exv10w111



 





Exhibit 10.111




EXECUTION VERSION




CREDIT AGREEMENT




Dated as of March 3, 2008




among




LAM RESEARCH CORPORATION,




as the Borrower,




ABN AMRO BANK N.V.,

as Administrative Agent,




and




The Other Lenders Party Hereto




ABN AMRO Incorporated,




as Sole Lead Arranger and Sole Bookrunner




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	 
	 	 	 	 	 	 
	1.01.
	 	Defined Terms	 	 	1	 
	 
	 	 	 	 	 	 
	1.02.
	 	Other Interpretive Provisions	 	 	21	 
	 
	 	 	 	 	 	 
	1.03.
	 	Accounting Terms	 	 	22	 
	 
	 	 	 	 	 	 
	1.04.
	 	Rounding	 	 	22	 
	 
	 	 	 	 	 	 
	1.05.
	 	Times of Day	 	 	22	 
	 
	 	 	 	 	 	 
	1.06.
	 	Currency Equivalents Generally	 	 	22	 
	 
	 	 	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	23	 
	 
	 	 	 	 	 	 
	2.01.
	 	The Loans	 	 	23	 
	 
	 	 	 	 	 	 
	2.02.
	 	Borrowings, Conversions and Continuations of Loans	 	 	23	 
	 
	 	 	 	 	 	 
	2.03.
	 	Prepayments	 	 	24	 
	 
	 	 	 	 	 	 
	2.04.
	 	Repayment of Loans	 	 	25	 
	 
	 	 	 	 	 	 
	2.05.
	 	Interest	 	 	25	 
	 
	 	 	 	 	 	 
	2.06.
	 	Fees	 	 	26	 
	 
	 	 	 	 	 	 
	2.07.
	 	Computation of Interest and Fees	 	 	26	 
	 
	 	 	 	 	 	 
	2.08.
	 	Evidence of Debt	 	 	26	 
	 
	 	 	 	 	 	 
	2.09.
	 	Payments Generally; Administrative Agent’s Clawback	 	 	27	 
	 
	 	 	 	 	 	 
	2.10.
	 	Sharing of Payments by Lenders	 	 	28	 
	 
	 	 	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	29	 
	 
	 	 	 	 	 	 
	3.01.
	 	Taxes	 	 	29	 
	 
	 	 	 	 	 	 
	3.02.
	 	Illegality	 	 	31	 
	 
	 	 	 	 	 	 
	3.03.
	 	Inability to Determine Rates	 	 	32	 
	 
	 	 	 	 	 	 
	3.04.
	 	Increased Costs; Reserves on Eurodollar Rate Loan	 	 	32	 
	 
	 	 	 	 	 	 
	3.05.
	 	Compensation for Losses	 	 	33	 
	 
	 	 	 	 	 	 
	3.06.
	 	Mitigation Obligations; Replacement of Lenders	 	 	34	 
	 
	 	 	 	 	 	 
	3.07.
	 	Survival	 	 	34	 
	 
	 	 	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	34	 
	 
	 	 	 	 	 	 
	4.01.
	 	Conditions of Initial Credit Extension	 	 	34	 
	 
	 	 	 	 	 	 
	4.02.
	 	Additional Conditions to Initial Credit Extensions	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES	 	 	39	 
	 
	 	 	 	 	 	 
	5.01.
	 	Existence, Qualification and Power	 	 	39	 
	 
	 	 	 	 	 	 
	5.02.
	 	Authorization; No Contravention	 	 	39	 






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(Continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	5.03.
	 	Governmental Authorization; Other Consents	 	 	39	 
	 
	 	 	 	 	 	 
	5.04.
	 	Binding Effect	 	 	40	 
	 
	 	 	 	 	 	 
	5.05.
	 	Financial Statements; No Material Adverse Effect	 	 	40	 
	 
	 	 	 	 	 	 
	5.06.
	 	Litigation	 	 	41	 
	 
	 	 	 	 	 	 
	5.07.
	 	No Default	 	 	42	 
	 
	 	 	 	 	 	 
	5.08.
	 	Ownership of Property; Liens; Investments	 	 	42	 
	 
	 	 	 	 	 	 
	5.09.
	 	Environmental Compliance	 	 	43	 
	 
	 	 	 	 	 	 
	5.10.
	 	Insurance	 	 	43	 
	 
	 	 	 	 	 	 
	5.11.
	 	Taxes	 	 	44	 
	 
	 	 	 	 	 	 
	5.12.
	 	ERISA Compliance	 	 	44	 
	 
	 	 	 	 	 	 
	5.13.
	 	Subsidiaries; Equity Interests; Loan Parties	 	 	45	 
	 
	 	 	 	 	 	 
	5.14.
	 	Margin Regulations; Investment Company Act	 	 	45	 
	 
	 	 	 	 	 	 
	5.15.
	 	Disclosure	 	 	45	 
	 
	 	 	 	 	 	 
	5.16.
	 	Compliance with Laws	 	 	46	 
	 
	 	 	 	 	 	 
	5.17.
	 	Intellectual Property; Licenses, Etc	 	 	46	 
	 
	 	 	 	 	 	 
	5.18.
	 	Solvency	 	 	46	 
	 
	 	 	 	 	 	 
	5.19.
	 	Casualty, Etc	 	 	46	 
	 
	 	 	 	 	 	 
	5.20.
	 	Labor Matters	 	 	46	 
	 
	 	 	 	 	 	 
	5.21.
	 	Collateral Documents	 	 	46	 
	 
	 	 	 	 	 	 
	5.22.
	 	Affiliate Transactions	 	 	47	 
	 
	 	 	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS	 	 	47	 
	 
	 	 	 	 	 	 
	6.01.
	 	Financial Statements	 	 	47	 
	 
	 	 	 	 	 	 
	6.02.
	 	Certificates; Other Information	 	 	48	 
	 
	 	 	 	 	 	 
	6.03.
	 	Notices	 	 	50	 
	 
	 	 	 	 	 	 
	6.04.
	 	Payment of Obligations	 	 	51	 
	 
	 	 	 	 	 	 
	6.05.
	 	Preservation of Existence, Etc	 	 	51	 
	 
	 	 	 	 	 	 
	6.06.
	 	Maintenance of Properties	 	 	51	 
	 
	 	 	 	 	 	 
	6.07.
	 	Maintenance of Insurance	 	 	51	 
	 
	 	 	 	 	 	 
	6.08.
	 	Compliance with Laws	 	 	51	 
	 
	 	 	 	 	 	 
	6.09.
	 	Books and Records	 	 	52	 
	 
	 	 	 	 	 	 
	6.10.
	 	Inspection Rights	 	 	52	 
	 
	 	 	 	 	 	 
	6.11.
	 	Use of Proceeds	 	 	52	 






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(Continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	6.12.
	 	Covenant to Guarantee Obligations and Give Security	 	 	52	 
	 
	 	 	 	 	 	 
	6.13.
	 	Compliance with Environmental Laws	 	 	55	 
	 
	 	 	 	 	 	 
	6.14.
	 	Preparation of Environmental Reports	 	 	55	 
	 
	 	 	 	 	 	 
	6.15.
	 	Further Assurances	 	 	55	 
	 
	 	 	 	 	 	 
	6.16.
	 	Compliance with Terms of Leaseholds	 	 	56	 
	 
	 	 	 	 	 	 
	6.17.
	 	Lien Searches	 	 	56	 
	 
	 	 	 	 	 	 
	6.18.
	 	Material Contracts	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS	 	 	56	 
	 
	 	 	 	 	 	 
	7.01.
	 	Liens	 	 	56	 
	 
	 	 	 	 	 	 
	7.02.
	 	Indebtedness	 	 	58	 
	 
	 	 	 	 	 	 
	7.03.
	 	Investments	 	 	60	 
	 
	 	 	 	 	 	 
	7.04.
	 	Fundamental Changes	 	 	62	 
	 
	 	 	 	 	 	 
	7.05.
	 	Dispositions	 	 	63	 
	 
	 	 	 	 	 	 
	7.06.
	 	Restricted Payments	 	 	64	 
	 
	 	 	 	 	 	 
	7.07.
	 	Change in Nature of Business	 	 	64	 
	 
	 	 	 	 	 	 
	7.08.
	 	Transactions with Affiliates	 	 	64	 
	 
	 	 	 	 	 	 
	7.09.
	 	Burdensome Agreements	 	 	65	 
	 
	 	 	 	 	 	 
	7.10.
	 	Use of Proceeds	 	 	65	 
	 
	 	 	 	 	 	 
	7.11.
	 	Financial Covenants	 	 	65	 
	 
	 	 	 	 	 	 
	7.12.
	 	Capital Expenditures	 	 	65	 
	 
	 	 	 	 	 	 
	7.13.
	 	Amendments of Organization Documents	 	 	66	 
	 
	 	 	 	 	 	 
	7.14.
	 	Accounting Changes	 	 	66	 
	 
	 	 	 	 	 	 
	7.15.
	 	Prepayments, Etc. of Indebtedness	 	 	66	 
	 
	 	 	 	 	 	 
	7.16.
	 	Amendment of Certain Indebtedness	 	 	66	 
	 
	 	 	 	 	 	 
	7.17.
	 	Subordinated Indebtedness	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES	 	 	66	 
	 
	 	 	 	 	 	 
	8.01.
	 	Events of Default	 	 	66	 
	 
	 	 	 	 	 	 
	8.02.
	 	Remedies upon Event of Default	 	 	68	 
	 
	 	 	 	 	 	 
	8.03.
	 	Application of Funds	 	 	69	 
	 
	 	 	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT	 	 	69	 
	 
	 	 	 	 	 	 
	9.01.
	 	Appointment and Authority	 	 	69	 
	 
	 	 	 	 	 	 
	9.02.
	 	Rights as a Lender	 	 	70	 






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(Continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	9.03.
	 	Exculpatory Provisions	 	 	70	 
	 
	 	 	 	 	 	 
	9.04.
	 	Reliance by Administrative Agent	 	 	71	 
	 
	 	 	 	 	 	 
	9.05.
	 	Delegation of Duties	 	 	71	 
	 
	 	 	 	 	 	 
	9.06.
	 	Resignation of Administrative Agent	 	 	71	 
	 
	 	 	 	 	 	 
	9.07.
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	72	 
	 
	 	 	 	 	 	 
	9.08.
	 	No Other Duties, Etc	 	 	72	 
	 
	 	 	 	 	 	 
	9.09.
	 	Administrative Agent May File Proofs of Claim	 	 	72	 
	 
	 	 	 	 	 	 
	9.10.
	 	Collateral and Guaranty Matters	 	 	73	 
	 
	 	 	 	 	 	 
	ARTICLE X. MISCELLANEOUS	 	 	74	 
	 
	 	 	 	 	 	 
	10.01.
	 	Amendments, Etc	 	 	74	 
	 
	 	 	 	 	 	 
	10.02.
	 	Notices; Effectiveness; Electronic Communications	 	 	75	 
	 
	 	 	 	 	 	 
	10.03.
	 	No Waiver; Cumulative Remedies	 	 	77	 
	 
	 	 	 	 	 	 
	10.04.
	 	Expenses; Indemnity; Damage Waiver	 	 	77	 
	 
	 	 	 	 	 	 
	10.05.
	 	Payments Set Aside	 	 	79	 
	 
	 	 	 	 	 	 
	10.06.
	 	Successors and Assigns	 	 	79	 
	 
	 	 	 	 	 	 
	10.07.
	 	Treatment of Certain Information; Confidentiality	 	 	83	 
	 
	 	 	 	 	 	 
	10.08.
	 	Right of Setoff	 	 	83	 
	 
	 	 	 	 	 	 
	10.09.
	 	Interest Rate Limitation	 	 	84	 
	 
	 	 	 	 	 	 
	10.10.
	 	Counterparts; Integration; Effectiveness	 	 	84	 
	 
	 	 	 	 	 	 
	10.11.
	 	Survival of Representations and Warranties	 	 	84	 
	 
	 	 	 	 	 	 
	10.12.
	 	Severability	 	 	85	 
	 
	 	 	 	 	 	 
	10.13.
	 	Replacement of Lenders	 	 	85	 
	 
	 	 	 	 	 	 
	10.14.
	 	Governing Law; Jurisdiction; Etc	 	 	85	 
	 
	 	 	 	 	 	 
	10.15.
	 	Waiver of Jury Trial	 	 	86	 
	 
	 	 	 	 	 	 
	10.16.
	 	California Judicial Reference	 	 	87	 
	 
	 	 	 	 	 	 
	10.17.
	 	No Advisory or Fiduciary Responsibility	 	 	87	 
	 
	 	 	 	 	 	 
	10.18.
	 	USA PATRIOT Act Notice	 	 	87	 
	 
	 	 	 	 	 	 
	10.19.
	 	Time of the Essence	 	 	88	 






iv









 









	 	 	 
	SCHEDULES
	 	 
	 
	 	 
	2.01
	 	Commitments and Applicable Percentages
	5.05
	 	Supplement to Interim Financial Statements
	5.08(b)
	 	Existing Liens
	5.08(c)
	 	Owned Real Property
	5.08(d)(i)
	 	Leased Real Property (Lessee)
	5.08(d)(ii)
	 	Leased Real Property (Lessor)
	5.08(e)
	 	Existing Investments
	5.13
	 	Subsidiaries and Other Equity Investments; Loan Parties
	6.12
	 	Guarantors
	7.02
	 	Existing Indebtedness
	7.09
	 	Agreements Restricting Payments to Borrower and/or Guarantor
	10.02
	 	Administrative Agent's Office, Certain Addresses for Notices
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	Form of
	 	 
	 
	 	 
	A
	 	Committed Loan Notice
	B
	 	Note
	C
	 	Compliance Certificate
	D
	 	Assignment and Assumption
	E
	 	Guaranty
	F
	 	Pledge Agreement
	G
	 	Security Agreement






v









 






CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of March 3, 2008, among LAM
RESEARCH CORPORATION, a Delaware corporation (the “Borrower”), each lender from time to
time party hereto (collectively, the “Lenders” and individually, a “Lender”), and
ABN AMRO BANK N.V., as Administrative Agent (the “Administrative Agent”).



PRELIMINARY STATEMENTS:




     The Borrower has requested that the Lenders lend to the Borrower up to $250,000,000 for
general corporate purposes, including the payment for acquisitions.



     In furtherance of the foregoing, the Borrower has requested that the Lenders provide a term
loan facility, and the Lenders have indicated their willingness to lend on the terms and subject to
the conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01. Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “ABN AMRO” means ABN AMRO Bank N.V.



     “Acquisition” means the acquisition by the Borrower of SEZ Holding AG pursuant to the
Acquisition Agreement.



     “Acquisition Agreement” means the Transaction Agreement dated December 10, 2007
between the Borrower and SEZ Holding AG.



     “Administrative Agent” has the meaning specified in the introductory paragraph hereto,
or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



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



     “Affiliate” means, with respect to any 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 Commitments” means the Commitments of all the Lenders.



1









 





     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means, with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Facility represented by (i) on or prior to the
Closing Date, such Lender’s Commitment at such time and (ii) thereafter, the principal amount of
such Lender’s Loans at such time. If the commitment of each Lender to make Loans has been
terminated pursuant to Section 8.02, or if the Commitments have expired, then the
Applicable Percentage of each Lender in respect of the Facility shall be determined based on the
Applicable Percentage of such Lender in respect of Facility most recently in effect, giving effect
to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each
Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means 0.0% per annum for Base Rate Loans and 0.75% per annum for
Eurodollar Rate Loans.



     “Approved Fund” means any Fund 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.



     “Arranger” means ABN AMRO Incorporated its capacity as sole lead arranger and sole
bookrunner.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit D or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized
Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease or similar payments under the relevant
lease or other applicable agreement or instrument that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease or other agreement or
instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended June 24, 2006, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the
Borrower and its Subsidiaries, including the notes thereto.



     “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day
as publicly announced from time to time by ABN AMRO at its principal office in Chicago, Illinois as
its “prime rate” for Dollar loans. The “prime rate” is a rate set by ABN AMRO based upon various



2









 







factors including ABN AMRO’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by ABN AMRO shall take effect at the
opening of business on the day specified in the public announcement of such change.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a borrowing consisting of simultaneous Loans and, in the case of
Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to
Section 2.01(a).



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.



     “Capital Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance which are properly charged to current operations).



     “Capitalized Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.



     “Cash Equivalents” means any of the following types of Investments, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all Liens (other than Liens
created under the Collateral Documents):



     (a) readily marketable obligations issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof having maturities of not more
than 360 days from the date of acquisition thereof; provided that the full faith and credit
of the United States of America is pledged in support thereof;



     (b) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any
commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of
America, any state thereof or the District of Columbia or is the principal banking subsidiary of a
bank holding company organized under the laws of the United States of America, any state thereof or
the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent
of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has
combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more
than 90 days from the date of acquisition thereof;



3









 





     (c) commercial paper issued by any Person organized under the laws of any state of the United
States of America and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at
least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than
180 days from the date of acquisition thereof; and



     (d) Investments, classified in accordance with GAAP as current or long-term assets of the
Borrower or any of its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial institutions that meet the
standards set forth in clause (b) or (c) above, and the portfolios of which are limited solely to
Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this
definition.



     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980.



     “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.



     “CFC” means a Person that is a controlled foreign corporation under Section 957 of the
Code.



     “CFC Holding Company” means a Person whose assets consist (directly or indirectly)
primarily (within the meaning of Section 956 of the Code) of stock in one or more CFCs.



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



     “Change of Control” means an event or series of events by which:



     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to
have “beneficial ownership” of all securities that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time (such right, an
“option right”)), directly or indirectly, of 25% or more of the equity securities of the
Borrower entitled to vote for members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis (and taking into account all such securities that such “person”
or “group” has the right to acquire pursuant to any option right); or



     (b) during any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower cease to be composed of individuals
(i) who were members of that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing body was



4









 







approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or (iii)
whose election or nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body (excluding, in the case
of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of one or more directors
by any person or group other than a solicitation for the election of one or more directors by or on
behalf of the board of directors); or



     (c) any Person or two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof,
will result in its or their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower, or control over the equity
securities of the Borrower entitled to vote for members of the board of directors or equivalent
governing body of the Borrower on a fully-diluted basis (and taking into account all such
securities that such Person or Persons have the right to acquire pursuant to any option right)
representing 25% or more of the combined voting power of such securities.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01 and the initial Loan is
made.



     “Code” means the Internal Revenue Code of 1986.



     “Collateral” means all of the “Collateral” referred to in the Collateral
Documents and all of the other property that is or is intended under the terms of the Collateral
Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the
Secured Parties.



     “Collateral Documents” means, collectively, the Security Agreement, the Pledge
Agreements, each of the collateral assignments, Security Agreement Supplements, Pledge Agreement
Supplements, security agreements, pledge agreements or other similar agreements delivered to the
Administrative Agent pursuant to Section 6.12, and each of the other agreements,
instruments or documents that creates or purports to create a Lien in favor of the Administrative
Agent for the benefit of the Secured Parties.



     “Commitment” means, as to each Lender, its obligation to make Loans to the Borrower
pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the
caption “Commitment.”



     “Commitment Fee Due Date” means the earliest to occur of (i) the Closing Date, (ii)
March 31, 2008 and (iii) two days after the date on which the Administrative Agent receives notice
from the Borrower that the Borrower wishes to terminate the Lenders’ commitment.



     “Committed Loan Notice” means (a) a notice of a Borrowing, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.



5









 





     “Compliance Certificate” means a certificate substantially in the form of Exhibit
C.



     “Consolidated EBITDA” means, at any date of determination, an amount equal to
Consolidated Net Income of the Borrower and its Subsidiaries on a consolidated basis for the most
recently completed Measurement Period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Interest Charges, (ii) the provision
for Federal, state, local and foreign income taxes payable, (iii) depreciation and amortization
expense and amortization of intangibles (including goodwill), (iv) other non-recurring expenses
reducing such Consolidated Net Income which do not represent a cash item in such period or any
future period (in each case of or by the Borrower and its Subsidiaries for such Measurement
Period), (v) non-cash expenses of any future restructuring charges under GAAP and (vi)
non-recurring cash charges in connection with the Stock Option Accounting Restatement,
provided, however, that the amount added back in this clause (vi) shall not exceed
$75,000,000; and minus (b) the following to the extent included in calculating such
Consolidated Net Income: (i) Federal, state, local and foreign income tax credits and (ii) all
non-cash items increasing Consolidated Net Income (in each case of or by the Borrower and its
Subsidiaries for such Measurement Period).



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course of business), (e)
all Attributable Indebtedness, (f) without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the
Borrower or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a)
through (f) above of any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Borrower or a Subsidiary is a general
partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Borrower
or such Subsidiary.



     “Consolidated Interest Charges” means, for any Measurement Period, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses in connection with
borrowed money (including capitalized interest) or in connection with the deferred purchase price
of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest
paid or payable with respect to discontinued operations, (c) the portion of rent expense under
Capitalized Leases that is treated as interest in accordance with GAAP, in each case, of or by the
Borrower and its Subsidiaries on a consolidated basis for the most recently completed Measurement
Period and (d) non-principal payments under Synthetic Leases and under Synthetic Debt.



     “Consolidated Investments” means, as of any date of determination, the aggregate
consolidated short-term and long-term Investments shown on the consolidated balance sheet of the
Borrower and its Subsidiaries determined in accordance with GAAP, but excluding any



6









 







Investments that (a) are not owned by a Loan Party free and clear of Liens other than Liens
in favor of the Administrative Agent or (b) are not (i) readily marketable debt or money market
securities or (ii) Equity Interests readily marketable on a recognized securities exchange.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) the sum of Shareholders’ Equity plus the
Consolidated Funded Indebtedness of the Borrower and its Subsidiaries on a consolidated basis as of
the end of the most recently completed Measurement Period.



     “Consolidated Net Income” means, at any date of determination, the net income (or
loss) of the Borrower and its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period; provided that Consolidated Net Income shall exclude (a) extraordinary
gains and extraordinary losses for such Measurement Period, (b) the net income of any Subsidiary
during such Measurement Period to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary of such income is not permitted by operation of the terms
of its Organization Documents or any agreement (other than this Agreement), instrument or Law
applicable to such Subsidiary during such Measurement Period, except that the Borrower’s equity in
any net loss of any such Subsidiary for such Measurement Period shall be included in determining
Consolidated Net Income, and (c) any income (or loss) for such Period of any Person if such Person
is not a Subsidiary, except that the Borrower’s equity in the net income of any such Person for
such Measurement Period shall be included in Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Person during such Period to the Borrower or a Subsidiary as a
dividend or other distribution (and in the case of a dividend or other distribution to a
Subsidiary, such Subsidiary is not precluded from further distributing such amount to the Borrower
as described in clause (b) of this proviso).



     “Consolidated Unrestricted Cash” means, as of any date of determination, cash or cash
equivalents shown on the consolidated balance sheet of the Borrower and its Subsidiaries determined
in accordance with GAAP, but excluding any cash and cash equivalents that are not owned by a Loan
Party free and clear of Liens other than Liens in favor of the Administrative Agent.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



     “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 Extension” means a Borrowing.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the



7









 







United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) an interest rate equal to (i) the Base Rate plus (ii)
the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise
applicable to such Loan plus 2% per annum and (b) when used with respect to other payments,
a rate equal to the Base Rate plus the Applicable Rate plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Loans required to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency proceeding.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person (or the
granting of any option or other right to do any of the foregoing), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith.



     “Dollar” and “$” mean lawful money of the United States.



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



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)).



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, any other Loan Party or any of their respective Subsidiaries 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



8









 







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.



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



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



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



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is insolvent or in reorganization or
in critical status; (d) the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings
by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.



     “Eurodollar Base Rate” has the meaning specified in the definition of Eurodollar Rate.



     “Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:



	 	 	 
	Eurodollar Rate =

	 	Eurodollar Base Rate 

1.00 – Eurodollar Reserve Percentage






     Where,



9









 





     “Eurodollar Base Rate” means, for such Interest Period, the rate per annum equal to
the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by the Administrative
Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period. If such rate is not available at
such time for any reason, then the “Eurodollar Base Rate” for such Interest Period shall be the
rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars
for delivery on the first day of such Interest Period in same day funds in the approximate amount
of the Eurodollar Rate Loan being made, continued or converted by ABN AMRO and with a term
equivalent to such Interest Period would be offered by ABN AMRO’s London Branch to major banks in
the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the commencement of such Interest Period.



     “Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB
for determining the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall
be adjusted automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.



     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lending Office is located,
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrower under Section 10.13), any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with Section
3.01(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 3.01(a).



10









 





     “Existing Credit Agreement” means that certain credit agreement dated as of June 16,
2006 among Lam Research International SARL, ABN AMRO Bank N.V., as administrative agent, and a
syndicate of lenders.



     “Facility” means, at any time, (a) on or prior to the Closing Date, the aggregate
amount of the Commitments at such time and (b) thereafter, the aggregate principal amount of the
Loans of all Lenders outstanding at such time.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to ABN AMRO on such day on such transactions as determined by the Administrative Agent.



     “Fee Letter” means the letter agreement, dated October 4, 2007 and as amended December
12, 2007, between the Borrower and the Administrative Agent.



     “Foreign Government Scheme or Arrangement” has the meaning specified in Section
5.12(d).



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



     “Foreign Plan” has the meaning specified in Section 5.12(d).



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



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



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,



11









 







instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



     “Guarantors” means, collectively, each existing subsidiary of the Borrower listed on
Schedule 6.12 and each subsequently acquired or organized Domestic Subsidiary of the
Borrower that shall be required to execute and deliver a guaranty or guaranty supplement pursuant
to Section 6.12.



     “Guaranty” means, collectively, the Guaranty made by the Guarantors in favor of the
Secured Parties, substantially in the form of Exhibit E, together with each other guaranty
and guaranty supplement delivered pursuant to Section 6.12.



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



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:



     (a) all obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar instruments;



12









 





     (b) the maximum amount of all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments;



     (c) net obligations of such Person under any Swap Contract;



     (d) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and not past due for more
than 90 days after the date on which such trade account was created);



     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse;



     (f) all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease
Obligations of such Person and all Synthetic Debt of such Person;



     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interest in such Person or any other Person or any warrant, right
or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest,
at the greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends; and



     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitee” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such
Loan was made; provided, however, that if any Interest Period for a Eurodollar Rate
Loan exceeds three months, the respective dates that fall every three months after the beginning of
such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the
last Business Day of each March, June, September and December and the Maturity Date of the Facility
under which such Loan was made.



13









 





     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its
Committed Loan Notice; provided that:



     (a) any Interest Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding Business Day;



     (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the end of such
Interest Period; and



     (c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such
Loan was made.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or interest in, another Person, or (c) the
purchase or other acquisition (in one transaction or a series of transactions) of assets of another
Person that constitute a business unit or all or a substantial part of the business of, such
Person. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.



     “IP Rights” has the meaning specified in Section 5.17.



     “IRS” means the United States Internal Revenue Service.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “Lender” has the meaning specified in the introductory paragraph hereto.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or




14











 




preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, and any financing lease having
substantially the same economic effect as any of the foregoing).




     “Loan” means an extension of credit by a Lender to the Borrower under Article
II.



     “Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the
Guaranty, (d) the Collateral Documents and (e) the Fee Letter.



     “Loan Parties” means, collectively, the Borrower and each Guarantor.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the
Administrative Agent or any Lender under any Loan Document, or of the ability of any Loan Party to
perform its obligations under any Loan Document to which it is a party; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against any Loan Party of any
Loan Document to which it is a party.



     “Material Contract” means, with respect to any Person, each contract to which such
Person is a party involving aggregate consideration payable to or by such Person of $35,000,000 or
more in any year or otherwise material to the business, condition (financial or otherwise),
operations, performance, properties or prospects of such Person.



     “Maturity Date” means the second anniversary of the Closing Date; provided,
however, that, if such date is not a Business Day, the Maturity Date shall be the next
Business Day.



     “Measurement Period” means, at any date of determination, the most recently completed
four fiscal quarters of the Borrower.



     “Minimum Liquidity” means, without duplication, the Consolidated Unrestricted Cash
plus Consolidated Investments.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Net Cash Proceeds” means with respect to the incurrence or issuance of any
Indebtedness by the Borrower or any of its Subsidiaries, the excess of (i) the sum of the cash and
Cash Equivalents received in connection with such transaction over (ii) the underwriting discounts
and commissions, and other reasonable and customary out-of-pocket expenses, incurred by the
Borrower or such Subsidiary in connection therewith.



15









 





     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit B.



     “NPL” means the National Priorities List under CERCLA.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any
Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent,
due or to become due, now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding
under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



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



     “Outstanding Amount” means, on any date, the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of Loans, occurring on
such date.



     “Participant” has the meaning specified in Section 10.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permitted Synthetic Lease Obligations” means those Synthetic Lease Obligations
incurred or intended to be incurred in connection with the Borrower’s premises located in Fremont
and Livermore, California, in an aggregate amount of up to $165,000,000.



16









 





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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Section 302 or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.



     “Pledge Agreement” has the meaning specified in Section 4.01(a)(iii).



     “Pledge Agreement Supplement” means a supplement to the Pledge Agreement that adds
assets to the Collateral covered by the Pledge Agreement.



     “Pledged Debt” has the meaning specified on Exhibit A to the Pledge Agreement.



     “Pledged Equity” means the “Equity Securities” pledged under the Pledge Agreement.



     “Public Lender” has the meaning specified in Section 6.02.



     “Register” has the meaning specified in Section 10.06(c).



     “Related Documents” means the Acquisition Agreement.



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



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means with respect to a Borrowing, conversion or
continuation of Loans, a Committed Loan Notice.



     “Required Lenders” means, as of any date of determination, Lenders holding more than
50% of the Commitments or, if no Commitments are outstanding on such date, the Outstanding Amount
on such date; provided that the portion of the Outstanding Amount held, or deemed held, by
any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or controller of a Loan Party. Any document delivered hereunder that is signed
by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by
all necessary corporate, partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.



17









 





     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of any
Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
defeasance, acquisition, cancellation or termination of any such capital stock or other Equity
Interest, or on account of any return of capital to any Person’s stockholders, partners or members
(or the equivalent of any thereof), or any option, warrant or other right to acquire any such
dividend or other distribution or payment.



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



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Secured Obligations” means any and all of the Obligations and the SWAP Obligations.



     “Secured Parties” means, collectively, the Administrative Agent, the Lenders, each
co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to
Section 9.05, and the other Persons the Secured Obligations owing to which are or are
purported to be secured by the Collateral under the terms of the Collateral Documents.



     “Security Agreement” has the meaning specified in Section 4.01(a)(iii).



     “Security Agreement Supplement” means a supplement to the Security Agreement that adds
assets to the Collateral covered by the Security Agreement.



     “Senior Secured Indebtedness” means any Indebtedness that is not Subordinated
Indebtedness and that is secured by any assets of any Loan Party.



     “Shareholders’ Equity” means, as of any date of determination, consolidated
shareholders’ equity of the Borrower and its Subsidiaries as of that date determined in accordance
with GAAP.



     “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured,
(c) such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such Person’s property would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent obligations and other commitments as
they mature in the ordinary course of business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an actual or matured
liability.



18









 





     “Stock Option Accounting Restatement” means the pending restatement of the Borrower’s
financial statements to reflect adjustments in the accounting for grant, issuance and exercise of
stock options issued by the Borrower.



     “Subordinated Indebtedness” means all Indebtedness of the Borrower or any of its
Subsidiaries that is (a) subordinated to the Obligations hereunder containing terms acceptable to
the Administrative Agent and the Required Lenders, including terms of subordination, interest
rates, financial covenants and maturity dates and (b) subject to intercreditor agreements
acceptable to the Administrative Agent and the Required Lenders.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer
to a Subsidiary or Subsidiaries of the Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     “SWAP Obligations” means the obligations of any of the Loan Parties to the
Administrative Agent, any Lender or any of their Affiliates under or with respect to any SWAP
Contract relating to Borrower’s Obligations under any Loan Document, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue after the commencement by
or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws
naming such Person as the debtor in such proceeding, regardless of whether such interest and fees
are allowed claims in such proceeding.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and



19









 







termination value(s) determined in accordance therewith, such termination value(s), and (b)
for any date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).



     “Synthetic Debt” means, with respect to any Person as of any date of determination
thereof, all obligations of such Person in respect of transactions entered into by such Person that
are intended to function primarily as a borrowing of funds (including any minority interest
transactions that function primarily as a borrowing) but are not otherwise included in the
definition of “Indebtedness” or as a liability on the consolidated balance sheet of such
Person and its Subsidiaries in accordance with GAAP but which, upon the application of any Debtor
Relief Laws to such Person, would be characterized as the indebtedness of such Person (without
regard to accounting treatment).



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property (including sale and leaseback transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which, upon the application
of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).



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



     “Threshold Amount” means $35,000,000.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.



     “UCC” means the Uniform Commercial Code as the same may, from time to time, be enacted
and in effect in the State of California; provided, that to the extent that the Uniform
Commercial Code is used to define any term relating to Collateral herein or in any Loan Document
and such term is defined differently in different Articles or Divisions of the Uniform Commercial
Code, the definition of such term contained in Article or Division 9 shall govern; provided
further, that in the event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of, or remedies with respect to, Lender’s Lien on any Collateral
is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than
the State of California, the term “UCC” shall mean the Uniform Commercial Code as enacted
and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to
such attachment, perfection, priority or remedies and for purposes of definitions related to such
provisions.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,



20









 







determined in accordance with the assumptions used for funding the Pension Plan pursuant to
Section 412 of the Code for the applicable plan year.



     “Uninsured Liabilities” shall mean any losses, damages, costs, expenses and/or,
liabilities (including any losses, damages, costs, expenses or liabilities resulting from property
damage or casualty, general liability, workers’ compensation claims and business interruption)
incurred by the Borrower or any Subsidiary which are not covered by insurance, but with respect to
which insurance coverage is commercially available in the ordinary course of business to Persons
engaged in the same or similar business as the Borrower and its Subsidiaries.



     “United States” and “U.S.” mean the United States of America.



     “U.S. Loan Party” means any Loan Party that is organized under the laws of one of the
states of the United States of America and that is not a CFC.



     1.02. Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



     (a) 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, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein or in any other Loan Document), (ii) any reference herein to any
Person shall be construed to include such Person’s successors and assigns, (iii) the words
“herein,” “hereof” and “hereunder,” and words of similar import when used
in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to
any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections
of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such
references appear, (v) any reference to any law shall include all statutory and regulatory
provisions consolidating, amending, replacing or interpreting such law and any reference to any law
or regulation shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) 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.



     (b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and
including.”



21









 





     (c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03. Accounting Terms. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except in Sections 4.01(a)(xi), 4.01(a)(xv), 4.01(a)(xvi), 4.01(e), 5.05(e),
5.05(g) or as otherwise specifically prescribed herein.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative
Agent financial statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.



     1.04. Rounding. Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



     1.05. Times of Day. Unless otherwise specified, all references herein to times of day shall
be references to Pacific time (daylight or standard, as applicable).



     1.06. Currency Equivalents Generally. Any amount specified in this Agreement (other than in
Articles II, IX and X) or any of the other Loan Documents to be in Dollars
shall also include the equivalent of such amount in any currency other than Dollars, such
equivalent amount thereof in the applicable currency to be determined by the Administrative Agent
at such time on the basis of the Spot Rate (as defined below) for the purchase of such currency
with Dollars. For purposes of this Section 1.06, the “Spot Rate” for a currency
means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in
such capacity as the spot rate for the purchase by such Person of such currency with another
currency through its principal foreign exchange trading office at approximately 9:00 a.m. on the
date two Business Days prior to the date of such determination; provided that the
Administrative Agent may obtain such spot rate from another financial institution designated by the
Administrative Agent if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency.



22









 





ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01. The Loans. Subject to the terms and conditions set forth herein, each Lender severally
agrees to make a single loan to the Borrower on the Closing Date in an amount not to exceed such
Lender’s Applicable Percentage of the Facility. The Borrowing shall consist of Loans made
simultaneously by the Lenders in accordance with their respective Applicable Percentage of the
Facility. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be
reborrowed. Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
The Aggregate Commitments shall be automatically and permanently reduced to zero (i) upon the
initial Credit Extension and (ii), if no Credit Extension is made by March 31, 2008, then on such
date.



     2.02. Borrowings, Conversions and Continuations of Loans. (a) Each Borrowing and each
conversion to and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 9:00 a.m. (i) three Business Days prior
to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans
or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of
any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this
Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a
written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess thereof. Each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a
whole multiple of $1,000,000 in excess thereof or the outstanding Loan balance. Each Committed
Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a
Borrowing, a conversion to or a continuation of Eurodollar Rate Loans, (ii) the requested date of
the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans
to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration
of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a
Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any
such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such
Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified
an Interest Period of one month.



     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage under the applicable Facility of the
applicable Loans, and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in Section 2.02(a). In the case of a Borrowing,
each Lender shall make the amount of its Loan available to the Administrative Agent



23









 







in immediately available funds at the Administrative Agent’s Office not later than 11:00 a.m.
on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.01 and Section 4.02, the
Administrative Agent shall make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of the Borrower on the
books of ABN AMRO with the amount of such funds or (ii) wire transfer of such funds, in each case
in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Borrower.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in ABN AMRO’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.



     (e) After giving effect to all Borrowings, all conversions to and all continuations of Loans,
there shall not be more than ten (10) Interest Periods in effect in respect of the Facility.



     (f) Anything in this Section 2.02 to the contrary notwithstanding, the Borrower may
not select the Eurodollar Rate for the initial Credit Extension unless either (i) this Agreement
has been in effect for at least three Business Days before the date chosen for the initial Credit
Extension or (ii) the Borrower has entered into an indemnity agreement satisfactory to the
Administrative Agent covering the matters in Article III.



     2.03. Prepayments. (a) Optional. (i) The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part
without premium or penalty; provided that (A) such notice must be received by the
Administrative Agent not later than 9:00 a.m. (1) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate
Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s
ratable portion of such prepayment (based on such Lender’s Applicable Percentage). If such notice
is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein. Any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05. Each prepayment of the
outstanding Loans pursuant to this Section 2.03(a) shall



24









 







be applied to the principal repayment installments thereof in inverse order of maturity, and
each such prepayment shall be paid to the Lenders in accordance with their respective Applicable
Percentages in respect of each of the relevant Facilities.



     (b) Mandatory. Upon the incurrence or issuance by the Borrower or any of its
Subsidiaries of any Senior Secured Indebtedness (other than Senior Secured Indebtedness expressly
permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an
aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom
immediately upon receipt thereof by the Borrower or such Subsidiary. Each prepayment of Loans
pursuant to the foregoing provisions of this Section 2.03(b) shall be applied ratably to
the principal repayment installments thereof in inverse order of maturity.



     2.04. Repayment of Loans. The Borrower shall repay to the Lenders the aggregate principal
amount of all Loans outstanding on the following dates in the respective amounts set forth opposite
such dates (which amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.03):



	 	 	 	 	 
	Date	 	Amount
	September 30, 2008
	 	$	12,500,000	 
	March 31, 2009
	 	$	12,500,000	 
	September 30, 2009
	 	$	12,500,000	 






provided, however, that the final principal repayment installment of the Loans
shall be repaid on the Maturity Date for the Facility and in any event shall be in an amount equal
to the aggregate principal amount of all Loans outstanding on such date.



     2.05. Interest. (a) Subject to the provisions of Section 2.05(b), (i) each Eurodollar
Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period
plus the Applicable Rate for such Facility, and (ii) each Base Rate Loan under a Facility
shall bear interest on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the Applicable Rate for such Facility.



     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, then upon the request of the Required
Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding



25









 







Obligations hereunder at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.




     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     2.06. Fees. (a) The Borrower shall pay to the Arranger and the Administrative Agent for
their own respective accounts fees in the amounts and at the times specified in the Fee Letter.
Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.



     (b) The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon
in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid
and shall not be refundable for any reason whatsoever.



     (c) The Borrower shall pay to the Administrative Agent a commitment fee for the pro rata
benefit of the Lenders, which fee shall accrue at the rate of 0.20% per annum (based upon a 360-day
year) from December 10, 2007 until the Commitment Fee Due Date. The commitment fee shall be
nonrefundable and shall be due and payable on the Commitment Fee Due Date.



     2.07. Computation of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by ABN AMRO’s “prime rate” shall be made on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).
Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.09(a), bear interest for one day. Each determination by the Administrative Agent
of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.



     2.08. Evidence of Debt. The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent and
each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made
by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest



26









 







error. Upon the request of any Lender made through the Administrative Agent, the Borrower
shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach
schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of
its Loans and payments with respect thereto.



     2.09. Payments Generally; Administrative Agent’s Clawback. (a) General. All payments
to be made by the Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in
immediately available funds not later than 12:00 noon on the date specified herein. The
Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect
of the relevant Facility (or other applicable share as provided herein) of such payment in like
funds as received by wire transfer to such Lender’s Lending Office. All payments received by the
Administrative Agent after 12:00 noon shall be deemed received on the next succeeding Business Day
and any applicable interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected on computing interest or
fees, as the case may be.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the Closing 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 Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such
Lender has made such share available in accordance with and at the time required by Section
2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the Borrower severally agree
to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately
available funds 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 (A)
in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made
by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the
Borrower for such period. If such Lender pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such
Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may
have against a Lender that shall have failed to make such payment to the Administrative Agent.



27









 





     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the time at which any
payment is due to the Administrative Agent for the account of the Lenders hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender in immediately available funds 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 Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing
under this subsection (b) shall be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation or to make any payment under
Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be responsible for the failure
of any other Lender to so make its Loan, to purchase its participation or to make its payment under
Section 10.04(c).



     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



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



     2.10. Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of



28









 







any the Facilities due and payable to such Lender hereunder and under the other Loan Documents
at such time in excess of its ratable share (according to the proportion of (i) the amount of such
Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the
Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the
other Loan Documents at such time) of payments on account of the Obligations in respect of the
Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time
obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities
owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the amount of such
Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate
amount of the Obligations in respect of the Facilities owing (but not due and payable) to all
Lenders hereunder and under the other Loan Parties at such time) of payment on account of the
Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder
and under the other Loan Documents at such time obtained by all of the Lenders at such time then
the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such
fact, and (b) purchase (for cash at face value) participations in the Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in
respect of the Facilities then due and payable to the Lenders or owing (but not due and payable) to
the Lenders, as the case may be, 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 Section shall not be construed to apply to (A) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to the Borrower
or any Subsidiary thereof (as to which the provisions of this Section shall apply).



     The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01. Taxes. (a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Loan Document shall be made free and
clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if the Borrower shall be required by applicable law to deduct any Indemnified
Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions



29









 







applicable to additional sums payable under this Section) the Administrative Agent, any Lender
receives an amount equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law.



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



     (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent and each Lender, within 10 days after demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative Agent or such
Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender,
shall be conclusive absent manifest error.



     (d) Evidence of Payments. 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) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.



     Without limiting the generality of the foregoing, if the Borrower is resident for tax purposes in
the United States, any Foreign Lender shall deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon
the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:



30









 






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




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (A) a certificate to the effect that
such Foreign Lender is not (1) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (2) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (B) duly completed copies of Internal Revenue Service Form
W-8BEN, or




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



     (f) Treatment of Certain Refunds. If the Administrative Agent or any 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, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, 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
if the Administrative Agent or such Lender is required to repay such refund to such Governmental
Authority. This subsection 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 that it
deems confidential) to the Borrower or any other Person.



     3.02. Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base
Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of
such Lender to Base Rate Loans, either on the last day of



31









 







the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar
Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted.



     3.03. Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof
that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market
for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Base Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a
request for a Committed Borrowing of Base Rate Loans in the amount specified therein.



     3.04. Increased Costs; Reserves on Eurodollar Rate Loan. (a) Increased Costs
Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate);




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Eurodollar Rate Loan made by it, or change the basis of taxation of payments
to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax
payable by such Lender); or




     (iii) impose on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by such Lender;


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




32









 








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



     (c) Certificates for Reimbursement. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender or its holding company, as the case may be,
as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. Such certificate shall set forth the nature of the occurrence
giving rise to such demand, the additional amount to be paid, and the method by which such amount
was determined. The Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.



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



     3.05. Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower; or



     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.13;



including an amount equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from



33









 







the date of such prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender)
that would have accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar market.  A certificate as to any
amounts payable pursuant to this Section submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error.   The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.



     For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.



     3.06. Mitigation Obligations; Replacement of Lenders. (a) Designation of a Different
Lending Office. If any Lender requests compensation under Section 3.04, or 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 3.01, or if any Lender gives a notice
pursuant to Section 3.02, 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 3.01 or 3.04, as the case may be, in the future, or eliminate the need
for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, 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) Replacement of Lenders. If any Lender requests compensation under Section
3.04, 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 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.



     3.07. Survival. All of the Borrower’s obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01. Conditions of Initial Credit Extension. The obligation of each Lender to make its
initial Credit Extension hereunder is subject to satisfaction of the following conditions
precedent:




34











 





     (a) The Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise specified,
each properly executed by a Responsible Officer of the signing Loan Party, each dated as
of a date on or after the date of this Agreement but on or before the Closing Date (or,
in the case of certificates of governmental officials, a recent date before the Closing
Date or, in all cases, unless specified otherwise below) and each in form and substance
satisfactory to the Administrative Agent and each of the Lenders:




     (i) executed counterparts of this Agreement and the Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note;




     (iii) a Pledge Agreement and a Security Agreement, in substantially the form of
Exhibit F and Exhibit G respectively (together with each other pledge
agreement and security agreement and pledge agreement supplement and security agreement
supplement delivered pursuant to Section 6.12, in each case as amended, the
“Pledge Agreement” and “Security Agreement”), duly executed by each Loan
Party, together with:




     (A) certificates representing the Pledged Equity referred to therein
accompanied by undated stock powers executed in blank and instruments evidencing the
Pledged Debt indorsed in blank,




     (B) acknowledgment copies or stamped receipt copies of proper financing
statements, duly filed on or before the day of the initial Credit Extension under
the Uniform Commercial Code of all jurisdictions that the Administrative Agent may
deem necessary or desirable in order to perfect the Liens created under the Security
Agreement, covering the Collateral described in the Security Agreement,




     (C) completed requests for information, dated on or before the date of the
initial Credit Extension, listing the financing statements referred to in clause (B)
above and all other effective financing statements filed in the jurisdictions
referred to in clause (B) above that name any Loan Party as debtor, together with
copies of such other financing statements,




     (D) evidence of the completion of all other actions, recordings and filings of
or with respect to the Security Agreement that the Administrative Agent may deem
necessary or desirable in order to perfect the Liens created thereby, and




     (E) evidence that all other action that the Administrative Agent may deem
necessary or desirable in order to perfect the Liens created under the Security
Agreement has been taken (including receipt of duly executed payoff letters, UCC-3
termination statements and landlord’s and bailees’ waiver and consent agreements);



35









 






     (iv) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may require evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party or is to be a party;




     (v) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each of the
Borrower and the Guarantors is validly existing, in good standing and qualified to engage in
business in California, Ohio and any other jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such qualification, except
to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect;




     (vi) a favorable opinion of Heller Ehrman LLP, counsel to the Loan Parties, addressed
to the Administrative Agent and each Lender, as to matters concerning the Loan Parties and
the Loan Documents as the Required Lenders may reasonably request;




     (vii) a favorable opinion of in-house counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the
Loan Documents as the Required Lenders may reasonably request;




     (viii) a favorable analysis of Lenz & Staehelin, local counsel to the Administrative
Agent in Switzerland, addressed to the Administrative Agent and each Lender, as to such
matters concerning Lam Research International SARL as the Administrative Agent may
reasonably request;




     (ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses and approvals shall be in
full force and effect, or (B) stating that no such consents, licenses or approvals are so
required;




     (x) a certificate signed by a Responsible Officer of the Borrower and dated as of the
Closing Date certifying that (A) that the conditions specified in Sections 4.02(a)
and (b) have been satisfied, and (B) subject to the Stock Option Accounting
Restatement, there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect; and (C) subject to the Stock Option Accounting
Restatement, a calculation of the Consolidated Leverage Ratio as of the last day of the
fiscal quarter of the Borrower most recently ended prior to the Closing Date;




     (xi) a business plan and budget of the Borrower and its Subsidiaries on a consolidated
basis, including forecasts prepared by management of the Borrower, of



36









 







consolidated balance sheets and statements of income or operations and cash flows of
the Borrower and its Subsidiaries for the first year following the Closing Date;




     (xii) certificates attesting to the Solvency of each Loan Party before and after giving
effect to the Acquisition, from the chief financial officer or treasurer of the Borrower;




     (xiii) an environmental assessment report dated as of a date on or after January 1,
2006 within the from an environmental consulting firm acceptable to the Lenders, which
report shall identify existing and potential environmental concerns and shall quantify
related costs and liabilities, associated with any manufacturing facilities of any Loan
Party, and the Lenders shall be satisfied with the nature and amount of any such matters and
with the Borrower’s plans with respect thereto;




     (xiv) evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect, together with the certificates of insurance,
naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss
payee, as the case may be, under all insurance policies maintained with respect to the
assets and properties of the Loan Parties that constitutes Collateral;




     (xv) a duly completed pro forma Compliance Certificate as of the last day of the fiscal
quarter of the Borrower ended September 23, 2007, signed by chief executive officer, chief
financial officer, treasurer or controller of the Borrower, showing the combined financial
results of the Borrower and its Subsidiaries (including SEZ Holding AG) on a pro forma basis
as if the Acquisition had occurred on or before September 23, 2007;




     (xvi) a duly completed pro forma Compliance Certificate as of the last day of the
fiscal quarter of the Borrower ended December 23, 2007, signed by chief executive officer,
chief financial officer, treasurer or controller of the Borrower, showing the combined
financial results of the Borrower and its Subsidiaries (but not including SEZ Holding AG);




     (xvii) evidence that the Existing Credit Agreement has been, or concurrently with the
Closing Date is being, terminated and all Liens securing obligations under the Existing
Credit Agreement have been, or concurrently with the Closing Date are being, released; and




     (xviii) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent or any Lender reasonably may require.



     (b) (i) All fees required to be paid to the Administrative Agent and the Arranger on or before
the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or
before the Closing Date shall have been paid.



     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by
the Administrative Agent) to the extent invoiced prior to or on the Closing Date,



37









 







plus such additional amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not thereafter preclude
a final settling of accounts between the Borrower and the Administrative Agent).



     (d) The Closing Date shall have occurred on or before March 31, 2008.



     (e) The Lenders shall have completed a due diligence investigation of the Borrower, SEZ
Holding AG and their respective Subsidiaries in scope, and with results, satisfactory to the
Lenders, and shall have been given such access to the management, records, books of account,
contracts and properties of the Borrower, SEZ Holding AG and their respective Subsidiaries and
shall have received such financial, business and other information regarding each of the foregoing
Persons and businesses as they shall have requested; all of the information made available to the
Administrative Agent prior to February 11, 2008 shall be complete and correct in all material
respects; and no changes or developments shall have occurred, and no new or additional information
shall have been received or discovered by the Administrative Agent or the Lenders regarding the
Borrower, SEZ Holding AG and their respective Subsidiaries or the Acquisition after February 11,
2008 that (A) either individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect or (B) purports to adversely affect the Facilities or any other aspect of
the Acquisition, and nothing shall have come to the attention of the Lenders during the course of
such due diligence investigation to lead them to believe (i) that, following the consummation of
the Acquisition, the Borrower and its Subsidiaries would not have good and marketable title to all
material assets of SEZ Holding AG or (ii) that the Acquisition will have a Material Adverse Effect.



     Without limiting the generality of the provisions of the last paragraph of Section 9.03,
for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date specifying its objection
thereto.



     4.02. Additional Conditions to Initial Credit Extensions. The obligation of each Lender to
make its initial Credit Extension is also subject to the following conditions precedent:



     (a) The representations and warranties of the Borrower and each other Loan Party contained in
Article V or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct on and as of the
date of such Credit Extension, both before after giving effect to the Acquisition. except to the
extent that such representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date, and except that for purposes of this
Section 4.02, the representations and warranties contained in Sections 5.05(a) and
(b) shall be deemed to refer to the most recent statements furnished pursuant to
Sections 6.01(a) and (b), respectively.



38









 





     (b) No Default shall exist, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.



     (c) The Administrative Agent shall have received a Request for Credit Extension in accordance
with the requirements hereof.



     The Request for the initial Credit Extension submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a) and
(b) have been satisfied on and as of the date of the applicable Credit Extension.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01. Existence, Qualification and Power. Each Loan Party and each of its Subsidiaries (a) is
duly organized or formed, validly existing and, as applicable, in good standing under the Laws of
the jurisdiction of its incorporation or organization, (b) has all requisite power and authority
and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease
its assets and carry on its business and (ii) execute, deliver and perform its obligations under
the Loan Documents and Related Documents to which it is a party and consummate the Acquisition, and
(c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the conduct of its business
requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to
the extent that failure to do so could not reasonably be expected to have a Material Adverse
Effect.



     5.02. Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document and Related Document to which such Person is or is to be a party have
been duly authorized by all necessary corporate or other organizational action, and do not and will
not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or
result in any breach or contravention of, or the creation of any Lien under, or (except as provided
herein) require any payment to be made under (i) any Contractual Obligation to which such Person is
a party or affecting such Person or the properties of such Person or any of its Subsidiaries or
(ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to
which such Person or its property is subject; or (c) violate any Law.



     5.03. Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with (a) the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, (b) the
grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the
perfection or maintenance of the Liens created under the Collateral Documents (including the first
priority nature thereof) or (d) the exercise by the Administrative Agent or any Lender of its
rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents. All applicable waiting periods in connection



39









 







with the Acquisition have expired without any action having been taken by any Governmental
Authority restraining, preventing or imposing materially adverse conditions upon the Acquisition or
the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or
to create any Lien on, any properties now owned or hereafter acquired by any of them. The
Acquisition has been consummated in accordance with the Acquisition Agreement and applicable Law.



     5.04. Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms.



     5.05. Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements
(i) were prepared in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and
other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.



     (b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated June
24, 2007 and the related consolidated statements of income or operations, shareholders’ equity and
cash flows for the fiscal year ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of
the date thereof and their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the Stock Option Accounting Restatement. Schedule 5.05
sets forth all material Indebtedness and certain information regarding other liabilities, direct or
contingent, of the Borrower and its consolidated Subsidiaries as of the date of such financial
statements.



     (c) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated
September 23, 2007 and the related consolidated statements of income or operations, shareholders’
equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present the financial condition of the Borrower and its Subsidiaries
as of the date thereof and their results of operations for the period covered thereby, subject, in
the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments and to the Stock Option Accounting Restatement. Schedule 5.05 sets forth all
material Indebtedness and certain information regarding other liabilities, direct or contingent, of
the Borrower and its consolidated Subsidiaries as of the date of such financial statements.



40









 





     (d) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.



     (e) The consolidated and consolidating pro forma balance sheet of the Borrower and its
Subsidiaries and SEZ Holding AG as at September 23, 2007, and the related consolidated and
consolidating pro forma statements of income and cash flows of the Borrower and such Persons,
subject to the absence of footnotes and to normal year-end audit adjustments, for the three months
then ended, certified by the chief financial officer or treasurer of the Borrower, copies of which
have been furnished to each Lender, fairly present the consolidated and consolidating pro forma
financial condition of the Borrower and such Persons as at such date and the consolidated and
consolidating pro forma results of operations of the Borrower and such Persons for the period ended
on such date, in each case giving effect to the Acquisition. For purposes of this Section 5.05(e)
“consolidating” shall mean only showing separately (i) information for SEZ Holding AG and (ii)
information for the Borrower and its Subsidiaries (not including SEZ Holding AG). Such financial
statements are not materially inconsistent with the unaudited financial statements provided to the
Administrative Agent prior to December 12, 2007.



     (f) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated
December 23, 2007, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present the financial condition of the Borrower and its Subsidiaries
as of the date thereof and their results of operations for the period covered thereby, subject, in
the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments and to the Stock Option Accounting Restatement. Schedule 5.05 sets forth all
material Indebtedness and certain information regarding other liabilities, direct or contingent, of
the Borrower and its consolidated Subsidiaries as of the date of such financial statements.



     (g) The consolidated forecasted balance sheets, statements of income and cash flows of the
Borrower and its Subsidiaries delivered pursuant to Section 4.01 were prepared in good
faith on the basis of the assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and represented, at the time of
delivery, the Borrower’s best estimate of its future financial condition and performance.



     (h) The Stock Option Accounting Restatement will not result in any material cash charges (not
to exceed $20,000,000) for compensation expense on the Borrower’s financial statements.



     (i) For the avoidance of doubt, all representations and warranties in this Agreement and in
documents delivered to the Lenders with respect to the Borrower’s financial statements made before
the issuance of the Stock Option Accounting Restatement are subject to the Stock Option Accounting
Restatement



     5.06. Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Borrower after due and diligent investigation, threatened or contemplated, at
law, in equity, in arbitration or before any Governmental Authority, by or



41









 







against the Borrower or any of its Subsidiaries or against any of their properties or revenues
that (a) purport to affect or pertain to this Agreement, any other Loan Document, any Related
Document or the consummation of the Acquisition, or (b), either individually or in the aggregate,
if determined adversely, could reasonably be expected to have a Material Adverse Effect, and there
has been no material adverse change in the status, or financial effect on any Loan Party or any
Subsidiary thereof, of the matters described in Section 5.06.



     5.07. No Default. Neither any Loan Party nor any Subsidiary thereof is in default under or
with respect to, or a party to, any Contractual Obligation that could, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred
and is continuing or would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.



     5.08. Ownership of Property; Liens; Investments. (a) Each Loan Party and each of its
Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its business, except for such
defects in title as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.



     (b) Schedule 5.08(b) sets forth a complete and accurate list of all Liens (excluding
Liens permitted by Sections 7.01(c) through 7.01(g)) on the property or assets of each Loan Party
and each of its Subsidiaries, showing as of the date hereof the lienholder thereof, the principal
amount of the obligations secured thereby and the property or assets of such Loan Party or such
Subsidiary subject thereto. The property of each Loan Party and each of its Subsidiaries is
subject to no Liens, other than Liens set forth on Schedule 5.08(b), and as otherwise
permitted by Section 7.01.



     (c) Schedule 5.08(c) sets forth a complete and accurate list of all real property
owned by each Loan Party and each of its Subsidiaries, showing as of the date hereof the street
address, county or other relevant jurisdiction, state, record owner and book and estimated fair
value thereof. Each Loan Party and each of its Subsidiaries has good, marketable and insurable fee
simple title to the real property owned by such Loan Party or such Subsidiary, free and clear of
all Liens, other than Liens created or permitted by the Loan Documents.



     (d) (i) Schedule 5.08(d)(i) sets forth a complete and accurate list of all leases
(excluding non-material sales and service offices) of real property under which any Loan Party or
any Subsidiary of a Loan Party is the lessee, showing as of the date hereof the street address,
county or other relevant jurisdiction, state, lessor and lessee thereunder. Each such lease is the
legal, valid and binding obligation of the lessor thereof, enforceable in accordance with its
terms.




     (ii) Schedule 5.08(d)(ii) sets forth a complete and accurate list of all leases
(excluding non-material sales and service offices) of real property under which any Loan
Party or any Subsidiary of a Loan Party is the lessor, showing as of the date hereof the
street address, county or other relevant jurisdiction, state, lessor and lessee thereunder.
Each such lease is the legal, valid and binding obligation of the lessee thereof,
enforceable in accordance with its terms.



42









 





     (e) Schedule 5.08(e) sets forth a complete and accurate list of all Investments (other
than Consolidated Investments, readily marketable securities securing the Permitted Synthetic Lease
Obligations and collateral securing the Existing Credit Agreement) in an individual amount equal or
greater than $5,000,000 or in an aggregate amount for similar Investments equal or greater than
$10,000,000 held by any Loan Party or any Subsidiary of a Loan Party on the date hereof, showing as
of the date hereof the amount, obligor or issuer and maturity, if any, thereof.



     5.09. Environmental Compliance. (a) The Loan Parties and their respective Subsidiaries
conduct in the ordinary course of business a review of the effect of existing Environmental Laws
and claims alleging potential liability or responsibility for violation of any Environmental Law on
their respective businesses, operations and properties, and as a result thereof the Borrower has
reasonably concluded that to the best of its knowledge such Environmental Laws and claims could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     (b) None of the properties currently or formerly owned or operated by any Loan Party or any of
its Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property; there are no and never have been
any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on
any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to the
best of the knowledge of the Loan Parties, on any property formerly owned or operated by any Loan
Party or any of its Subsidiaries that could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; there is no asbestos or asbestos-containing material on
any property currently owned or operated by any Loan Party or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect; and Hazardous Materials have not been
released, discharged or disposed of on any property currently or formerly owned or operated by any
Loan Party or any of its Subsidiaries.



     (c) Neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed,
either individually or together with other potentially responsible parties, any remedial or
response action relating to any actual or threatened release, discharge or disposal of Hazardous
Materials at any site, location or operation, either voluntarily or pursuant to the order of any
Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or from, any property currently
or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed of in
a manner not reasonably expected to result in material liability to any Loan Party or any of its
Subsidiaries.



     5.10. Insurance. The properties of the Borrower and its Subsidiaries are insured with
companies having an A.M. Best Rating of at least A- not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as are necessary to ensure that Uninsured
Liabilities (other than earthquakes or other earth movements) of the Borrower and/or any Subsidiary
are not reasonably likely to result in a Material Adverse Effect.



43









 





     5.11. Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect. Neither any
Loan Party nor any Subsidiary thereof is party to any tax sharing agreement. The Acquisition will
not be taxable to the Borrower, SEZ Holding AG or any of their respective Subsidiaries or
Affiliates.



     5.12. ERISA Compliance. (a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable determination letter
from the IRS or an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Borrower, nothing has occurred which would
prevent, or cause the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and no application for
a waiver of contributions required by or an extension of any amortization period for purposes of
determining the contributions required by Section 412 of the Code has been made with respect to any
Plan.



     (b) There are no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan;
and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.



     (d) With respect to each scheme or arrangement mandated by a government other than the United
States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee
benefit plan maintained or contributed to by any Loan Party or any Subsidiary of any Loan Party
that is not subject to United States law (a “Foreign Plan”):




     (i) any employer and employee contributions required by law or by the terms of any
Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or, if
applicable, accrued, in accordance with normal accounting practices;



44









 






     (ii) the fair market value of the assets of each funded Foreign Plan, the liability of
each insurer for any Foreign Plan funded through insurance or the book reserve established
for any Foreign Plan, together with any accrued contributions, is sufficient to procure or
provide for the accrued benefit obligations, as of the date hereof, with respect to all
current and former participants in such Foreign Plan according to the actuarial assumptions
and valuations most recently used to account for such obligations in accordance with
applicable generally accepted accounting principles; and




     (iii) each Foreign Plan required to be registered has been registered and has been
maintained in good standing with applicable regulatory authorities.



     5.13. Subsidiaries; Equity Interests; Loan Parties. The Borrower has no Subsidiaries other
than those specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding
Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable
and are owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13 free
and clear of all Liens except those created under the Collateral Documents. Set forth on Part (c)
of Schedule 5.13 is a complete and accurate list of all Loan Parties, showing as of the
Closing Date (as to each Loan Party) the jurisdiction of its incorporation, the address of its
principal place of business and its U.S. taxpayer identification number. The copy of the charter
of each Loan Party and each amendment thereto provided pursuant to Section 4.01(a)(v) is a
true and correct copy of each such document, each of which is valid and in full force and effect.



     5.14. Margin Regulations; Investment Company Act. (a) The Borrower is not engaged and will
not engage, principally or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit
for the purpose of purchasing or carrying margin stock. Following the application of the proceeds
of the initial Credit Extension, 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 7.01 or Section 7.05 or subject to any restriction contained
in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender
relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock.



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



     5.15. Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries
is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished (whether in writing or orally) by or on behalf of any
Loan Party to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other
Loan Document (in each case as modified or supplemented by other information so furnished) contains
any material misstatement of fact or omits to state any



45









 







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, (i) the Borrower represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time and (ii) such information is
subject to the Stock Option Accounting Restatement.



     5.16. Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance in
all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.



     5.17. Intellectual Property; Licenses, Etc. The Borrower and each of its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the best knowledge of the Borrower, no
slogan or other advertising device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any of its Subsidiaries infringes
upon any rights held by any other Person. No claim or litigation regarding any of the foregoing is
pending or, to the best knowledge of the Borrower, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



     5.18. Solvency. Each Loan Party is, individually and together with its Subsidiaries on a
consolidated basis, Solvent.



     5.19. Casualty, Etc. Neither the businesses nor the properties of any Loan Party or any of
its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.



     5.20. Labor Matters. There are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Borrower or any of its Subsidiaries as of the Closing Date and
neither the Borrower nor any Subsidiary has suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five years.



     5.21. Collateral Documents. The provisions of the Collateral Documents are effective to
create in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid
and enforceable first priority Lien (subject to Liens permitted by Section 7.01) on all
right, title and interest of the respective Loan Parties in the Collateral described therein.
Except for filings completed prior to the Closing Date and as contemplated hereby and by the
Collateral Documents, no filing or other action will be necessary to perfect or protect such Liens.



46









 





     5.22. Affiliate Transactions. Any outstanding sales of inventory by the Loan Parties to
Subsidiaries of the Borrower that are not Loan Parties, whether or not in the ordinary course of
business, have been on fair and reasonable terms substantially as favorable to the Loan Party as
would be obtainable by the Loan Party at the time in a comparable arm’s length transaction with a
Person other than an Affiliate; and such terms are and have been enforced in substantially the same
manner as would be used in a comparable arm’s length transaction with a Person other than an
Affiliate.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, the Borrower shall, and shall (except in the case of
the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11)
cause each Subsidiary to:



     6.01. Financial Statements. Deliver to the Administrative Agent, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:



     (a) as soon as available, but in any event by June 30, 2008 for the fiscal year ended June 24,
2007 and within 90 days after the end of each fiscal year of the Borrower thereafter, a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year,
and the related consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall
be prepared in accordance with generally accepted auditing standards and shall not be subject to
any “going concern” or like qualification or exception or any qualification or exception as to the
scope of such audit;



     (b) as soon as available, but in any event within 50 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended
December 23, 2007), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal quarter, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Borrower’s
fiscal year then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, certified by the chief executive officer, chief
financial officer, treasurer or controller of the Borrower as fairly presenting the financial
condition, results of operations, shareholders’ equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes and to the Stock Option Accounting Restatement; and



     (c) as soon as available, but in any event within 90 days after the beginning of each fiscal
year of the Borrower, an annual business plan and budget of the Borrower and its Subsidiaries on a
consolidated basis, including forecasts prepared by management of the



47









 







Borrower, in form satisfactory to the Administrative Agent and the Required Lenders, of
consolidated balance sheets and statements of income or operations and cash flows of the Borrower
and its Subsidiaries for such fiscal year.



     As to any information contained in materials furnished pursuant to Section 6.02(d), the
Borrower shall not be separately required to furnish such information under Section 6.01(a)
or (b) above, but the foregoing shall not be in derogation of the obligation of the
Borrower to furnish the information and materials described in Sections 6.01(a) and
(b) above at the times specified therein.



     6.02. Certificates; Other Information. Deliver to the Administrative Agent, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) concurrently with the delivery of the financial statements referred to in
Section 6.01(a), a certificate of its independent certified public accountants certifying
such financial statements;



     (b) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b) a duly completed Compliance Certificate signed by the
chief executive officer, chief financial officer, treasurer or controller of the Borrower;



     (c) promptly after any request by the Administrative Agent, if not prohibited by the
independent accountants submitting such items, copies of any detailed audit reports, management
letters or recommendations submitted to the board of directors (or the audit committee of the board
of directors) of any Loan Party by independent accountants in connection with the accounts or books
of any Loan Party or any of its Subsidiaries, or any audit of any of them;



     (d) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration statements which the Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange
Act of 1934, or with any national securities exchange, and in any case not otherwise required to be
delivered to the Administrative Agent pursuant hereto;



     (e) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of
any indenture, loan or credit or similar agreement and not otherwise required to be furnished to
the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;



     (f) as soon as available, but in any event within 60 days after each insurance renewal date of
the Borrower, a report summarizing the insurance coverage (specifying type, amount and carrier) in
effect for each Loan Party and its Subsidiaries and containing such additional information as the
Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify;



     (g) promptly, and in any event within ten Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence received



48









 







from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation by such agency regarding financial or other operational
results of any Loan Party or any Subsidiary thereof;



     (h) not later than ten Business Days after receipt thereof by any Loan Party or any Subsidiary
thereof, copies of all notices of default and material amendments, waivers and other modifications
so received under or pursuant to any Material Contract and, from time to time upon request by the
Administrative Agent, such information and reports regarding any Material Contract or other
instruments, indentures and loan and credit and similar agreements as the Administrative Agent may
reasonably request;



     (i) promptly after the assertion or occurrence thereof, notice of any action or proceeding
against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental
Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect;



     (j) as soon as available, but in any event within 30 days after the end of each fiscal year of
the Borrower, a report supplementing Schedules 5.08(e) and 5.13 containing a
description of all changes in the information included in such Schedules as may be necessary for
such Schedules to be accurate and complete, each such report to be signed by a Responsible Officer
of the Borrower and to be in a form reasonably satisfactory to the Administrative Agent;



     (k) promptly, such additional information regarding the business, financial, legal or
corporate affairs of any Loan Party or any Subsidiary thereof, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent if
it requests the Borrower to deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent and (ii) the Borrower shall notify the
Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Compliance Certificates required by
Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely responsible for
maintaining its copies of such documents.



49









 





     The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the
Lenders materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or
another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a
“Public Lender”) may have personnel who do not wish to receive material non-public
information with respect to the Borrower or its Affiliates, or the respective securities of any of
the foregoing, and who may be engaged in investment and other market-related activities with
respect to such Persons’ securities. The Borrower hereby agrees that so long as the Borrower is
the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a
private offering or is actively contemplating issuing any such securities it will use commercially
reasonable efforts to identify that portion of the Borrower Materials that may be distributed to
the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on
the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to
have authorized the Administrative Agent, the Arranger, and the Lenders to treat such Borrower
Materials as not containing any material non-public information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities for purposes of United States Federal
and state securities laws (provided, however, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 10.07); (y)
all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor;” and (z) the Administrative Agent and the Arranger shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the
foregoing, the Borrower shall be under no Obligation to mark any Borrower Materials “PUBLIC”.



     6.03. Notices. Promptly notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default;



     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or proceeding affecting
the Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws;



     (c) of the occurrence of any ERISA Event;



     (d) of any material change in accounting policies or financial reporting practices by any Loan
Party or any Subsidiary thereof; and



     (e) of the incurrence or issuance of any Indebtedness for which the Borrower is required to
make a mandatory prepayment pursuant to Section 2.03(b).



50









 





     Each notice pursuant to Section 6.03 (other than Section 6.03(e)) shall be
accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken and proposes to take
with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan Document that have been
breached.



     6.04. Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.



     6.05. Preservation of Existence, Etc. (a)  Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 7.04 or 7.05; provided,
however, that the Borrower and its Subsidiaries may consummate the Acquisition and any
other merger or consolidation permitted under Section 7.04; (b) take all reasonable action
to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of which could reasonably
be expected to have a Material Adverse Effect.



     6.06. Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation
and maintenance of its facilities. The Borrower shall keep Lam Research International SARL Solvent
at all times.



     6.07. Maintenance of Insurance. Maintain with companies having an A.M. Best Rating of at
least A- not Affiliates of the Borrower, insurance in such amounts, with such deductibles and
covering such risks as are necessary to ensure that Uninsured Liabilities (other than earthquakes
or other earth movements) of the Borrower and/or any Subsidiary are not reasonably likely to result
in a Material Adverse Effect and providing for not less than 30 days’ prior notice to the
Administrative Agent of termination, lapse or cancellation of any such insurance on which the
Administrative Agent is a loss payee. In addition, the Borrower shall provide not less than 30
days’ prior notice to the Administrative Agent of termination, lapse or cancellation of any other
insurance.



     6.08. Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ, injunction



51









 







or decree is being contested in good faith by appropriate proceedings diligently conducted; or
(b) the failure to comply therewith could not reasonably be expected to have a Material Adverse
Effect.



     6.09. Books and Records. (a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Borrower or such Subsidiary, as
the case may be; and (b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory jurisdiction over the
Borrower or such Subsidiary, as the case may be.



     6.10. Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Borrower and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower;
provided, however, that when an Event of Default exists the Administrative Agent or
any Lender (or any of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Borrower at any time during normal business hours and without
advance notice.



     6.11. Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate
purposes not in contravention of any Law or of any Loan Document.



     6.12. Covenant to Guarantee Obligations and Give Security. (a) Upon the formation or
acquisition of any new direct or indirect Domestic Subsidiary (other than (1) any CFC or (2) a
Subsidiary that is held directly or indirectly by a CFC) by any Loan Party, then the Borrower
shall, at the Borrower’s expense:




     (i) within 10 days after such formation or acquisition, cause such Subsidiary, and
cause each direct and indirect parent of such Subsidiary (if it has not already done so), to
duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in
substantially the form of Exhibit E and otherwise in form and substance satisfactory
to the Administrative Agent, guaranteeing the Borrower’s obligations under the Loan
Documents,




     (ii) within 10 days after such formation or acquisition, furnish to the Administrative
Agent a description of the real and personal properties of such Subsidiary, in detail
satisfactory to the Administrative Agent,




     (iii) within 15 days after such formation or acquisition, cause such Subsidiary and
each direct and indirect parent of such Subsidiary (if it has not already done so) to duly
execute and deliver to the Administrative Agent Security Agreement Supplements, Pledge
Agreement Supplements and other security and pledge agreements, as specified by and in form
and substance satisfactory to the Administrative Agent (including delivery of all Pledged
Interests in and of such Subsidiary, and other instruments of the type



52









 







specified in Section 4.01(a)(iii)), securing payment of all the Obligations of
such Subsidiary or such parent, as the case may be, under the Loan Documents and
constituting Liens on all such personal properties, on a basis consistent with the Security
Agreement,




     (iv) within 30 days after such formation or acquisition, cause such Subsidiary and each
direct and indirect parent of such Subsidiary (if it has not already done so) to take
whatever action (including the filing of Uniform Commercial Code financing statements and
the giving of notices) may be necessary or advisable in the opinion of the Administrative
Agent to vest in the Administrative Agent (or in any representative of the Administrative
Agent designated by it) valid and subsisting Liens on the properties purported to be subject
to the Security Agreement Supplements, Pledge Agreement Supplements and security and pledge
agreements delivered pursuant to this Section 6.12, enforceable against all third
parties in accordance with their terms, and




     (v) within 60 days after such formation or acquisition, deliver to the Administrative
Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of
a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of
counsel for the Loan Parties acceptable to the Administrative Agent as to the matters
contained in clauses (i), (iii) and (iv) above, and as to such other matters as the
Administrative Agent may reasonably request.


In the event that the provisions of this Section 6.12(a) are complied with at the formation or
acquisition of a Domestic Subsidiary which, at such time or at any time thereafter, is a CFC
Holding Company, then (A) the pledge of equity in such CFC Holding Company shall be initially
limited or amended to limit same to sixty-five percent (65%) thereof, and (B) the Guaranty,
Security Agreement Supplement, Pledge Agreement Supplement and other related Lien documentation
executed by, or filed with respect to, such CFC Holding Company shall not be required or shall be
terminated, as the case may be (but the requirement shall continue for any direct or indirect
parent of such CFC Holding Company which itself is a Domestic Subsidiary and not a CFC Holding
Company).




     (b) Upon the acquisition of any property by any Loan Party, if such property (i), in the
judgment of the Administrative Agent, shall not already be subject to (but it is a property-type
intended to be subject to the Security Agreement or the Pledge Agreement, as applicable) a
perfected first priority security interest in favor of the Administrative Agent for the benefit of
the Secured Parties and (ii) has a value in excess of $10,000,000 individually or $25,000,000 in
the aggregate in any fiscal year, then the Borrower shall, at the Borrower’s expense:




     (i) within 10 Business Days after such acquisition, furnish to the Administrative Agent
a description of the property so acquired in detail satisfactory to the Administrative
Agent,




     (ii) within 15 days after the request of the Administrative Agent in its sole
discretion, cause the applicable Loan Party to duly execute and deliver to the
Administrative Agent Security Agreement Supplements, Pledge Agreement Supplements and other
security and pledge agreements, as specified by and in form and substance



53









 







satisfactory to the Administrative Agent, securing payment of all the Obligations of
the applicable Loan Party under the Loan Documents and constituting Liens on all such
properties,




     (iii) within 30 days after the request of the Administrative Agent in its sole
discretion, cause the applicable Loan Party to take whatever action (including the filing of
Uniform Commercial Code financing statements and the giving of notices) may be necessary or
advisable in the opinion of the Administrative Agent to vest in the Administrative Agent (or
in any representative of the Administrative Agent designated by it) valid and subsisting
Liens on such property, enforceable against all third parties, and




     (iv) within 60 days after the request of the Administrative Agent in its sole
discretion, deliver to the Administrative Agent, a signed copy of a favorable opinion,
addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan
Parties acceptable to the Administrative Agent as to the matters contained in clauses (ii)
and (iii) above and as to such other matters as the Administrative Agent may reasonably
request.



     (c) Upon the request of the Administrative Agent following the occurrence and during the
continuance of an Event of Default, the Borrower shall, at the Borrower’s expense:




     (i) within 10 days after such request, furnish to the Administrative Agent a
description of the real and personal properties of the Loan Parties and their respective
Subsidiaries in detail satisfactory to the Administrative Agent,




     (ii) within 15 days after such request, duly execute and deliver, and cause each such
Subsidiary of the Borrower (if it has not already done so) to duly execute and deliver, to
the Administrative Agent, Security Agreement Supplements, Pledge Agreement Supplements and
other security and pledge agreements, as specified by and in form and substance satisfactory
to the Administrative Agent (including delivery of all Pledged Equity and Pledged Debt in
and of such Subsidiary, and other instruments of the type specified in Section
4.01(a)(iii)), securing payment of all the Obligations of Borrower and such Subsidiary
under the Loan Documents and constituting Liens on (1) all personal property of Domestic
Subsidiaries and (2) such other properties as the parties may mutually agree,




     (iii) within 30 days after such request, take, and cause each Subsidiary of the
Borrower to take, whatever action (including the filing of Uniform Commercial Code financing
statements and the giving of notices) may be necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent (or in any representative of the
Administrative Agent designated by it) valid and subsisting Liens on the properties
purported to be subject to the Security Agreement Supplements, Pledge Agreement Supplements
and security and pledge agreements delivered pursuant to this Section 6.12,
enforceable against all third parties in accordance with their terms, and




     (iv) within 60 days after such request, deliver to the Administrative Agent, upon the
request of the Administrative Agent in its sole discretion, a signed copy of a




54












 






favorable opinion, addressed to the Administrative Agent and the other Secured Parties,
of counsel for the Loan Parties acceptable to the Administrative Agent as to the matters
contained in clauses (ii) and (iii) above, and as to such other matters as the
Administrative Agent may reasonably request.



     (d) At any time upon request of the Administrative Agent, promptly execute and deliver any and
all further instruments and documents and take all such other action as the Administrative Agent
may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting
and preserving the Liens of, such guaranties, Security Agreement Supplements, Pledge Agreement
Supplements and other security and pledge agreements.



     6.13. Compliance with Environmental Laws. Comply, and cause all lessees and other Persons
operating or occupying its properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary
for its operations and properties; and conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the requirements of all
Environmental Laws; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to
the extent that its obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such circumstances in accordance with
GAAP.



     6.14. Preparation of Environmental Reports. At the request of the Required Lenders from time
to time, provide to the Lenders within 60 days after such request, at the expense of the Borrower,
an environmental site assessment report for any of its properties described in such request as to
which the Required Lenders believe that there may have been a change regarding Hazardous Materials,
prepared by an environmental consulting firm acceptable to the Administrative Agent, indicating the
presence or absence of Hazardous Materials and the estimated cost of any compliance, removal or
remedial action in connection with any Hazardous Materials on such properties; without limiting the
generality of the foregoing, if the Administrative Agent determines at any time that a material
risk exists that any such report will not be provided within the time referred to above, the
Administrative Agent may retain an environmental consulting firm to prepare such report at the
expense of the Borrower, and the Borrower hereby grants and agrees to cause any Subsidiary that
owns any property described in such request to grant at the time of such request to the
Administrative Agent, the Lenders, such firm and any agents or representatives thereof an
irrevocable non-exclusive license, subject to the rights of tenants, to enter onto their respective
properties to undertake such an assessment.



     6.15. Further Assurances. Promptly upon request by the Administrative Agent, or any Lender
through the Administrative Agent, (a) correct any material defect or error that may be discovered
in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b)
do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any
and all such further acts, deeds, certificates, assurances and other instruments as the
Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from
time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to
the fullest extent permitted by applicable law, subject any Loan Party’s or any of its



55









 







Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended
to be covered by any of the Collateral Documents, (iii) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be
created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm
more effectively unto the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be
a party, and cause each of its Subsidiaries to do so.



     6.16. Compliance with Terms of Leaseholds. Make all payments and otherwise perform all
obligations in respect of all leases of real property to which the Borrower or any of its
Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any default by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause each of its Subsidiaries
to do so, except, in any case, where the failure to do so, either individually or in the aggregate,
could not be reasonably likely to have a Material Adverse Effect.



     6.17. Lien Searches. Promptly following receipt of the acknowledgment copy of any financing
statements filed under the Uniform Commercial Code in any jurisdiction by or on behalf of the
Secured Parties, deliver to the Administrative Agent completed requests for information listing
such financing statement and all other effective financing statements filed in such jurisdiction
that name any Loan Party as debtor, together with copies of such other financing statements.



     6.18. Material Contracts. Perform and observe all the terms and provisions of each Material
Contract to be performed or observed by it, maintain each such Material Contract in full force and
effect, enforce each such Material Contract in accordance with its terms, take all such action to
such end as may be from time to time requested by the Administrative Agent and, upon request of the
Administrative Agent, make to each other party to each such Material Contract such demands and
requests for information and reports or for action as any Loan Party or any of its Subsidiaries is
entitled to make under such Material Contract, and cause each of its Subsidiaries to do so.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, the Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:



     7.01. Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist
under the Uniform Commercial Code of any jurisdiction a financing statement that names the Borrower
or any of its Subsidiaries as debtor, or assign any accounts or other right to receive income,
other than the following:



56









 





     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 5.08(b) and any renewals
or extensions thereof, provided that (i) the property covered thereby is not changed, (ii)
the amount secured or benefited thereby is not increased except as contemplated by Section
7.02(f), (iii) the direct or any contingent obligor with respect thereto is not changed, and
(iv) any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.02(f);



     (c) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;



     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, and other ordinary
course insurance arrangements other than any Lien imposed by ERISA;



     (f) deposits to secure the performance of utility or other obligations to service providers,
bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary
course of business;



     (g) Liens securing an operating or space lease; provided that (i) such Liens do not at
any time encumber any property other than the property subject to such lease;



     (h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.01(h);



     (i) Liens securing Indebtedness permitted under Section 7.02(c); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition;



     (j) other Liens securing Indebtedness outstanding in an aggregate principal amount not to
exceed $10,000,000, provided that no such Lien shall extend to or cover any Collateral;



     (k) Liens securing the Indebtedness of SEZ Holding and its Subsidiaries permitted under
Section 7.02(i)(1); and



     (l) the replacement, extension or renewal of any Lien permitted by clauses (a) through (k)
above upon or in the same property theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct or contingent obligor) of the
Indebtedness secured thereby.



57









 




Notwithstanding anything to the contrary in this Agreement, the exceptions contained in clauses (c)
through (k) above shall not apply to IP Rights.




     7.02. Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



     (a) obligations (contingent or otherwise) existing or arising under any Swap Contract,
provided that (i) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating risks associated with
fluctuations in interest rates or foreign exchange rates and (ii) such Swap Contract does not
contain any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party; provided that the aggregate Swap Termination
Value thereof shall not exceed $50,000,000 at any time outstanding;



     (b) Subordinated Indebtedness of any Loan Party;



     (c) Indebtedness in respect of Capitalized Leases, Permitted Synthetic Lease Obligations and
purchase money obligations for fixed or capital assets within the limitations set forth in
Section 7.01(i); provided, however, that the aggregate amount of all such
Indebtedness at any one time outstanding shall not exceed $215,000,000 (inclusive of the Permitted
Synthetic Lease Obligations);



     (d) Indebtedness of a Subsidiary of the Borrower owed to the Borrower or a wholly-owned
Subsidiary of the Borrower, which Indebtedness shall, as applicable, (i) in the case of
Indebtedness owed to a Loan Party, constitute “Pledged Debt” under the Pledge Agreement, (ii) in
the case of Indebtedness that is part of the Borrower’s normal cash management procedures, be in
the ordinary course of business, (iii) in the case of inter-company Indebtedness owed to Lam
Research International SARL by a Subsidiary other than a Loan Party, have existed on December 31,
2007 or shall not exceed $15,000,000 in the aggregate in any calendar year or shall be on terms
(including amount and subordination terms) acceptable to the Administrative Agent and (iv) be
otherwise permitted under the provisions of Section 7.03;



     (e) Indebtedness under the Loan Documents;



     (f) Other than Indebtedness of the type permitted pursuant under Section 7.02(d)(ii),
Indebtedness of any Loan Party which is outstanding on the date hereof and listed on
Schedule 7.02 and any refinancings, refundings, renewals or extensions thereof;
provided that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or
other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct
or any contingent obligor with respect thereto is not changed, as a result of or in connection with
such refinancing, refunding, renewal or extension; and provided, still
further, that the terms relating to principal amount, amortization, maturity, collateral
(if any) and subordination (if any), and other material terms taken as a whole, of any such
refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and
of any instrument issued in connection therewith, are no less favorable in any material respect to
the Loan Parties or the Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded,



58









 







renewed or extended and the interest rate applicable to any such refinancing, refunding,
renewing or extending Indebtedness does not exceed the then applicable market interest rate;



     (g) Indebtedness of any Person (other than SEZ Holding AG and its subsidiaries) that becomes a
Subsidiary of the Borrower after the date hereof in accordance with the terms of
Section 7.03(i), which Indebtedness is existing at the time such Person becomes a
Subsidiary of the Borrower (other than Indebtedness incurred solely in contemplation of such
Person’s becoming a Subsidiary of the Borrower);



     (h) unsecured Indebtedness of any Subsidiary that is not a Loan Party and that is other than
SEZ Holding AG or a Subsidiary thereof; provided that the aggregate Indebtedness (other
than Indebtedness of the type permitted pursuant under Section 7.02(d)) under this clause (h) with
respect to Subsidiaries other than SEZ Holding AG and its Subsidiaries does not exceed at any time




(x) the amount of such Indebtedness that is outstanding as of December 23, 2007 and is
listed on Schedule 7.02 (the “Non SEZ Subsidiary Indebtedness December Cap”),
plus




(y) $35,000,000 (or the foreign currency equivalent thereof from time to time);


and provided further that the aggregate secured and unsecured Indebtedness (other than
Indebtedness of the type permitted pursuant under Section 7.02(d)) under this clause (h) or clause
(i) below with respect to all Subsidiaries that are not Loan Parties does not exceed at any time
the sum of the Non SEZ Subsidiary Indebtedness December Cap, plus the SEZ Acquisition Indebtedness
Cap (defined in clause (i) below) plus $35,000,000 (or the foreign currency equivalent thereof from
time to time);




     (i) secured or unsecured Indebtedness of SEZ Holding AG and its Subsidiaries; provided
that




(1) the aggregate secured Indebtedness (other than Indebtedness of the type permitted
pursuant under Section 7.02(d)) under this clause (i) with respect to SEZ Holding AG and
its Subsidiaries does not exceed at any time the amount of such secured Indebtedness that
is outstanding as of the date of the Acquisition (not to exceed $65,000,000), and




(2) the aggregate secured and unsecured Indebtedness (other than Indebtedness of the type
permitted pursuant under Section 7.02(d)) under this clause (i) with respect to SEZ Holding
AG and its Subsidiaries does not exceed at any time




(x) the amount of such secured and unsecured Indebtedness that is outstanding as of the
date of the Acquisition (not to exceed $65,000,000) (the “SEZ Acquisition Indebtedness
Cap”) plus




(y) $35,000,000 (or the foreign currency equivalent thereof from time to time);



59









 




and provided further that the aggregate secured and unsecured Indebtedness (other than
Indebtedness of the type permitted pursuant under Section 7.02(d)) under clause (h) above or this
clause (i) with respect to all Subsidiaries that are not Loan Parties does not exceed at any time
the sum of the Non SEZ Subsidiary Indebtedness December Cap, plus the SEZ Acquisition Indebtedness
Cap plus $35,000,000 (or the foreign currency equivalent thereof from time to time); and




     (j) other unsecured Indebtedness of the Loan Parties.



     7.03. Investments. At any time that the Borrower’s Minimum Liquidity is less than
$300,000,000 (or would be less than $300,000,000 immediately after making such Investment), make or
hold any Investments, except:



     (a) consolidated short-term and long-term Investments shown on the consolidated balance sheet
of the Borrower and its Subsidiaries determined in accordance with GAAP, but excluding any
Investments that are not (i) readily marketable debt or money market securities or (ii) Equity
Interests readily marketable on a recognized securities exchange;



     (b) advances to officers, directors and employees of the Borrower and Subsidiaries in an
aggregate amount not to exceed $5,000,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;



     (c) (i) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries
outstanding on the date hereof and in SEZ Holding AG upon the Acquisition, (ii) additional
Investments by the Borrower and its Subsidiaries in Loan Parties (other than the Borrower), (iii)
additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other
Subsidiaries that are not Loan Parties and (iv) so long as no Default has occurred and is
continuing or would result from such Investment, additional Investments by the Loan Parties in
wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount (excluding Pledged Debt)
invested from the date hereof not to exceed $10,000,000;



     (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;



     (e) Guarantees permitted by Section 7.02;



     (f) Without limiting any other permitted Investments in this Section 7.03, Investments
existing on the date that Minimum Liquidity was reduced to less than $300,000,000;



     (g) Investments by the Borrower in Swap Contracts permitted under Section 7.02(a);



     (h) the purchase or other acquisition of all of the Equity Interests in, or all or
substantially all of the property of, any Person that, upon the consummation thereof, will be
wholly-owned directly by the Borrower or one or more of its wholly-owned Subsidiaries (including as
a result of a merger or consolidation); provided that, with respect to each purchase or
other acquisition made pursuant to this Section 7.03(h):



60









 






     (1) any such newly-created or acquired Domestic Subsidiary shall comply with the
requirements of Section 6.12;




     (2) the lines of business of the Person to be (or the property of which is to be) so
purchased or otherwise acquired shall be substantially the same lines of business as one or
more of the principal businesses of the Borrower and its Subsidiaries in the ordinary
course;




     (3) such purchase or other acquisition shall not include or result in any contingent
liabilities that could reasonably be expected to be material to the business, financial
condition, operations or prospects of the Borrower and its Subsidiaries, taken as a whole
(as determined in good faith by the board of directors (or the persons performing similar
functions) of the Borrower or such Subsidiary if the board of directors is otherwise
approving such transaction and, in each other case, by a Responsible Officer);




     (4) the total cash consideration (including the fair market value of all Equity
Interests issued or transferred to the sellers thereof, all indemnities, earnouts and other
contingent payment obligations to, and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated agreements with, the sellers thereof, all
write-downs of property and reserves for liabilities with respect thereto and all
assumptions of debt, liabilities and other obligations in connection therewith) paid by or
on behalf of the Borrower and its Subsidiaries for any such purchase or other acquisition,
when aggregated with the total cash consideration paid by or on behalf of the Borrower and
its Subsidiaries for all other purchases and other acquisitions made by the Borrower and its
Subsidiaries pursuant to this Section 7.03(h), shall not exceed $10,000,000;




     (5) (A) immediately before and immediately after giving pro forma effect to any such
purchase or other acquisition, no Default shall have occurred and be continuing and (B)
immediately after giving effect to such purchase or other acquisition, the Borrower and its
Subsidiaries shall be in pro forma compliance with all of the covenants set forth in
Section 7.11, such compliance to be determined on the basis of the financial
information most recently delivered to the Administrative Agent pursuant to Section
6.01(a) or (b) as though such purchase or other acquisition had been consummated
as of the first day of the fiscal period covered thereby; and




     (6) the Borrower shall have delivered to the Administrative Agent, at least five
Business Days prior to the date on which any such purchase or other acquisition is to be
consummated, a certificate of a Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders, certifying that all of
the requirements set forth in this Section 7.03(h) have been satisfied or will be
satisfied on or prior to the consummation of such purchase or other acquisition;



     (i) Investments by the Borrower and its Subsidiaries not otherwise permitted under this
Section 7.03 in an aggregate amount not to exceed $10,000,000; provided that, with
respect to each Investment made pursuant to this Section 7.03(i):



61









 






     (1) such Investment shall not include or result in any contingent liabilities that
could reasonably be expected to be material to the business, financial condition, operations
or prospects of the Borrower and its Subsidiaries, taken as a whole (as determined in good
faith by the board of directors (or persons performing similar functions) of the Borrower or
such Subsidiary if the board of directors is otherwise approving such transaction and, in
each other case, by a Responsible Officer);




     (2) such Investment shall be in property that is part of, or in lines of business that
are, substantially the same lines of business as one or more of the principal businesses of
the Borrower and its Subsidiaries in the ordinary course;




     (3) any determination of the amount of such Investment shall include all cash and
noncash consideration (including the fair market value of all Equity Interests issued or
transferred to the sellers thereof, all indemnities, earnouts and other contingent payment
obligations to, and the aggregate amounts paid or to be paid under noncompete, consulting
and other affiliated agreements with, the sellers thereof, all write-downs of property and
reserves for liabilities with respect thereto and all assumptions of debt, liabilities and
other obligations in connection therewith) paid by or on behalf of the Borrower and its
Subsidiaries in connection with such Investment; and




     (4) (A) immediately before and immediately after giving pro forma effect to any such
purchase or other acquisition, no Default shall have occurred and be continuing and (B)
immediately after giving effect to such purchase or other acquisition, the Borrower and its
Subsidiaries shall be in pro forma compliance with all of the covenants set forth in
Section 7.11, such compliance to be determined on the basis of the financial
information most recently delivered to the Administrative Agent pursuant to Section
6.01(a) or (b) as though such Investment had been consummated as of the first
day of the fiscal period covered thereby; and



     (j) Investment in promissory notes and other assets in exchange for the transfer by the
Borrower of its interest in SEZ Holding Corp. to a wholly-owned Subsidiary.



Notwithstanding anything to the contrary in this Section 7.03, whether or not Minimum Liquidity is
less than $300,000,000, Lam Research International SARL shall not make any Investments in any
Subsidiary other than a Loan Party except those which existed on December 31, 2007 or which do not
exceed $15,000,000 in the aggregate in any calendar year or which are on terms (including amount)
acceptable to the Administrative Agent.



     7.04. Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:



     (a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall
be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any Subsidiary which is a Loan Party is merging with another Subsidiary, a Loan Party
shall be the continuing or surviving Person;



62









 





     (b) any Loan Party may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Loan Party;



     (c) any Subsidiary that is not a Loan Party may dispose of all or substantially all its assets
(including any Disposition that is in the nature of a liquidation) to (i) another Subsidiary that
is not a Loan Party or (ii) to a Loan Party;



     (d) the Borrower and its Subsidiaries may consummate the Acquisition;



     (e) in connection with any acquisition permitted under Section 7.03, any Subsidiary of
the Borrower may merge into or consolidate with any other Person or permit any other Person to
merge into or consolidate with it; provided that (i) the Person surviving such merger shall
be a wholly-owned Subsidiary of the Borrower and (ii) in the case of any such merger to which any
Loan Party (other than the Borrower) is a party, such Loan Party is the surviving Person; and



     (f) so long as no Default has occurred and is continuing or would result therefrom, each of
the Borrower and any of its Subsidiaries may merge into or consolidate with any other Person or
permit any other Person to merge into or consolidate with it; provided, however,
that in each case, immediately after giving effect thereto (i) in the case of any such merger to
which the Borrower is a party, the Borrower is the surviving corporation and (ii) in the case of
any such merger to which any Loan Party (other than the Borrower) is a party, such Loan Party is
the surviving corporation.



     7.05. Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except:



     (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business;



     (b) Dispositions of inventory in the ordinary course of business;



     (c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property or (iii) such equipment or real property is no longer needed in the business
of the Borrower;



     (d) Dispositions of property by any Subsidiary to the Borrower or to a wholly-owned
Subsidiary; provided that if the transferor of such property is a Guarantor, the transferee
thereof must either be the Borrower or a Guarantor;



     (e) Dispositions permitted by Section 7.04;



     (f) non-exclusive licenses of IP Rights in the ordinary course of business and substantially
consistent with past practice for terms not exceeding five years;



     (g) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this
Section 7.05; provided that (i) at the time of such Disposition, no Default shall
exist or



63









 







would result from such Disposition, (ii) the aggregate book value of all property Disposed of
in reliance on this clause (h) in any fiscal year shall not exceed $10,000,000 and (iii) the
purchase price for such asset shall be paid to the Borrower or such Subsidiary solely in cash;



     (h) so long as no Default shall occur and be continuing, the grant of any option or other
right to purchase any asset in a transaction that would be permitted under the provisions of
Section 7.05(g); and



     (i) the transfer of the Equity Interests in SEZ Holding AG from the Borrower to Lam Research
International SARL or other Subsidiary;



     provided, however, that any Disposition pursuant to Section 7.05(a) through
Section 7.05(g) shall be for fair market value.



     7.06. Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests
or accept any capital contributions, except that, so long as no Default shall have occurred and be
continuing at the time of any action described below or would result therefrom:



     (a) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the
Borrower and any other Person that owns a direct Equity Interest in such Subsidiary, ratably
according to their respective holdings of the type of Equity Interest in respect of which such
Restricted Payment is being made;



     (b) the Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such Person;



     (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common
Equity Interests with the proceeds received from the substantially concurrent issue of new common
Equity Interests; and



     (d) the Borrower may (i) declare or pay cash dividends to its stockholders and (ii) purchase,
redeem or otherwise acquire for cash Equity Interests issued by it if after giving effect thereto
the Borrower’s Minimum Liquidity would be at least $300,000,000.



     7.07. Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Borrower and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto.



     7.08. Transactions with Affiliates. Enter into any transaction of any kind (including without
limitation the sale of inventory) with any Affiliate of the Borrower, whether or not in the
ordinary course of business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such Subsidiary at the
time in a comparable arm’s length transaction with a Person other than an Affiliate; or fail to
enforce the terms of any such transaction in substantially the same manner as would be used in a
comparable arm’s length transaction with a Person other than an Affiliate; provided that
the



64









 







foregoing restriction shall not apply to transactions between or among the Loan Parties or to
the transfer of SEZ Holding Corp. by the Borrower to a wholly-owned Subsidiary.



     7.09. Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the ability




(i) of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to
otherwise transfer property to or invest in the Borrower or any Guarantor, except for any
agreement in effect (A) on the date hereof and set forth on Schedule 7.09 or (B) at
the time any Subsidiary becomes a Subsidiary of the Borrower, so long as such agreement was
not entered into solely in contemplation of such Person becoming a Subsidiary of the
Borrower,




(ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower, or




(iii) of the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person; provided, however, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness
permitted under Section 7.02(c), (f) or (g) solely to the extent any such negative
pledge relates to the property financed by or the subject of such Indebtedness;


or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person.




     7.10. Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



     7.11. Financial Covenants. (a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio at any time to be greater than forty percent (40%).



     (b) Minimum Liquidity. Permit the Minimum Liquidity at any time to be less than
$100,000,000.



     (c) Minimum EBITDA. Permit Consolidated EBITDA at the end of any fiscal quarter to be
less than $200,000,000.



     7.12. Capital Expenditures. At any time that the Borrower’s Minimum Liquidity is less than
$300,000,000 (or would be less than $300,000,000 immediately after making such Capital
Expenditure), make or become legally obligated to make any Capital Expenditure, except for Capital
Expenditures in the ordinary course of business not exceeding, in the aggregate for the Borrower
and it Subsidiaries during each fiscal year set forth below, the amount set forth opposite such
fiscal year:



65









 





	 	 	 
	Fiscal Year	 	Amount
	 
	2008
	 	$75,000,000
	2009
	 	$75,000,000
	2010
	 	$75,000,000






     7.13. Amendments of Organization Documents. Amend any of its Organization Documents.



     7.14. Accounting Changes. Make any change in (a) accounting policies or reporting practices,
except as required by GAAP, or (b) fiscal year.



     7.15. Prepayments, Etc. of Indebtedness. Prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of
any subordination terms of, any Indebtedness, except (a) the prepayment of the Credit Extensions in
accordance with the terms of this Agreement and (b) regularly scheduled or required repayments or
redemptions of Indebtedness set forth in Schedule 7.02 and refinancings and refundings of
such Indebtedness in compliance with Section 7.02(f) and (h).



     7.16. Amendment of Certain Indebtedness. Materially amend, modify or change in any manner any
term or condition of any Indebtedness set forth in Schedule 7.02, except for any
refinancing, refunding, renewal or extension thereof permitted by Section 7.02(f).



     7.17. Subordinated Indebtedness. Change any of the terms of any Subordinated Indebtedness or
prepay or purchase any Subordinated Indebtedness.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01. Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower fails to (i) pay when and as required to be paid
herein, any amount of principal of any Loan, or (ii) pay within three days after the same becomes
due, any interest on any Loan, or any fee due hereunder, or (iii) pay within five days after the
same becomes due, any other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. (i) The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.03(a), 6.05(a),
6.05(b), 6.11, or Article VII, or (ii) any of the Loan Parties fails to
perform or observe any term, covenant or agreement contained in Section 4(b), 4(c),
or 4(j) of the Security Agreement or Section 4(d), 4(e), or 4(f) of
the Pledge Agreement; or



     (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days (or such
shorter grace period as may be specified in such other Loan Document); or



     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower, in any other Loan



66









 







Document, or in any document delivered in connection herewith or therewith shall be incorrect
or misleading in any material respect when made or deemed made; or



     (e) Cross-Default. (i) Any Loan Party or any Subsidiary thereof (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or
perform any other agreement or condition relating to any such Indebtedness or Guarantee or
contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which a Loan Party or any
Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which a Loan Party or any
Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold
Amount; or



     (f) Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary thereof institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged for 60 calendar days; or any proceeding
under any Debtor Relief Law relating to any such Person or to all or any material part of its
property is instituted without the consent of such Person and continues undischarged for 60
calendar days, or an order for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary thereof
becomes unable or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or



     (h) Judgments. There is entered against any Loan Party or any Subsidiary thereof (i)
one or more final judgments or orders for the payment of money in an aggregate amount (as to all
such judgments and orders) exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer is rated at least “A” by A.M. Best



67









 







Company, has been notified of the potential claim and does not dispute coverage and not
vacated, discharged, stayed, or bonded within 10 days of entry), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period of 10 consecutive
days during which a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or



     (j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force
and effect; or any Loan Party denies that it has any or further liability or obligation under any
provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any
Loan Document; or



     (k) Change of Control. There occurs any Change of Control; or



     (l) Collateral Documents. Any Collateral Document after delivery thereof pursuant to
Section 4.01 or 6.12 shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected first priority Lien (subject to Liens permitted by
Section 7.01) on the Collateral purported to be covered thereby; or



     (m) Subordination. (i) The subordination provisions of the documents evidencing or
governing any Subordinated Indebtedness (the “Subordinated Provisions”) shall, in whole or
in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable
against any holder of the applicable Subordinated Indebtedness; or (ii) the Borrower shall,
directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or
enforceability of any of the Subordination Provisions, (B) that the Subordination Provisions exist
for the benefit of the Administrative Agent and the Lenders or (C) that all payments of principal
of or premium and interest on the applicable Subordinated Indebtedness, or realized from the
liquidation of any property of any Loan Party, shall be subject to any of the Subordination
Provisions.



     8.02. Remedies upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



     (a) declare the Commitment of each Lender to make Loans to be terminated, whereupon such
Commitments and obligation shall be terminated; and



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     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; and



     (c) exercise on behalf of itself and the Lenders all rights and remedies available to it, the
Lenders under the Loan Documents;



provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically
become due and payable shall automatically become effective, in each case without further act of
the Administrative Agent or any Lender.



     8.03. Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable as set forth in
the proviso to Section 8.02), any amounts received on account of the Obligations shall be
applied by the Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including fees,
charges and disbursements of counsel to the respective Lenders (including fees and time charges for
attorneys who may be employees of any Lender) and amounts payable under Article III,
ratably among them in proportion to the respective amounts described in this clause Second
payable to them; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01. Appointment and Authority. (a) Each of the Lenders hereby irrevocably appoints ABN AMRO
to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent and the Lenders, and, except as expressly provided
herein, the Borrower shall not have rights as a third party beneficiary of any of such provisions.



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     (b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender) hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring,
holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure
any of the Obligations, together with such powers and discretion as are reasonably incidental
thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents,
sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section
9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof)
granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the
direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this
Article IX and Article X (including Section 10.04(c), as though such
co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents)
as if set forth in full herein with respect thereto.



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



     9.03. Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable law;
and



     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage



70









 







of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good
faith shall be necessary, under the circumstances as provided in Sections 10.01 and
8.02) or (ii) 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 notice
describing such Default is given to the Administrative Agent by the Borrower or a Lender.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the
value or the sufficiency of any Collateral, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.



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



     9.05. Delegation of Duties. The Administrative Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document 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 of its duties and exercise its rights and powers by or through
their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the 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.



     9.06. Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Borrower and so
long as no Event of Default has occurred and is continuing with the consent of the Borrower, to
appoint a successor, which shall be a bank with an office in the United States,



71









 







or an Affiliate of any such bank with an office in the United States. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the Administrative Agent
shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment,
then such resignation shall nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (b) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). 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 retiring Administrative Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 10.04 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 the retiring
Administrative Agent was acting as Administrative Agent.



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



     9.08. No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Bookrunners or Arrangers listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent, a Lender hereunder.



     9.09. Administrative Agent May File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party,
the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of



72









 







whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled
and empowered, by intervention in such proceeding or otherwise:



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their respective agents and counsel
and all other amounts due the Lenders and the Administrative Agent under Sections 2.04 and
10.04) allowed in such judicial proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;



     and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, if the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.04 and
10.04.



     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender to authorize the
Administrative Agent to vote in respect of the claim of any Lender or in any such proceeding.



     9.10. Collateral and Guaranty Matters. The Lenders irrevocably authorize the Administrative
Agent, at its option and in its discretion,



     (a) to release any Lien on any property granted to or held by the Administrative Agent under
any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all
Obligations (other than contingent indemnification obligations), (ii) that is sold or to be sold as
part of or in connection with any sale permitted hereunder or under any other Loan Document, or
(iii) if approved, authorized or ratified in writing in accordance with Section 10.01;



     (b) to release any Guarantor from its obligations under the Guaranty if such Person ceases to
be a Subsidiary as a result of a transaction permitted hereunder; and



     (c) to subordinate, or to confirm the absence or release of, any Lien granted to or held by
the Administrative Agent under any Loan Document with respect to any Lien on property that is
permitted by Section 7.01(i).



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its obligations under the



73









 







Guaranty pursuant to this Section 9.10. In each case as specified in this Section
9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request to evidence the
release of such item of Collateral from the assignment and security interest granted under the
Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from
its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents
and this Section 9.10.



ARTICLE X.

MISCELLANEOUS




     10.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders (or signed by the
Administrative Agent with the written consent of the Required Lenders) and the Borrower, or the
applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:



     (a) waive any condition set forth in Section 4.01 (other than Section 4.01(b)(i)
or (c)), or Section 4.02, without the written consent of each Lender;



     (b) extend or increase the Commitment of any Lender without the written consent of such
Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under
such other Loan Document without the written consent of each Lender entitled to such payment;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan, or
(subject to clause (ii) of the second proviso to this Section 10.01) any fees or other
amounts payable hereunder or under any other Loan Document without the written consent of each
Lender entitled to such amount; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any
obligation of the Borrower to pay interest at the Default Rate;



     (e) change (i) Section 2.10 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of each Lender or (ii)
the order of application of any prepayment of Loans from the application thereof set forth in the
applicable provisions of Section 2.03(b) in any manner that materially and adversely
affects the Lenders under a Facility without the written consent of the Required Lenders;



     (f) change any provision of this Section 10.01 or the definition of “Required Lenders”
or any other provision hereof specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender;




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     (g) release all or substantially all of the Collateral in any transaction or series of related
transactions, without the written consent of each Lender;



     (h) release all or substantially all of the value of the Guaranty, without the written consent
of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted
pursuant to Section 9.10 (in which case such release may be made by the Administrative
Agent acting alone); or



     (i) impose any greater restriction on the ability of any Lender under a Facility to assign any
of its rights or obligations hereunder without the written consent of the Required Lenders;



and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
and (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender.



     If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that has been approved by
the Required Lenders, the Borrower may replace such non-consenting Lender in accordance with
Section 10.13; provided that such amendment, waiver, consent or release can be
effected as a result of the assignment contemplated by such Section (together with all other such
assignments required by the Borrower to be made pursuant to this paragraph).



     10.02. Notices; Effectiveness; Electronic Communications. (a) Notices Generally.
Except in the case of notices and other communications expressly permitted to be given by telephone
(and except as provided in subsection (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:




     (i) if to the Borrower or the Administrative Agent to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule
10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


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


75









 






subsection (b) below shall be effective as provided in such subsection (b).




     (b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent,1
provided that the foregoing shall not apply to notices to any Lender pursuant to
Article II if such Lender, as applicable, has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic communication. The Administrative
Agent or the Borrower may, in its discretion, agree to accept notices and other communications to
it hereunder by electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided, however, that in no event shall
any Agent Party have any liability to the Borrower, any Lender, or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or actual damages).





 




			
	1	 	The Administrative Agent should prescribe procedures for
electronic communications and disseminate those procedures to the Lenders.




76









 










     (d) Change of Address, Etc. Each of the Borrower and the Administrative Agent may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the Borrower and the
Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time
to time to ensure that the Administrative Agent has on record (i) an effective address, contact
name, telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each
Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to the Borrower or its securities for purposes of
United States Federal or state securities laws.



     (e) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made
in a manner specified herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the
Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.



     10.03. No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent
to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided, and provided under each other Loan
Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.



     10.04. Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. 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 syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and administration of this Agreement and
the other 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 out-of-pocket expenses incurred by the Administrative Agent, any Lender



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(including the fees, charges and disbursements of any counsel for the Administrative Agent,
any Lender), and shall pay all fees and time charges for attorneys who may be employees of the
Administrative Agent, any Lender, in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents, including its rights under this
Section or (B) in connection with Loans made hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans.




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



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



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agent). The obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.10(d).




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



     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent the replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.



     10.05. Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent or such Lender in
its discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had not occurred, and (b)
each Lender agrees to pay to the Administrative Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under
clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.



     10.06. Successors and Assigns. (a) Successors and Assigns Generally. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the Borrower nor any other
Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of Section 10.06(b), (ii) by way of participation in



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accordance with the provisions of Section 10.06(d), or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of Section 10.06(f) (and any
other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time 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(s) and the Loans at the time owing to it); provided that any such
assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment under any Facility and the Loans at the time owing to
it under such Facility or in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund, no minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the 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 or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $25,000,000 (and the assigning Lender shall retain at least $25,000,000 in
Commitments) in the case of any assignment, unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an
Assignee Group and concurrent assignments from members of an Assignee Group to a
single Eligible Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of determining whether
such minimum amount has been met;




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Facilities on a non-pro rata basis;



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     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; and




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments if such
assignment is to a Person that is not a Lender, an Affiliate of such Lender or an
Approved Fund with respect to such Lender.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement 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 3.01, 3.04, 3.05 and 10.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection 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 Section
10.06(d).




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office 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 Commitments of, and principal amounts of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the “Register”). The entries in the Register shall



81









 







be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the 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, waiver or other modification described in
Section 10.01(b), (c) or (d) that affects such Participant. Subject to subsection
(e) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 10.06(b). To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section
10.08 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.10 as though it were a Lender.



     (e) Limitations upon Participant Rights. Voting rights of participants shall be
limited to matters in respect of (a) increases in commitments, (b) reductions of principal,
interest or fees and (c) extensions of final maturity. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 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 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to



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



     10.07. Treatment of Certain Information; Confidentiality. Each of the Administrative Agent
and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any 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 or (h) to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the Administrative Agent, any
Lender or any of their respective Affiliates on a nonconfidential basis from a source other than
the Borrower.



     For purposes of this Section, “Information” means all information received from any
Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or their
respective businesses, other than any such information that is available to the Administrative
Agent, any Lender on a nonconfidential basis prior to disclosure by any Loan Party or any
Subsidiary thereof, provided that, in the case of information received from a Loan Party or
any such Subsidiary 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 of the Administrative Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning the Borrower or a Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with applicable Law,
including United States Federal and state securities Laws.



     10.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender and each of their respective Affiliates is hereby authorized at any time and from



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time to time, after obtaining the prior written consent of the Administrative Agent, to the
fullest extent permitted by applicable law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for
the credit or the account of the Borrower or any other Loan Party against any and all of the
obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or
any other Loan Document to such Lender, irrespective of whether or not such Lender shall have made
any demand under this Agreement or any other Loan Document and although such obligations of the
Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of
such Lender different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender or their
respective Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative
Agent promptly after any such setoff and application, provided that the failure to give
such notice shall not affect the validity of such setoff and application.



     10.09. Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



     10.10. Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents 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
that, when taken together, bear the signatures of each of the other parties hereto. 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.



     10.11. Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the



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Administrative Agent or any Lender may have had notice or knowledge of any Default at the time
of any Credit Extension, and shall continue in full force and effect as long as any Loan or any
other Obligation hereunder shall remain unpaid or unsatisfied.



     10.12. Severability. If any provision of this Agreement or the other Loan Documents is held
to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     10.13. Replacement of Lenders. If any Lender requests compensation under Section
3.04, 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 3.01, or if any
Lender is a Defaulting Lender or if any other circumstance exists hereunder that gives the Borrower
the right to replace a Lender as a party hereto, 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, and
consents required by, Section 10.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that:



     (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);



     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents (including any amounts under Section 3.05) 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);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



     10.14. Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.



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     (b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA SITTING IN THE CITY AND COUNTY OF SAN FRANCISCO AND OF THE UNITED STATES DISTRICT COURT
OF THE NORTHERN DISTRICT OF CALIFORNIA SITTING SAN FRANCISCO, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     (c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR 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 APPLICABLE LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW



     10.15. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR 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 PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF



86









 







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



     10.16. California Judicial Reference. If any action or proceeding is filed in a court of the
State of California by or against any party hereto in connection with any of the transactions
contemplated by this Agreement or any other Loan Document, (a) the court shall, and is hereby
directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to
a referee (who shall be a single active or retired judge) to hear and determine all of the issues
in such action or proceeding (whether of fact or of law) and to report a statement of decision,
provided that at the option of any party to such proceeding, any such issues pertaining to
a “provisional remedy” as defined in California Code of Civil Procedure Section 1281.8 shall be
heard and determined by the court, and (b) without limiting the generality of Section
10.04, the Borrower shall be solely responsible to pay all fees and expenses of any referee
appointed in such action or proceeding.



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



     10.18. USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies each Loan Party, which information includes the name and



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address of each Loan Party and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify each Loan Party in accordance with the Act.



     10.19. Time of the Essence. Time is of the essence of the Loan Documents.



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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	LAM RESEARCH CORPORATION

 	 
	 	By:  	/s/ Roch LeBlanc
 	 
	 	Name:  	Roch LeBlanc 	 
	 	Title:  	Treasurer 	 
	 



[Signature Page to Credit Agreement]





 









 





	 	 	 	 	 
	 	ABN AMRO BANK N.V., as

Administrative Agent and as a Lender

 	 
	 	By:  	/s/ Sarabelle Hitchner
 	 
	 	Name:  	Sarabelle Hitchner 	 
	 	Title:  	Senior Vice President 	 
	 
	 	 	 
	 	By:  	                                              /s/ Kathryn Schutz
 	 
	 	Name:  	Kathryn Schutz 	 
	 	Title:  	Assistant Vice President 	 
	 



[Signature Page to Credit Agreement]





 









 





	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Raed Y. Alfayoumi
 	 
	 	Name:  	Raed Y. Alfayoumi 	 
	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]





 









 





	 	 	 	 	 
	 	UNION BANK OF CALIFORNIA, N.A., as a Lender

 	 
	 	By:  	/s/ James B. Goudy
 	 
	 	Name:  	James B. Goudy 	 
	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]





 









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as a Lender

 	 
	 	By:  	/s/ Christine L. Ruyter
 	 
	 	Name:  	Christine L. Ruyter 	 
	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]