exchange Securities; and
(ii) the Representative shall have received all documents entered into and received in connection with any amendment of the Senior Secured Credit Facility, in form and substance reasonably satisfactory to the Representative. 
  

 23 








 (p) Collateral Documents. The Initial Purchasers shall have received conformed
counterparts of the Collateral Documents (except as otherwise provided herein with respect to timing of the delivery of the Mortgages and related documents), each duly executed and delivered by each party thereto, each in forms and substance
reasonably satisfactory to the Representative. 
 (q) Intercreditor Agreement. The Initial Purchasers shall have received
conformed counterparts of the Intercreditor Agreement duly executed and delivered by each party thereto, in form and substance reasonably satisfactory to the Representative. 
 (r) Lien Searches. The Representative shall have received the results of a recent lien search in each of the jurisdictions where they
may reasonably request, and such search shall reveal no liens on any of the assets of the Company and the Guarantors or their respective subsidiaries except for (i) Permitted Exceptions and (ii) liens that will be released concurrently
with or prior to the issuance and sale of the Securities by the Company. 
 (s) Additional Documents. On or prior to the
Closing Date, except as otherwise expressly permitted under this Agreement, the Indenture or the Security Agreements to be furnished after the Closing Date, the Company and the Guarantors shall have furnished to the Representative such further
certificates and documents as the Representative may reasonably request. On or prior to the Closing Date, the Company shall have furnished to the Representative the letter, dated on or before the Closing Date, to the Company from its financial
advisor substantially in the form attached hereto as Exhibit B. 
 All opinions, letters, certificates and evidence mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers. 
 7. Indemnification and Contribution. 
 (a) Indemnification of the Initial Purchasers. The Company and each of the Guarantors jointly and severally agree to indemnify and hold harmless each Initial Purchaser, its affiliates, directors
and officers and each person, if any, who controls such Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, reasonable legal fees and other reasonable expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or
are based upon, any untrue statement, or alleged untrue statement, of a material fact contained in the Preliminary Offering Memorandum, any of the other Time of Sale Information, any Issuer Written Communication or the Offering Memorandum (or any
amendment or supplement thereto) or any omission, or alleged omission, to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case
except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any
Initial Purchaser furnished to the Company in writing by such Initial Purchaser or through the Representative expressly for use therein. 
  

 24 








 (b) Indemnification of the Company. Each Initial Purchaser agrees, severally and not
jointly, to indemnify and hold harmless the Company, each of the Guarantors, each of their respective directors and officers and each person, if any, who controls the Company or any of the Guarantors within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Initial Purchaser furnished to the Company in writing by such Initial Purchaser or through the Representative
expressly for use in the Preliminary Offering Memorandum, any of the other Time of Sale Information, any Issuer Written Communication or the Offering Memorandum (or any amendment or supplement thereto), it being understood and agreed that the only
such information furnished by any Initial Purchaser consists of the following information: the information contained in (i) the third paragraph, (ii) the fourth paragraph, (iii) the fourth and fifth sentences of the fifteenth
paragraph and (iv) the first and sixth sentences of the seventeenth paragraph, in each case under the caption “Plan of distribution” in the Offering Memorandum. 
 (c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom
such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the
Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of
such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless
(i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person;
(iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or

  

 25 








 
potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such reasonable fees and expenses shall be reimbursed as they are incurred. Any such separate
firm for any Initial Purchaser, its affiliates, directors and officers and any control persons of such Initial Purchaser shall be designated in writing by J.P. Morgan Securities Inc. and any such separate firm for the Company, the Guarantors, their
respective directors and officers and any control persons of the Company and the Guarantors shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for reasonable fees and expenses of counsel as contemplated by this paragraph, the
Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person. 
 (d) Contribution. If
the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Initial Purchasers on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantors on the one hand and the Initial Purchasers on the other in
connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors on the one hand and
the Initial Purchasers on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total discounts and commissions received by
the Initial Purchasers in connection therewith, as provided in this Agreement, bear to the aggregate offering price of the Securities. The relative fault of the Company and the Guarantors on the one hand and the Initial Purchasers

  

 26 








 
on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or any Guarantor or by the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. 

(e) Limitation on Liability. The Company, the Guarantors and the Initial Purchasers agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Initial Purchaser be
required to contribute any amount in excess of the amount by which the total discounts and commissions received by such Initial Purchaser with respect to the offering of the Securities exceeds the amount of any damages that such Initial Purchaser
has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Initial Purchasers’ obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint. 
 (f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity. 
 8. Termination. This Agreement may be terminated in the absolute discretion of the Representative, by notice to the Company, if after the execution and delivery of this Agreement and on or prior to
the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange, the NASDAQ Stock Market or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the
Company or any of the Guarantors shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities;
(iv) a material disruption occurs in commercial banking or securities settlement or clearance services in the United States; or (v) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis, either within or outside the United States, that, in the judgment of the Representative, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum. 
  

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 9. Defaulting Initial Purchaser. (a) If, on the Closing Date, any Initial
Purchaser defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Initial Purchasers may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the
Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for the purchase of such Securities, then the Company shall be entitled to a
further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Initial Purchasers to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting
Initial Purchaser, either the non-defaulting Initial Purchasers or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Initial
Purchasers may be necessary in the Time of Sale Information, the Offering Memorandum or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Time of Sale Information or the Offering
Memorandum that effects any such changes. As used in this Agreement, the term “Initial Purchaser” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant
to this Section 9, purchases Securities that a defaulting Initial Purchaser agreed but failed to purchase. 
 (b) If, after
giving effect to any arrangements for the purchase of the Securities of a defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the Company as provided in paragraph (a) above, the aggregate principal
amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Initial Purchaser to purchase the principal
amount of Securities that such Initial Purchaser agreed to purchase hereunder plus such Initial Purchaser’s pro rata share (based on the principal amount of Securities that such Initial Purchaser agreed to purchase hereunder) of the
Securities of such defaulting Initial Purchaser or Initial Purchasers for which such arrangements have not been made. 
 (c) If,
after giving effect to any arrangements for the purchase of the Securities of a defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the Company as provided in paragraph (a) above, the aggregate
principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement
shall terminate without liability on the part of the non-defaulting Initial Purchasers. Any termination of this Agreement pursuant to this Section 9 shall be without liability on the part of the Company or the Guarantors, except that the
Company and each of the Guarantors will continue to be liable for the payment of expenses as set forth in Section 10 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect. 
 (d) Nothing contained herein shall relieve a defaulting Initial Purchaser of any liability it may have to the Company, the Guarantors or any
non-defaulting Initial Purchaser for damages caused by its default. 
 10. Payment of Expenses. Whether or not the
transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and each of the Guarantors jointly and severally agree to pay or cause to be paid the following costs and expenses incident to the performance
of their respective obligations hereunder, (i) the costs incident to the printing of the Preliminary Offering Memorandum, any other Time of Sale

  

 28 








 
Information, any Issuer Written Communication and the Offering Memorandum (including any amendment or supplement thereto) and the distribution thereof; (ii) the fees and expenses of the
Company’s and the Guarantors’ counsel; (iii) any fees charged by rating agencies for rating the Securities; (iv) 50% of the fees and expenses of any chartered aircraft used by the Company in connection with any “road
show” presentation to potential investors; and (v) all other expenses incurred by the Company in connection with any “road show” presentation to potential investors up to a maximum of $25,000; provided, however,
that, if the closing of the offering contemplated by this Agreement occurs, upon or promptly following such closing, the Initial Purchasers agree to reimburse the Company for the Company’s out-of-pocket fee to its investment advisor in
connection with such offering in an amount equal to $1,750,000, and reimburse the Company for a portion of the Company’s documented out-of-pocket expenses in connection with such offering exceeding $25,000 in an amount not to exceed $1,239,000.

 11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and any controlling persons referred to herein, and the affiliates, officers and directors of each Initial Purchaser referred to in Section 7 hereof. Nothing in this Agreement is intended or shall
be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Initial Purchaser shall be deemed to be a successor
merely by reason of such purchase. 
 12. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Guarantors and the Initial Purchasers contained in this Agreement or made by or on behalf of the Company, the Guarantors or the Initial Purchasers pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company, the Guarantors or the
Initial Purchasers. 
 13. Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), the Initial Purchasers are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of
their respective clients, as well as other information that will allow the Initial Purchasers to properly identify their respective clients. 
 14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the
Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; (c) the term “Exchange Act” means the Securities Exchange Act of 1934,
as amended; (d) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act; and (e) the term “written communication” has the meaning set forth in Rule 405 under the Securities Act. 

15. Miscellaneous. (a) Authority of the Representative. Any action by the Initial Purchasers hereunder may be taken by
J.P. Morgan Securities Inc. on behalf of the Initial Purchasers, and any such action taken by J.P. Morgan Securities Inc. shall be binding upon the Initial Purchasers. 
  


 29 








 (b) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Initial Purchasers shall be given to the Representative c/o J.P. Morgan Securities Inc., 270 Park Avenue, New
York, New York 10017 (fax: (212) 270-1063), Attention: Rajesh Kapadia. Notices to the Company or any Guarantor shall be given to it c/o the Company at 1745 Technology Drive, San Jose, California 95110 (fax: (408) 333-5620); Attention:
Chief Financial Officer, with a copy to General Counsel (fax: (408) 333-5630) and with a copy to Cooley Godward Kronish LLP, 3175 Hanover Street, Palo Alto, CA 94304 (fax: (650) 849-7400), Attention: Nancy H. Wojtas. 
 (c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 (d) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any
standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument. 
 (e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall
be in writing and signed by the parties hereto. 
 (f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. 
  

 30 








 If the foregoing is in accordance with your understanding, please indicate your acceptance
of this Agreement by signing in the space provided below. 
  

			
	Very truly yours,
	
	BROCADE COMMUNICATIONS SYSTEMS, INC.
		
	By	 	 /s/ Richard Deranleau

	Title:	 	Vice President and Chief Financial Officer
	
	BROCADE COMMUNICATIONS SYSTEMS SKYPORT LLC
		
	By	 	 /s/ Richard Deranleau

	Title:	 	Chief Financial Officer
	
	INRANGE TECHNOLOGIES CORPORATION
		
	By	 	 /s/ Richard Deranleau

	Title:	 	Chief Financial Officer
	
	MCDATA CORPORATION
		
	By	 	 /s/ Richard Deranleau

	Title:	 	Chief Financial Officer
	
	MCDATA SERVICES CORPORATION
		
	By	 	 /s/ Richard Deranleau

	Title:	 	Treasurer
	
	STRATEGIC BUSINESS SYSTEMS, INC.
		
	By	 	 /s/ Jean Furter

	Title:	 	Treasurer
	
	FOUNDRY NETWORKS, LLC
		
	By	 	 /s/ Richard Deranleau

	Title:	 	Chief Financial Officer


  

 31 








 Accepted: January 13, 2010 
 J.P. MORGAN SECURITIES INC. 
  

			
	By	 	 /s/ Curt Sigfstead

		 	Authorized Signatory

 For itself and on
behalf of the 
 several Initial Purchasers listed in 
 Schedule 1 hereto. 
  

 32 








 Schedule 1 
  

							
	  	  	Principal Amount to be Purchased
	 Initial Purchaser
	  	2018 Notes	  	2020 Notes
	 J.P. Morgan Securities Inc.
	  	$	154,717,000	  	$	154,717,000
	 Goldman, Sachs & Co.
	  	$	88,680,000	  	$	88,680,000
	 Barclays Capital Inc.
	  	$	26,415,000	  	$	26,415,000
	 Banc of America Securities LLC
	  	$	15,094,000	  	$	15,094,000
	 Wells Fargo Securities, LLC
	  	$	15,094,000	  	$	15,094,000
		  	 	 	  	 	 
	 Total
	  	$	300,000,000.00	  	$	300,000,000.00








 Schedule 2 
 Guarantors 
 BROCADE COMMUNICATIONS SYSTEMS SKYPORT LLC 
 INRANGE TECHNOLOGIES CORPORATION 
 MCDATA
CORPORATION 
 MCDATA SERVICES CORPORATION 
 STRATEGIC BUSINESS SYSTEMS, INC. 
 FOUNDRY NETWORKS, LLC 







 Schedule 3 
 Significant Subsidiaries 
 BROCADE COMMUNICATIONS SWITZERLAND SARL (a Swiss company) 

BROCADE GLOBAL HOLDINGS GMBH (a Swiss company) 
 FOUNDRY NETWORKS HOLDINGS LLC (a Delaware limited liability company) 
 FOUNDRY NETWORKS INTERNATIONAL LLC (a Delaware limited
liability company) 
 FOUNDRY NETWORKS INTERNATIONAL HOLDINGS C.V. (a Netherlands partnership) 
 BROCADE COMMUNICATIONS LUXEMBOURG HOLDINGS II SCS (a Luxembourg partnership) 
 BROCADE COMMUNICATIONS LUXEMBOURG HOLDINGS SARL (a Luxembourg company) 
 BROCADE COMMUNICATIONS
LUXEMBOURG SARL (a Luxembourg company) 
 BROCADE SWITZERLAND HOLDINGS GMBH (a Swiss company) 
 BROCADE TECHNOLOGY GMBH (a Swiss company) 
 FOUNDRY NETWORKS, LLC (a Delaware limited liability company) 
 INRANGE TECHNOLOGIES CORPORATION (a Delaware corporation) 

MCDATA CORPORATION (a Delaware corporation) 
 MCDATA INTERNATIONAL LTD. (a U.K. company) 
 MCDATA SERVICES CORPORATION (a Minnesota corporation) 







 Schedule 4 
 POST-CLOSING MATTERS 
 Within 90 days after the Closing Date the Initial Purchasers
and the Trustees shall have received each of the following documents, which shall be reasonably satisfactory in form and substance to the Initial Purchasers, the Trustees and each of their respective counsel with respect to the Collateral, as
appropriate: 
  

	 	(i)	Mortgages. Fully executed counterparts of Mortgages for each of the Mortgaged Properties, together with evidence that counterparts of all the Mortgages have been
delivered to First American Title Insurance Company, 633 Third Avenue, New York, NY 10017, Attention: Steven Farber (the “Title Company”) for recording in all applicable jurisdictions to the extent necessary or, in the reasonable
opinion of the Representative, desirable to effectively create a valid and enforceable mortgage lien on each Mortgaged Property in favor of the Collateral Agent for its benefit and the benefit of the Trustees and the holders of the Securities, pari
passu with the security interest in such property in favor of the Administrative Agent for the benefit of the lenders under the Senior Secured Credit Facility, securing the obligations related to the Securities (provided that in jurisdictions
that impose mortgage recording taxes, such Mortgages shall not secure indebtedness in an amount exceeding 100% of the fair market value of such Mortgaged Property, as reasonably determined, in good faith, by the Company and reasonably acceptable to
the Representative), subject to the Mortgage Permitted Exceptions. 

  

	 	(ii)	Counsel Opinions. Opinions limited to enforceability of the Mortgages addressed to the Initial Purchasers and the Collateral Agent, of local counsel in each
jurisdiction where the Mortgaged Property is located. 

  

	 	(iii)	Title Insurance. With respect to each Mortgaged Property, a policy of title insurance (or commitment to issue such a policy having the effect of a policy of
title insurance) insuring (or committing to insure) the lien of the applicable Mortgage as a valid and enforceable mortgage or deed of trust lien on the real property described therein, in an amount equal to 110% of the fair market value of such
Mortgaged Property as reasonably determined, in good faith, by the Company and reasonably acceptable to the Representative (such policies collectively, the “Mortgage Policies”) issued by such Title Company, which reasonably assures
the Representative that the Mortgages on such Mortgaged Properties are valid and enforceable mortgage liens on the respective Mortgaged Properties, free and clear of all defects and encumbrances except Mortgage Permitted Exceptions and liens with
junior priority and such Mortgage Policies shall otherwise be in form and substance reasonably satisfactory to the Representative and shall include such title endorsements and affirmative coverages as shall reasonably be required by the Collateral
Agent. 









	 	(iv)	Survey. The Company and the appropriate Guarantors shall deliver to the Title Company and the Collateral Agent any and all surveys as shall be required by the
Title Company to cause the Title Company to issue the title insurance required pursuant to clause (iii) above without an exception for survey coverage. 

  

	 	(v)	Mortgaged Property Indemnification. With respect to each Mortgaged Property, such affidavits, certificates, instruments of indemnification and other items
(including a so-called “gap” indemnification) as shall be reasonably required to induce the Title Company to issue the Mortgage Policy/ies and endorsements contemplated above. 

  

	 	(vi)	Collateral Fees and Expenses. Evidence reasonably acceptable to the Representative of payment by the Company of all Mortgage Policy premiums, search and
examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages, fixture filings and issuance of the Mortgage Policies referred to above. 

  

 2 








 Schedule 5 
 List of Indebtedness for Borrowed Money 
  

	 	•	 	 Senior Secured Credit Facility 


  

	 	•	 	 2.25% Subordinated Convertible Notes due February 15, 2010, issued by McData Corporation 









 Annex A 
 Additional Time of Sale Information 
 1. With respect to the 2018 Notes, term sheet
containing the terms of the 2018 Notes, substantially in the form set forth in Annex B under the caption “2018 Notes”. 
 2. With
respect to the 2020 Notes, term sheet containing the terms of the 2020 Notes, substantially in the form set forth in Annex B under the caption “2020 Notes”. 







 Annex B 
 BROCADE COMMUNICATIONS SYSTEMS, INC. 
 Pricing Term Sheet for 2018 Notes and
2020 Notes 
 2018 Notes 
  

					
	Issuer:	  	Brocade Communications Systems, Inc.
		
	Security Description:	  	6.625% Senior Secured Notes due 2018
		
	Distribution:	  	144A/Reg S with registration rights
		
	Size:	  	$300,000,000
		
	Gross Proceeds:	  	$297,717,000
		
	Maturity:	  	January 15, 2018
		
	Coupon:	  	6.625%
		
	Issue Price:	  	99.239% of face amount
		
	Yield to Maturity:	  	6.75%
		
	Spread to Benchmark Treasury:	  	+329 basis points
		
	Benchmark Treasury:	  	UST 4.25% due 11/15/2017
		
	Interest Payment Dates:	  	January 15 and July 15, commencing July 15, 2010
		
	Clawback:	  	Up to 35% at 106.625%
		
	Until:	  	January 15, 2013
		
	Optional Redemption:	  	Make-whole call @ T+50bps prior to January 15, 2013, then:


				
		
	 On or after:
	  	Price:	 
	January 15, 2013	  	103.313	% 
	January 15, 2014	  	103.313	% 
	January 15, 2015	  	101.656	% 
	January 15, 2016 and thereafter	  	100.000	% 



					
		
	Change of Control Triggering Event:	  	Putable at 101% of principal plus accrued interest
		
	Trade Date:	  	January 13, 2010
		
	Settlement:	  	T+4; January 20, 2010
		
	CUSIP:	  	 144A: 111621 AE8
 Reg S: U11097 AB5

		
	ISIN:	  	 144A: US111621AE81
 Reg S: USU11097AB50

		
	Denominations/Multiple:	  	$2,000 x $1,000
		
	Ratings:	  	Ba2/BBB-
		
	Bookrunners:	  	J.P. Morgan
		  	Goldman, Sachs & Co.
		
	Co-Managers:	  	Barclays
		  	BofA Merrill Lynch
		  	Wells Fargo Securities








 2020 Notes 
  

					
	Issuer:	  	Brocade Communications Systems, Inc.
		
	Security Description:	  	6.875% Senior Secured Notes due 2020
		
	Distribution:	  	144A/Reg S with registration rights
		
	Size:	  	$300,000,000
		
	Gross Proceeds:	  	$297,342,000
		
	Maturity:	  	January 15, 2020
		
	Coupon:	  	6.875%
		
	Issue Price:	  	99.114% of face amount
		
	Yield to Maturity:	  	7%
		
	Spread to Benchmark Treasury:	  	+321 basis points
		
	Benchmark Treasury:	  	UST 3.375% due 11/15/2019
		
	Interest Payment Dates:	  	January 15 and July 15, commencing July 15, 2010
		
	Clawback:	  	Up to 35% at 106.875%
		
	Until:	  	January 15, 2013
		
	Optional Redemption:	  	Make-whole call @ T+50bps prior to January 15, 2015, then:

  

				
	 On or after:
	  	Price:	 
	January 15, 2015	  	103.438	% 
	January 15, 2016	  	102.292	% 
	January 15, 2017	  	101.146	% 
	January 15, 2018 and thereafter	  	100.000	% 


  

					
	Change of Control Triggering Event:	  	Putable at 101% of principal plus accrued interest
		
	Trade Date:	  	January 13, 2010
		
	Settlement:	  	T+4; January 20, 2010
		
	CUSIP:	  	 144A: 111621 AH1
  
 Reg S: U11097 AC3

		
	ISIN:	  	 144A: US111621AH13
  
 Reg S: USU11097AC34

		
	Denominations/Multiple:	  	$2,000 x $1,000
		
	Ratings:	  	Ba2/BBB-
		
	Bookrunners:	  	J.P. Morgan
		  	Goldman, Sachs & Co.
		
	Co-Managers:	  	Barclays
		  	BofA Merrill Lynch
		  	Wells Fargo Securities

  

 B-2 








 Annex C 
 Restrictions on Offers and Sales Outside the United States 
 In connection
with offers and sales of Securities outside the United States: 
 (a) Each Initial Purchaser acknowledges that the Securities
have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from, or in transactions not subject to, the registration
requirements of the Securities Act. 
 (b) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees
that: 
 (i) Such Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities,
(A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering of the Securities and the Closing Date, only in accordance with Regulation S under the Securities Act
(“Regulation S”) or Rule 144A or any other available exemption from registration under the Securities Act. 
 (ii) None of such Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities,
and all such persons have complied and will comply with the offering restrictions requirement of Regulation S. 
 (iii) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, such Initial Purchaser will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration
that purchases Securities from it during the distribution compliance period a confirmation or notice to substantially the following effect: 
 “The Securities covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original
issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S.” 
 (iv) Such Initial Purchaser has not and will not enter into any contractual arrangement with any distributor with respect to
the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. 







 Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in this Agreement
have the meanings given to them by Regulation S. 
 (c) Each Initial Purchaser, severally and not jointly, represents, warrants
and agrees that: 
 (i) it has only communicated or caused to be communicated and will only communicate or cause
to be communicated any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the United Kingdom Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with
the issue or sale of any Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantors; and 
 (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.

 (d) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that, in relation to each Member State
of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State
(the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the notes which has been approved
by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except
that it may, with effect from and including the Relevant Implementation Date, make an offer of the Securities to the public in that Relevant Member State at any time: 
 (i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; 
 (ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a
total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; 
 (ii) to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the representatives for any such offer; or

  

 C-2 








 (iv) in any other circumstances which do not require the publication by us of a prospectus
pursuant to Article 3 of the Prospectus Directive. 
 For the purposes of this provision, the expression an “offer of notes to the
public” in relation to any notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities so as to enable an investor to decide to purchase or
subscribe the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression Prospectus Directive means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State. 
 (e) Each Initial Purchaser acknowledges that no action has been or will
be taken by the Company that would permit a public offering of the Securities, or possession or distribution of any of the Time of Sale Information, the Offering Memorandum, any Issuer Written Communication or any other offering or publicity
material relating to the Securities, in any country or jurisdiction where action for that purpose is required. 
  

 C-3 








 Annex D 
 Mortgaged Property 
  

							
	 Entity of Record
	  	 Address
	  	City	  	State
	Brocade Communications Systems, Skyport LLC	  	1600 Technology Drive	  	San Jose	  	CA
				
	McDATA Corporation	  	4 Brocade Parkway	  	Broomfield	  	CO
				
	McDATA Corporation	  	Land	  	Broomfield	  	CO
				
	Brocade Communications Systems, Inc	  	Land	  	San Jose	  	CA








 Exhibit A 
 Form of Registration Rights Agreement 
 [2018][2020] Notes 
 This REGISTRATION RIGHTS AGREEMENT dated January [20], 2010 (this “Agreement”) is entered into by and among Brocade Communications
Systems, Inc., a Delaware corporation (the “Company”), the guarantors listed in Schedule 1 hereto (the “Guarantors”) and J.P. Morgan Securities Inc. (“JPMorgan”), Goldman, Sachs & Co., Barclays Capital Inc.,
Banc of America Securities LLC and Wells Fargo Securities, LLC (the “Initial Purchasers”). 
 The Company, the
Guarantors and the Initial Purchasers are parties to the Purchase Agreement dated January 13, 2010 (the “Purchase Agreement”), which provides for the sale by the Company to the Initial Purchasers of, among other things, $300,000,000
aggregate principal amount of the Company’s [6.625] [6.875]% Senior Secured Notes due [2018][2020] (the “Securities”) which will be guaranteed on a senior secured basis by each of the Guarantors. As an inducement to the Initial
Purchasers to enter into the Purchase Agreement, the Company and the Guarantors have agreed to provide to the Initial Purchasers and their direct and indirect transferees the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the closing under the Purchase Agreement. 
 In consideration of the foregoing, the
parties hereto agree as follows: 
 1. Definitions. As used in this Agreement, the following terms shall have the
following meanings: 
 “Additional Guarantor” shall mean any subsidiary of the Company that executes a Subsidiary
Guarantee under the Indenture after the date of this Agreement. 
 “Business Day” shall mean any day that is not a
Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed. 
 “Company” shall have the meaning set forth in the preamble and shall also include the Company’s successors. 
 “Electing Holder” shall mean any Holder that has returned a completed and signed Notice and Questionnaire to the Company in accordance with Section 2(b). 
 “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time. 







 “Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.

 “Exchange Offer” shall mean the exchange offer by the Company and the Guarantors of Exchange Securities for
Registrable Securities pursuant to Section 2(a) hereof. 
 “Exchange Offer Registration” shall mean a
registration under the Securities Act effected pursuant to Section 2(a) hereof. 
 “Exchange Offer Registration
Statement” shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained
therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein. 
 “Exchange
Securities” shall mean senior secured notes issued by the Company and guaranteed by the Guarantors under the Indenture containing terms identical to the Securities (except that the Exchange Securities will not be subject to restrictions on
transfer or to any increase in annual interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities in exchange for Securities pursuant to the Exchange Offer. 
 “Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the Securities Act) prepared by or on
behalf of the Company or used or referred to by the Company in connection with the sale of the Securities or the Exchange Securities. 
 “Guarantors” shall have the meaning set forth in the preamble and shall also include any Guarantor’s successors and any Additional Guarantors. 
 “Holders” shall mean the Initial Purchasers, for so long as they own any Registrable Securities, and each of their successors, assigns and direct and indirect transferees who become owners of
Registrable Securities under the Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the term “Holders” shall include Participating Broker-Dealers. 
 “Indemnified Person” shall have the meaning set forth in Section 5(c) hereof. 
 “Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof. 
 “Indenture” shall mean the Indenture relating to the Securities dated as of January [20], 2010 among the Company, the Guarantors
and Wells Fargo Bank, National Association, as trustee, and as the same may be amended from time to time in accordance with the terms thereof. 
  

 2 








 “Initial Purchasers” shall have the meaning set forth in the preamble. 

“Inspector” shall have the meaning set forth in Section 3(a)(xiv) hereof. 
 “Issuer Information” shall have the meaning set forth in Section 5(a) hereof. 
 “JPMorgan” shall have the meaning set forth in the preamble. 
 “Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of the outstanding Registrable
Securities; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable Securities owned directly or indirectly by the Company or any of its affiliates shall
not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount; and provided, further, that if the Company shall issue any additional Securities under the Indenture prior to consummation
of the Exchange Offer or, if applicable, the effectiveness of any Shelf Registration Statement, such additional Securities and the Registrable Securities to which this Agreement relates shall be treated together as one class for purposes of
determining whether the consent or approval of Holders of a specified percentage of Registrable Securities has been obtained. 
 “Notice and Questionnaire” shall mean a notice of registration statement and selling security holder questionnaire distributed to an Initial Purchaser by the Company upon receipt of a Shelf Request from such Initial Purchaser.

 “Participating Broker-Dealers” shall have the meaning set forth in Section 4(a) hereof. 
 “Person” shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof. 
 “Prospectus” shall mean the prospectus included in, or,
pursuant to the rules and regulations of the Securities Act, deemed a part of, a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any document
incorporated by reference therein. 
  

 3 








 “Purchase Agreement” shall have the meaning set forth in the preamble. 

“Registrable Securities” shall mean the Securities; provided that the Securities shall cease to be Registrable
Securities (i) when a Registration Statement with respect to such Securities has become effective under the Securities Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement, (ii) the date of the
second anniversary of this Agreement, provided that such date shall be extended by the number of days of any extension that occurs pursuant to Section 3(d) hereof or (iii) when such Securities cease to be outstanding. 
 “Registration Expenses” shall mean any and all expenses incident to performance of or compliance by the Company and the Guarantors
with this Agreement, including without limitation: (i) all SEC, stock exchange or Financial Industry Regulatory Authority registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with applicable state
securities or blue sky laws (including reasonable fees and disbursements of counsel for any Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or Registrable Securities, with supporting documentation),
(iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any amendments or supplements thereto, any
underwriting agreements, securities sales agreements or other similar agreements and any other documents relating to the performance of and compliance with this Agreement, with supporting documentation, (iv) all rating agency fees, (v) all
fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Company and the
Guarantors and, in the case of a Shelf Registration Statement, the fees and disbursements of one counsel for the Holders (which counsel shall be selected by the Majority Holders and which counsel may also be counsel for the Initial Purchasers), with
supporting documentation, and (viii) the fees and disbursements of the independent public accountants of the Company and the Guarantors, including the expenses of any special audits or “comfort” letters required by or incident to the
performance of and compliance with this Agreement, but excluding fees and expenses of counsel to the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions, brokerage
commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder. 
 “Registration Statement” shall mean any registration statement of the Company and the Guarantors that covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments
and supplements to any such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

  

 4 








 “SEC” shall mean the United States Securities and Exchange Commission. 

“Securities” shall have the meaning set forth in the preamble. 
 “Securities Act” shall mean the Securities Act of 1933, as amended from time to time. 
 “Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof. 
 “Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof. 
 “Shelf Registration Statement” shall mean a “shelf” registration statement of the Company and the Guarantors that covers
all or a portion of the Registrable Securities (but no other securities unless approved by a majority of the Holders whose Registrable Securities are to be covered by such Shelf Registration Statement) on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part
thereof, all exhibits thereto and any document incorporated by reference therein. 
 “Shelf Request” shall have the
meaning set forth in Section 2(b) hereof. 
 “Subsidiary Guarantees” shall mean the guarantees of the Securities
and Exchange Securities by the Guarantors under the Indenture. 
 “Staff” shall mean the staff of the SEC. 

“Target Registration Date” shall have the meaning set forth in Section 2(d) hereof. 
 “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to time. 
 “Trustee” shall mean the trustee with respect to the Securities under the Indenture. 
 “Underwriter” shall have the meaning set forth in Section 3(e) hereof. 
  

 5 








 “Underwritten Offering” shall mean an offering in which Registrable Securities are
sold to an Underwriter for reoffering to the public. 
 2. Registration Under the Securities Act. (a) To the extent
not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer
to the Holders to exchange all the Registrable Securities for Exchange Securities and (ii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The
Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable efforts to complete the Exchange Offer not later than 60
days after such effective date. 
 The Company and the Guarantors shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder (which, with respect to Notes represented by global certificates in the name of The Depository Trust Company (“DTC”) or a nominee thereof, may
be effected through the facilities of DTC) stating, in addition to such other disclosures as are required by applicable law, substantially the following: 
  

	(i)	that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for
exchange; 

  

	(ii)	the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “Exchange Dates”);


  

	(iii)	that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as
otherwise specified herein; 

  

	(iv)	that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security,
together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in
compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and 

  

 6 









	(v)	that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at
the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for
exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities.


 As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company
and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any
Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under
the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or
other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. 
 As soon as practicable after the last Exchange Date, the Company and the Guarantors shall: 
  

	(i)	accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and 


 

	(ii)	deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and
cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. 

 The Company and the Guarantors shall use their commercially reasonable efforts to complete the Exchange Offer as provided above and shall
comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange
Offer does not violate any applicable law or applicable interpretations of the Staff. 
 (b) In the event that (i) the
Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange

  

 7 








 
Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) the Exchange Offer is not for any other reason completed by the Target Registration Date (it
being understood that participation in the Exchange Offer of all Holders eligible to participate therein is not required for the Company and the Guarantors to complete the Exchange Offer) or (iii) upon receipt of a written request (a
“Shelf Request”) from any Initial Purchaser representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable efforts
to cause to be filed as soon as practicable after such determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf
Registration Statement become effective no later than the Target Registration Date; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a
part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder as is contemplated by Section 3(b) to the Company.

 In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause
(iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all
Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer. 
 The Company and the Guarantors agree to use their commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective until the date on which the Securities cease to be Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement, the related Prospectus and any
Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or
if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective, if required, and such Shelf
Registration Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Electing Holders copies of any such supplement or amendment
promptly after its being used or filed with the SEC. 
  

 8 








 (c) The Company and the Guarantors shall pay all Registration Expenses in connection with
any registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s
Registrable Securities pursuant to the Shelf Registration Statement. 
 (d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been
declared effective by the SEC or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. 
 In the event that either the Exchange Offer is not completed (the “Exchange Offer Default”) or the Shelf Registration Statement, if required pursuant to Section 2(b) hereof, does not become effective (the “Shelf
Registration Default” and, together with the Exchange Offer Registration Default, the “Registration Default”) on or prior to, in the case of the Exchange Offer, 365 days after the Closing Date or, in the case of the Shelf Registration
Statement, the later of 365 days after the Closing Date and 90 days after the receipt by the Company of a Shelf Request (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by
(i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is
completed, the Shelf Registration Statement, if required hereby, becomes effective or the Securities cease to be Registrable Securities, up to a maximum increase of 1.00% per annum. 
 If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus
contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 45 days (whether or not
consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period and (ii) an additional 0.25% per annum with respect to each subsequent
90-day period, up to a maximum increase of 1.00% per annum, commencing on the 45th day in such 12-month period and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable, as
the case may be. 
  

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 (e) Without limiting the remedies available to the Initial Purchasers and the Holders, the
Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof. 
 3. Registration Procedures. (a) In connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantors shall use their commercially
reasonable efforts to, as expeditiously as possible: 
 (i) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by the Company and the Guarantors, (y) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the Holders thereof
and (z) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith; and use their commercially reasonable efforts to cause such
Registration Statement to become effective and remain effective for the applicable period in accordance with Section 2 hereof; 
 (ii) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2
hereof and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the period described in
Section 4(3) of and Rule 174 under the Securities Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities; 
 (iii) to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing Prospectus that is required to be filed by the
Company or the Guarantors with the SEC in accordance with the Securities Act and to retain any Free Writing Prospectus not required to be filed; 
 (iv) in the case of a Shelf Registration, furnish to each Electing Holder, to counsel for the Initial Purchasers, to counsel for such Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each Prospectus, preliminary prospectus or Free Writing Prospectus, and any amendment or supplement thereto, as such Holder, counsel or Underwriter may reasonably request in order to
facilitate the sale or other disposition of the Registrable Securities thereunder; and, subject to

  

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Section 3(c), the Company and the Guarantors consent to the use of such Prospectus, preliminary prospectus or such Free Writing Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the Holders of Registrable Securities and any such Underwriters in connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus, preliminary
prospectus or such Free Writing Prospectus or any amendment or supplement thereto in accordance with applicable law; 
 (v)
register or qualify the Registrable Securities under all applicable state securities or blue sky laws of such jurisdictions as any Holder of Registrable Securities covered by a Registration Statement shall reasonably request in writing by the time
the applicable Registration Statement becomes effective; cooperate with such Holders in connection with any filings required to be made with the Financial Industry Regulatory Authority; and do any and all other acts and things that may be reasonably
necessary or advisable to enable each Holder to complete the disposition in each such jurisdiction of the Registrable Securities owned by such Holder; provided that neither the Company nor any Guarantor shall be required to (1) qualify
as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (2) file any general consent to service of process in any such jurisdiction or
(3) subject itself to taxation in any such jurisdiction if it is not so subject; 
 (vi) notify counsel for the Initial
Purchasers and, in the case of a Shelf Registration, notify each Electing Holder and counsel for such Holders promptly and, if requested by any such Holder or counsel, confirm such advice in writing (1) when a Registration Statement has become
effective, when any post-effective amendment thereto has been filed and becomes effective and when, after the effective date of any such Registration Statement, any Free Writing Prospectus or any amendment or supplement to the Prospectus or any Free
Writing Prospectus has been filed, (2) of any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement, Prospectus or Free Writing Prospectus or for additional information after the
Registration Statement has become effective, (3) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose,
including the receipt by the Company of any notice of objection of the SEC to the use of a Shelf Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, (4) if, between the applicable
effective date of a Shelf Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company or any Guarantor contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to an offering of such Registrable Securities cease to be true and correct in all material respects or if the Company or any Guarantor receives any notification with respect to the

  

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suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (5) of the happening of any event during the
period a Registration Statement is effective that makes any statement made in such Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the making of any changes in such
Registration Statement or Prospectus or any Free Writing Prospectus in order to make the statements therein not misleading and (6) of any determination by the Company or any Guarantor that a post-effective amendment to a Registration Statement
or any amendment or supplement to the Prospectus or any Free Writing Prospectus would be appropriate; 
 (vii) obtain the
withdrawal of any order suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration, the resolution of any objection of the SEC pursuant to Rule 401(g)(2), including by filing an amendment to such Shelf
Registration Statement on the proper form, at the earliest practicable time and provide immediate notice to each Electing Holder of the withdrawal of any such order or such resolution; 
 (viii) in the case of a Shelf Registration, furnish to each Electing Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective amendment thereto (without any documents incorporated therein by reference or exhibits thereto, unless requested); 
 (ix) in the case of a Shelf Registration, cooperate with the Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends (including one or more global certificates, if applicable) and enable such Registrable Securities to be issued in such denominations and
registered in such names (consistent with the provisions of the Indenture) as such Holders may reasonably request at least one Business Day prior to the closing of any sale of Registrable Securities; 
 (x) in the case of a Shelf Registration, upon the occurrence of any event contemplated by Section 3(a)(vi)(5) hereof, use their
commercially reasonable efforts to prepare and file with the SEC a supplement or post-effective amendment to such Shelf Registration Statement or the related Prospectus or any Free Writing Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter delivered (or, to the extent permitted by law, made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing Prospectus, as the case may be, will not contain
any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company and the Guarantors shall notify the
Electing Holders to suspend use of the

  

 12 








 
Prospectus or any Free Writing Prospectus as promptly as practicable after the occurrence of such an event, and such Holders hereby agree to suspend use of the Prospectus or any Free Writing
Prospectus, as the case may be, until the Company and the Guarantors have amended or supplemented the Prospectus or any Free Writing Prospectus, as the case may be, to correct such misstatement or omission; 
 (xi) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any Free Writing Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus or a Free Writing Prospectus or of any document that is to be incorporated by reference into a Registration Statement, a Prospectus or a Free Writing Prospectus after initial filing
of a Registration Statement, provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, to the Holders of Registrable Securities and their counsel) and make such of the
representatives of the Company and the Guarantors as shall be reasonably requested by the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders of Registrable Securities or their counsel) available for
discussion of such document; and the Company and the Guarantors shall not, at any time after initial filing of a Registration Statement, use or file any Prospectus, any Free Writing Prospectus, any amendment of or supplement to a Registration
Statement or a Prospectus or a Free Writing Prospectus, or any document that is to be incorporated by reference into a Registration Statement, a Prospectus or a Free Writing Prospectus, of which the Initial Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, the Holders of Registrable Securities and their counsel) shall not have previously been advised and furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities or their counsel) shall object; 
 (xii) obtain a CUSIP number for
all Exchange Securities or Registrable Securities, as the case may be, not later than the initial effective date of a Registration Statement; 
 (xiii) cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use their commercially reasonable efforts to cause the
Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner; 
  

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 (xiv) in the case of a Shelf Registration, make available for inspection by a representative
of the Holders of the Registrable Securities (an “Inspector”), any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, any attorneys and accountants designated by a majority of the Holders of
Registrable Securities to be included in such Shelf Registration and any attorneys and accountants designated by such Underwriter, at reasonable times and in a reasonable manner, all pertinent financial and other records, documents and properties of
the Company and its subsidiaries, and cause the respective officers, directors and employees of the Company and the Guarantors to supply all information reasonably requested by any such Inspector, Underwriter, attorney or accountant in connection
with a Shelf Registration Statement; provided that if any such information is identified by the Company or any Guarantor as being confidential or proprietary, each Person receiving such information shall take such actions as are reasonably
necessary to protect the confidentiality of such information to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of any Inspector, Holder or Underwriter); provided,
further, that all information that is provided by the Company shall be kept confidential by such Persons, unless disclosure thereof is required or requested under compulsion of law (whether by oral question, interrogatory, subpoena, civil
investigative demand or otherwise), by order or act of any court or governmental or regulatory authority or body, or such information is or has become available to the public generally through the Company or through a third party without an
accompanying obligation of confidentiality owed by such Person to the Company, or the Company consents to the non-confidential treatment of such information; 
 (xv) in the case of a Shelf Registration, use their commercially reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or any automated quotation system on which
similar securities issued or guaranteed by the Company or any Guarantor are then listed if requested by the Majority Holders, to the extent such Registrable Securities satisfy applicable listing requirements; 
 (xvi) if reasonably requested by any Holder of Registrable Securities covered by a Shelf Registration Statement, as soon as practicable
include in a Prospectus supplement or post-effective amendment such information with respect to such Holder as such Holder reasonably requests to be included therein and make all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Company has received notification of the matters to be so included in such filing; 
 (xvii) in the
case of a Shelf Registration, enter into such customary agreements and take all such other actions in connection therewith (including those requested by the Holders of a majority in principal amount of the Registrable Securities covered by the Shelf
Registration Statement) in order to expedite or facilitate the disposition of such Registrable Securities including, but not limited to, an Underwritten Offering and in such connection, (1) to the extent possible, make such representations and
warranties to the Holders and any

  

 14 








 
Underwriters of such Registrable Securities with respect to the business of the Company and its subsidiaries and the Registration Statement, Prospectus, any Free Writing Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested,
(2) obtain opinions of counsel to the Company and the Guarantors (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings, (3) obtain “comfort” letters from the independent certified public accountants of the
Company and the Guarantors (and, if necessary, any other certified public accountant of any subsidiary of the Company or any Guarantor, or of any business acquired by the Company or any Guarantor for which financial statements and financial data are
or are required to be included in the Registration Statement) addressed to each selling Holder (to the extent permitted by applicable professional standards) and Underwriter of Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, including but not limited to financial information contained in any preliminary prospectus, Prospectus or Free Writing
Prospectus and (4) deliver such documents and certificates as may be reasonably requested by the Holders of a majority in principal amount of the Registrable Securities being sold or the Underwriters, and which are customarily delivered in
underwritten offerings, to evidence the continued validity of the representations and warranties of the Company and the Guarantors made pursuant to clause (1) above and to evidence compliance with any customary conditions contained in an
underwriting agreement; and 
 (xviii) so long as any Registrable Securities remain outstanding, cause each Additional Guarantor
upon the creation or acquisition by the Company of such Additional Guarantor, to execute a counterpart to this Agreement in the form attached hereto as Annex A and to deliver such counterpart, together with an opinion of counsel as to the
enforceability thereof against such entity, to the Initial Purchasers no later than five Business Days following the execution thereof. 
 (b) In the case of a Shelf Registration Statement, the Company may require each Holder of Registrable Securities to furnish to the Company a Notice and Questionnaire and such other information regarding
such Holder and the proposed disposition by such Holder of such Registrable Securities as the Company and the Guarantors may from time to time reasonably request in writing. 
  

 15 








 (c) Each Holder of Registrable Securities covered in a Shelf Registration Statement and each
Participating Broker-Dealer intending to use the Prospectus included in the Registration Statement for resales of Exchange Securities agrees that, upon receipt of any notice from the Company and the Guarantors of the happening of any event of the
kind described in Section 3(a)(vi)(3) or 3(a)(vi)(5) hereof, such Person will forthwith discontinue disposition of Registrable Securities pursuant to the Shelf Registration Statement or use of the Prospectus or any Free Writing Prospectus until
such Person’s receipt of the copies of the supplemented or amended Prospectus and any Free Writing Prospectus contemplated by Section 3(a)(x) hereof and, if so directed by the Company and the Guarantors, such Holder will deliver to the
Company and the Guarantors all copies in its possession, other than permanent file copies then in such Holder’s possession, of the Prospectus and any Free Writing Prospectus covering such Registrable Securities that is current at the time of
receipt of such notice. 
 (d) If the Company and the Guarantors shall give any notice to suspend the disposition of Registrable
Securities pursuant to a Registration Statement, the Company and the Guarantors shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from
and including the date of the giving of such notice to and including the date when the Holders of such Registrable Securities shall have received copies of the supplemented or amended Prospectus or any Free Writing Prospectus necessary to resume
such dispositions. The Company and the Guarantors may give any such notice only twice during any 365-day period and any such suspensions shall not exceed 30 days for each suspension and there shall not be more than two suspensions in effect during
any 365-day period. 
 (e) The Holders of Registrable Securities covered by a Shelf Registration Statement who desire to do so
may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten Offering, the investment bank or investment banks and manager or managers (each an “Underwriter”) that will administer the offering will be selected
by the Holders of a majority in principal amount of the Registrable Securities included in such offering. 
 4. Participation
of Broker-Dealers in Exchange Offer. (a) The Staff has taken the position that any broker-dealer that receives Exchange Securities for its own account in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer
as a result of market-making or other trading activities (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such Exchange Securities. 
 The Company and the Guarantors understand that
it is the Staff’s position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the

  

 16 








 
means by which Participating Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the amount of Exchange Securities owned by them, such
Prospectus may be delivered by Participating Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their prospectus delivery obligation under the Securities Act in connection with resales of Exchange Securities
for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. 
 (b) In light of the
above, and notwithstanding the other provisions of this Agreement, the Company and the Guarantors agree to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement for a period of up to 180 days after the last
Exchange Date (as such period may be extended pursuant to Section 3(d) of this Agreement), in order to expedite or facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent with the positions of the Staff
recited in Section 4(a) above. The Company and the Guarantors further agree that Participating Broker-Dealers shall be authorized to deliver such Prospectus (or, to the extent permitted by law, make available) during such period in connection
with the resales contemplated by this Section 4. 
 (c) The Initial Purchasers shall have no liability to the Company, any
Guarantor or any Holder with respect to any request that they may make pursuant to Section 4(b) above. 
 5.
Indemnification and Contribution. (a) The Company and each Guarantor, jointly and severally, agree to indemnify and hold harmless each Initial Purchaser and each Holder, their respective affiliates, directors and officers and each
Person, if any, who controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon,
(1) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, any Free Writing Prospectus or any “issuer information” (“Issuer Information”) filed
or required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, (i) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Initial Purchaser or information

  

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relating to any Holder furnished to the Company in writing through JPMorgan or any selling Holder, respectively expressly for use therein or (ii) the use of any such Registration Statement
or any Prospectus or any Free Writing Prospectus after notice has been given to Holders pursuant to Section 3(a)(vi)(5) prior to such time as the Company furnishes an amended or supplemented prospectus pursuant to Section 3(a)(x). In
connection with any Underwritten Offering permitted by Section 3, the Company and the Guarantors, jointly and severally, will also indemnify the Underwriters, if any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement, any Prospectus, any Free Writing Prospectus or any Issuer Information. 
 (b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantors, the Initial Purchasers and the other selling Holders, the directors of the Company and the
Guarantors, each officer of the Company and the Guarantors who signed the Registration Statement and each Person, if any, who controls the Company, the Guarantors, any Initial Purchaser and any other selling Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Holder furnished to the Company in writing by such Holder expressly for use in any
Registration Statement, any Prospectus and any Free Writing Prospectus. 
 (c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or asserted against any Person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified
Person”) shall promptly notify the Person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that
the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled to
indemnification pursuant to this Section 5 that the Indemnifying Person may designate in such proceeding and shall pay the

  

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reasonable fees and expenses of such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded after consultation with legal
counsel that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such
reasonable fees and expenses shall be reimbursed as they are incurred. Any such separate firm (x) for any Initial Purchaser, its affiliates, directors and officers and any control Persons of such Initial Purchaser shall be designated in writing
by JPMorgan, (y) for any Holder, its directors and officers and any control Persons of such Holder shall be designated in writing by the Majority Holders and (z) in all other cases shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for reasonable fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have
been sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person. 
  

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 (d) If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors
from the offering of the Securities and the Exchange Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities registered under the Securities Act, on the other hand, or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantors on the one hand and the
Holders on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Company and the Guarantors on the one
hand and the Holders on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied
by the Company and the Guarantors or by the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. 
 (e) The Company, the Guarantors and the Holders agree that it would not be just and equitable if contribution pursuant to this
Section 5 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above,
any reasonable legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall a Holder be required to contribute any amount in excess
of the amount by which the total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute pursuant to this Section 5 are several and not joint. 
  

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 (f) The remedies provided for in this Section 5 are not exclusive and shall not limit
any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity. 
 (g) The indemnity and
contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers or any
Holder or any Person controlling any Initial Purchaser or any Holder, or by or on behalf of the Company or the Guarantors or the officers or directors of or any Person controlling the Company or the Guarantors, (iii) acceptance of any of the
Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement. 
 6.
General. 
 (a) No Inconsistent Agreements. The Company and the Guarantors represent, warrant and agree that
(i) the rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of any other outstanding securities issued or guaranteed by the Company or any Guarantor under any
other agreement and (ii) neither the Company nor any Guarantor has entered into, or on or after the date of this Agreement will enter into, any agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof. 
 (b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company and the Guarantors have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or consent; provided that no amendment, modification, supplement,
waiver or consent to any departure from the provisions of Section 5 hereof shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder. Any amendments, modifications, supplements, waivers or
consents pursuant to this Section 6(b) shall be by a writing executed by each of the parties hereto. 
 (c) Notices.
All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most
current address given by such Holder to the Company by means of a notice given in accordance with the provisions of this Section 6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in the Purchase
Agreement; (ii) if to the Company and the Guarantors, initially at the Company’s address set forth in the Purchase Agreement and

  

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thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at their respective addresses as
provided in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c). All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next Business Day if timely
delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture.

 (d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns
and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial Purchasers) shall have no liability or obligation to the Company or the Guarantors with respect to any failure by a Holder to
comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement. 
 (e) Third Party
Beneficiaries. Each Holder shall be a third party beneficiary to the agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder. 
 (f) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement. 
 (g) Headings. The headings in this
Agreement are for convenience of reference only, are not a part of this Agreement and shall not limit or otherwise affect the meaning hereof. 
  

 22 








 (h) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York. 
 (i) Entire Agreement; Severability. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. The Company, the Guarantors and the Initial Purchasers shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible
to that of the invalid, void or unenforceable provisions. 
  

 23 








 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above. 
  

			
	BROCADE COMMUNICATIONS SYSTEMS, INC.
		
	By:	 	  

	Name:	 	
	Title:	 	
	
	BROCADE COMMUNICATIONS SYSTEMS SKYPORT LLC
		
	By:	 	  

	Name:	 	
	Title:	 	
	
	INRANGE TECHNOLOGIES CORPORATION
		
	By:	 	  

	Name:	 	
	Title:	 	
	
	MCDATA CORPORATION
		
	By:	 	  

	Name:	 	
	Title:	 	
	
	MCDATA SERVICES CORPORATION
		
	By:	 	  

	Name:	 	
	Title:	 	
	
	STRATEGIC BUSINESS SYSTEMS, INC.
		
	By:	 	  

	Name:	 	
	Title:	 	


  

 24 









			
	 FOUNDRY NETWORKS, LLC

		
	 By:
	 	  

	 Name:
	 	
	 Title:
	 	


 Confirmed and accepted as of the date first above written: 
 J.P. MORGAN SECURITIES INC. 
 For itself and on
behalf of the 
   several Initial Purchasers 
  

			
	By	 	  

		 	Authorized Signatory

  

 25 








 Schedule 1 
 Guarantors 
 BROCADE COMMUNICATIONS SYSTEMS SKYPORT LLC 
 INRANGE TECHNOLOGIES CORPORATION 
 MCDATA
CORPORATION 
 MCDATA SERVICES CORPORATION 
 STRATEGIC BUSINESS SYSTEMS, INC. 
 FOUNDRY NETWORKS, LLC 







 Annex A 
 Counterpart to Registration Rights Agreement 
 The undersigned hereby
absolutely, unconditionally and irrevocably agrees as a Guarantor (as defined in the Registration Rights Agreement, dated as of January [20], 2010, by and among Brocade Communications Systems, Inc., a Delaware corporation (the “Company”),
the guarantors party thereto and J.P. Morgan Securities Inc., on behalf of itself and the other Initial Purchasers, relating to the Company’s [6.625] [6.875]% Senior Secured Notes due [2018][2020]) to be bound by the terms and provisions of
such Registration Rights Agreement. 
 IN WITNESS WHEREOF, the undersigned has executed this counterpart as of
                            . 
  

			
	[NAME]
		
	By:	 	  

	Name:	 	
	Title:	 	









 Exhibit B 
 Form of Letter 
 Qatalyst Partners LP 
 3 Embarcadero Center, 6th Floor 
 San Francisco, CA 94111 
 January     , 2010 
 Brocade Communications Systems, Inc. 
 1745
Technology Drive 
 San Jose, CA 95110 
 Attention: Richard Deranleau 
 Ladies and Gentlemen: 
 Reference is hereby made to the purchase agreement dated January     , 2010 (the “Purchase Agreement”) between you and J.P. Morgan Securities Inc., as representative
of the several initial purchasers named therein (the “Representative”). Terms defined in the Purchase Agreement shall have such meanings when used herein. 
 We confirm that Qatalyst Partners LP is a member of the Financial Industry Regulatory Authority (“FINRA”) in good standing and a broker-dealer registered as such under the Securities Exchange
Act of 1934, as amended. 
 We also confirm that, in connection with the offering of the Securities contemplated under the
Purchase Agreement, neither Qatalyst Partners LP nor any of its affiliates, directly or indirectly, (a) has sold or will sell, has offered or will offer for sale, has solicited or will solicit offers to buy, the Securities, or (b) has taken or will
take any action that, if taken by the Company, would cause there to be a misrepresentation or breach of covenant pursuant to Section 3(tt), (uu), or (ww) or Section 4(m), (n) or (o) of the Purchase Agreement. 
 This letter is being delivered solely to you in connection with the offering of the Securities and may not be relied upon by any other party
or for any other purpose without our prior written consent. We acknowledge that a copy of this letter may be disclosed to the Representatives in accordance with Section 6(s) of the Purchase Agreement. 
  

			
	 Sincerely,

	
	 Qatalyst Partners LP

		
	 By:
	 	  

	 Name:
	 	
	 Title:
	 	


  

 2