exv10w62



 





Exhibit 10.62




EXECUTION COPY




 

 











CREDIT AGREEMENT




dated as of




November 2, 2007




among




NETWORK APPLIANCE, INC., as the Borrower




The Lenders Party Hereto




BANK OF AMERICA, N.A., CITICORP USA, INC. and STANDARD CHARTERED BANK

as Co-Documentation Agents




BNP PARIBAS,

as Syndication Agent




and




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent




 






J.P. MORGAN SECURITIES INC. and BNP PARIBAS SECURITIES CORP.,

as Joint Bookrunners and Joint Lead Arrangers




 

 












 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I Definitions

	 
	 	 	 	 	 	 
	SECTION 1.01.
	 	Defined Terms	 	 	1	 
	SECTION 1.02.
	 	Classification of Loans and Borrowings	 	 	15	 
	SECTION 1.03.
	 	Terms Generally	 	 	15	 
	SECTION 1.04.
	 	Accounting Terms; GAAP	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE II The Credits	 	 	16	 
	 
	 	 	 	 	 	 
	SECTION 2.01.
	 	Commitments	 	 	16	 
	SECTION 2.02.
	 	Loans and Borrowings	 	 	16	 
	SECTION 2.03.
	 	Requests for Borrowings	 	 	17	 
	SECTION 2.04.
	 	Intentionally Omitted	 	 	17	 
	SECTION 2.05.
	 	Swingline Loans	 	 	17	 
	SECTION 2.06.
	 	Letters of Credit	 	 	18	 
	SECTION 2.07.
	 	Funding of Borrowings	 	 	22	 
	SECTION 2.08.
	 	Interest Elections	 	 	22	 
	SECTION 2.09.
	 	Termination and Reduction of Commitments	 	 	23	 
	SECTION 2.10.
	 	Repayment of Loans; Evidence of Debt	 	 	24	 
	SECTION 2.11.
	 	Prepayment of Loans	 	 	24	 
	SECTION 2.12.
	 	Fees	 	 	25	 
	SECTION 2.13.
	 	Interest	 	 	26	 
	SECTION 2.14.
	 	Alternate Rate of Interest	 	 	26	 
	SECTION 2.15.
	 	Increased Costs	 	 	27	 
	SECTION 2.16.
	 	Break Funding Payments	 	 	28	 
	SECTION 2.17.
	 	Taxes	 	 	28	 
	SECTION 2.18.
	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	 	 	29	 
	SECTION 2.19.
	 	Mitigation Obligations; Replacement of Lenders	 	 	31	 
	SECTION 2.20.
	 	Expansion Option	 	 	31	 
	SECTION 2.21.
	 	Senior Debt	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE III Representations and Warranties	 	 	32	 
	 
	 	 	 	 	 	 
	SECTION 3.01.
	 	Organization; Powers; Subsidiaries	 	 	32	 
	SECTION 3.02.
	 	Authorization; Enforceability	 	 	33	 
	SECTION 3.03.
	 	Governmental Approvals; No Conflicts	 	 	33	 
	SECTION 3.04.
	 	Financial Condition; No Material Adverse Change	 	 	33	 
	SECTION 3.05.
	 	Properties and Insurance	 	 	33	 
	SECTION 3.06.
	 	Litigation, Labor Matters and Environmental Matters	 	 	34	 
	SECTION 3.07.
	 	Compliance with Laws and Agreements; No Burdensome Restrictions	 	 	34	 
	SECTION 3.08.
	 	Investment Company Status	 	 	34	 
	SECTION 3.09.
	 	Taxes	 	 	35	 
	SECTION 3.10.
	 	ERISA	 	 	35	 







 









 







Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 3.11.
	 	Disclosure	 	 	35	 
	SECTION 3.12.
	 	Federal Reserve Regulations	 	 	35	 
	SECTION 3.13.
	 	No Default	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE IV Conditions	 	 	35	 
	 
	 	 	 	 	 	 
	SECTION 4.01.
	 	Effective Date	 	 	35	 
	SECTION 4.02.
	 	Each Credit Event	 	 	36	 
	 
	 	 	 	 	 	 
	ARTICLE V Affirmative Covenants	 	 	37	 
	 
	 	 	 	 	 	 
	SECTION 5.01.
	 	Financial Statements and Other Information	 	 	37	 
	SECTION 5.02.
	 	Notices of Material Events	 	 	38	 
	SECTION 5.03.
	 	Existence; Conduct of Business	 	 	38	 
	SECTION 5.04.
	 	Payment of Obligations	 	 	39	 
	SECTION 5.05.
	 	Maintenance of Properties; Insurance	 	 	39	 
	SECTION 5.06.
	 	Books and Records; Inspection Rights	 	 	39	 
	SECTION 5.07.
	 	Compliance with Laws and Contractual Obligations	 	 	39	 
	SECTION 5.08.
	 	Use of Proceeds	 	 	39	 
	SECTION 5.09.
	 	Subsidiary Guaranty	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE VI Negative Covenants	 	 	40	 
	 
	 	 	 	 	 	 
	SECTION 6.01.
	 	Subsidiary Indebtedness	 	 	40	 
	SECTION 6.02.
	 	Liens	 	 	41	 
	SECTION 6.03.
	 	Fundamental Changes and Asset Sales.	 	 	42	 
	SECTION 6.04.
	 	Speculative Swap Agreements	 	 	43	 
	SECTION 6.05.
	 	Transactions with Affiliates	 	 	43	 
	SECTION 6.06.
	 	Restrictive Agreements	 	 	43	 
	SECTION 6.07.
	 	Financial Covenants	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE VII Events of Default	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE VIII The Administrative Agent	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE IX Miscellaneous	 	 	48	 
	 
	 	 	 	 	 	 
	SECTION 9.01.
	 	Notices	 	 	48	 
	SECTION 9.02.
	 	Waivers; Amendments	 	 	49	 
	SECTION 9.03.
	 	Expenses; Indemnity; Damage Waiver	 	 	49	 
	SECTION 9.04.
	 	Successors and Assigns	 	 	50	 
	SECTION 9.05.
	 	Survival	 	 	53	 
	SECTION 9.06.
	 	Counterparts; Integration; Effectiveness	 	 	53	 








ii 









 







Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 9.07.
	 	Severability	 	 	53	 
	SECTION 9.08.
	 	Right of Setoff	 	 	54	 
	SECTION 9.09.
	 	Governing Law; Jurisdiction;
Consent to Service of Process; Waiver of Immunity	 	 	54	 
	SECTION 9.10.
	 	WAIVER OF JURY TRIAL	 	 	54	 
	SECTION 9.11.
	 	Headings	 	 	55	 
	SECTION 9.12.
	 	Confidentiality	 	 	55	 
	SECTION 9.13.
	 	USA PATRIOT Act	 	 	56	 
	SECTION 9.14.
	 	Lender Relationship	 	 	56	 







iii 









 






Table of Contents

(continued)




EXHIBITS:




Exhibit A — Form of Assignment and Assumption




Exhibit B — Form of Opinion of Loan Parties’ Counsel




Exhibit C — List of Closing Documents




Exhibit D — Form of Subsidiary Guaranty




Exhibit E — Form of Compliance Certificate




Exhibit F — Form of Increasing Lender Supplement




Exhibit G — Form of Augmenting Lender Supplement





iv 









 





          CREDIT AGREEMENT (this “Agreement”) dated as of November 2, 2007 among NETWORK
APPLIANCE, INC., the LENDERS from time to time party hereto, BANK OF AMERICA, N.A., CITICORP USA,
INC. and STANDARD CHARTERED BANK, as Co-Documentation Agents, BNP PARIBAS, as Syndication Agent and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent.




          The parties hereto agree as follows:




ARTICLE I




Definitions




          SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:




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




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




          “Administrative Agent” means JPMorgan Chase Bank, National Association, in its
capacity as administrative agent for the Lenders hereunder.




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




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




          “Aggregate Commitment” means the aggregate of the Commitments of all of the Lenders,
as reduced or increased from time to time pursuant to the terms and conditions hereof. As of the
Effective Date, the Aggregate Commitment is $250,000,000.




          “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.




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




          “Applicable Rate” means, for any day, with respect to any Eurodollar Revolving Loan or
with respect to the facility fees payable hereunder, as the case may be, the applicable rate per
annum set





 









 







forth below under the caption “Eurodollar Spread” or “Facility Fee Rate”, as the case may
be, based upon the Leverage Ratio applicable on such date:




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Eurodollar	 	Facility Fee
	Leverage Ratio:	 	 	 	Spread	 	Rate
	Category 1:

	 	£ 0.50 to 1.00
	 	 	0.24	%	 	 	0.06	%
	Category 2:

	 	> 0.50 to 1.00
	 	 	0.33	%	 	 	0.07	%
	 

	 	but	 	 	 	 	 	 	 	 
	 

	 	£ 1.00 to 1.00	 	 	 	 	 	 	 	 
	Category 3:

	 	> 1.00 to 1.00
	 	 	0.42	%	 	 	0.08	%
	 

	 	but	 	 	 	 	 	 	 	 
	 

	 	£ 1.50 to 1.00	 	 	 	 	 	 	 	 
	Category 4:

	 	> 1.50 to 1.00
	 	 	0.55	%	 	 	0.10	%
	 

	 	but	 	 	 	 	 	 	 	 
	 

	 	£ 2.00 to 1.00	 	 	 	 	 	 	 	 
	Category 5:

	 	> 2.00 to 1.00
	 	 	0.65	%	 	 	0.15	%






     For purposes of the foregoing,



     (i) if at any time the Borrower fails to deliver the Financials on or before the date the
Financials are due pursuant to Section 5.01, Category 5 shall be deemed applicable for the period
commencing five (5) Business Days after the required date of delivery and ending on the date which
is five (5) Business Days after the Financials are actually delivered, after which the Category
shall be determined in accordance with the table above as applicable;



     (ii) adjustments, if any, to the Category then in effect shall be effective five (5) Business
Days after the Administrative Agent has received the applicable Financials (it being understood and
agreed that each change in Category shall apply during the period commencing on the effective date
of such change and ending on the date immediately preceding the effective date of the next such
change); and



     (iii) notwithstanding the foregoing, Category 1 shall be deemed to be applicable until the
Administrative Agent’s receipt of the applicable Financials for the Borrower’s first fiscal quarter
ending after the Effective Date and adjustments to the Category then in effect shall thereafter be
effected in accordance with the preceding paragraphs.



          “Approved Fund” has the meaning assigned to such term in Section 9.04.




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




          “Augmenting Lender” has the meaning assigned to such term in Section 2.20.




          “Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments in
accordance with the terms of this Agreement.




          “Banking Services” means each and any of the following bank services provided to the
Borrower or any Subsidiary by any Lender or any of its Affiliates: (a) commercial credit cards, (b)
stored





2









 







value cards and (c) treasury management services (including, without limitation, controlled
disbursement, automated clearinghouse transactions, return items, overdrafts and interstate
depository network services).




          “Banking Services Agreement” means any agreement entered into by the Borrower or any
Subsidiary in connection with Banking Services.




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




          “Borrower” means Network Appliance, Inc. a Delaware corporation.




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




          “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.




          “Burdensome Restrictions” means any consensual encumbrance or restriction of the type
described in clause (a) or (b) of Section 6.06 (without giving effect to any exceptions described
in clauses (i) through (v) of such Section 6.06).




          “Business Day” means 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;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in
the London interbank market.




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




          “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of Equity Interests representing more than 40% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed
by directors so nominated; or (c) the Borrower ceasing to own, directly or indirectly, 100% of the
issued and outstanding Equity Interests of each Subsidiary Guarantor except in accordance with
Section 6.03.




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





3









 








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




          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Co-Documentation Agent” means each of Bank of America, N.A., Citicorp USA, Inc. and
Standard Chartered Bank in its capacity as co-documentation agent for the credit facility evidenced
by this Agreement.




          “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced or terminated from time to time pursuant
to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender’s Commitment is set forth
on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Commitment, as applicable.




          “Consolidated Debt for Borrowed Money” means at any time (1) the sum, without
duplication, of (a) items that, in accordance with GAAP, would be classified as indebtedness on the
consolidated balance sheet of Borrower and its Subsidiaries and (b) the capitalized portion of any
synthetic leases minus (2) the then aggregate outstanding principal amount of Indebtedness
under that certain Secured Credit Agreement dated as of October 5, 2007 by and among the Borrower
and JPMorgan Chase Bank, National Association as initial lender and as administrative agent and
under that certain Loan Agreement dated as of March 31, 2006 by and among Network Appliance Global
Ltd. and JPMorgan Chase Bank, National Association as initial lender and as administrative agent.
For purposes of clause (b) above, “capitalized portion” means, with respect to any synthetic lease,
the price for which the lessee can purchase the leased property or could purchase it if the
synthetic lease expired on the date of the applicable calculation of the Consolidated Debt for
Borrowed Money.




          “Consolidated EBITDA” means, with reference to any period, the sum of the following:
(a) Consolidated Net Income for such period, plus (b) without duplication and to the extent
deducted from revenues in determining such Consolidated Net Income, the sum of (i) Consolidated
Interest Expense for such period, (ii) expense for taxes paid or accrued during such period, (iii)
all amounts attributable to depreciation, (iv) amortization during such period, (v) extraordinary
non-cash charges incurred other than in the ordinary course of business during such period, (vi)
nonrecurring extraordinary non-cash restructuring charges, and (vii) share-based non-cash
compensation expense minus without duplication and to the extent included in determining such
Consolidated Net Income, (c) interest income, (d) extraordinary non-cash gains realized other than
in the ordinary course of business and (e) any cash
payments made during such period in respect of the item described in clause (vii) above
subsequent to the fiscal quarter in which the relevant share-based non-cash compensation expense
was incurred, all calculated for the Borrower and its Subsidiaries in accordance with GAAP on a
consolidated basis. For the purposes of calculating Consolidated EBITDA for any period of four
consecutive fiscal quarters (each, a “Reference Period”), (i) if at any time during such
Reference Period the Borrower or any Subsidiary shall have made any Material Disposition, the
Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the
Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material
Disposition for such Reference Period or increased by an amount equal to the Consolidated EBITDA
(if negative) attributable thereto for such Reference Period, and (ii) if during such Reference
Period the Borrower or any Subsidiary shall have made a Material Acquisition, Consolidated EBITDA
for such Reference Period shall be calculated after giving pro forma effect thereto as if such
Material Acquisition occurred on the first day of such Reference Period. As used





4









 







in this
definition, “Material Acquisition” means any acquisition of property or series of related
acquisitions of property that (a) constitutes (i) assets comprising all or substantially all or any
significant portion of a business or operating unit of a business, or (ii) all or substantially all
of the common stock or other Equity Interests of a Person, and (b) involves the payment of
consideration by the Borrower and its Subsidiaries in excess of $50,000,000; and “Material
Disposition” means any sale, transfer or disposition of property or series of related sales,
transfers, or dispositions of property that yields gross proceeds to the Borrower or any of its
Subsidiaries in excess of $50,000,000.




          “Consolidated Interest Expense” means, with reference to any period, (a) the interest
expense (including without limitation interest expense under Capital Lease Obligations that is
treated as interest in accordance with GAAP) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period with respect to (i) all outstanding Indebtedness of the Borrower
and its Subsidiaries allocable to such period in accordance with GAAP and (ii) Swap Agreements
(including, without limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers acceptance financing and net costs under interest rate
Swap Agreements to the extent such net costs are allocable to such period in accordance with GAAP),
plus (b) the implied interest component of any rents payable for any period pursuant to any
so-called “synthetic lease” for such period.




          “Consolidated Net Income” means, with reference to any period, the net income (or
loss) of the Borrower and its Subsidiaries calculated in accordance with GAAP on a consolidated
basis (without duplication) for such period.




          “Consolidated Total Assets” means, as of the date of any determination thereof, total
assets of the Borrower and its Subsidiaries calculated in accordance with GAAP on a consolidated
basis as of such date.




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




          “Credit Event” means a Borrowing, the issuance of a Letter of Credit, an LC
Disbursement or any of the foregoing.




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




          “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06 to the Disclosure Letter.




          “Disclosure Letter” means the disclosure letter from the Borrower dated as of the date
hereof, as amended or supplemented from time to time by the Borrower with the written consent of
the Administrative Agent, delivered to the Administrative Agent for the benefit of the Lenders.




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




          “Domestic Subsidiary” means any Subsidiary that is incorporated or organized under the
laws of the United States of America, any state thereof or in the District of Columbia.




          “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).





5









 








          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions or notices issued or promulgated by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to employee health and
safety matters.




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




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




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.




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




          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any
Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates
of any liability with respect to the withdrawal or partial withdrawal of the Borrower or any of its
ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition upon the Borrower or any of its ERISA
Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected
to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.




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




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




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the





6









 







Borrower hereunder, (a) income, franchise or similar taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the case of any Lender,
in which its applicable lending office is located, (b) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
2.19(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is
attributable to such Foreign Lender’s failure to comply with Section 2.17(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.17(a).




          “Extended Letter of Credit” has the meaning set forth in Section 2.06(c).




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




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




          “Financials” means the annual or quarterly financial statements, and accompanying
certificates and other documents, of the Borrower and its Subsidiaries required to be delivered
pursuant to Section 5.01(a) or 5.01(b).




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




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




          “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary





7









 







obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.




          “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, friable asbestos, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any Environmental Law.




          “Increasing Lender” has the meaning assigned to such term in Section 2.20.




          “Incremental Term Loan” has the meaning assigned to such term in Section 2.20.




          “Incremental Term Loan Amendment” has the meaning assigned to such term in Section
2.20.




          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person upon which interest charges are paid or
payable, (d) all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations of such Person in
respect of the deferred purchase price of property or services (excluding accounts payable incurred
in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any
Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby
has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of letters of credit and
letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of
bankers’ acceptances, (k) the Net Mark-to Market Exposure of all Swap Obligations of such Person,
and (l) any other Off-Balance Sheet Liability. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.




          “Indemnified Taxes” means Taxes other than (i) Excluded Taxes and (ii) Other Taxes.




          “Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.08.




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




          “Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect, or such
other period as is requested by the Borrower and is acceptable to each Lender; provided,
that (i) if any Interest





8









 







Period would end on a day other than a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Borrowing
only, such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.




          “Issuing Bank” means JPMorgan Chase Bank, National Association, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section
2.06(i). The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.




          “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.




          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that
have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.




          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a Lender hereunder pursuant to an Assignment and Assumption, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the
context otherwise requires, the term “Lenders” includes the Swingline Lender.




          “Letter of Credit” means any letter of credit issued pursuant to this Agreement.




          “Leverage Ratio” means the ratio, determined as of the end of each fiscal quarter of
the Borrower, of Consolidated Debt for Borrowed Money as of the end of such fiscal quarter to
Consolidated EBITDA for the period of 4 consecutive fiscal quarters ending with the end of such
fiscal quarter.




          “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Reuters BBA Libor Rates Page 3750 (or on any successor or substitute page of
such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to deposits in Dollars in the London interbank market) at approximately 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such Interest Period, as the rate
for deposits in Dollars with a maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the “LIBO Rate” with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which deposits in Dollars
of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of
such Interest Period.




          “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or other security interest in, on or of such asset and
(b) the interest of





9









 







a vendor or a lessor under any conditional sale agreement, capital lease or
title retention agreement (or any financing lease having substantially the same economic effect as
any of the foregoing) relating to such asset.




          “Liquidity” means, with respect to the Borrower and its Subsidiaries as of any date of
determination, the sum of all unrestricted cash and unrestricted Permitted Investments which are
not subject to any Lien (other than as permitted under Section 6.02(e)) and which would be included
on the consolidated balance sheet of the Borrower and such Subsidiaries in accordance with GAAP as
of such date of determination.




          “Loan Documents” means this Agreement, the Subsidiary Guaranty, any promissory notes
executed and delivered pursuant to Section 2.10(e) and any and all other instruments and documents
executed and delivered in connection with any of the foregoing.




          “Loan Parties” means, collectively, the Borrower and the Subsidiary Guarantors.




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




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




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




          “Material Subsidiary” means each Subsidiary (a) which, as of the most recent fiscal
quarter of the Borrower, for the period covering the then most recently ended fiscal year and the
portion of the then current fiscal year ending at the end of such fiscal quarter, for which
financial statements have been delivered pursuant to Section 5.01, contributed greater than five
percent (5%) of the Borrower’s Consolidated EBITDA for such period or (b) which contributed greater
than five percent (5%) of the Borrower’s Consolidated Total Assets as of such date.




          “Maturity Date” means November 2, 2012.




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




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.




          “Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the
excess (if any) of all unrealized losses over all unrealized profits of such Person arising from
each Swap Agreement transaction. “Unrealized losses” means the fair market value of the cost to
such Person of replacing such transaction as of the date of determination (assuming such
transaction were to be





10









 







terminated as of that date), and “unrealized profits” means the fair market
value of the gain to such Person of replacing such transaction as of the date of determination
(assuming such transaction was to be terminated as of that date).




          “Obligations” means all indebtedness (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), obligations and liabilities of any of the Borrower and
its Subsidiaries to any of the Lenders and the Administrative Agent, individually or collectively,
existing on the Effective Date or arising thereafter, direct or indirect, joint or several,
absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured,
arising by contract, operation of law or otherwise, arising or incurred under this Agreement or any
of the other Loan Documents or to the Lenders or any of their Affiliates under any Swap Agreement
or Banking Services Agreement or in respect of any
of the Loans made or reimbursement or other obligations incurred or any of the Letters of
Credit or other instruments at any time evidencing any thereof.




          “Off-Balance Sheet Liability” of a Person means (a) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by such Person that is
related to retained credit risk, or (b) any indebtedness, liability or obligation under any
so-called “synthetic lease” transaction entered into by such Person.




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




          “Participant” has the meaning set forth in Section 9.04.




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




          “Permitted Encumbrances” means:




          (a) Liens imposed by law for Taxes or other governmental charges that are not yet due or are
being contested in compliance with Section 5.04;




          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s and other
like Liens imposed by law, arising in the ordinary course of business and securing obligations
that are not overdue by more than sixty (60) days or are being contested in compliance with
Section 5.04;




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




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




          (e) judgment liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII;





11









 








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





     (g) leases or subleases granted to other Persons and not interfering in any material
respect with the business of the lessor or sublessor;




     (h) Liens arising from precautionary Uniform Commercial Code filings or similar filings
relating to operating leases;




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




     (j) Liens on insurance proceeds securing the premium of financed insurance proceeds;




     (k) Liens on cash collateral to secure letters of credit, bank guarantees and banker’s
acceptances and Swap Agreements;




     (l) licenses of intellectual property in the ordinary course of business; and




     (m) any interest or title of a lessor or sublessor under any lease of real property or
personal property;


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




     “Permitted Investments” means:




     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;




     (b) investments in commercial paper maturing within 365 days from the date of
acquisition thereof and having, at such date of acquisition, a rating of “A-2” (or better)
from S&P or “P-2” (or better) from Moody’s;




     (c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of America or any State
thereof or any other country which has a combined capital and surplus and undivided profits
of not less than $500,000,000;




     (d) fully collateralized repurchase agreements with a term of not more than thirty
(30) days for securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above;




     (e) money market funds that (i) comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, as amended, to the




12









 







extent such money market fund is governed thereby, (ii) are rated AA by S&P and Aa by
Moody’s and (iii) have portfolio assets of at least $5,000,000,000;




     (f) investments described in Exhibit G, with a valuation percentage of greater
than 0%; and



     (g) investments made pursuant to a cash management investment policy approved by the
board of directors of the Person making such investment and as in effect on the Effective
Date, as such policy may be amended or otherwise modified from time to time with the written
consent of the Administrative Agent.




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




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




          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, National Association as its prime rate in effect at its principal office in
New York City; each change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.




          “Register” has the meaning set forth in Section 9.04.




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




          “Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time.




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




          “Revolving Loan” means a Loan made pursuant to Section 2.01.




          “S&P” means Standard & Poor’s.




          “Sale and Leaseback Transaction” means any sale or other transfer of assets or
property by any Person with the intent to lease any such asset or property as lessee.




          “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed




13











 







pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.




          “Subordinated Indebtedness” means any Indebtedness of the Borrower or any Subsidiary
the payment of which is subordinated to payment of the obligations under the Loan Documents to the
written satisfaction of the Administrative Agent.




          “Subordinated Indebtedness Documents” means any document, agreement or instrument
evidencing any Subordinated Indebtedness or entered into in connection with any Subordinated
Indebtedness.




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




          “Subsidiary” means any subsidiary of the Borrower.




          “Subsidiary Guarantor” means each Material Subsidiary that is a Domestic Subsidiary.
The Subsidiary Guarantors on the Effective Date are identified as such in Schedule 3.01 to
the Disclosure Letter.




          “Subsidiary Guaranty” means that certain Guaranty dated as of the Effective Date in
the form of Exhibit D (including any and all supplements thereto) and executed by each
Subsidiary Guarantor, and any other guaranty agreements as are requested by the Administrative
Agent and its counsel, in each case as amended, restated, supplemented or otherwise modified from
time to time.




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




          “Swap Obligations” of a Person means any and all obligations of such Person, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
(a) any and all Swap Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any such Swap Agreement transaction.





14









 








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




          “Swingline Lender” means JPMorgan Chase Bank, National Association, in its capacity as
lender of Swingline Loans hereunder.




          “Swingline Loan” means a Loan made pursuant to Section 2.05.




          “Syndication Agent” means BNP Paribas in its capacity as syndication agent for the
credit facility evidenced by this Agreement.




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




          “Transactions” means the execution, delivery and performance by the applicable Loan
Parties of this Agreement and the other Loan Documents, the borrowing of Loans and other credit
extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.




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




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




          SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type
(e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving
Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g.,
a “Eurodollar Revolving Borrowing”).




          SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, restatements supplements or modifications set forth herein), (b)
any reference herein to any Person shall be construed to include such Person’s successors and
assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer
to Articles and Sections of, and Exhibits to this Agreement and Schedules to the Disclosure Letter
and (e) the words “asset” and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.





15









 








          SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.




ARTICLE II




The Credits




          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees to make Revolving Loans to the Borrower in Dollars from time to time during the
Availability Period in an aggregate principal amount that will not result in (a) such Lender’s
Revolving Credit Exposure exceeding such Lender’s Commitment or (b) the sum of the total Revolving
Credit Exposures exceeding the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving
Loans.




          SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part of
a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required to be made by it shall
not relieve any other Lender of its obligations hereunder; provided that the Commitments of
the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make
Loans as required.




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




          (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$1,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $1,000,000; provided
that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of
the Aggregate Commitment or that is required to finance the reimbursement of an LC Disbursement
as contemplated by Section 2.06(e). Each Swingline Loan shall be in an amount that is an
integral multiple of $100,000 and not less than $500,000. Borrowings of more than one Type and
Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of fifteen
(15) Eurodollar Borrowings outstanding.




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





16









 








          SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of the proposed Borrowing; provided that
any such notice of an ABR Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e) may be given not later than 10:00 a.m., New York City time, on the
date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following information in compliance
with Section 2.02:





     (i) the aggregate amount of the requested Borrowing;




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




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




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




     (v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.07.


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




          SECTION 2.04. Intentionally Omitted.




          SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans in Dollars to the Borrower from time to
time during the Availability Period, in an aggregate principal amount at any time outstanding that
will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the Aggregate
Commitment; provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline
Loan. Within the foregoing limits and subject to the terms and conditions set forth herein,
the Borrower may borrow, prepay and reborrow Swingline Loans.




          (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means
of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the
case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in
Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.





17









 








          (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such
Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by
wire transfer of immediately available funds, in the same manner as provided in Section 2.07 with
respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan
shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received
by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect
of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear; provided that any such payment so remitted shall
be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the
extent such payment is required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of
any default in the payment thereof.




          SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit denominated
in Dollars for its own account, in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank, at any time and from time to time during the Availability Period. In the event of
any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form of letter of
credit application or other agreement submitted by the Borrower to, or entered into by the Borrower
with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement
shall control.




          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing Bank) to
the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying
the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date
on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank’s standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended,





18









 







renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed
to represent and warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the amount of LC Exposure shall not exceed $50,000,000 and (ii) the total Revolving
Credit Exposures shall not exceed the Aggregate Commitment.




          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five (5) Business Days prior to the Maturity Date;
provided that, upon the Borrower’s request, any such Letter of Credit which expires in
the final year prior to the Maturity Date may have an expiry date which is one (1) year after the
Maturity Date if cash collateralized or covered by standby letter(s) of credit in compliance with
Section 2.06(j) below (each such Letter of Credit, an “Extended Letter of Credit”).




          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender
hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such
Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of
any reimbursement payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.




          (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of
a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent in Dollars the amount equal to such LC Disbursement, calculated as of the
date the Issuing Bank made such LC Disbursement not later than 12:00 noon, New York City time, on
the date that such LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not
been received by the Borrower prior to such time on such date, then not later than 12:00 noon,
New York City time, on (i) the Business Day that the Borrower receives such notice, if such
notice is received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the
Business Day immediately following the day that the Borrower receives such notice, if such notice
is not received prior to such time on the day of receipt; provided that, if such LC
Disbursement is not less than $1,000,000, the Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed
with an ABR Borrowing or Swingline Loan in an equivalent amount of such LC Disbursement and, to
the extent so financed, the Borrower’s obligation to make such payment shall be discharged and
replaced by the resulting ABR Borrowing or Swingline Loan. If the Borrower fails to make such
payment when due, the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s
Applicable Percentage thereof. Promptly following receipt of such notice, each Lender shall pay
to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower,
in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and
Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the






19









 







Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the Issuing Bank or, to the extent that Lenders have made payments pursuant to
this paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their
interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse the
Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.




          (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements
as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the circumstances referred to
in the preceding sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any
document required to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank’s failure to
exercise care when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of
gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by
a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in
each such determination. In furtherance of the foregoing and without limiting the generality
thereof, the parties agree that, with respect to documents presented which appear on their face
to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in
its sole discretion, either accept and make payment upon such documents without responsibility
for further investigation, regardless of any notice or information to the contrary, or refuse to
accept and make payment upon such documents if such documents are not in strict compliance with
the terms of such Letter of Credit.




          (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has
made or will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the Lenders with respect to any such LC Disbursement.





20









 








          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e)
of this Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Bank, except that interest accrued on and after the date
of payment by any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.




          (i) Replacement of Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant
to Section 2.12(b). From and after the effective date of any such replacement, (i) the successor
Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit then outstanding and issued by it
prior to such replacement, but shall not be required to issue additional Letters of Credit.




          (j) Cash Collateralization. If (x) any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the Administrative Agent
or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC
Exposure representing greater than 50% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph or (y) the Borrower requests the issuance of an Extended
Letter of Credit, the Borrower shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to
105% of the amount of the LC Exposure in respect of such Extended Letter of Credit (in the case
of the foregoing clause (y)) or in the aggregate (in the case of the foregoing clause (x)) as of
such date plus any accrued and unpaid interest thereon; provided that the obligation to
deposit such cash collateral shall (1) be required by no later than five (5) Business Days prior
to the Maturity Date in the case of an Extended Letter of Credit and (2) become effective
immediately, and such deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Article VII. Such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the Obligations. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of withdrawal, over such
account, and the Borrower hereby grants the Administrative Agent a security interest in such
account. Other than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s
risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy other obligations
of the Borrower under this Agreement. If the Borrower is required to provide an amount of





21









 







cash
collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days
after all Events of Default have been cured or waived.




          SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be
made as provided in Section 2.05. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City and designated by the Borrower
in the applicable Borrowing Request; provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be remitted by the
Administrative Agent to the Issuing Bank.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative
Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with paragraph (a) of this Section and
may,
in reliance upon such assumption, make available to the Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.




          SECTION 2.08. Interest Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may
not be converted or continued.




          (b) To make an election pursuant to this Section (an “Interest Election Request”),
the Borrower shall notify the Administrative Agent of such election by telephone by the time that
a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a
Borrowing of the Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by the Borrower.
Notwithstanding any contrary provision herein, this Section shall not be construed to permit the
Borrower to elect an Interest Period for Eurodollar Loans that does not comply with Section
2.02(d).




          (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:






22











 




 

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




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




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




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


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




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




          (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless
such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing
shall be continued as a Eurodollar Borrowing with an Interest Period of one month’s duration
unless such Interest Period would end after the Maturity Date, in which event such Borrowing
shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an
Event of Default has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Borrowing may be converted to or continued beyond its then current
Interest Period as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall
be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.




          SECTION 2.09. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Commitments shall terminate on the Maturity Date.




          (b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $25,000,000 and not less than $25,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.11, the sum of the Revolving Credit Exposures would exceed the
Aggregate Commitment.




          (c) The Borrower shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section at least three (3) Business Days prior
to the effective date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each notice
delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case such 

23










 







notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments shall be made ratably among
the Lenders in accordance with their respective Commitments.




          SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date
and the first date after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least two (2) Business Days after such Swingline Loan is made; provided
that on each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans
then outstanding.




          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.




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




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




          (e) Any Lender may request that Loans made by it be evidenced by a promissory note. In
such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is a registered
note, to such payee and its registered assigns).




          SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing without premium or penalty (but subject to
Section 2.16) in whole or in part, subject to prior notice in accordance with paragraph (c) of this
Section.




          (b) [Intentionally Omitted].




          (c) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of
a Swingline Loan, the Swingline Lender) by telephone (confirmed by email to
claudia.kech@jpmchase.com) or such other email addresses as are specified by the Administrative
Agent to the Borrower from time to time) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three (3)
Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR Borrowing,
not later than 11:00 a.m.,


24










 







New York City time, one Business Day before the date of prepayment or
(iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.09, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with Section 2.09.
Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Borrowing shall be applied ratably to the
Loans included in such prepaid Borrowing. Prepayments shall be accompanied by (i) accrued
interest to the extent required by Section 2.13.




          SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee, which shall accrue at the Applicable Rate on the daily
amount of the Commitment of such Lender (whether used or unused) during the period from and
including the Effective Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then such facility fee shall continue to accrue on the daily amount of such
Lender’s Revolving Credit Exposure from and including the date on which its Commitment terminates
to but excluding the date on which such Lender ceases to have any Revolving Credit Exposure.
Accrued facility fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate, commencing on the first
such date to occur after the date hereof; provided that any facility fees accruing after
the date on which the Commitments terminate shall be payable on demand. All facility fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).




          (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date on which such Lender’s Commitment terminates and the
date on which such Lender ceases to have any LC Exposure and (ii) to the Issuing Bank a fronting
fee, which shall accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable
to Letters of Credit issued by the Issuing Bank during the period from and including the Effective
Date to but excluding the later of the date of termination of the Commitments and the date on which
there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees and commissions
with respect to the issuance, amendment, cancellation, negotiation, transfer, presentment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Unless otherwise specified above,
participation fees and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third (3rd) Business Day
following such last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the Commitments terminate
and any such fees accruing after the date on which the Commitments terminate shall be payable on
demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable
within ten (10) days after demand. All participation fees and fronting fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).




25










 








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




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




          SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the Alternate Base Rate.




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




          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee
or other amount payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well
as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any
Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans
as provided in paragraph (a) of this Section.




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




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




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





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




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



26










 





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




          SECTION 2.15. Increased Costs. (a) If any Change in Law shall:





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




     (ii) impose on any Lender or the Issuing Bank or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made by such Lender or any
Letter of Credit or participation therein;


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




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




          (c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail the
calculation of the amount or amounts necessary to compensate such Lender or the Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any
such certificate within thirty (30) days after receipt thereof.




          (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s
right to demand such compensation; provided that the Borrower shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of


27










 







such Lender’s or the Issuing Bank’s intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.




          SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default or as a result of any applicable prepayment
pursuant to Section 2.11), (b) the conversion of any Eurodollar Loan other than on the last day of
the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any
Eurodollar Loan on the date specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.11(b) and is revoked in accordance therewith) or
(d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any
such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable
to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount
of interest which would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period therefor (or, in
the case of a failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would bid were it to bid,
at the commencement of such period, for deposits in Dollars of a comparable amount and period from
other banks in the eurodollar market. A certificate of any Lender setting forth in reasonable
detail the calculation of any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within thirty (30)
days after receipt thereof.




          SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or Issuing Bank (as
the case may be) receives an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.




          (b) In addition, the Borrower shall pay any Other Taxes imposed on or incurred by the
Administrative Agent, a Lender or the Issuing Bank to the relevant Governmental Authority in
accordance with applicable law.




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


28











 







Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest
error.




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




          (e) Any Lender that is entitled to an exemption from or reduction of withholding tax under
the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be made without withholding
or at a reduced rate.




          (f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.17,
it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section 2.17 with respect to the Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent or such Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the Borrower, upon
the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to repay such refund to
such Governmental Authority. This Section shall not be construed to require the Administrative
Agent or any Lender to make available its tax returns (or any other information relating to its
taxes which it deems confidential) to the Borrower or any other Person.




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




          (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Section 2.15, 2.16 or 2.17, or otherwise) prior to 3:00 p.m., New York City time on the date when
due, in immediately available funds, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York 10017, except payments to be made directly to the Issuing Bank or Swingline Lender
as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and
9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due
on a day that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall be made in
Dollars.




          (b) [Intentionally Omitted].


29










 







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




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




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




          (f) If any Lender shall fail to make any payment required to be made by it pursuant to
2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under
such Sections until all such unsatisfied obligations are fully paid.



30










 




 

          SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or
2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.




          (b) If any Lender requests compensation under Section 2.15, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under the Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.




          SECTION 2.20. Expansion Option. The Borrower may from time to time elect to increase
the Commitments or enter into one or more tranches of term loans (each an “Incremental Term
Loan”), in each case in minimum increments of $25,000,000 so long as, after giving effect
thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed
$250,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or
more Lenders (each Lender so agreeing to an increase in its Commitment, or to participate in such
Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial
institutions or other entities (each such new bank, financial institution or other entity, an
“Augmenting Lender”), to increase their existing Commitments, or to participate in such
Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each
Augmenting Lender, shall be subject to the approval of the Borrower and the Administrative Agent
and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute
an agreement substantially in the form of Exhibit F hereto, and (y) in the case of an
Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in
the form of Exhibit G hereto. Increases and new Commitments and Incremental Term Loans
created pursuant to this Section 2.20 shall become effective on the date agreed by the Borrower,
the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders and the
Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase
in the Commitments (or in the Commitment of any Lender) or tranche of Incremental Term Loans shall
become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such
increase or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of
Section 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent
shall have received a


31










 







certificate to that effect dated such date and executed by a Financial
Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis
reasonably acceptable to the Administrative Agent) with the covenants contained in Section 6.07 and
(ii) the Administrative Agent shall have received documents consistent with those delivered on the
Effective Date as to the corporate power and authority of the Borrower to borrow hereunder after
giving effect to such increase. On the effective date of any increase in the Commitments or any
Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall
make available to the Administrative Agent such amounts in immediately available funds as the
Administrative Agent shall determine, for the benefit of the other Lenders, as being required in
order to cause, after giving effect to such increase and the use of such amounts to make payments
to such other Lenders, each Lender’s portion of the outstanding Revolving Loans of all the Lenders
to equal its Applicable Percentage of such outstanding Revolving Loans, and (ii) except in the case
of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all
outstanding Revolving Loans as of the date of any increase in the Commitments (with such
reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if
applicable, specified in a notice delivered by the Borrower, in accordance with the
requirements of Section 2.03). The deemed payments made pursuant to clause (ii) of the immediately
preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid
and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the Borrower
pursuant to the provisions of Section 2.16 if the deemed payment occurs other than on the last day
of the related Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of
payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have
amortization prior to such date) and (c) shall be treated substantially the same as (and in any
event no more favorably than) the Revolving Loans; provided that (i) the terms and
conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may
provide for material additional or different financial or other covenants or prepayment
requirements applicable only during periods after the Maturity Date and (ii) the Incremental Term
Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made
hereunder pursuant to an amendment (an “Incremental Term Loan Amendment”) to this Agreement
and, as appropriate, the other Loan Documents, executed by the Borrower, each Augmenting Lender
participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan
Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement
and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the
Administrative Agent, to effect the provisions of this Section 2.20.




          SECTION 2.21. Senior Debt. The Borrower hereby designates all Obligations now or
hereinafter incurred or otherwise outstanding, and agrees that the Obligations shall at all times
constitute, senior indebtedness and designated senior indebtedness, or terms of similar import,
which are entitled to the benefits of the subordination provisions of all Subordinated
Indebtedness.




ARTICLE III




Representations and Warranties




          The Borrower represents and warrants to the Lenders that:




          SECTION 3.01. Organization; Powers; Subsidiaries. Each of the Borrower and its
Subsidiaries is duly incorporated or organized, validly existing and in good standing (to the
extent such concept applies to such entity) under the laws of the jurisdiction of its incorporation
or organization, as the case may be, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, is qualified to do
business in, and is in good standing in, every


32










 







jurisdiction
where such qualification is required. Schedule 3.01 to the Disclosure Letter (as supplemented from time to time) identifies each
Subsidiary, if such Subsidiary is a Material Subsidiary that is a Domestic Subsidiary, the
jurisdiction of its incorporation or organization, as the case may be, the percentage of issued and
outstanding shares of each class in its capital or other equity interests owned by the Borrower and
the other Subsidiaries and, if such percentage is not 100% (excluding directors’ qualifying shares
as required by law), a description of each class issued and outstanding. All of the outstanding
shares in its capital and other equity interests of each Subsidiary are validly issued and
outstanding and fully paid and nonassessable and all such shares and other equity interests
indicated on Schedule 3.01 to the Disclosure Letter as owned by the Borrower or another
Subsidiary are owned, beneficially, legally and/or of record, by the Borrower or any Subsidiary
free and clear of all Liens other than Permitted Encumbrances. Except as indicated on Schedule
3.01 to the Disclosure Letter, there are no outstanding commitments or other obligations of the Borrower
or any Subsidiary to issue, and no options, warrants or other rights of any Person to acquire, any
shares of any class in its capital or other equity interests of the Borrower or any Subsidiary.




          SECTION 3.02. Authorization; Enforceability. The Transactions are within each Loan
Party’s corporate or other powers and have been duly authorized by all necessary corporate and, if
required, stockholder or shareholder action. The Loan Documents to which each Loan Party is a
party have been duly executed and delivered by such Loan Party and constitute a legal, valid and
binding obligation of such Loan Party, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.




          SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect,
(b) will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any Loan Party or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture, material agreement or
other material instrument binding upon the Borrower or any of its Subsidiaries or its assets, or
give rise to a right thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.




          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended April 27, 2007 reported
on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended July 27, 2007, certified by its chief financial
officer. Such financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries
as of such dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred to in clause (ii)
above.




          (b) Since April 27, 2007, there has been no material adverse change in the business,
assets, operations or condition, financial or otherwise, of the Borrower and its Subsidiaries,
taken as a whole.




          SECTION 3.05. Properties and Insurance. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property
material to its business, except for minor defects in title that do not interfere with its ability
to conduct its business as currently conducted or to utilize such properties for their intended
purposes. The Borrower maintains, and has


33










 







caused each Subsidiary to maintain, with financially
sound and reputable insurance companies insurance on all their real and personal property in such
amounts, subject to such deductibles and self-insurance retentions and covering such properties and
risks as are customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations. There are no Liens on any of the real or personal
properties of the Borrower or any Subsidiary except for Liens permitted by Section 6.02.




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




          SECTION 3.06. Litigation, Labor Matters and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against
or, to the knowledge of the Borrower, threatened against the Borrower or any of its Subsidiaries
(i) as to which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or
the Transactions.




          (b) There are no labor controversies pending against or, to the knowledge of the Borrower,
threatened against the Borrower or any of its Subsidiaries (i) which could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that
involve this Agreement or the Transactions.




          (c) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, none of the Borrower or any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability,
(iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows
of any basis for any Environmental Liability.




          (d) Since the date of this Agreement, there has been no change in the status of the
Disclosed Matters that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.




          SECTION 3.07. Compliance with Laws and Agreements; No Burdensome Restrictions. Each
of the Borrower and its Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except, in each case, where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. Neither the Borrower nor any Subsidiary is party or subject to any law, regulation, rule
or order, or any obligation under any agreement or instrument, that has had, or could reasonably be
expected to result in, a Material Adverse Effect. The Borrower is not subject to any Burdensome
Restrictions except Burdensome Restrictions permitted by reference to Section 6.06.




          SECTION 3.08. Investment Company Status. Neither the Borrower nor any of its
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended.




34










 








          SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable,
has set aside on its books adequate reserves or (b) to the extent that the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.




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




          SECTION 3.11. Disclosure. To the extent not previously disclosed pursuant to the
Borrower’s filings with the Securities and Exchange Commission on or prior to the Effective Date,
the Borrower has disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Affiliates is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. None of the written reports, financial statements, certificates or other written
information furnished by or on behalf of the Borrower or any Subsidiary to the Administrative Agent
or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any material misstatement of
fact or, when taken together with the Borrower’s filings with the Securities and Exchange
Commission, omits to state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that, with
respect to projected financial information or results, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be reasonable at the
time.




          SECTION 3.12. Federal Reserve Regulations. No part of the proceeds of any Loan have
been used or will be used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and X. Following the
application of the proceeds of each Borrowing, not more than 25% of the value of the assets (either
of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to
the provisions of Section 6.02 or Section 6.03 or subject to any restriction contained in any Loan
Document will be “margin stock” within the meaning of Regulation U.




          SECTION 3.13. No Default. No Default has occurred and is continuing.




ARTICLE IV




Conditions




          SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of
the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section 9.02):




     (a) The Administrative Agent (or its counsel) shall have received from (i) each party
hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B)
written evidence satisfactory to the Administrative Agent (which may include telecopy or
electronic transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement and (ii) each initial Subsidiary Guarantor either
(A) a counterpart of the Subsidiary Guaranty signed on behalf of such Subsidiary Guarantor
or (B) written evidence


35










 







satisfactory to the Administrative Agent (which may include
telecopy or electronic transmission of a signed signature page of the Subsidiary Guaranty)
that such Subsidiary Guarantor has signed a counterpart of the Subsidiary Guaranty.




     (b) The Administrative Agent shall have received a favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the Effective Date) of
Wilson Sonsini Goodrich & Rosati, P.C., counsel for the Loan Parties, substantially in the
form of Exhibit B, and covering such other matters relating to the Loan Parties,
the Loan Documents or the Transactions as the Administrative Agent shall reasonably
request. The Borrower hereby requests such counsel to deliver such opinion.




     (c) The Lenders shall have received (i) satisfactory audited consolidated financial
statements of the Borrower for the two most recent fiscal years ended prior to the
Effective Date as to which such financial statements are available, (ii) satisfactory
unaudited interim consolidated financial statements of the Borrower for each quarterly
period ended subsequent to the date of the latest financial statements delivered pursuant
to clause (i) of this paragraph as to which such financial statements are publicly
available and (iii) satisfactory financial statement projections through and including the
Borrower’s 2012 fiscal year, together with such information as the Administrative Agent and
the Lenders shall reasonably request (including, without limitation, a detailed description
of the assumptions used in preparing such projections).




     (d) The Administrative Agent shall have received such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating to the
incorporation or organization, existence and good standing of the initial Loan Parties, the
authorization of the Transactions and any other legal matters relating to such Loan
Parties, the Loan Documents or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel and as further described in the
list of closing documents attached as Exhibit C.




     (e) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the Chief Executive Officer or a Financial Officer, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.




     (f) The Administrative Agent shall have received evidence reasonably satisfactory to
it that all governmental and third party approvals necessary or, in the discretion of the
Administrative Agent, advisable in connection with the Transactions and the continuing
operations of the Borrower and its Subsidiaries have been obtained and are in full force
and effect.




     (g) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement
or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.



The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding.




          SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:



 36










 





          (a) The representations and warranties of the Borrower set forth in this Agreement
shall be true and correct in all material respects on and as of the date of such
Borrowing except to the extent such representation and warranty specifically refers to
an earlier date, in which case it shall be true and correct in all material respects as of
such earlier date.




          (b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.



Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section. The Administrative Agent shall notify
the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and
binding.




ARTICLE V




Affirmative Covenants




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




          SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish
to the Administrative Agent and each Lender:




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




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




     (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a compliance certificate of a Financial Officer of the Borrower in the form of
Exhibit E hereto (i) certifying as to whether a Default has occurred and is
continuing and, if a Default has occurred and is continuing, specifying the details thereof and any
action taken or proposed to be taken with


37










 







respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.07 and (iii) stating whether
any change in GAAP or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying such
certificate;




     (d) promptly after the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed by the Borrower or any Subsidiary
with the Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national securities exchange,
or distributed by the Borrower to its shareholders generally, as the case may be; and




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



Reports or financial information required to be delivered pursuant to Sections 5.01(a) or 5.01(b)
(to the extent any such financial statements, reports, proxy statements or other materials are
included in materials otherwise filed with the Securities and Exchange Commission) may be delivered
electronically and if so, shall be deemed to have been delivered on the date on which Borrower
posts such report or provides a link thereto on its website on the internet; provided that Borrower
shall provide paper copies to the Administrative Agent of the compliance certificates required by
Section 5.01(c). Notwithstanding the foregoing, the Borrower shall deliver paper copies of any
financial statement referred to in Section 5.01 to the Administrative Agent if the Administrative
Agent requests the Borrower to furnish such paper copies until written notice to cease delivering
such paper copies is given by the Administrative Agent.




          SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:




     (a) the occurrence of any Default;




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




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




     (d) any other development that results in a Material Adverse Effect.



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




          SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business except where the failure to do so would not
reasonably be expected to result in



38










 







a Material Adverse Effect; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section
6.03.



          SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could
reasonably be expected to result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make
payment pending such contest could not reasonably be expected to result in a Material Adverse
Effect.




          SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will
cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted, except where the
failure to do so could not reasonably be expected to result in a Material Adverse Effect and (b)
maintain, with financially sound and reputable insurance companies, insurance in such amounts and
against such risks as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.




          SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made in all material respects and sufficient to prepare financial statements in
accordance with GAAP. The Borrower will, and will cause each of its Material Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender, upon reasonable
prior notice, to visit and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested. Notwithstanding
the foregoing, neither the Borrower nor its Subsidiaries shall be required to disclose or discuss,
or permit the inspection, examination or making of extracts of any document, book, record or other
matter that (i) constitutes non-financial trade secrets or non-financial proprietary information,
(ii) in respect of which disclosure to the Administrative Agent, such Lender or their
representatives is then prohibited by applicable law or any agreement binding on Borrower or its
Subsidiaries or (iii) is protected from disclosure by the attorney-client privilege or the attorney
work product privilege.




          SECTION 5.07. Compliance with Laws and Contractual Obligations. The Borrower will,
and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and orders of
any Governmental Authority (including without limitation Environmental Laws), and all agreements
and other contractual instruments, applicable to it or its property, except where the failure to do
so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.




          SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only to
finance the working capital needs, and for general corporate purposes, of the Borrower and its
Subsidiaries in the ordinary course of business. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations T, U and X. Following the application of the proceeds of
each Borrowing, not more than 25% of the value of the assets (either of the Borrower only or of the
Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section 6.02 or
Section 6.03 or subject to any restriction contained in any Loan Document will be “margin stock”
within the meaning of Regulation U.




39










 







          SECTION 5.09. Subsidiary Guaranty. As promptly as possible but in any event within
thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) after any
Domestic Subsidiary qualifies as, or is designated by the Borrower or the Administrative Agent as,
a Subsidiary Guarantor pursuant to the definitions of “Material Subsidiary” and “Subsidiary
Guarantor”, the Borrower shall provide the Administrative Agent with written notice thereof setting
forth information in reasonable detail describing the material assets of such Person and shall
cause each such Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the
Administrative Agent a joinder to the Subsidiary Guaranty (in the form contemplated thereby)
pursuant to which such Subsidiary agrees to be bound by the terms and provisions of thereof, such
Subsidiary Guaranty to be accompanied by appropriate corporate resolutions, other corporate
documentation and legal opinions in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.




ARTICLE VI




Negative Covenants




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




          SECTION 6.01. Subsidiary Indebtedness. The Borrower will not permit any Subsidiary
to create, incur, assume or permit to exist any Indebtedness, except:




          (a) the Obligations and any other Indebtedness created under the Loan Documents;




          (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 to the
Disclosure Letter and extensions, renewals and replacements of any such Indebtedness that do not
increase the then outstanding principal amount thereof;




          (c) Indebtedness of (i) any Subsidiary to any Loan Party and (ii) any Subsidiary that is
not a Loan Party to any other Subsidiary that is not a Loan Party;




          (d) Guarantees by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;




          (e) Indebtedness of any Subsidiary incurred to finance the acquisition, construction or
improvements of any fixed or capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien
on any such assets (and additions, accessions, parts, improvement and attachments thereto and the
proceeds thereof) prior to the acquisition thereof, and extensions, renewals and replacements of
any such Indebtedness that do not increase the then outstanding principal amount thereof;
provided that such Indebtedness is incurred prior to or
 within 120 days after such acquisition or the completion of such construction or
improvement; and extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof;




          (f) Indebtedness of any Person that becomes a Subsidiary after the date hereof;
provided that such Indebtedness exists at the time such Person becomes a Subsidiary and
is not created in contemplation of or in connection with such Person becoming a Subsidiary, and
extensions,


40










 







renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof;




          (g) Indebtedness of any Subsidiary as an account party in respect of letters of credit,
bank guarantees and bankers’ acceptances;




          (h) Indebtedness of any Subsidiary as a guarantor under each of (i) the Secured Credit
Agreement dated as of October 5, 2007 by and among the Borrower and JPMorgan Chase Bank, National
Association as initial lender and as administrative agent and (ii) the Loan Agreement dated as of
March 31, 2006 by and among Network Appliance Global Ltd. and JPMorgan Chase Bank, National
Association as initial lender and as administrative agent;




          (i) Indebtedness in respect of Swap Agreements permitted under Section 6.04;




          (j) Indebtedness of Subsidiaries which are not Loan Parties in an aggregate principal
amount not exceeding 5% of Consolidated Total Assets at any time outstanding; and




          (k) other Indebtedness of any Subsidiary which is a Loan Party so long as, at the time of
the incurrence thereof and after giving effect thereto (on a pro forma basis), the Borrower is in
pro forma compliance with the maximum Leverage Ratio permitted under Section 6.07(a).




          SECTION 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it (and for purposes hereof, any capital stock issued by the Borrower which is held by
the Borrower as treasury stock shall not be deemed to be property or an asset of the Borrower and
shall not be subject to this Section 6.02), or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:




          (a) Permitted Encumbrances;




          (b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the
date hereof and set forth in Schedule 6.02 to the Disclosure Letter; provided
that (i) such Lien shall not apply to any other property or asset of the Borrower or any
Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the date
hereof and extensions, renewals and replacements thereof that do not increase the outstanding
principal amount thereof;




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




          (d) Liens on fixed or capital assets (and additions, accessions, parts, improvements and
attachments thereto and the proceeds thereof) acquired, constructed or improved by the Borrower
or any Subsidiary; provided that (i) such security interests secure Indebtedness not
otherwise prohibited under this Agreement, (ii) such security interests and the Indebtedness
secured thereby are incurred prior to or within one hundred twenty (120) days after such
acquisition or the completion of



41










 







such construction or improvement, (iii) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital
assets and (iv) such security interests shall not apply to any other property or assets of the
Borrower or any Subsidiary;



          (e) customary bankers’ Liens and rights of setoff arising by operation of law or contract
and incurred on deposits made in the ordinary course of business or on deposit or securities
accounts;




          (f) assignments of the right to receive income effected (i) as a part of the sale of a
Subsidiary or a business unit or (ii) for factoring in the ordinary course of business;




          (g) Liens on any cash earnest money deposit made by the Borrower or any Subsidiary in
connection with any letter of intent or acquisition agreement that is not prohibited by this
Agreement;




          (h) customary Liens granted in favor a trustee to secure fees and other amounts owing to
such trustee under an indenture or other agreement pursuant to Indebtedness not otherwise
prohibited under this Agreement;




          (i) Liens created under the “Collateral Documents” under, and as defined in, the Secured
Credit Agreement dated as of October 5, 2007 by and among the Borrower and JPMorgan Chase Bank,
National Association as initial lender and as administrative agent and under, and as defined in,
the Loan Agreement dated as of March 31, 2006 by and among Network Appliance Global Ltd. and
JPMorgan Chase Bank, National Association as initial lender and as administrative agent;




          (j) Liens against properties leased or covered under Borrower’s synthetic lease facilities
to secure Borrower’s obligations under the documents governing such facilities, or granted
against any such property to secure Indebtedness incurred to repay any such facility or purchase
any such property and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof; and




          (k) other Liens on assets securing Indebtedness or other obligations not prohibited
hereunder in an aggregate amount not to exceed $50,000,000 at any time outstanding.




          SECTION 6.03. Fundamental Changes and Asset Sales.




     (a) The Borrower will not, and will not permit any Subsidiary to, merge into, consolidate
with, or otherwise be acquired by, any other Person, or sell, transfer, lease or otherwise
dispose (including pursuant to a Sale and Leaseback Transaction) of (in one transaction or in a
series of transactions) all or substantially all of its assets, or all or substantially all of
the stock of any of its Subsidiaries (in each case, whether now owned or here-after acquired, and
for purposes hereof, any capital stock issued by the Borrower which is held by the Borrower as
treasury stock shall not be deemed to be property or an asset of the Borrower and shall not be
subject to this Section 6.03), or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be continuing (i) any
Subsidiary may merge into a Loan Party in a transaction in which the surviving entity is such
Loan Party (provided that any such merger involving the Borrower must result in the Borrower as
the surviving entity), (ii) any wholly owned Subsidiary may merge into or consolidate with any
wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned
Subsidiary and no Person other than the Borrower or a wholly owned Subsidiary receives any
consideration, provided that if any such merger described in this clause (ii) shall involve a
Loan Party, the surviving entity of such merger shall be a Loan Party, (iii) any


42










 







Subsidiary may sell, transfer, lease or otherwise dispose of its assets to a Loan Party or any wholly owned
Subsidiary pursuant to a transaction not otherwise prohibited under this Agreement, (iv) any
Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower, (v) the Borrower may merge
with any other Person so long as the Borrower is the surviving entity, (vi) any Subsidiary may
merge with any other Person so long as the surviving entity is, in the case of a Subsidiary
Guarantor, the Subsidiary Guarantor, and in all other cases, a wholly owned Subsidiary and (vii)
any Subsidiary other than a Subsidiary Guarantor may merge into, and Borrower or any Subsidiary
may dispose of assets to, any other Person so long as Borrower delivers a certificate to the
Administrative Agent demonstrating pro forma compliance with Section 6.07 after giving effect to
such transaction.




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




          (c) The Borrower will not, and will not permit any of its Subsidiaries to, change its
fiscal year to end on a day other than as such fiscal year end is currently determined or change
the Borrower’s method of determining fiscal quarters.




          SECTION 6.04. Speculative Swap Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements
entered into to hedge or mitigate risks to which the Borrower or any Subsidiary has actual exposure
(other than those in respect of Equity Interests or Subordinated Indebtedness of the Borrower or
any of its Subsidiaries), and (b) Swap Agreements entered into in order to effectively cap, collar
or exchange interest rates (from fixed to floating rates, from one floating rate to another
floating rate or otherwise) with respect to any interest-bearing liability or investment of the
Borrower or any Subsidiary.




          SECTION 6.05. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or
among the Borrower and its wholly owned Subsidiaries not involving any other Affiliate, (c) to
enter into indemnification arrangements with or to pay customary fees and reimburse out-of-pocket
expenses of directors or (d) as set forth on the Disclosure Letter.




          SECTION 6.06. Restrictive Agreements. The Borrower will not, and will not permit any
of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or
assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the Borrower or any
other Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions imposed by
law, by any Loan Document, by any document relating to the Borrower’s unsecured syndicated
revolving credit facility from certain lenders and JPMorgan Chase Bank, National Association as
administrative agent, or by any document relating to the Borrower’s synthetic lease facilities,
(ii) the foregoing shall not apply to restrictions and conditions existing on the date hereof
identified on Schedule 6.06 to the Disclosure Letter (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of


43










 







assets or of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to such assets or such Subsidiary that are to be sold and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions
or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement
if such restrictions or conditions apply only to the property or assets securing such Indebtedness
and (v) clause (a) of the foregoing shall not apply to customary provisions in leases, licenses,
joint venture agreements and other agreements entered into in the ordinary course of business
restricting the assignment thereof.




          SECTION 6.07. Financial Covenants.




          (a) Maximum Leverage Ratio. The Borrower will not permit the Leverage Ratio to be
greater than 3.0 to 1.0.




          (b) Minimum Liquidity. The Borrower and its Subsidiaries on a consolidated basis
shall maintain, at all times, Liquidity of not less than $300,000,000.




ARTICLE VII




Events of Default




     If any of the following events (“Events of Default”) shall occur:



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




          (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this
Agreement, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three (3) Business Days;




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




          (d) (i) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02(a), 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 or in
Article VI or (ii) any Loan Document shall for any reason not be or shall cease to be in full
force and effect or is declared to be null and void, or the Borrower or any Subsidiary takes any
action for the purpose of terminating, repudiating or rescinding any Loan Document or any of its
obligations thereunder;




          (e) any Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in any Loan Document (other than those specified in clause (a), (b) or (d) of this
Article) and such failure shall continue unremedied for a period of thirty (30) days after notice
thereof from the Administrative Agent to the Borrower (which notice will be given at the request
of the Required Lenders);





44










 








          (f) the Borrower or any Subsidiary shall fail to make any payment of principal or interest
in respect of any Material Indebtedness, when and as the same shall become due and payable after
giving effect to any applicable grace period;




          (g) with respect to any Material Indebtedness, any event or condition occurs that results
in such Material Indebtedness becoming due prior to its scheduled maturity (other than by
regularly scheduled redemptions or by conversion of any convertible debt instrument pursuant to
its terms unless such redemption or conversion results from a default thereunder or an event of
the type that constitutes an Event of Default) or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or holders of such Material Indebtedness
or any trustee or agent on its or their behalf to cause such Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness;




          (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any
Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Material Subsidiary or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days
or an order or decree approving or ordering any of the foregoing shall be entered;






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




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




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




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




          (m) a Change in Control shall occur;




45










 







then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other Obligations accrued under the Loan Documents, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other Obligations accrued under the Loan Documents, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower. Upon the occurrence and during the continuance of an Event of Default, the
Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and
remedies provided to the Administrative Agent under the Loan Documents or at law or equity.




ARTICLE VIII




The Administrative Agent




          Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf, including
execution of the other Loan Documents, and to exercise such powers as are delegated to the
Administrative Agent by the terms of the Loan Documents, together with such actions and powers as
are reasonably incidental thereto.




          The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.




          The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent
shall not be liable for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by the Borrower


46










 







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




          The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for one or
more of the Loan Parties), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.




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




          Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to
a successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while it was acting
as Administrative Agent.




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





47













 





          None of the Lenders, if any, identified in this Agreement as a Syndication Agent or
Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Lenders as such. Without limiting the
foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any
Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in
their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it
makes with respect to the Administrative Agent in the preceding paragraph.




          The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right
on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after
the date such principal or interest has become due and payable pursuant to the terms of this
Agreement.




ARTICLE IX




Miscellaneous




          SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:





     (i) if to the Borrower, to it at 7301 Kit Creek Road, P.O. Box 13917 Research Triangle
Park, North Carolina 27709, Attention of Ingemar Lanevi, Vice President, Corporate Treasurer
(Telecopy No. (408) 822-4412), with a copy to 495 East Java Drive, Sunnyvale, California
94089, Attention of Christopher Afarian (Telecopy No. (408) 822-4455);




     (ii) if to the Administrative Agent, to JPMorgan Chase Bank, National Association, 10
South Dearborn, 7th Floor, Chicago, Illinois 60603, Attention of Claudia Kech
(Telecopy No. (312) 385-7096), with a copy to JPMorgan Chase Bank, National Association, 560
Mission Street, 18th Floor, San Francisco, California 94105, Attention of Alex
McKindra (Telecopy No. (415) 315-8483) and JPMorgan Chase Bank, National Association, 277
Park Avenue, 16th Floor, New York, New York 10172, Attention of Anthony Galea
(Telecopy No. (866) 682-7113);




     (iii) if to the Issuing Bank, to it at JPMorgan Chase Bank, National Association, 10
South Dearborn, 7th Floor, Chicago, Illinois 60603, Attention of Claudia Kech (Telecopy No.
(312) 385-7096);




     (iv) if to the Swingline Lender, to it at JPMorgan Chase Bank, National Association,
10 South Dearborn, 7th Floor, Chicago, Illinois 60603, Attention of Claudia Kech (Telecopy
No. (312) 385-7096); and




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



          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may,





48









 







in its discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that approval
of such procedures may be limited to particular notices or communications.




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




          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing
Bank may have had notice or knowledge of such Default at the time.




          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the Borrower and the
Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender directly affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender directly affected thereby, (iv) change Section 2.18 (c) or (d) in a manner
that would alter the pro rata sharing of payments required thereby, without the written consent
of each Lender, (v) change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender or (vi) release all or substantially all of
the Subsidiary Guarantors from their respective obligations under the Subsidiary Guaranty,
without the written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Issuing Bank or the Swingline Lender hereunder without the prior written consent of
the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be.




          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
in connection with the preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in





49









 







connection with the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Bank or any Lender, including the reasonable fees, charges and
disbursements of any counsel for the Administrative Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.




          (b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related reasonable expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of
any Loan Document or any agreement or instrument contemplated thereby, the performance by the
parties hereto of their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated thereby, (ii) any Loan or Letter of Credit or the use of
the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the Borrower or any
of its Subsidiaries, or any Environmental Liability of the Borrower or any of its Subsidiaries,
or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any
of the foregoing, whether based on contract, tort or any other theory to the extent any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final and nonappealable judgment
to have resulted from the gross negligence or willful misconduct of such Indemnitee.




          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to
the Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank
or the Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount (it being understood that the Borrower’s failure to pay any such amount shall not
relieve the Borrower of any default in the payment thereof); provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank or
the Swingline Lender in its capacity as such.




          (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, the Loan Documents or any agreement or instrument
contemplated thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.




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




          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that





50









 







(i) the Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign
or otherwise transfer its rights or obligations hereunder except in accordance with this Section.
Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns permitted hereby (including
any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.





     (b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at the time owing
to it) with the prior written consent (such consent not to be unreasonably withheld) of (A)
the Administrative Agent, (B) the Issuing Bank and (C) so long as no Event of Default has
occurred and is continuing or the assignment is to a Person other than a Lender, an
Affiliate of a Lender or an Approved Fund, the Borrower.




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




     (A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of
the assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless the Administrative
Agent otherwise consents;




     (B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations in respect of one Class of
Commitments or Loans;




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




     (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower and its
affiliates, the Loan Parties and their related parties or their respective
securities) will be made available and who may receive such information in
accordance with the assignee’s compliance procedures and applicable laws, including
Federal and state securities laws.



          For the purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:




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





51









 








          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.




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




          (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the assigning Lender
or the assignee shall have failed to make any payment required to be made by it pursuant to 2.06(d)
or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no obligation to accept
such Assignment and Assumption and record the information therein in the Register unless and until
such payment shall have been made in full, together with all accrued interest thereon. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.




          (c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent, the
Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, modification
or waiver described in the first proviso to Section 9.02(b) that affects such Participant. Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant





52









 






also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(d) as though it were a Lender.




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




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




          SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is extended hereunder,
and shall continue in full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have
not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII
shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or any other Loan
Document or any provision hereof or thereof.




          SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.




          SECTION 9.07. Severability. Any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of




53









 






the remaining provisions thereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.




          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the Obligations now or hereafter existing held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Lender may have.




          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process; Waiver of
Immunity. (a) This Agreement shall be construed in accordance with and governed by the law of
the State of New York.




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or proceeding arising out of or relating
to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any
other Loan Document shall affect any right that the Administrative Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this Agreement or any
other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.




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




          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.




          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF




54









 






LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.




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




          SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank
and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) on a need to know basis to its and its Affiliates’
directors, officers, employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information confidential), (b)
to the extent requested by any regulatory authority, (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same
as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent of the Borrower, (h) to the National Association
of Insurance Commissioners or any similar organization or any nationally recognized rating agency
that requires access to information about a Lender’s investment portfolio in connection with
ratings issued with respect to such Lender or (i) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or any agreement contemplated
by clause (f) of this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than the Borrower. For the
purposes of this Section, “Information” means all information received from the Borrower relating
to the Borrower, any Subsidiary or their respective business, other than any such information that
is available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.



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




     ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC




55









 







INFORMATION ABOUT THE BORROWER AND ITS AFFILIATES, THE LOAN PARTIES AND THEIR RELATED PARTIES OR
THEIR RESPECTIVE SECURITIES) AND ITS SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE
BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A
CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.



          SECTION 9.13. USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”) hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Act.




          SECTION 9.14. Lender Relationship. Each Lender and its Affiliates may have economic
interests that conflict with those of the Borrower. The Borrower agrees that nothing in the Loan
Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or
fiduciary or other implied duty between the Lenders or their Affiliates and the Borrower, its
stockholders or its affiliates. The Borrower acknowledges and agrees that (i) the transactions
contemplated by the Loan Documents are arm’s-length commercial transactions between the Lenders, on
the one hand, and the Borrower, on the other, (ii) in connection therewith and with the process
leading to such transaction, each of the Lenders is acting solely as a principal and not the agent
or fiduciary of the Borrower, its management, stockholders, creditors or any other person, (iii) no
Lender has assumed an advisory or fiduciary responsibility in favor of the Borrower with respect to
the transactions contemplated hereby or the process leading thereto (irrespective of whether any
Lender or any of its Affiliates has advised or is currently advising the Borrower on other matters)
or any other obligation to the Borrower except the obligations expressly set forth in the Loan
Documents and (iv) the Borrower has consulted its own legal and financial advisors to the extent it
deemed appropriate. The Borrower further acknowledges and agrees that it is responsible for making
its own independent judgment with respect to such transactions and the process leading thereto.
The Borrower agrees that it will not claim that any Lender has rendered advisory services of any
nature or respect, or owes a fiduciary or similar duty to the Borrower, in connection with such
transaction or the process leading thereto.




[Signature Pages Follow]






56









 








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




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC.,

as the Borrower

 	 
	 	By  	 	 
	 	 	Name: 	 
	 	 	Title:  	 	 
	 
	 	JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, individually as a
Lender, as the Swingline Lender,
as the Issuing Bank and as
Administrative Agent
 	 
	 	By  	 	 
	 	 	Name: 	 
	 	 	Title:  	 	 
	 
	 	BNP PARIBAS, individually as a
Lender and as Syndication Agent
 	 
	 	By  	 	 
	 	 	Name: 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By  	 	 
	 	 	Name: 	 
	 	 	Title:  	 	 
	 
	 	[OTHER BANKS]  	 



Signature Page to Credit Agreement

Network Appliance, Inc.

November 2007





 









 








SCHEDULE 2.01




COMMITMENTS




	 	 	 	 	 
	LENDER	 	COMMITMENT	 
	 
	 	 	 	 
	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
	 	$	50,000,000	 
	 
	 	 	 	 
	BNP PARIBAS
	 	$	35,000,000	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A.
	 	$	35,000,000	 
	 
	 	 	 	 
	CITICORP USA, INC.
	 	$	35,000,000	 
	 
	 	 	 	 
	STANDARD CHARTERED BANK
	 	$	25,000,000	 
	 
	 	 	 	 
	GOLDMAN SACHS BANK USA
	 	$	20,000,000	 
	 
	 	 	 	 
	MERRILL LYNCH BANK USA
	 	$	15,000,000	 
	 
	 	 	 	 
	DEUTSCHE BANK AG NEW YORK BRANCH
	 	$	15,000,000	 
	 
	 	 	 	 
	WELLS FARGO BANK, N.A.
	 	$	10,000,000	 
	 
	 	 	 	 
	KEYBANK NATIONAL ASSOCIATION
	 	$	10,000,000	 
	 
	 	 	 	 
	TOTAL COMMITMENTS
	 	$	250,000,000	 







 









 







EXHIBIT A




FORM OF ASSIGNMENT AND ASSUMPTION




          This Assignment and Assumption (the “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between [Insert name of Assignor]
(the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms
used but not defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.




          For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.




	 	 	 	 	 
	1.

	 	Assignor:	 	 
	 

	 	 	 	_____________________________________________________________________________________________________________________________________________________________________________________________________________________________ 
	 
	 	 	 	 
	2.

	 	Assignee:	 	 
	 

	 	 	 	_____________________________________________________________________________________________________________________________________________________________________________________________________________________________ 
	 

	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 	 	 
	3.

	 	Borrower(s):
	 	Network Appliance, Inc.
	 

	 	 	 	____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ 
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	JPMorgan Chase Bank, National
Association, as the
administrative agent under the
Credit Agreement
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	The Credit Agreement dated as of
November 2, 2007 among Network
Appliance, Inc., the Lenders
parties thereto and JPMorgan
Chase Bank, National Association,
as Administrative Agent
	 
	 	 	 	 
	6.

	 	Assigned Interest:	 	 








 




			
	1	 	Select as applicable.






 









 










	 	 	 	 	 
	 	 	 	 	 
	Aggregate Amount of	 	 	 	Percentage Assigned
	Commitment/Loans for	 	Amount of Commitment/	 	of
	all Lenders	 	Loans Assigned	 	Commitment/Loans2
	$                  	 	$                  	 	      %
	$                  	 	$                  	 	      %
	$                  	 	$                  	 	      %





Effective
Date:
______________ _______, 20___ [ TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire
in which the Assignee designates one or more credit contacts to whom all syndicate-level
information (which may contain material non-public information about the Borrower, the Loan
Parties and their related parties or their respective securities) will be made available and who
may receive such information in accordance with the Assignee’s compliance procedures and applicable
laws, including Federal and state securities laws.



The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR





[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title:  	 	 
	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	Consented to and Accepted:



JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as
Administrative Agent and Issuing Bank
 	 	 
	 
	By:  	 	 	 
	 	Title:  	 	 	 
	 
	[Consented to:]3
 	 	 
	 
	NETWORK APPLIANCE, INC.

 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 





 




			
	2	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.
	 
	3	 	To be added only if the consent of the Borrower is
required by the terms of the Credit Agreement.






2









 










ANNEX I




[_____________]1




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




          1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.




          2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.




          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment






 




			
	1	 	Describe Credit Agreement at option of Administrative
Agent.

















 









and Assumption may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.








2









 








EXHIBIT B




OPINION OF COUNSEL FOR THE LOAN PARTIES




[ATTACHED]








 









 







EXHIBIT C




LIST OF CLOSING DOCUMENTS




NETWORK APPLIANCE, INC.




CREDIT FACILITY




November 2, 2007




LIST OF CLOSING DOCUMENTS1




A. LOAN DOCUMENTS





	1.	 	Credit Agreement (the “Credit Agreement”) by and among Network Appliance, Inc., a
Delaware corporation (the “Borrower”), the institutions from time to time parties
thereto as Lenders (the “Lenders”) and JPMorgan Chase Bank, National Association, in
its capacity as Administrative Agent for itself and the other Lenders (the “Administrative
Agent”), evidencing an unsecured revolving credit facility to the Borrower from the
Lenders in an initial aggregate principal amount of $250,000,000.





EXHIBITS




	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Assignment and Assumption
	Exhibit B

	 	—
	 	Form of Opinion of Loan Parties’ Counsel
	Exhibit C

	 	—
	 	List of Closing Documents
	Exhibit D

	 	—
	 	Form of Subsidiary Guaranty
	Exhibit E

	 	—
	 	Form of Compliance Certificate
	Exhibit F

	 	—
	 	Form of Increasing Lender Supplement
	Exhibit G

	 	—
	 	Form of Augmenting Lender Supplement







	2.	 	Disclosure Letter executed by the Borrower in favor of the Administrative Agent and the
Lenders.
	 
	3.	 	Notes executed by the Borrower in favor of each of the Lenders, if any, which has requested a
note pursuant to Section 2.10(e) of the Credit Agreement.





B. CORPORATE DOCUMENTS





	4.	 	Certificate of a Director, Secretary or Assistant Secretary or other duly appointed and
authorized officer of the Borrower certifying (i) that there have been no changes in the
Certificate of Incorporation or other charter document of the Borrower, as attached thereto
and as certified as of a recent date by the Secretary of State (or analogous governmental
entity) of the jurisdiction of its incorporation or organization, since the date of the
certification thereof by such secretary of state, (ii) the By-Laws or other applicable
organizational







 




			
	1	 	Each capitalized term used herein and not defined
herein shall have the meaning assigned to such term in the above-defined Credit
Agreement. Items appearing in bold and italics shall be prepared and/or
provided by the Borrower and/or Borrower’s counsel







 









 











	 	 	document, as attached thereto, of the Borrower as in effect on the date of such
certification, (iii) resolutions of the Board of Directors or other governing body of the
Borrower authorizing the execution, delivery and performance of each Loan Document to which
it is a party, and (iv) the names and true signatures of the incumbent officers of the
Borrower authorized to sign the Loan Documents to which it is a party and authorized to
request a Borrowing under the Credit Agreement.
	 
	5.	 	Good Standing Certificate for the Borrower from the Secretary of State (or analogous
governmental entity) of the jurisdiction of its organization.





C. OPINIONS





	6.	 	Opinion of Wilson Sonsini Goodrich & Rosati, P.C., counsel for the Borrower.





D. CLOSING CERTIFICATES AND MISCELLANEOUS





	7.	 	A Certificate signed by a Financial Officer certifying the following: (i) all of the
representations and warranties of the Borrower set forth in the Credit Agreement are true and
correct and (ii) no Default has occurred and is then continuing.







2














 







EXHIBIT D




FORM OF SUBSIDIARY GUARANTY




GUARANTY




          THIS GUARANTY (as amended, restated, supplemented or otherwise modified from time to time,
this “Guaranty”) is made as of [                    ], 200   , by and among each of the undersigned
(the “Initial Guarantors” and along with any additional Subsidiaries of the Borrower which
become parties to this Guaranty by executing a supplement hereto in the form attached as Annex I,
the “Guarantors”) in favor of the Administrative Agent, for the ratable benefit of the
Holders of Guaranteed Obligations (as defined below), under the Credit Agreement referred to below.




WITNESSETH




          WHEREAS, NETWORK APPLIANCE, INC., a Delaware corporation (the “Borrower”), the
institutions from time to time parties thereto as lenders (the “Lenders”), and JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, in its capacity as contractual representative (the
“Administrative Agent”), have entered into a certain Credit Agreement dated as of November
2, 2007 (as the same may be amended, modified, supplemented and/or restated, and as in effect from
time to time, the “Credit Agreement”), providing, subject to the terms and conditions
thereof, for extensions of credit and other financial accommodations to be made by the Lenders to
the Borrower;




          WHEREAS, it is a condition precedent to the extensions of credit by the Lenders under the
Credit Agreement that each of the Guarantors (constituting all of the Subsidiaries of the Borrower
required to execute this Guaranty pursuant to Section 5.09 of the Credit Agreement) execute and
deliver this Guaranty, whereby each of the Guarantors shall guarantee the payment when due of all
Obligations; and




          WHEREAS, in consideration of the direct and indirect financial and other support that the
Borrower has provided, and such direct and indirect financial and other support as the Borrower may
in the future provide, to the Guarantors, and in order to induce the Lenders and the Administrative
Agent to enter into the Credit Agreement, each of the Guarantors is willing to guarantee the
Obligations of the Borrower;




          NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:




          SECTION 1. Definitions. Terms defined in the Credit Agreement and not otherwise
defined herein have, as used herein, the respective meanings provided for therein.




          SECTION 2. Representations, Warranties and Covenants. Each of the Guarantors
represents and warrants (which representations and warranties shall be deemed to have been renewed
at the time of the making, conversion or continuation of any Loan or issuance of any Letter of
Credit) that:





     (A) It is a corporation, partnership or limited liability company duly and properly
incorporated or organized, as the case may be, validly existing and (to the extent such
concept applies to such entity) in good standing under the laws of its jurisdiction of
incorporation, organization or formation and has all requisite authority to conduct its
business in each





 









 







jurisdiction in which its business is conducted, except to the extent that the failure
to have such authority could not reasonably be expected to have a Material Adverse Effect.




     (B) It (to the extent applicable) has the requisite power and authority and legal
right to execute and deliver this Guaranty and to perform its obligations hereunder. The
execution and delivery by each Guarantor of this Guaranty and the performance by each of its
obligations hereunder have been duly authorized by proper proceedings, and this Guaranty
constitutes a legal, valid and binding obligation of such Guarantor, respectively,
enforceable against such Guarantor, respectively, in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.




     (C) Neither the execution and delivery by it of this Guaranty, nor the consummation by
it of the transactions herein contemplated, nor compliance by it with the provisions hereof
will (i) violate any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on it or its articles or certificate of incorporation (or equivalent charter
documents), limited liability company or partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or operating agreement or other management
agreement, as the case may be, or the provisions of any indenture, material instrument or
material agreement to which the Borrower or any of its Subsidiaries is a party or is
subject, or by which it, or its property, is bound, or (ii) conflict with, or constitute a
default under, or result in, or require, the creation or imposition of any Lien in, of or on
its property pursuant to the terms of, any such indenture, material instrument or material
agreement (other than any Loan Document). No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration with, or
exemption by, or other action in respect of any governmental or public body or authority, or
any subdivision thereof, which has not been obtained by it, is required to be obtained by it
in connection with the execution, delivery and performance by it of, or the legality,
validity, binding effect or enforceability against it of, this Guaranty.



          In addition to the foregoing, each of the Guarantors covenants that, so long as any Lender has
any Commitment outstanding under the Credit Agreement or any amount payable under the Credit
Agreement or any other Guaranteed Obligations (as defined below) shall remain unpaid, it will, and,
if necessary, will enable the Borrower to, fully comply with those covenants and agreements of the
Borrower applicable to such Guarantor set forth in the Credit Agreement.



          SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally guarantees,
jointly with the other Guarantors and severally, the full and punctual payment and performance when
due (whether at stated maturity, upon acceleration or otherwise) of the Obligations, including,
without limitation, (i) the principal of and interest on each Loan made to the Borrower pursuant to
the Credit Agreement, (ii) any obligations of the Borrower to reimburse LC Disbursements
(“Reimbursement Obligations”), (iii) all obligations of the Borrower owing to any Lender or
any affiliate of any Lender under any Swap Agreement or Banking Services Agreement, (iv) all other
amounts payable by the Borrower or any of its Subsidiaries under the Credit Agreement, any Swap
Agreement, any Banking Services Agreement and the other Loan Documents and (v) the punctual and
faithful performance, keeping, observance, and fulfillment by the Borrower of all of the
agreements, conditions, covenants, and obligations of the Borrower contained in the Loan Documents
(all of the foregoing being referred to collectively as the “Guaranteed Obligations” and the
holders from time to time of the Guaranteed Obligations being referred to collectively as the
“Holders of Guaranteed Obligations”). Upon (x) the failure by the Borrower or any of its
Affiliates, as applicable, to pay punctually any such amount or perform such obligation, and (y)
such failure continuing beyond any applicable grace or notice and cure period, each of the
Guarantors agrees that it shall forthwith on demand pay such amount or perform such




2









 






obligation at the place and in the manner specified in the Credit Agreement, any Swap
Agreement, any Banking Services Agreement or the relevant Loan Document, as the case may be. Each
of the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and unconditional
guaranty of payment and is not a guaranty of collection.




          SECTION 4. Guaranty Unconditional. The obligations of each of the Guarantors
hereunder shall be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:





     (A) any extension, renewal, settlement, indulgence, compromise, waiver or release of
or with respect to the Guaranteed Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed
Obligations, whether (in any such case) by operation of law or otherwise, or any failure or
omission to enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or with respect to any obligation of any
other guarantor of any of the Guaranteed Obligations;




     (B) any modification or amendment of or supplement to the Credit Agreement, any Swap
Agreement, any Banking Services Agreement or any other Loan Document, including, without
limitation, any such amendment which may increase the amount of, or the interest rates
applicable to, any of the Obligations guaranteed hereby;




     (C) any release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, of any collateral securing the Guaranteed
Obligations or any part thereof, any other guaranties with respect to the Guaranteed
Obligations or any part thereof, or any other obligation of any person or entity with
respect to the Guaranteed Obligations or any part thereof, or any nonperfection or
invalidity of any direct or indirect security for the Guaranteed Obligations;




     (D) any change in the corporate, partnership or other existence, structure or
ownership of the Borrower or any other guarantor of any of the Guaranteed Obligations, or
any insolvency, bankruptcy, reorganization or other similar proceeding affecting the
Borrower or any other guarantor of the Guaranteed Obligations, or any of their respective
assets or any resulting release or discharge of any obligation of the Borrower or any other
guarantor of any of the Guaranteed Obligations;




     (E) the existence of any claim, setoff or other rights which the Guarantors may have
at any time against the Borrower, any other guarantor of any of the Guaranteed Obligations,
the Administrative Agent, any Holder of Guaranteed Obligations or any other Person, whether
in connection herewith or in connection with any unrelated transactions; provided
that nothing herein shall prevent the assertion of any such claim by separate suit or
compulsory counterclaim;




     (F) the enforceability or validity of the Guaranteed Obligations or any part thereof
or the genuineness, enforceability or validity of any agreement relating thereto or with
respect to any collateral securing the Guaranteed Obligations or any part thereof, or any
other invalidity or unenforceability relating to or against the Borrower or any other
guarantor of any of the Guaranteed Obligations, for any reason related to the Credit
Agreement, any Swap Agreement, any Banking Services Agreement, any other Loan Document, or
any provision of applicable law, decree, order or regulation of any jurisdiction purporting
to prohibit the payment by the Borrower or any other guarantor of the Guaranteed
Obligations, of any of the Guaranteed Obligations or otherwise affecting any term of any of
the Guaranteed Obligations;




3









 






     (G) the failure of the Administrative Agent to take any steps to perfect and maintain
any security interest in, or to preserve any rights to, any security or collateral for the
Guaranteed Obligations, if any;




     (H) the election by, or on behalf of, any one or more of the Holders of Guaranteed
Obligations, in any proceeding instituted under Chapter 11 of Title 11 of the United States
Code (11 U.S.C. 101 et seq.) (the “Bankruptcy Code”), of the application of Section
1111(b)(2) of the Bankruptcy Code;




     (I) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;




     (J) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion
of the claims of the Holders of Guaranteed Obligations or the Administrative Agent for
repayment of all or any part of the Guaranteed Obligations;




     (K) the failure of any other guarantor to sign or become party to this Guaranty or any
amendment, change, or reaffirmation hereof by or with any other guarantor; or




     (L) any other act or omission to act or delay of any kind by the Borrower, any other
guarantor of the Guaranteed Obligations, the Administrative Agent, any Holder of Guaranteed
Obligations or any other Person or any other circumstance whatsoever which might, but for
the provisions of this Section 4, constitute a legal or equitable discharge of any
Guarantor’s obligations hereunder except as provided in Section 5.



          SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In Certain
Circumstances. Each of the Guarantors’ obligations hereunder shall remain in full force and
effect until all Guaranteed Obligations (other than contingent indemnity obligations and Guaranteed
Obligations in respect of Swap Agreements and Banking Services Agreements) shall have been paid in
full in cash and the Commitments and all Letters of Credit (other than Extended Letters of Credit)
issued under the Credit Agreement shall have terminated or expired. If at any time any payment of
the principal of or interest on any Loan, any Reimbursement Obligation or any other amount payable
by the Borrower or any other party under the Credit Agreement, any Swap Agreement, any Banking
Services Agreement or any other Loan Document is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise, each of
the Guarantors’ obligations hereunder with respect to such payment shall be reinstated as though
such payment had been due but not made at such time. The parties hereto acknowledge and agree that
each of the Guaranteed Obligations shall be due and payable in the same currency as such Guaranteed
Obligation is denominated, but if currency control or exchange regulations are imposed in the
country which issues such currency with the result that such currency (the “Original
Currency”) no longer exists or the relevant Guarantor is not able to make payment in such
Original Currency, then all payments to be made by such Guarantor hereunder in such currency shall
instead be made when due in Dollars in an amount equal to the Dollar Amount (as of the date of
payment) of such payment due, it being the intention of the parties hereto that each Guarantor
takes all risks of the imposition of any such currency control or exchange regulations. As used
herein, “Dollar Amount” of any currency means the equivalent in such currency of such
amount of dollars, most recently calculated by the Administrative Agent on the basis of the
arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for such
currency on the London market.





4









 








          SECTION 6. General Waivers; Additional Waivers.





     (A) General Waivers. Each of the Guarantors irrevocably waives acceptance hereof,
presentment, demand or action on delinquency, protest, the benefit of any statutes of
limitations and, to the fullest extent permitted by law, any notice not provided for herein,
as well as any requirement that at any time any action be taken by any Person against the
Borrower, any other guarantor of the Guaranteed Obligations, or any other Person.




     (B) Additional Waivers. Notwithstanding anything herein to the contrary, each of the
Guarantors hereby absolutely, unconditionally, knowingly, and expressly waives:




     (i) any right it may have to revoke this Guaranty as to future indebtedness under
the Loan Documents;




     (ii) (a) notice of acceptance hereof; (b) notice of any loans or other financial
accommodations made or extended under the Loan Documents or the creation or existence of
any Guaranteed Obligations; (c) notice of the amount of the Guaranteed Obligations,
subject, however, to each Guarantor’s right to make inquiry of Administrative Agent and
Holders of Guaranteed Obligations to ascertain the amount of the Guaranteed Obligations
at any reasonable time; (d) notice of any adverse change in the financial condition of
the Borrower or of any other fact that might increase such Guarantor’s risk hereunder;
(e) notice of presentment for payment, demand, protest, and notice thereof as to any
instruments among the Loan Documents; (f) notice of any Default or Event of Default; and
(g) all other notices (except if such notice is specifically required to be given to such
Guarantor hereunder or under the Loan Documents) and demands to which each Guarantor
might otherwise be entitled;




     (iii) its right, if any, to require the Administrative Agent and the other Holders
of Guaranteed Obligations to institute suit against, or to exhaust any rights and
remedies which the Administrative Agent and the other Holders of Guaranteed Obligations
has or may have against, the other Guarantors or any third party; and each Guarantor
further waives any defense arising by reason of any disability or other defense (other
than the defense that the Guaranteed Obligations shall have been fully and finally
performed and indefeasibly paid) of the other Guarantors or by reason of the cessation
from any cause whatsoever of the liability of the other Guarantors in respect thereof;




     (iv) (a) any rights to assert against the Administrative Agent and the other
Holders of Guaranteed Obligations any defense (legal or equitable), set-off,
counterclaim, or claim which such Guarantor may now or at any time hereafter have against
the other Guarantors or any other party liable to the Administrative Agent and the other
Holders of Guaranteed Obligations; (b) any defense, set-off, counterclaim, or claim, of
any kind or nature, arising directly or indirectly from the present or future lack of
perfection, sufficiency, validity, or enforceability of the Guaranteed Obligations or any
security therefor; (c) any defense such Guarantor has to performance hereunder, and any
right such Guarantor has to be exonerated, arising by reason of: the impairment or
suspension of the Administrative Agent’s and the other Holders of Guaranteed Obligations’
rights or remedies against the other Guarantors; the alteration by the Administrative
Agent and the other Holders of Guaranteed Obligations of the Guaranteed Obligations; any
discharge of the other Guarantors’ obligations to the Administrative Agent and the other
Holders of Guaranteed Obligations by operation of law as a result of the Administrative
Agent’s and the other Holders of Guaranteed Obligations’ intervention or omission; or the
acceptance by the Administrative Agent and the other Holders of Guaranteed Obligations of
anything in partial satisfaction of the Guaranteed Obligations;




5









 







and (d) the benefit of any statute of limitations affecting such Guarantor’s
liability hereunder or the enforcement thereof, and any act which shall defer or delay
the operation of any statute of limitations applicable to the Guaranteed Obligations
shall similarly operate to defer or delay the operation of such statute of limitations
applicable to such Guarantor’s liability hereunder; and




     (v) any defense arising by reason of or deriving from (a) any claim or defense
based upon an election of remedies by the Administrative Agent and the other Holders of
Guaranteed Obligations; or (b) any election by the Administrative Agent and the other
Holders of Guaranteed Obligations under Section 1111(b) of Title 11 of the United States
Code entitled “Bankruptcy”, as now and hereafter in effect (or any successor statute), to
limit the amount of, or any collateral securing, its claim against the Guarantors.



          SECTION 7. Subordination of Subrogation; Subordination of Intercompany Indebtedness.





     (A) Subordination of Subrogation. Until the Guaranteed Obligations (other
than contingent indemnity obligations and Guaranteed Obligations in respect of Swap
Agreements and Banking Services Agreements) have been indefeasibly paid in full in cash, the
Guarantors (i) shall have no right of subrogation with respect to such Guaranteed
Obligations and (ii) waive any right to enforce any remedy which the Holders of Guaranteed
Obligations, the Issuing Bank or the Administrative Agent now have or may hereafter have
against the Borrower, any endorser or any guarantor of all or any part of the Guaranteed
Obligations or any other Person, and, until the Guaranteed Obligations (other than
contingent indemnity obligations and Guaranteed Obligations in respect of Swap Agreements
and Banking Services Agreements) have been indefeasibly paid in cash, the Guarantors waive
any benefit of, and any right to participate in, any security or collateral given to the
Holders of Guaranteed Obligations, the Issuing Bank and the Administrative Agent to secure
the payment or performance of all or any part of the Guaranteed Obligations or any other
liability of the Borrower to the Holders of Guaranteed Obligations or the Issuing Bank.
Should any Guarantor have the right, notwithstanding the foregoing, to exercise its
subrogation rights, each Guarantor hereby expressly and irrevocably (A) subordinates any and
all rights at law or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off that such Guarantor may have to the indefeasible payment in full
in cash of the Guaranteed Obligations (other than contingent indemnity obligations and
Guaranteed Obligations in respect of Swap Agreements and Banking Services Agreements) and
(B) waives any and all defenses available to a surety, guarantor or accommodation co-obligor
until the Guaranteed Obligations (other than contingent indemnity obligations and Guaranteed
Obligations in respect of Swap Agreements and Banking Services Agreements) are indefeasibly
paid in full in cash. Each Guarantor acknowledges and agrees that this subordination is
intended to benefit the Administrative Agent and the other Holders of Guaranteed Obligations
and shall not limit or otherwise affect such Guarantor’s liability hereunder or the
enforceability of this Guaranty, and that the Administrative Agent, the other Holders of
Guaranteed Obligations and their respective successors and assigns are intended third party
beneficiaries of the waivers and agreements set forth in this Section 7(A).




     (B) Subordination of Intercompany Indebtedness. Each Guarantor agrees that
any and all claims of such Guarantor against the Borrower or any other Guarantor hereunder
(each an “Obligor”) with respect to any “Intercompany Indebtedness” (as hereinafter
defined), any endorser, obligor or any other guarantor of all or any part of the Guaranteed
Obligations, or against any of its properties shall be subordinate and subject in right of
payment to the prior payment, in full and in cash, of all Guaranteed Obligations (other than
contingent indemnity




6









 







obligations and Guaranteed Obligations in respect of Swap Agreements and Banking
Services Agreements); provided that, as long as no Event of Default has occurred and
is continuing, such Guarantor may receive payments of principal and interest from any
Obligor with respect to Intercompany Indebtedness. Notwithstanding any right of any
Guarantor to ask, demand, sue for, take or receive any payment from any Obligor, all rights,
liens and security interests of such Guarantor, whether now or hereafter arising and
howsoever existing, in any assets of any other Obligor shall be and are subordinated to the
rights of the Holders of Guaranteed Obligations and the Administrative Agent in those
assets. No Guarantor shall have any right to possession of any such asset or to foreclose
upon any such asset, whether by judicial action or otherwise, unless and until all of the
Guaranteed Obligations (other than contingent indemnity obligations and Guaranteed
Obligations in respect of Swap Agreements and Banking Services Agreements) shall have been
fully paid and satisfied (in cash) and all financing arrangements pursuant to any Loan
Document have been terminated. If all or any part of the assets of any Obligor, or the
proceeds thereof, are subject to any distribution, division or application to the creditors
of such Obligor, whether partial or complete, voluntary or involuntary, and whether by
reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of
creditors or any other action or proceeding, or if the business of any such Obligor is
dissolved or if substantially all of the assets of any such Obligor are sold, then, and in
any such event (such events being herein referred to as an “Insolvency Event”), any
payment or distribution of any kind or character, either in cash, securities or other
property, which shall be payable or deliverable upon or with respect to any indebtedness of
any Obligor to any Guarantor (“Intercompany Indebtedness”) shall be paid or
delivered directly to the Administrative Agent for application on any of the Guaranteed
Obligations, due or to become due, until such Guaranteed Obligations (other than contingent
indemnity obligations and Guaranteed Obligations in respect of Swap Agreements and Banking
Services Agreements) shall have first been fully paid and satisfied (in cash). Should any
payment, distribution, security or instrument or proceeds thereof be received by the
applicable Guarantor upon or with respect to the Intercompany Indebtedness after any
Insolvency Event and prior to the satisfaction of all of the Guaranteed Obligations (other
than contingent indemnity obligations and Guaranteed Obligations in respect of Swap
Agreements and Banking Services Agreements) and the termination of all financing
arrangements pursuant to any Loan Document among the Borrower and the Holders of Guaranteed
Obligations, such Guarantor shall receive and hold the same in trust, as trustee, for the
benefit of the Holders of Guaranteed Obligations and shall forthwith deliver the same to the
Administrative Agent, for the benefit of the Holders of Guaranteed Obligations, in precisely
the form received (except for the endorsement or assignment of the Guarantor where
necessary), for application to any of the Guaranteed Obligations, due or not due, and, until
so delivered, the same shall be held in trust by the Guarantor as the property of the
Holders of Guaranteed Obligations. If any such Guarantor fails to make any such endorsement
or assignment to the Administrative Agent, the Administrative Agent or any of its officers
or employees is irrevocably authorized to make the same. Each Guarantor agrees that until
the Guaranteed Obligations (other than the contingent indemnity obligations and Guaranteed
Obligations in respect of Swap Agreements and Banking Services Agreements) have been paid in
full (in cash) and satisfied and all financing arrangements pursuant to any Loan Document
among the Borrower and the Holders of Guaranteed Obligations have been terminated, except as
otherwise permitted by the Credit Agreement, no Guarantor will assign or transfer to any
Person (other than the Administrative Agent) any claim any such Guarantor has or may have
against any Obligor.



          SECTION 8. Contribution with Respect to Guaranteed Obligations.





     (A) To the extent that any Guarantor shall make a payment under this Guaranty (a
“Guarantor Payment”) which, taking into account all other Guarantor Payments then
previously




7








 







or concurrently made by any other Guarantor, exceeds the amount which otherwise would
have been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate
Guaranteed Obligations (other than contingent indemnity obligations and Guaranteed
Obligations in respect of Swap Agreements and Banking Services Agreements) satisfied by such
Guarantor Payment in the same proportion as such Guarantor’s “Allocable Amount” (as defined
below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate
Allocable Amounts of each of the Guarantors as determined immediately prior to the making of
such Guarantor Payment, then, following indefeasible payment in full in cash of the
Guaranteed Obligations (other than contingent indemnity obligations and Guaranteed
Obligations in respect of Swap Agreements and Banking Services Agreements) and termination
of the Credit Agreement, such Guarantor shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each other Guarantor for the amount of
such excess, pro rata based upon their respective Allocable Amounts in effect immediately
prior to such Guarantor Payment.




     (B) As of any date of determination, the “Allocable Amount” of any Guarantor shall be
equal to the maximum amount of the claim which could then be recovered from such Guarantor
under this Guaranty without rendering such claim voidable or avoidable under Section 548 of
Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer
Act, Uniform Fraudulent Conveyance Act or similar statute or common law.




     (C) This Section 8 is intended only to define the relative rights of the Guarantors,
and nothing set forth in this Section 8 is intended to or shall impair the obligations of
the Guarantors, jointly and severally, to pay any amounts as and when the same shall become
due and payable in accordance with the terms of this Guaranty.




     (D) The parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution
and indemnification is owing.




     (E) The rights of the indemnifying Guarantors against other Guarantors under this
Section 8 shall be exercisable upon the full and indefeasible payment of the Guaranteed
Obligations (other than contingent indemnity obligations and Guaranteed Obligations in
respect of Swap Agreements and Banking Services Agreements) in cash and the termination of
the Credit Agreement.



          SECTION 9. Stay of Acceleration. If acceleration of the time for payment of any
amount payable by the Borrower under the Credit Agreement, any Swap Agreement, any Banking Services
Agreement or any other Loan Document is stayed upon the insolvency, bankruptcy or reorganization of
the Borrower, all such amounts otherwise subject to acceleration under the terms of the Credit
Agreement, any Swap Agreement, any Banking Services Agreement or any other Loan Document shall
nonetheless be payable by each of the Guarantors hereunder forthwith on demand by the
Administrative Agent.




          SECTION 10. Notices. All notices, requests and other communications to any party
hereunder shall be given in the manner prescribed in Article IX of the Credit Agreement with
respect to the Administrative Agent at its notice address therein and with respect to any
Guarantor, in care of the Borrower at the address of the Borrower set forth in the Credit Agreement
or such other address or telecopy number as such party may hereafter specify for such purpose by
notice to the Administrative Agent in accordance with the provisions of such Article IX.





8









 








          SECTION 11. No Waivers. No failure or delay by the Administrative Agent or any other
Holder of Guaranteed Obligations in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. The rights and
remedies provided in this Guaranty, the Credit Agreement, any Swap Agreement, any Banking Services
Agreement and the other Loan Documents shall be cumulative and not exclusive of any rights or
remedies provided by law.




          SECTION 12. Successors and Assigns. This Guaranty is for the benefit of the
Administrative Agent and the other Holders of Guaranteed Obligations and their respective
successors and permitted assigns; provided, that no Guarantor shall have any right to
assign its rights or obligations hereunder without the consent of the Required Lenders, and any
such assignment in violation of this Section 12 shall be null and void; and in the event of an
assignment of any amounts payable under the Credit Agreement, any Swap Agreement, any Banking
Services Agreement or the other Loan Documents in accordance with the respective terms thereof, the
rights hereunder, to the extent applicable to the indebtedness so assigned, may be transferred with
such indebtedness. This Guaranty shall be binding upon each of the Guarantors and their respective
successors and assigns.




          SECTION 13. Changes in Writing. Other than in connection with the addition of
additional Subsidiaries, which become parties hereto by executing a supplement hereto in the form
attached as Annex I, neither this Guaranty nor any provision hereof may be changed, waived,
discharged or terminated orally, but only in writing signed by each of the Guarantors and the
Administrative Agent with the consent of the Required Lenders under the Credit Agreement.




          SECTION 14. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.




          SECTION 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL; IMMUNITY.





     (A) CONSENT TO JURISDICTION. EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN
THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY
AND EACH GUARANTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER TO
BRING PROCEEDINGS AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY ANY GUARANTOR AGAINST THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR
ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
THE CITY OF NEW YORK.




     (B) WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT
OR OTHERWISE) IN ANY




9








 







WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER AND FURTHER WAIVES ANY RIGHT TO
INTERPOSE ANY COUNTERCLAIM (OTHER THAN ANY COMPULSORY COUNTERCLAIM) RELATED TO THIS GUARANTY
OR THE TRANSACTIONS CONTEMPLATED HEREBY IN SUCH ACTION.




     (C) TO THE EXTENT THAT ANY GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER FROM SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OF A JUDGMENT, EXECUTION OR
OTHERWISE), EACH GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS GUARANTY.



          SECTION 16. No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Guaranty. In the event an ambiguity or question of intent or
interpretation arises, this Guaranty shall be construed as if drafted jointly by the parties hereto
and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Guaranty.




          SECTION 17. Taxes, Expenses of Enforcement, etc.





     (A) Taxes.




          (i) All payments by any Guarantor to or for the account of any Lender, the Issuing
Bank, the Administrative Agent or any other Holder of Guaranteed Obligations hereunder or
under any promissory note or application for a Letter of Credit shall be made free and clear
of and without deduction for any and all Taxes (other than Excluded Taxes). If any
Guarantor shall be required by law to deduct any Taxes (other than Excluded Taxes) from or
in respect of any sum payable hereunder to any Lender, the Issuing Bank, the Administrative
Agent or any other Holder of Guaranteed Obligations, (a) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions applicable
to additional sums payable under this Section 17(A)) such Lender, the Issuing Bank, the
Administrative Agent or any other Holder of Guaranteed Obligations (as the case may be)
receives an amount equal to the sum it would have received had no such deductions been made,
(b) such Guarantor shall make such deductions, (c) such Guarantor shall pay the full amount
deducted to the relevant authority in accordance with applicable law and (d) such Guarantor
shall furnish to the Administrative Agent the original copy of a receipt evidencing payment
thereof within thirty (30) days after such payment is made.




          (ii) In addition, the Guarantors hereby agree to pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or under any promissory note or application for a
Letter of Credit or from the execution or delivery of, or otherwise with respect to, this
Guaranty or any promissory note or application for a Letter of Credit (“Other
Taxes”).




          (iii) The Guarantors hereby agree to indemnify the Administrative Agent, the Issuing
Bank, each Lender and any other Holder of Guaranteed Obligations for the full amount of
Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed on
amounts payable under this Section 17(A)) paid by the Administrative Agent, the Issuing
Bank, such Lender or such other Holder of Guaranteed Obligations and any liability
(including penalties, interest and expenses) arising therefrom or with respect thereto.
Payments due under this




10









 







indemnification shall be made within thirty (30) days of the date the Administrative
Agent, the Issuing Bank, such Lender or such other Holder of Guaranteed Obligations makes
demand therefor.




          (iv) By accepting the benefits hereof, each Foreign Lender agrees that it will comply
with Section 2.17(e) of the Credit Agreement.




     (B) Expenses of Enforcement, Etc. Subject to the terms of the Credit Agreement, after
the occurrence and during the continuance of an Event of Default under the Credit Agreement,
the Lenders shall have the right at any time to direct the Administrative Agent to commence
enforcement proceedings with respect to the Guaranteed Obligations. The Guarantors agree to
reimburse the Administrative Agent and the other Holders of Guaranteed Obligations for any
reasonable costs and out-of-pocket expenses (including reasonable attorneys’ fees and time
charges of attorneys for the Administrative Agent and the other Holders of Guaranteed
Obligations, which attorneys may be employees of the Administrative Agent or the other
Holders of Guaranteed Obligations) paid or incurred by the Administrative Agent or any other
Holder of Guaranteed Obligations in connection with the collection and enforcement of
amounts due under the Loan Documents, including without limitation this Guaranty. The
Administrative Agent agrees to distribute payments received from any of the Guarantors
hereunder to the other Holders of Guaranteed Obligations on a pro rata basis for application
in accordance with the terms of the Credit Agreement.



          SECTION 18. Setoff. At any time after all or any part of the Guaranteed Obligations
have become due and payable (by acceleration or otherwise), each Holder of Guaranteed Obligations
(including the Administrative Agent) may, without notice to any Guarantor and regardless of the
acceptance of any security or collateral for the payment hereof, appropriate and apply in
accordance with the terms of the Credit Agreement toward the payment of all or any part of the
Guaranteed Obligations (i) any indebtedness due or to become due from such Holder of Guaranteed
Obligations or the Administrative Agent to any Guarantor, and (ii) any moneys, credits or other
property belonging to any Guarantor, at any time held by or coming into the possession of such
Holder of Guaranteed Obligations (including the Administrative Agent) or any of their respective
affiliates.




          SECTION 19. Financial Information. Each Guarantor hereby assumes responsibility for
keeping itself informed of the financial condition of the Borrower and any and all endorsers and/or
other Guarantors of all or any part of the Guaranteed Obligations, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations, or any part thereof, that
diligent inquiry would reveal, and each Guarantor hereby agrees that none of the Holders of
Guaranteed Obligations (including the Administrative Agent) shall have any duty to advise such
Guarantor of information known to any of them regarding such condition or any such circumstances.
In the event any Holder of Guaranteed Obligations (including the Administrative Agent), in its sole
discretion, undertakes at any time or from time to time to provide any such information to a
Guarantor, such Holder of Guaranteed Obligations (including the Administrative Agent) shall be
under no obligation (i) to undertake any investigation not a part of its regular business routine,
(ii) to disclose any information which such Holder of Guaranteed Obligations (including the
Administrative Agent), pursuant to accepted or reasonable commercial finance or banking practices,
wishes to maintain confidential or (iii) to make any other or future disclosures of such
information or any other information to such Guarantor.




          SECTION 20. Severability. Wherever possible, each provision of this Guaranty shall
be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent







11









 







of such prohibition or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.




          SECTION 21. Merger. This Guaranty represents the final agreement of each of the
Guarantors with respect to the matters contained herein and may not be contradicted by evidence of
prior or contemporaneous agreements, or subsequent oral agreements, between the Guarantor and any
Holder of Guaranteed Obligations (including the Administrative Agent).




          SECTION 22. Headings. Section headings in this Guaranty are for convenience of
reference only and shall not govern the interpretation of any provision of this Guaranty.




          SECTION 23. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due from any Guarantor hereunder in the currency expressed
to be payable herein (the “specified currency”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative Agent’s main New
York City office on the Business Day preceding that on which final, non-appealable judgment is
given. The obligations of each Guarantor in respect of any sum due hereunder shall,
notwithstanding any judgment in a currency other than the specified currency, be discharged only to
the extent that on the Business Day following receipt by any Holder of Guaranteed Obligations
(including the Administrative Agent), as the case may be, of any sum adjudged to be so due in such
other currency such Holder of Guaranteed Obligations (including the Administrative Agent), as the
case may be, may in accordance with normal, reasonable banking procedures purchase the specified
currency with such other currency. If the amount of the specified currency so purchased is less
than the sum originally due to such Holder of Guaranteed Obligations (including the Administrative
Agent), as the case may be, in the specified currency, each Guarantor agrees, to the fullest extent
that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to
indemnify such Holder of Guaranteed Obligations (including the Administrative Agent), as the case
may be, against such loss, and if the amount of the specified currency so purchased exceeds (a) the
sum originally due to any Holder of Guaranteed Obligations (including the Administrative Agent), as
the case may be, in the specified currency and (b) amounts shared with other Holders of Guaranteed
Obligations as a result of allocations of such excess as a disproportionate payment to such other
Holder of Guaranteed Obligations under Section 2.18 of the Credit Agreement, such Holder of
Guaranteed Obligations (including the Administrative Agent), as the case may be, agrees, by
accepting the benefits hereof, to remit such excess to such Guarantor.




Remainder of Page Intentionally Blank.





12









 








          IN WITNESS WHEREOF, each of the Initial Guarantors has caused this Guaranty to be duly
executed by its authorized officer as of the day and year first above written.




	 	 	 	 	 
	 	[INITIAL GUARANTORS TO COME]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




13










 






	 	 	 	 	 



Acknowledged and Agreed

as of the date first written above:




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent




	 	 	 	 	 
	By:  	

 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 




14









 






	 	 	 	 	 



ANNEX I TO GUARANTY




          Reference is hereby made to the Guaranty (the “Guaranty”) made as of [                    ], 2007
by and among [INITIAL GUARANTORS TO COME] (the “Initial Guarantors” and along with any
additional Subsidiaries of the Borrower, which become parties thereto and together with the
undersigned, the “Guarantors”) in favor of the Administrative Agent, for the ratable
benefit of the Holders of Guaranteed Obligations, under the Credit Agreement. Capitalized terms
used herein and not defined herein shall have the meanings given to them in the Guaranty. By its
execution below, the undersigned [NAME OF NEW GUARANTOR], a [corporation] [partnership] [limited
liability company], agrees to become, and does hereby become, a Guarantor under the Guaranty and
agrees to be bound by such Guaranty as if originally a party thereto. By its execution below, the
undersigned represents and warrants as to itself that all of the representations and warranties
contained in Section 2 of the Guaranty are true and correct in all respects as of the date hereof.




          IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a [corporation] [partnership] [limited liability
company] has executed and delivered this Annex I counterpart to the Guaranty as of this                     
day of                     , 20     .





15









 








	 	 	 	 	 
	 	[NAME OF NEW GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 




16









 






	 	 	 	 	 



EXHIBIT E




FORM OF COMPLIANCE CERTIFICATE




	 	 	 
	To:

	 	The Lenders parties to the
	 

	 	Credit Agreement Described Below






     This Compliance Certificate is furnished pursuant to that certain Credit Agreement dated as of
November 2, 2007 (as amended, modified, renewed or extended from time to time, the “Agreement”)
among Network Appliance, Inc. (the “Borrower”), the Lenders party thereto and JPMorgan
Chase Bank, National Association, as Administrative Agent for the Lenders. Unless otherwise
defined herein, capitalized terms used in this Compliance Certificate have the meanings ascribed
thereto in the Agreement.



     THE UNDERSIGNED HEREBY CERTIFIES THAT:




	 	1.	 	I am the duly elected                      of the Borrower;
	 
	 	2.	 	I have reviewed the terms of the Agreement and I have made, or have caused to be made
under my supervision, a detailed review of the transactions and conditions of the Borrower
and its Subsidiaries during the accounting period covered by the attached financial
statements [for quarterly financial statements add: and such financial statements present
fairly in all material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied (except as set forth below), subject to normal year-end audit
adjustments and the absence of footnotes];
	 
	 	3.	 	Except as set forth below, the examinations described in paragraph 2 did not disclose,
and I have no knowledge of (i) the existence of any condition or event which constitutes a
Default during or at the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate or (ii) any change in GAAP or in the
application thereof that has occurred since the date of the audited financial statements
referred to in Section 3.04 of the Agreement; and
	 
	 	4.	 	Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower’s compliance with Section 6.07 of the Agreement, all of which data
and computations are true, complete and correct.
	 
	 	5.	 	Schedule II attached hereto sets forth the computations necessary to determine
the Applicable Rate.





     Described below are the exceptions, if any, to paragraph 3 by listing, in detail, (i) the
nature of the condition or event, the period during which it has existed and the action which the
Borrower has taken, is taking, or proposes to take with respect to each such condition or event or
(ii) the change in GAAP or the application thereof and the effect of such change on the attached
financial statements:



      



 



 





17










 





     The foregoing certifications, together with the computations set forth in Schedules I and
II hereto and the financial statements delivered with this Certificate in support hereof, are
made and delivered this            day of           ,      .



	 	 	 	 	 
	 	NETWORK APPLIANCE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




18








 






	 	 	 	 	 



SCHEDULE I




Compliance
as of                     ,       with

Provisions of       and       of

the Agreement






19








 








SCHEDULE II




Borrower’s Applicable Rate Calculation






 










 






EXHIBIT F




FORM OF INCREASING LENDER SUPPLEMENT




          INCREASING LENDER SUPPLEMENT, dated _________, 20___ (this “Supplement”), by and
among each of the signatories hereto, to the Credit Agreement, dated as of November 2, 2007 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Network Appliance, Inc. (the “Borrower”), the Lenders party thereto
and JPMorgan Chase Bank, National Association, as administrative agent (in such capacity, the
“Administrative Agent”).




WITNESSETH




          WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the Borrower has the right,
subject to the terms and conditions thereof, to effectuate from time to time an increase in the
aggregate Commitments and/or one or more tranches of Incremental Term Loans under the Credit
Agreement by requesting one or more Lenders to increase the amount of its Commitment and/or to
participate in such a tranche;




          WHEREAS, the Borrower has given notice to the Administrative Agent of its intention to
[increase the aggregate Commitments] [and] [enter into a tranche of Incremental Term Loans]
pursuant to such Section 2.20; and




          WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the undersigned Increasing
Lender now desires to [increase the amount of its Commitment] [and] [participate in a tranche of
Incremental Term Loans] under the Credit Agreement by executing and delivering to the Borrower and
the Administrative Agent this Supplement;




          NOW, THEREFORE, each of the parties hereto hereby agrees as follows:




          1. The undersigned Increasing Lender agrees, subject to the terms and conditions of the
Credit Agreement, that on the date of this Supplement it shall [have its Commitment increased by
$[______], thereby making the aggregate amount of its total Commitments equal to $[______]]
[and] [participate in a tranche of Incremental Term Loans with a commitment amount equal to
$[______] with respect thereto].




          2. The Borrower hereby represents and warrants that no Default or Event of Default has
occurred and is continuing on and as of the date hereof.




          3. Terms defined in the Credit Agreement shall have their defined meanings when used herein.




          4. This Supplement shall be governed by, and construed in accordance with, the laws of the
State of New York.




          5. This Supplement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same document.




2












 









          IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and
delivered by a duly authorized officer on the date first above written.




	 	 	 	 	 	 	 
	[INSERT NAME OF INCREASING LENDER]

 	 
	By:  	 	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	 
	Accepted and agreed to as of the date first written above:



NETWORK APPLIANCE, INC.

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	 
	Acknowledged as of the date first written above:



JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
as Administrative Agent  	 	 
	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



3











 







	 	 	 	 	 



EXHIBIT G




FORM OF AUGMENTING LENDER SUPPLEMENT




          AUGMENTING
LENDER SUPPLEMENT, dated _________, 20___ (this “Supplement”), to the
Credit Agreement, dated as of November 2, 2007 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among Network Appliance, Inc. (the
“Borrower”), the Lenders party thereto and JPMorgan Chase Bank, National Association, as
administrative agent (in such capacity, the “Administrative Agent”).




WITNESSETH




          WHEREAS, the Credit Agreement provides in Section 2.20 thereof that any bank, financial
institution or other entity may [extend Commitments] [and] [participate in tranches of Incremental
Term Loans] under the Credit Agreement subject to the approval of the Borrower and the
Administrative Agent, by executing and delivering to the Borrower and the Administrative Agent a
supplement to the Credit Agreement in substantially the form of this Supplement; and




          WHEREAS, the undersigned Augmenting Lender was not an original party to the Agreement but now
desires to become a party thereto;




          NOW, THEREFORE, each of the parties hereto hereby agrees as follows:




          1. The undersigned Augmenting Lender agrees to be bound by the provisions of the Credit
Agreement and agrees that it shall, on the date of this Supplement, become a Lender for all
purposes of the Credit Agreement to the same extent as if originally a party thereto, with a
[Commitment with respect to Revolving Loans of $[______]] [and] [a commitment with respect to
Incremental Term Loans of $[______]].




          2. The undersigned Augmenting Lender (a) represents and warrants that it is legally
authorized to enter into this Supplement; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements delivered pursuant to
Section 5.01 thereof, as applicable, and has reviewed such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to enter into this
Supplement; (c) agrees that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking action under the
Credit Agreement or any other instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound
by the provisions of the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be performed by it as a
Lender.




          3. The undersigned’s address for notices for the purposes of the Credit Agreement is as
follows:




          [______]




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          4. The Borrower hereby represents and warrants that no Default or Event of Default has
occurred and is continuing on and as of the date hereof.




          5. Terms defined in the Credit Agreement shall have their defined meanings when used herein.




          6. This Supplement shall be governed by, and construed in accordance with, the laws of the
State of New York.




          7. This Supplement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same document.




[remainder of this page intentionally left blank]




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          IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and
delivered by a duly authorized officer on the date first above written.




	 	 	 	 	 	 	 
	 	[INSERT NAME OF AUGMENTING LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	Accepted and agreed to as of the date first written above:



NETWORK APPLIANCE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	Acknowledged as of the date first written above:



JPMORGAN CHASE BANK, NATIONAL ASSOCIATION as Administrative Agent
 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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