exv10w1







Exhibit 10.1




Published CUSIP Number:                     




 

CREDIT AGREEMENT




Dated as of December 22, 2008




among




MCAFEE, INC. AND MCAFEE IRELAND HOLDINGS LIMITED,




as the Borrowers,




CERTAIN SUBSIDIARIES OF THE BORROWERS

FROM TIME TO TIME PARTY HERETO,

as the Guarantors,




BANK OF AMERICA, N.A.,

as Administrative Agent and L/C Issuer,




THE ROYAL BANK OF SCOTLAND PLC,

as Syndication Agent




and




THE OTHER LENDERS PARTY HERETO




Arranged By:




BANC OF AMERICA SECURITIES LLC,




and




GREENWICH CAPITAL MARKETS, INC. d/b/a

RBS GREENWICH CAPITAL




as Joint Lead Arrangers and Joint Book Managers




 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	24	 
	1.03 Accounting Terms
	 	 	25	 
	1.04 Rounding
	 	 	26	 
	1.05 Exchange Rates; Currency Equivalents
	 	 	26	 
	1.06 Additional Alternative Currencies
	 	 	26	 
	1.07 Change of Currency
	 	 	27	 
	1.08 Times of Day
	 	 	27	 
	1.09 Letter of Credit Amounts
	 	 	28	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	28	 
	2.01 Revolving Loans and Term Loan
	 	 	28	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	28	 
	2.03 Letters of Credit
	 	 	31	 
	2.04 Prepayments
	 	 	39	 
	2.05 Termination or Reduction of Aggregate Revolving Commitments
	 	 	40	 
	2.06 Repayment of Loans
	 	 	41	 
	2.07 Interest
	 	 	41	 
	2.08 Fees
	 	 	41	 
	2.09 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	42	 
	2.10 Evidence of Debt
	 	 	43	 
	2.11 Payments Generally; Administrative Agent’s Clawback
	 	 	43	 
	2.12 Sharing of Payments by Lenders
	 	 	45	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	46	 
	3.01 Taxes
	 	 	46	 
	3.02 Illegality
	 	 	49	 
	3.03 Inability to Determine Rates
	 	 	50	 
	3.04 Increased Costs
	 	 	50	 
	3.05 Compensation for Losses
	 	 	51	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	52	 
	3.07 Survival
	 	 	52	 
	ARTICLE IV GUARANTY
	 	 	53	 
	4.01 The Guaranty
	 	 	53	 
	4.02 Obligations Unconditional
	 	 	53	 
	4.03 Reinstatement
	 	 	55	 
	4.04 Certain Additional Waivers
	 	 	55	 
	4.05 Remedies
	 	 	56	 
	4.06 Rights of Contribution
	 	 	56	 
	4.07 Guarantee of Payment; Continuing Guarantee
	 	 	56	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	57	 
	5.01 Conditions of Closing
	 	 	57	 
	5.02 Conditions to all Credit Extensions
	 	 	58	 
	5.03 Conditions to Initial Credit Extension to the Irish Borrower
	 	 	59	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	60	 
	6.01 Existence, Qualification and Power
	 	 	61	 
	6.02 Authorization; No Contravention
	 	 	61	 
	6.03 Governmental Authorization; Other Consents
	 	 	61	 






i









 






	 	 	 	 	 
	 	 	Page	 
	6.04 Binding Effect
	 	 	61	 
	6.05 Financial Statements; No Material Adverse Effect
	 	 	61	 
	6.06 No Material Litigation
	 	 	62	 
	6.07 No Default
	 	 	62	 
	6.08 Ownership of Property
	 	 	63	 
	6.09 Environmental Compliance
	 	 	63	 
	6.10 Insurance
	 	 	63	 
	6.11 Taxes
	 	 	64	 
	6.12 ERISA Compliance
	 	 	64	 
	6.13 Subsidiaries
	 	 	64	 
	6.14 Margin Regulations; Investment Company Act
	 	 	65	 
	6.15 Disclosure
	 	 	65	 
	6.16 Compliance with Laws
	 	 	65	 
	6.17
Intellectual Property; Licenses, Etc.
	 	 	65	 
	6.18 Solvency
	 	 	66	 
	6.19 Legal Name; Taxpayer Identification Number
	 	 	66	 
	6.20 Labor Matters
	 	 	66	 
	6.21 Foreign Loan Parties
	 	 	66	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	67	 
	7.01 Financial Statements
	 	 	67	 
	7.02 Certificates; Other Information
	 	 	67	 
	7.03 Notices
	 	 	69	 
	7.04 Payment of Taxes
	 	 	70	 
	7.05
Preservation of Existence, Etc.
	 	 	70	 
	7.06 Maintenance of Properties
	 	 	70	 
	7.07 Maintenance of Insurance
	 	 	70	 
	7.08 Compliance with Laws
	 	 	71	 
	7.09 Books and Records
	 	 	71	 
	7.10 Inspection Rights
	 	 	71	 
	7.11 Use of Proceeds
	 	 	71	 
	7.12 Additional Subsidiaries
	 	 	71	 
	7.13 ERISA Compliance
	 	 	72	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	73	 
	8.01 Liens
	 	 	73	 
	8.02 Investments
	 	 	74	 
	8.03 Indebtedness
	 	 	75	 
	8.04 Fundamental Changes
	 	 	76	 
	8.05 Dispositions
	 	 	77	 
	8.06 Restricted Payments
	 	 	77	 
	8.07 Change in Nature of Business
	 	 	78	 
	8.08 Transactions with Affiliates and Insiders
	 	 	78	 
	8.09 Burdensome Agreements
	 	 	78	 
	8.10 Use of Proceeds
	 	 	79	 
	8.11 Financial Covenants
	 	 	79	 
	8.12 Organization Documents; Fiscal Year; Legal Name, State of Formation and
Form of Entity
	 	 	79	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	80	 
	9.01 Events of Default
	 	 	80	 
	9.02 Remedies Upon Event of Default
	 	 	82	 
	9.03 Application of Funds
	 	 	82	 
	ARTICLE X ADMINISTRATIVE AGENT
	 	 	84	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	10.01 Appointment and Authority
	 	 	84	 
	10.02 Rights as a Lender
	 	 	84	 
	10.03 Exculpatory Provisions
	 	 	84	 
	10.04 Reliance by Administrative Agent
	 	 	85	 
	10.05 Delegation of Duties
	 	 	86	 
	10.06 Resignation of Administrative Agent
	 	 	86	 
	10.07 NonReliance on Administrative Agent and Other Lenders
	 	 	87	 
	10.08 No
Other Duties; Etc.
	 	 	87	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	87	 
	10.10 Guaranty Matters
	 	 	88	 
	ARTICLE XI MISCELLANEOUS
	 	 	88	 
	11.01
Amendments, Etc.
	 	 	88	 
	11.02 Notices; Effectiveness; Electronic Communications
	 	 	90	 
	11.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	91	 
	11.04 Expenses; Indemnity; and Damage Waiver
	 	 	92	 
	11.05 Payments Set Aside
	 	 	93	 
	11.06 Successors and Assigns
	 	 	94	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	97	 
	11.08 Setoff
	 	 	98	 
	11.09 Interest Rate Limitation
	 	 	98	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	98	 
	11.11 Survival of Representations and Warranties
	 	 	99	 
	11.12 Severability
	 	 	99	 
	11.13 Replacement of Lenders
	 	 	99	 
	11.14
Governing Law; Jurisdiction; Etc.
	 	 	100	 
	11.15 Waiver of Right to Trial by Jury
	 	 	101	 
	11.16 No Advisory or Fiduciary Responsibility
	 	 	101	 
	11.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	102	 
	11.18 USA PATRIOT Act Notice
	 	 	102	 
	11.19 Judgment Currency
	 	 	102	 






iii









 






	 	 	 
	SCHEDULES
	 	 
	 
	1.01
	 	Mandatory Cost Formulae
	2.01
	 	Commitments and Applicable Percentages
	11.02
	 	Certain Addresses for Notices






	 	 	 
	EXHIBITS
	 	 
	 
	2.02
	 	Form of Loan Notice
	2.10(a)(i)
	 	Form of Revolving Note
	2.10(a)(ii)
	 	Form of Term Note
	7.02
	 	Form of Compliance Certificate
	7.12(a)
	 	Form of Domestic Joinder Agreement
	7.12(b)
	 	Form of Foreign Joinder Agreement
	11.06(b)
	 	Form of Assignment and Assumption






iv









 





CREDIT AGREEMENT




     This CREDIT AGREEMENT is entered into as of December 22, 2008 among McAfee, Inc., a Delaware
corporation (“McAfee”), McAfee Ireland Holdings Limited, a limited liability company
incorporated under the laws of Ireland (the “Irish Borrower” and together with McAfee, each
a “Borrower” and together the “Borrowers”), the Guarantors (defined herein), each
lender from time to time party hereto (each a “Lender” and collectively, the
“Lenders”) and BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer.



     McAfee has requested that the Lenders provide credit facilities for the purposes set forth
herein, and the Lenders are willing to do so on the terms and 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:



     “Acquisition”, by any Person, means the acquisition by such Person, in a single
transaction or in a series of related transactions, of either (a) all or any substantial portion of
the property of, or a line of business or division of, another Person or (b) at least a majority of
the Voting Stock of another Person, in each case whether or not involving a merger or consolidation
with such other Person.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means, with respect to any currency, the
Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02
with respect to such currency, or such other address or account with respect to such currency as
the Administrative Agent may from time to time notify to McAfee and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
provided 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 Revolving Commitments” means the Revolving Commitments of all the Lenders.
The initial amount of the Aggregate Revolving Commitments in effect on the Closing Date is ONE
HUNDRED MILLION DOLLARS ($100,000,000).



     “Agreement” means this Credit Agreement.



     “Alternative Currency” means Euros, and each other currency (other than Dollars) that
is approved in accordance with Section 1.06.



 









 





     “Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the
basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase
of such Alternative Currency with Dollars.



     “Applicable Percentage” means with respect to any Lender at any time, (a) with respect
to such Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal
place) of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at
such time; provided that if the commitment of each Lender to make Revolving Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 9.02 or if the Aggregate Revolving Commitments have expired, then the Applicable
Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender
most recently in effect, giving effect to any subsequent assignments and (b) with respect to such
Lender’s portion of the outstanding Term Loan at any time, the percentage (carried out to the ninth
decimal place) of the outstanding principal amount of the Term Loan held by such Lender at such
time. The initial Applicable Percentage of each Lender 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 the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 7.02(a):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Applicable Rate for	 	 
	 	 	 	 	 	 	 	 	Eurocurrency Rate	 	Applicable Rate
	Pricing	 	Consolidated	 	Commitment	 	Loans/	 	for
	Tier	 	Leverage Ratio	 	Fee	 	Letters of Credit	 	Base Rate Loans
	1

	 	£ 1.0:1.0
	 	 	0.25	%	 	 	2.00	%	 	 	2.00	%
	2

	 	> 1.0:1.0 but
£ 1.75:1.0
	 	 	0.35	%	 	 	2.25	%	 	 	2.25	%
	3

	 	> 1.75:1.0
	 	 	0.45	%	 	 	2.50	%	 	 	2.50	%





Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is required to be delivered pursuant to Section 7.02(a);
provided, however, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then, upon the request of the Required Lenders, Pricing Tier 3 shall
apply as of the first Business Day after the date on which such Compliance Certificate was required
to have been delivered and shall remain in effect until the date on which such Compliance
Certificate is delivered in accordance with Section 7.02(a), whereupon the Applicable Rate
shall be adjusted based upon the calculation of the Consolidated Leverage Ratio contained in such
Compliance Certificate. The Applicable Rate in effect from the Closing Date through the first
Business Day immediately following the date a Compliance Certificate is required to be delivered
pursuant to Section 7.02(a) for the fiscal quarter ending December 31, 2008 shall be
determined based upon Pricing Tier 1.




     “Applicable Time” means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such Alternative Currency as
may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be
necessary for timely settlement on the relevant date in accordance with normal banking procedures
in the place of payment.



2









 





     “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.



     “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 assignee (with the consent of any party whose consent is required by Section
11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
11.06(b) or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, with respect to any Person on any date, (a) in
respect of any Capital Lease, 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, the capitalized amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such
lease were accounted for as a Capital Lease, (c) in respect of any Securitization Transaction, the
outstanding principal amount of such financing, after taking into account reserve accounts and
making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment
and (d) in respect of any Sale and Leaseback Transaction, the present value (discounted in
accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the
lessee for rental payments during the term of such lease).



     “Audited Financial Statements” means the audited consolidated balance sheet of McAfee
and its Subsidiaries for the fiscal year ended December 31, 2007, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows of McAfee and its
Subsidiaries for such fiscal year, including the notes thereto.



     “Availability Period” means, (a) with respect to the Revolving Commitments, the period
from the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the
Aggregate Revolving Commitments pursuant to Section 2.05, and (iii) the date of termination
of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C
Credit Extensions pursuant to Section 9.02 and (b) with respect to the Term Loan
Commitment, the period from and including January 5, 2009 to and including January 9, 2009.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Bank of America Fee Letter” means the letter agreement dated November 7, 2008, among
McAfee, the Administrative Agent and BAS, as amended.



     “BAS” means Banc of America Securities LLC.



     “Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Prime
Rate for such day, (b) the sum of 0.50% plus the Federal Funds Rate for such day and (c)
the Eurocurrency Base Rate plus 1.0%.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base
Rate Loans shall be denominated in Dollars.



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



3









 





     “Borrower Materials” has the meaning specified in Section 7.02.



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



     “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 with respect to Obligations denominated in Dollars is
located and: (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect
of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to
this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings
in deposits in Dollars are conducted by and between banks in the London interbank eurodollar
market; (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in an Alternative Currency, any fundings, disbursements, settlements and payments in
Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day; (c)
if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a
currency other than Dollars or Euro, means any such day on which dealings in deposits in the
relevant currency are conducted by and between banks in the London or other applicable offshore
interbank market for such currency; and (d) if such day relates to any fundings, disbursements,
settlements and payments in a currency other than Dollars or Euro in respect of a Eurocurrency Rate
Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency
other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks
are open for foreign exchange business in the principal financial center of the country of such
currency.



     “Capital Lease” means, as applied to any Person, any lease of any property by that
Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease
on the balance sheet of that Person.



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Cash Equivalents” means, as at any date, (1) with respect to McAfee or any of its
Subsidiaries: (a) securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than twelve months from
the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i)
any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any
such bank being an “Approved Bank”), in each case with maturities of not more than 270 days
from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any
Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody’s and maturing within six months of the date of
acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company
(including any of the Lenders) or recognized securities dealer having capital and surplus in excess
of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to no other Liens) and
having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance with GAAP as current assets,
in money market investment programs registered under the Investment Company Act of



4









 




1940 which are administered by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the character described in
the foregoing subdivisions (a) through (d) and (2) with respect to any Foreign Subsidiary of
McAfee: (a) obligations of the national government of the country in which such Foreign Subsidiary
maintains its chief executive office and principal place of business provided such country is a
member of the Organization for Economic Cooperation and Development, in each case maturing within
one year after the date of investment therein, (b) certificates of deposit of, bankers acceptances
of, or time deposits with, any commercial bank which is organized and existing under the laws of
the country in which such Foreign Subsidiary maintains its chief executive office and principal
place of business provided such country is a member of the Organization for Economic Cooperation
and Development, and whose short-term commercial paper rating from
S&P is at least A-1 or the
equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank being
an “Approved Foreign Bank”), and in each case with maturities of not more than 270 days
from the date of acquisition and (c) the equivalent of demand deposit accounts which are maintained
with an Approved Foreign Bank.




     “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 Equity Interests 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
35% of the Equity Interests of McAfee entitled to vote for members of the board of directors
or equivalent governing body of McAfee 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 McAfee 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 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



5









 






     (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 McAfee, or control
over the Voting Stock of McAfee on a fully diluted basis (and taking into account all such
Voting Stock that such Person or group has the right to acquire pursuant to any option
right) representing 35% or more of the combined voting power of such Voting Stock; or




     (d) McAfee fails to directly or indirectly own 100% of the Voting Stock of the Irish
Borrower.



     “Closing Date” means the date hereof.



     “Commitment” means, as to each Lender, the Revolving Commitment of such Lender and/or
the Term Loan Commitment of such Lender.



     “Compliance Certificate” means a certificate substantially in the form of
Exhibit 7.02.



     “Consolidated EBITDA” means, for any period, for McAfee and its Subsidiaries on a
consolidated basis, an amount equal to the sum of (a) Consolidated Net Income for such period
plus (b) the following to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Charges for such period, (ii) the provision for federal, state, local and
foreign income taxes payable for such period, (iii) the amount of depreciation and amortization
expense for such period, (iv) other non-cash charges or non-cash expenses for such period
(excluding write-downs of inventory and accounts receivable and any other charge or expense
representing an accrual or reserve for cash expenses in a future period), (v) any currency
translation losses and (vi) any loss resulting from the sale of Investments of the type specified
in Section 8.02(a) minus (c) (i) to the extent included in calculating such Consolidated
Net Income, non-cash income or gains for such period, (ii) any currency translation gains and (iii)
any gains resulting from the sale of Investments of the type specified in Section 8.02(a).



     “Consolidated Funded Indebtedness” means, as of any date of determination with respect
to McAfee and its Subsidiaries on a consolidated basis, without duplication, the sum of: (a) all
obligations for borrowed money, whether current or long-term (including the Obligations) and all
obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all purchase money Indebtedness; (c) all direct or indirect 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 and not past due
for more than 60 days past the date due); provided that any deferred purchase price
obligation in respect of any Acquisition in the nature of an
“earn-out” or other contingent payment
or indemnity shall be deemed “Consolidated Funded Indebtedness” only (i) to the extent such
obligation is required to be shown on the consolidated balance sheet of McAfee as a liability in
accordance with GAAP and (ii) from the date of the balance sheet as of the fiscal quarter end with
respect to which such liability is required to be shown; (e) all Attributable Indebtedness; (f) all
Guarantees with respect to Indebtedness of the types specified in clauses (a) through (e) above of
another Person; and (g) all Indebtedness of the types referred to in clauses (a) through (g) above
of any partnership or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which McAfee or a Subsidiary is a general partner or joint venturer,
except to the extent that Indebtedness is expressly made non-recourse to such Person.



     “Consolidated Interest Charges” means, for any period, for McAfee and its Subsidiaries
on a consolidated basis, an amount equal to the sum of (a) all interest, premium payments, debt
discount, fees,



6









 




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, plus (b) the portion of rent expense with
respect to such period under Capital Leases that is treated as interest in accordance with GAAP
plus (c) the implied interest component of Synthetic Leases with respect to such period.




     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four fiscal quarters most recently ended to
(b) Consolidated Interest Charges for the period of the four fiscal quarters most recently ended.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the four fiscal
quarters most recently ended.



     “Consolidated Net Income” means, for any period, for McAfee and its Subsidiaries on a
consolidated basis, the net income (excluding extraordinary items) for that period.



     “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. Without limiting the generality of the foregoing, a Person
shall be deemed to be Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 5% or more of the securities having ordinary voting power for the
election of directors, managing general partners or the equivalent.



     “Convertible Debt Securities” means debt securities, the terms of which provide for
conversion into Equity Interests, cash or a combination thereof.



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “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
United States or other applicable jurisdictions, including Ireland, 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) when used with respect to Obligations other than Letter of
Credit Fees, 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 Eurocurrency Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate and any Mandatory Cost)
otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted
by applicable Laws and (b) when used with respect to Letter of Credit Fees, a rate equal to the
Applicable Rate plus 2% per annum.



7









 





     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Loans, participations in L/C Obligations required to be funded by it hereunder within one Business
Day of the date required to be funded by it hereunder unless such failure has been cured, (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 unless such failure has been cured, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.



     “Disclosure Letter” means the disclosure letter dated as of the Closing Date
containing certain schedules delivered by the Loan Parties to the Administrative Agent to the
Lenders (as such disclosure letter and schedules are supplemented from time to time in accordance
with Section 7.02(a)).



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any property by any Loan Party or any
Subsidiary (including the Equity Interests of any Subsidiary), 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, but excluding any Involuntary Disposition.



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



     “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C
Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of
the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.



     “Domestic Guarantors” means each Material Domestic Subsidiary of McAfee on the Closing
Date and each other Person that joins as a Domestic Guarantor pursuant to Section 7.12 or
otherwise, together with their successors and permitted assigns; provided, that,
Domestic Guarantors shall also include such other Domestic Subsidiaries as is necessary to ensure
that Domestic Guarantors, in the aggregate, (i) own at least 80% of the assets of McAfee and its
Domestic Subsidiaries and (ii) earn at least 80% of the revenues of McAfee and its Domestic
Subsidiaries.



     “Domestic Loan Parties” means the collective reference to McAfee and the Domestic
Guarantors and “Domestic Loan Party” means any one of them.



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
state of the United States or the District of Columbia other than any Subsidiary of a Foreign
Subsidiary.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Sections 11.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 11.06(b)(iii)).



     “EMU” means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.



     “EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



8









 





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



     “Equity Interests” means, 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. For purposes of clarification, Convertible Debt Securities shall not for purposes
of this definition be deemed to be a warrant, option or other right to purchase or acquire any
capital stock or other ownership or profit interest or otherwise classified as Equity Interests.



     “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 McAfee within the meaning of Section 414(b) or (c) of the Internal Revenue Code
(and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to
Section 412 of the Internal Revenue Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by McAfee 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 McAfee or any ERISA Affiliate from a Multiemployer
Plan for which the Borrower or any ERISA Affiliate has withdrawal liability (including any
contingent liability) or notification that a Multiemployer Plan is in reorganization; (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 McAfee or any
ERISA Affiliate.



     “Euro” and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation. 



     “Eurocurrency Base Rate” means:



9









 






     (a) For any Interest Period with respect to a Eurocurrency Rate Loan, the rate per
annum equal to (A) the British Bankers Association LIBOR Rate as published by Reuters (or
other commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) (“BBA LIBOR”), at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for deposits in
the relevant currency (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period or (B) if such published rate is not available at such
time for any reason, the rate determined by the Administrative Agent to be the rate at which
deposits in the relevant currency for delivery on the first day of such Interest Period in
Same Day Funds in the approximate amount of the Eurocurrency Rate Loan being made, continued
or converted by Bank of America and with a term equivalent to such Interest Period would be
offered by Bank of America’s London Branch to major banks in the London or other offshore
interbank market for such currency at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period.




     (b) For any interest rate calculation with respect to a Base Rate Loan, the rate per
annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time on the date of
determination (provided that if such day is not a London Business Day, the next preceding
London Business Day) for Dollar deposits being delivered in the London interbank market for
a term of one month commencing that day or (ii) if such published rate is not available at
such time for any reason, the rate determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the date of determination in Same Day Funds in the
approximate amount of the Base Rate Loan being made, continued or converted by Bank of
America and with a term equal to one month would be offered by Bank of America’s London
Branch to major banks in the London interbank Eurodollar market at their request at
approximately 11:00 a.m., London time on the date of determination.



     “Eurocurrency Rate” means, for any Interest Period with respect to any Eurocurrency
Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient
obtained by dividing (a) the Eurocurrency Base Rate for such Eurocurrency Rate Loan for such
Interest Period by (b) one minus the Eurocurrency Reserve Percentage for such Eurocurrency Rate
Loan for such Interest Period.



     “Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the
Eurocurrency Rate. Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative
Currency. All Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans.



     “Eurocurrency 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 Eurocurrency Rate for each outstanding Eurocurrency Rate Loan
shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve
Percentage.



     “Event of Default” has the meaning specified in Section 9.01.



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



10









 







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, or with which it has a
present or former connection (other than any such connection arising from having executed,
delivered, performed its obligations or received payment under, or enforced, any Loan Document),
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which such Borrower is located, (c) any backup withholding tax that is required by
the Internal Revenue Code to be withheld from amounts payable to a Lender that has failed to comply
with clause (A) of Section 3.01(e)(ii) and (d) in the case of a Foreign Lender (other than
an assignee pursuant to a request by McAfee under Section 11.13), any United States
withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender
pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates
a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other
than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii),
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 such
Borrower with respect to such withholding tax pursuant to Section 3.01(a)(ii) or
(iii). Notwithstanding anything to the contrary contained in this definition, “Excluded
Taxes” shall not include any withholding tax imposed at any time on payments made by or on behalf
of a Foreign Loan Party to any Lender hereunder or under any other Loan Document, provided
that such Lender shall have complied with Section 3.01(e)(i). 



     “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 Bank of America on such day on such transactions as determined by the Administrative
Agent.



     “Fee Letters” means the collective reference to the Joint Fee Letter, the Bank of
America Fee Letter and the RBS Fee Letter.



     “Foreign Guarantors” means (a) each Domestic Loan Party and (b) each Material Foreign
Subsidiary of the Irish Borrower on the Closing Date (other than McAfee Ireland Limited) and each
other Person that joins as a Foreign Guarantor pursuant to Section 5.03(a), Section
7.12 or otherwise, together with their successors and permitted assigns; provided,
that, Foreign Guarantors shall also include such other Subsidiaries of the Irish Borrower
as is necessary to ensure that Irish Borrower and its Subsidiaries that are Foreign Guarantors, in
the aggregate, (i) own at least 80% of the assets of the Irish Borrower and its Subsidiaries and
(ii) earn at least 80% of the revenues of the Irish Borrower and its Subsidiaries.



     “Foreign Lender” means, with respect to any Borrower, any Lender that is organized
under the Laws of a jurisdiction other than that in which such Borrower is resident for tax
purposes (including such a Lender when acting in the capacity of the L/C Issuer). 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 Letter of Credit” means any letter of credit issued hereunder by the L/C
Issuer for the account of the Irish Borrower. Foreign Letters of Credit may be issued in Dollars
or an Alternative Currency.



     “Foreign Loan” means a Revolving Loan made to the Irish Borrower hereunder.



11









 





     “Foreign Loan Parties” means the collective reference to the Irish Borrower and the
Foreign Guarantors that are Foreign Subsidiaries, and “Foreign Loan Party” means any one of
them.



     “Foreign Obligations” means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Foreign Loan Party arising under any Loan Document or otherwise with
respect to any Foreign Loan or any Foreign Letter of Credit, 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 Foreign 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. The foregoing shall also include (a) all obligations under
any Swap Contract between any Foreign Loan Party and any Lender or Affiliate of a Lender that is
permitted to be incurred pursuant to Section 8.03(d) and (b) all obligations under any
Treasury Management Agreement between any Foreign Loan Party and any Lender or Affiliate of a
Lender.



     “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



     “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, consistently applied and as in effect from time to time.



     “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,
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



12









 







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.



     “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative
Agent and the Lenders pursuant to Article IV.



     “Guarantors” means, collectively, the Domestic Guarantors and the Foreign Guarantors
and “Guarantor” means any individual Domestic Guarantor or Foreign Guarantor.



     “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.



     “Honor Date” has the meaning set forth in Section 2.03(c).



     “Impacted Lender” means any Lender as to which (a) the L/C Issuer has a good faith
belief that the Lender has defaulted in fulfilling its obligations under one or more other
syndicated credit facilities or (b) an entity that controls the Lender has been deemed insolvent or
becomes subject to a bankruptcy or other similar proceeding.



     “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;




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




     (c) the Swap Termination Value of any Swap Contract of such Person;




     (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 60 days past the date due); provided that any deferred purchase
price obligation in respect of any Acquisition in the nature of an
“earn-out” or other
contingent payment or indemnity shall be deemed “Indebtedness” only (i) to the extent such
obligation is required to be shown on the consolidated balance sheet of such Person or its
parent (direct or indirect) as a liability in accordance with GAAP and (ii) from the date of
the balance sheet as of the fiscal quarter end with respect to which such liability is
required to be shown;




     (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 of such Person;




     (g) all direct or contingent obligations of such Person that arise prior to 91 days
after the Maturity Date to purchase, redeem, retire, defease or otherwise make any payment
in respect



13









 






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;




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




     (i) all Indebtedness of the types referred to in clauses (a) through (h) above 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 joint venturer,
unless such Indebtedness is expressly made non-recourse to such Person.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 11.04(b).



     “Information” has the meaning specified in Section 11.07.



     “Integration Related Investments” means Investments occurring after a Permitted
Acquisition (or acquisitions that occurred prior to the Closing Date) in connection with
integrating the acquired intellectual property or other acquired assets, or intellectual property
and other assets of the acquired Person(s), into the consolidated corporate structure of McAfee for
cost reduction, revenue enhancement, intellectual property protection or tax planning purposes so
long as such Investments are in a wholly-owned Subsidiary of McAfee.



     “Interest Payment Date” means (a) as to any Eurocurrency Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurocurrency 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.



     “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date one, two, three or six months thereafter (or any other period less
than 12 months, subject to availability in the discretion of the Lenders), as selected by the
applicable Borrower in its 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 immediately
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.



     “Interim Financial Statements” has the meaning set forth in Section 5.01(e).



14









 





     “Internal Revenue Code” means the Internal Revenue Code of 1986.



     “Investment” means, as to any Person, any transaction consisting 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 equity participation or interest in, another Person, or (c) an Acquisition. Investments
which are capital contributions or purchases of equity participations or interests which have a
right to participate in the profits of the issuer thereof shall be valued at the amount actually
contributed or paid to purchase such equity participations or interests as of the date of such
contribution or payment less all cash distributions and returns of capital from the date
such Investment is made through and including the date of calculation. Investments which are
loans, advances, assumptions of debt or Guarantees shall be valued at the principal amount of such
loan, advance or debt assumed outstanding as of the date of determination or, as applicable, the
principal amount of the loan or advance outstanding as of the date of determination actually
guaranteed by such Guarantee.



     “Involuntary Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any property of McAfee or any of its Subsidiaries.



     “IP Rights” has the meaning specified in Section 6.17.



     “Irish Borrower” means McAfee Ireland Holdings Limited, a limited liability company
incorporated under the laws of Ireland.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the applicable Borrower or in favor of the L/C Issuer and relating to such Letter of Credit.



     “Joinder Agreement” means (a) with respect to any Material Domestic Subsidiary, a
joinder agreement substantially in the form of Exhibit 7.12(a) executed and delivered by
such Material Domestic Subsidiary in accordance with the provisions of Section 7.12 and (b)
with respect to any Material Foreign Subsidiary, a joinder agreement substantially in the form of
Exhibit 7.12(b) executed and delivered by such Material Foreign Subsidiary in accordance
with the provisions of Section 7.12.



     “Joint Fee Letter” means the letter agreement dated November 7, 2008, among McAfee,
Bank of America, RBS and the Joint Lead Arrangers.



     “Joint Lead Arrangers” means BAS and RBSGC, in their capacity as joint lead arrangers
and joint book managers.



     “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.



15









 





     “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances
shall be denominated in Dollars.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of
Revolving Loans. All L/C Borrowings shall be denominated in Dollars.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.09. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



     “Lenders” means each of the Persons identified as a “Lender” on the signature pages
hereto and each other Person that becomes a “Lender” in accordance with this Agreement and their
successors and assigns.



     “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 McAfee and the Administrative Agent.



     “Letter of Credit” means any standby letter of credit issued hereunder. Letters of
Credit may be denominated in Dollars or in an Alternative Currency.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a letter of credit in the form from time to time in use by the L/C Issuer.



     “Letter of Credit Expiration Date” means the day that is thirty days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business
Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(i).



     “Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate
Revolving Commitments and (b) $25,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or otherwise), charge, or preference, priority or other security
interest or preferential arrangement in the nature of a security interest of any kind or nature
whatsoever (including any conditional sale or other title retention agreement, any easement, right
of way or other encumbrance



16









 







on title to real property, 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 a Borrower under Article II
in the form of a Revolving Loan or Term Loan.



     “Loan Documents” means this Agreement, each Note, each Issuer Document, each Joinder
Agreement, the Disclosure Letter and the Fee Letters.



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



     “Loan Parties” means the collective reference to the Domestic Loan Parties and the
Foreign Loan Parties and “Loan Party” means any individual Domestic Loan Party or Foreign
Loan Party.



     “Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01. 



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, properties, liabilities (actual or
contingent) or condition (financial or otherwise) of McAfee 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 Domestic Subsidiary” means any Domestic Subsidiary of McAfee that (a) owns
at least five percent (5%) or more of the consolidated assets of McAfee and its Domestic
Subsidiaries or (b) as of the last day of the most recently ended fiscal quarter, for the four
quarter period ending on such date, has revenues constituting five percent (5%) or more of the
consolidated revenues of McAfee and its Subsidiaries for such period, in each case as determined in
accordance with GAAP. Notwithstanding the foregoing, during the period from the Closing Date
through and including December 31, 2008, Secure Computing Corporation shall not be deemed a
Material Domestic Subsidiary for purposes of this definition.



     “Material Foreign Subsidiary” means any Subsidiary of the Irish Borrower that (a) owns
at least five percent (5%) or more of the consolidated assets of the Irish Borrower and its
Subsidiaries or (b) as of the last day of the most recently ended fiscal quarter, for the four
quarter period ending on such date, has revenues constituting five percent (5%) or more of the
consolidated revenues of the Irish Borrower and its Subsidiaries for such period, in each case as
determined in accordance with GAAP.



     “Material Subsidiary” means any Subsidiary of McAfee that (a) owns at least five
percent (5%) or more of the consolidated assets of McAfee and its Subsidiaries or (b) as of the
last day of the most recently ended fiscal quarter, for the four quarter period ending on such
date, has revenues constituting five percent (5%) or more of the consolidated revenues of McAfee
and its Subsidiaries for such period, in each case as determined in accordance with GAAP.



     “Maturity Date” means (a) as to the Revolving Loans and Letters of Credit (and the
related L/C Obligations), December 22, 2011 and (b) as to the Term Loan, December 22, 2009;
provided, however,



17









 







that, in each case, if such date is not a Business Day, the Maturity Date shall be the
immediately preceding Business Day.



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



     “McAfee Liquidity Amount” means, with respect solely to McAfee and any other Domestic
Loan Parties, the sum of (a) cash, (b) Investments permitted under Section 8.02(a) and (c) current
availability under then existing revolving credit facilities.



     “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 McAfee 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.



     “Note” or “Notes” means the Revolving Notes and the Term Notes, individually
or collectively, as appropriate.



     “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
or Letter of Credit, 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. The foregoing
shall also include (a) all obligations under any Swap Contract between any Loan Party and any
Lender or Affiliate of a Lender that is permitted to be incurred pursuant to Section
8.03(d) and (b) all obligations under any Treasury Management Agreement between any Loan Party
and any Lender or Affiliate of a Lender.



     “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, including, without limitation, any certificates of
incorporation, certificates of incorporation on a change of name and memorandum and articles of
association); (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 (a) with respect to any Loans on any date, the Dollar
Equivalent of the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of any Loans occurring on such date; and (b) with respect
to any L/C Obligations on any date, the Dollar Equivalent of the amount of such L/C Obligations on
such date after giving effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C



18









 







Obligations as of such date, including as a result of any reimbursements by the applicable
Borrower of Unreimbursed Amounts.



     “Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent or the L/C Issuer, as the case may be, in accordance with banking industry
rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative
Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative
Currency, in an amount approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of Bank of America in the
applicable offshore interbank market for such currency to major banks in such interbank
market. 



     “Participant” has the meaning specified in Section 11.06(d).



     “Participating Member State” means each state so described in any EMU Legislation.



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



     “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 McAfee or any ERISA Affiliate or to which McAfee 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 Acquisition” means an Investment consisting of an Acquisition by McAfee or
any Subsidiary, provided that (a) the property acquired (or the property of the Person
acquired) in such Acquisition is used or useful in a line of business permitted under Section
8.07, (b) upon giving effect to such Acquisition, the Loan Parties would be in compliance with
the financial covenants set forth in Section 8.11 on a Pro Forma Basis, and in the case of
any such Acquisition involving consideration in excess of $75,000,000, McAfee shall have delivered
to the Administrative Agent a Pro Forma Compliance Certificate demonstrating such compliance, (c)
the representations and warranties made by the Loan Parties in each Loan Document shall be true and
correct in all material respects at and as if made as of the date of such Acquisition (after giving
effect thereto), and (d) if such transaction involves the purchase of an interest in a partnership
between a Loan Party as a general partner and entities unaffiliated with McAfee as the other
partners, such transaction shall be effected by having such equity interest acquired by a holding
company having limited liability directly or indirectly Wholly Owned by such Loan Party newly
formed for the sole purpose of effecting such transaction.



     “Permitted Liens” means, at any time, Liens in respect of property of McAfee or any of
its Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.01.



     “Permitted Transfers” means (a) Dispositions of inventory in the ordinary course of
business; (b) Dispositions of machinery and equipment no longer used or useful in the conduct of
business of McAfee and its Subsidiaries that are Disposed of in the ordinary course of business;
(c) Dispositions of property to McAfee or any Subsidiary; provided, that if the transferor
of such Property is a Domestic Loan Party either (i) the transferee must be a Domestic Loan Party
or (ii) to the extent such transaction constitutes an Investment, such transaction is permitted
under Section 8.02; (d) Dispositions of accounts receivable in connection with the
collection or compromise thereof; (e) licenses, sublicenses, leases or subleases granted to others
not interfering in any material respect with the business of McAfee and its Subsidiaries; (f) the
sale or disposition of Investments permitted under Section 8.02 for fair market value; (f) to the
extent constituting a Disposition, the making of an Investment permitted under Section
8.02; (g) to the



19









 







extent constituting a Disposition, the creation, incurrence or assumption of a Permitted Lien;
and (h) to the extent constituting a Disposition, the dissolution or liquidation of a Subsidiary
permitted under Section 8.04.



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



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



     “Platform” has the meaning specified in Section 7.02.



     “Prime Rate” means the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank
of America based upon various factors including Bank of America’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
Bank of America shall take effect at the opening of business on the day specified in the public
announcement of such change.



     “Pro Forma Basis” means, with respect to any transaction, that for purposes of
calculating the financial covenants set forth in Section 8.11, such transaction shall be
deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding
the date of such transaction for which financial statements were required to be delivered pursuant
to Section 7.01(a) or (b). In connection with the foregoing, (a) with respect to
any Disposition or Involuntary Disposition, (i) income statement and cash flow statement items
(whether positive or negative) attributable to the property disposed of shall be excluded to the
extent relating to any period occurring prior to the date of such transaction and (ii) Indebtedness
which is retired shall be excluded and deemed to have been retired as of the first day of the
applicable period and (b) with respect to any Acquisition, (i) income statement items attributable
to the Person or property acquired shall be included to the extent relating to any period
applicable in such calculations to the extent (A) such items are not otherwise included in such
income statement items for McAfee and its Subsidiaries in accordance with GAAP or in accordance
with any defined terms set forth in Section 1.01 and (B) such items are supported by
financial statements or other information reasonably satisfactory to the Administrative Agent and
(ii) any Indebtedness incurred or assumed by McAfee or any Subsidiary (including the Person or
property acquired) in connection with such transaction and any Indebtedness of the Person or
property acquired which is not retired in connection with such transaction (A) shall be deemed to
have been incurred as of the first day of the applicable period and (B) if such Indebtedness has a
floating or formula rate, shall have an implied rate of interest for the applicable period for
purposes of this definition determined by utilizing the rate which is or would be in effect with
respect to such Indebtedness as at the relevant date of determination.



     “Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of
McAfee containing reasonably detailed calculations of the financial covenants set forth in
Section 8.11 on a Pro Forma Basis after giving effect to the applicable transaction.



     “Public Lender” has the meaning specified in Section 7.02.



     “RBS”means The Royal Bank of Scotland plc.



     “RBS Fee Letter” means the letter agreement dated November 7, 2008 among McAfee, RBS
and RBSGC, as amended.



20









 





     “RBSGC” means Greenwich Capital Markets, Inc. d/b/a RBS Greenwich Capital.



     “Register” has the meaning specified in Section 11.06(c).



     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees 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 thirty-day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Loans, a Loan Notice and (b) with respect to an L/C Credit Extension, a Letter of
Credit Application.



     “Required Lenders” means, at any time, Lenders holding in the aggregate more than 50%
of (a) the unfunded Commitments and the outstanding Loans, L/C Obligations and participations
therein or (b) if the Commitments have been terminated, the outstanding Loans, L/C Obligations and
participations therein. The unfunded Commitments of, and the outstanding Loans 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, chief accounting officer, treasurer, assistant treasurer or controller of a Loan Party and
any other officer or, in the case of any Foreign Loan Party, director of the applicable Loan Party
so designated by any of the foregoing officers in a notice to the Administrative Agent. 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.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests of any Person, 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 Equity Interests or on account of any return of capital to such Person’s
stockholders, partners or members (or the equivalent Person thereof), or any option, warrant or
other right to acquire any such dividend or other distribution or payment. For purposes of
clarification, a conversion of any Convertible Debt Securities shall not constitute a Restricted
Payment.



     “Revaluation Date” means (a) with respect to any Loan, each of the following: (i)
each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii)
each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency
pursuant to Section 2.02, (iii) on the last Business Day of each month and (iv) such
additional dates as the Administrative Agent shall determine or the Required Lenders shall require;
and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of
a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any
such Letter of Credit having the effect of increasing the amount thereof (solely with respect to
the increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit
denominated in an Alternative Currency, (iv) on the last Business Day of each month, and (v) such
additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required
Lenders shall require.



21









 





     “Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving
Loans to the Borrowers pursuant to Section 2.01 and (b) purchase participations in L/C
Obligations, in an aggregate principal amount at any one time outstanding not to exceed the Dollar
amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may
be adjusted from time to time in accordance with this Agreement.



     “Revolving Loan” has the meaning specified in Section 2.01(a).



     “Revolving Note” has the meaning specified in Section 2.10(a)(i).



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



     “Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Administrative Agent or the L/C
Issuer, as the case may be, to be customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant Alternative Currency.



     “Sale and Leaseback Transaction” means, with respect to McAfee or any Subsidiary, any
arrangement, directly or indirectly, with any Person whereby McAfee or such Subsidiary shall sell
or transfer any property used or useful in its business, whether now owned or hereafter acquired,
and thereafter rent or lease such property or other property that it intends to use for
substantially the same purpose or purposes as the property being sold or transferred.



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



     “Securitization Transaction” means, with respect to any Person, any financing
transaction or series of financing transactions (including factoring arrangements) pursuant to
which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant
a security interest in, accounts, payments, receivables, rights to future lease payments or
residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.



     “Solvent” or “Solvency” means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the ordinary course of business, (b) 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 in the ordinary course of
business, (c) such Person is not engaged in a business or a transaction, and is not about to engage
in a business or a transaction, for which such Person’s property would constitute unreasonably
small capital, (d) the fair value of the property of such Person is greater than the total amount
of liabilities, including contingent liabilities, of such Person and (e) 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. 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.



     “Special Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic Cooperation and Development
at such time located in North America or Europe.



22









 





     “Spot Rate” for a currency means the rate determined by the Administrative Agent or
the L/C Issuer, as applicable, 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 11:00 a.m. on the date two Business Days
prior to the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution
designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does
not have as of the date of determination a spot buying rate for any such currency; and
provided further that the L/C Issuer may use such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of any Letter of Credit denominated
in an Alternative Currency. 



     “Subsidiary” of a Person means a corporation, company, body corporate, partnership,
joint venture, limited liability company or other business entity of which a majority of the shares
of Voting Stock is 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 McAfee.



     “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 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
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 Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement
is considered borrowed money indebtedness for tax purposes but is classified as an operating lease
or does not otherwise appear on a balance sheet under GAAP.



     “TARGET
Day” means any day on which the Trans-European Automated
Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.



23









 





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



     “Term Loan” has the meaning specified in Section 2.01(b). The Term Loan shall
be denominated in Dollars.



     “Term Loan Commitment” means, as to each Lender, its obligation to make its portion of
the Term Loan to McAfee pursuant to Section 2.01(b), in the principal amount set forth
opposite such Lender’s name on Schedule 2.01. The aggregate principal amount of the Term
Loan Commitments of all of the Lenders as in effect on the Closing Date is ONE HUNDRED MILLION
DOLLARS ($100,000,000).



     “Term Note” has the meaning specified in Section 2.10(a)(ii).



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



     “Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving
Loans and all L/C Obligations.



     “Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, overnight draft, credit or debit
cards, funds transfer, automated clearinghouse, zero balance accounts, returned check
concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade
finance services and other cash management services.



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



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



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     “Voting Stock” means, with respect to any Person, Equity Interests issued by such
Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such Person, even though the
right so to vote has been suspended by the happening of such a contingency.



     “Wholly Owned” means, with respect to any Subsidiary, a Subsidiary 100% of whose
Equity Interests (other than a minimal number of shares held by directors or local owners of
Foreign Subsidiaries) are at the time owned by McAfee directly or indirectly through other Persons
100% of whose Equity Interests (other than a minimal number of shares held by directors or local
owners of Foreign Subsidiaries) are at the time owned, directly or indirectly, by McAfee.



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



24









 







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, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and 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.”



     (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. Except as otherwise specifically prescribed herein, 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.



     (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 McAfee or the
Required Lenders shall so request, the Administrative Agent, the Lenders and McAfee 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) McAfee shall provide to the
Administrative Agent and the Lenders 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.




25











 





     (c) Pro Forma Calculations. Notwithstanding the above, the parties hereto acknowledge
and agree that all calculations of the financial covenants in Section 8.11 (including for
purposes of determining the Applicable Rate) shall be made on a Pro Forma Basis.



     (d) Subsidiary Calculations. In calculating the percentage of consolidated assets or
consolidated revenues held by a Subsidiary for purposes of (i) the definitions of Material Domestic
Subsidiary, Material Foreign Subsidiary and Material Subsidiary and (ii) the calculations set forth
in Section 7.12(b) and (c), the equity investment of such Subsidiary in its
Subsidiaries and the investment of such Subsidiary in intercompany accounts shall be excluded in
calculating the amount of its assets.



1.04 Rounding.




     Any financial ratios required to be maintained by McAfee 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 Exchange Rates; Currency Equivalents.




     (a) The Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot Rates
as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit
Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall
become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any
amounts between the applicable currencies until the next Revaluation Date to occur. Except for
purposes of financial statements delivered by Loan Parties hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable amount of any currency
(other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as
so determined by the Administrative Agent or the L/C Issuer, as applicable.



     (b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or
prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such
Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an Alternative Currency,
such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to
the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as
determined by the Administrative Agent or the L/C Issuer, as the case may be.



1.06 Additional Alternative Currencies.




     (a) McAfee may from time to time request that Eurocurrency Rate Loans be made and/or Letters
of Credit be issued in a currency other than those specifically listed in the definition of
“Alternative Currency;” provided that such requested currency is a lawful currency (other
than Dollars) that is readily available and freely transferable and convertible into Dollars. In
the case of any such request with respect to the making of Eurocurrency Rate Loans, such request
shall be subject to the approval of the Administrative Agent and the Lenders that would be
obligated to make Credit Extensions denominated in such requested currency; and in the case of any
such request with respect to the issuance of Letters of Credit, such request shall be subject to
the approval of the Administrative Agent and the L/C Issuer.



     (b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m.,
twenty (20) Business Days prior to the date of the desired Credit Extension (or such other time or
date as



26









 




may be agreed by the Administrative Agent and, in the case of any such request pertaining to
Letters of Credit, the L/C Issuer, in its or their sole discretion). In the case of any such
request pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each
Lender thereof; and in the case of any such request pertaining to Letters of Credit, the
Administrative Agent shall promptly notify the L/C Issuer thereof. Each Lender (in the case of any
such request pertaining to Eurocurrency Rate Loans) or the L/C Issuer (in the case of a request
pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m.,
ten (10) Business Days after receipt of such request whether it consents, in its sole discretion,
to the making of Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be,
in such requested currency.




     (c) Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such request
within the time period specified in the preceding sentence shall be deemed to be a refusal by such
Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or
Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
Lenders that would be obligated to make Credit Extensions denominated in such requested currency
consent to making Eurocurrency Rate Loans in such requested currency, the Administrative Agent
shall so notify McAfee and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Borrowings of Eurocurrency Rate Loans; and if
the Administrative Agent and the L/C Issuer consent to the issuance of Letters of Credit in such
requested currency, the Administrative Agent shall so notify McAfee and such currency shall
thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any
Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request
for an additional currency under this Section 1.06, the Administrative Agent shall promptly
so notify McAfee.



1.07 Change of Currency.




     (a) Each obligation of the Borrowers to make a payment denominated in the national currency
unit of any member state of the European Union that adopts the Euro as its lawful currency after
the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with
the EMU Legislation). If, in relation to the currency of any such member state, the basis of
accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent
with any convention or practice in the London interbank market for the basis of accrual of interest
in respect of the Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful currency;
provided that if any Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with respect to such Borrowing,
at the end of the then current Interest Period.



     (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any relevant market
conventions or practices relating to the Euro.



     (c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
a change in currency of any other country and any relevant market conventions or practices relating
to the change in currency.



1.08 Times of Day.




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



27









 





1.09 Letter of Credit Amounts.




     Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be
deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such
time; provided, however, that with respect to any Letter of Credit that, by its
terms or the terms of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to
all such increases, whether or not such maximum stated amount is in effect at such time.



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 Revolving Loans and Term Loan.




     (a) Revolving Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrowers
in Dollars or in one or more Alternative Currencies from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of
such Lender’s Revolving Commitment; provided, however, that after giving effect to
any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the
Aggregate Revolving Commitments and (ii) the aggregate Outstanding Amount of the Revolving Loans of
any Lender plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations shall not exceed such Lender’s Revolving Commitment. Within the limits of each
Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrowers
may borrow under this Section 2.01, prepay under Section 2.04, and reborrow under
this Section 2.01. Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans, as
further provided herein.



     (b) Term Loan. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make its portion of a term loan (the “Term Loan”) to McAfee in Dollars
on any Business Day during the Availability Period in an amount not to exceed such Lender’s Term
Loan Commitment. Amounts repaid on the Term Loan may not be reborrowed. The Term Loan may consist
of Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.



2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurocurrency Rate Loans shall be made upon the applicable 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 11:00 a.m. (i) three Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of, Eurocurrency Rate Loans denominated in
Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Loans,
(ii) four Business Days (or five Business Days in the case of a Special Notice Currency)
prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans
denominated in Alternative Currencies, and (iii) on the requested date of any Borrowing of Base
Rate Loans. Each telephonic notice by the applicable Borrower pursuant to this Section
2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan
Notice, appropriately completed and signed by a Responsible Officer of the applicable Borrower.
Each Borrowing of, conversion to or continuation of Eurocurrency



28









 




Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. Except as provided in Sections 2.03(c), each Borrowing of or conversion to
Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the
applicable Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or
a continuation of Eurocurrency 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, (v) if applicable, the duration of the Interest Period with
respect thereto and (vi) the currency of the Loans to be borrowed. If the applicable Borrower
fails to specify a currency in a Loan Notice requesting a Borrowing, then the Loans so requested
shall be made in Dollars. If the applicable Borrower fails to specify a Type of a Loan in a Loan
Notice or if the applicable 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;
provided, however, that in the case of a failure to timely request a continuation
of Loans denominated in an Alternative Currency, such Loans shall be continued as Eurocurrency Rate
Loans in their original currency with an Interest Period of one month. 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 Eurocurrency Rate Loans. If the applicable Borrower requests
a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one
month. No Loan may be converted into or continued as a Loan denominated in a different currency,
but instead must be prepaid in the original currency of such Loan and reborrowed in the other
currency.




     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount (and currency) of its Applicable Percentage of the applicable Loans, and if no
timely notice of a conversion or continuation is provided by the applicable Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to Base
Rate Loans or continuation of Loans denominated in a currency other than Dollars, in each case as
described in the preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative
Agent’s Office for the applicable currency not later than 1:00 p.m., in the case of any Loan
denominated in Dollars, and not later than the Applicable Time specified by the Administrative
Agent in the case of any Loan in an Alternative Currency, in each case on the Business Day
specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth
in Section 5.02 (and, if such Borrowing is the initial Credit Extension, Section
5.01 and/or 5.03, as applicable), the Administrative Agent shall make all funds so
received available to applicable Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of such Borrower on the books of Bank of America 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 applicable
Borrower; provided, however, that if, on the date of a Borrowing of Revolving Loans
denominated in Dollars, there are L/C Borrowings outstanding, then the proceeds of such Borrowing,
first, shall be applied to the payment in full of any such L/C Borrowings and second, shall
be made available to the applicable Borrower as provided above. Each Lender, at its option, may
make any Loan denominated in an Alternative Currency by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the applicable Borrower to repay such Loan in accordance with the terms of
this Agreement.



     (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of the Interest Period for such Eurocurrency Rate Loan. During the
existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency
Rate Loans (whether in Dollars or any Alternative Currency) without the consent of the Required
Lenders, and



29









 




the Required Lenders may demand that any or all of the then outstanding Eurocurrency Rate
Loans denominated in an Alternative Currency be prepaid, or redenominated into Dollars in the
amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with
respect thereto.




     (d) The Administrative Agent shall promptly notify McAfee and the Lenders of the interest rate
applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest
rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify
McAfee and the Lenders of any change in Bank of America’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 of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than 5 Interest
Periods in effect with respect to Revolving Loans and 5 Interest Periods in effect with respect to
the Term Loan.



     (f) McAfee may at any time and from time to time, upon prior written notice by McAfee to the
Administrative Agent, increase the Aggregate Revolving Commitments (but not the Letter of Credit
Sublimit) by a maximum aggregate amount of up to TWO HUNDRED MILLION DOLLARS ($200,000,000) with
additional Revolving Commitments from any existing Lender with a Revolving Commitment or new
Revolving Commitments from any other Person selected by the Borrower and reasonably acceptable to
the Administrative Agent and the L/C Issuer; provided, that:




     (i) any such increase shall be in a minimum principal amount of $10,000,000 and in
integral multiples of $1,000,000 in excess thereof;




     (ii) no Default or Event of Default shall exist and be continuing at the time of any
such increase;




     (iii) no existing Lender shall be under any obligation to increase its Commitments and
any such decision whether to increase its Commitment shall be in such Lender’s sole and
absolute discretion;




     (iv) (A) any new Lender shall join this Agreement by executing such joinder documents
reasonably required by the Administrative Agent and/or (B) any existing Lender electing to
increase its Commitment shall have executed a commitment agreement reasonably satisfactory
to the Administrative Agent;




     (v) as a condition precedent to such increase, McAfee shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the date of such increase
(in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party
(A) certifying and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (B) in the case of McAfee, certifying that, before and
after giving effect to such increase, (x) the representations and warranties contained in
Article VI and the other Loan Documents are true and correct in all material
respects on and as of the date of such increase, except to the extent that such
representations and warranties expressly refer to an earlier date, in which case they are
true and correct in all material respects as of such earlier date and except that for
purposes of this Section 2.02(f), the representations and warranties contained in
subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01
and (y) no Default or Event of Default exists; and



30









 






     (vi) Each Borrower shall prepay any Loans owing by such Borrower and outstanding on the
date of any such increase (and pay any additional amounts required pursuant to Section
3.05) to the extent necessary to keep the outstanding Loans ratable with any revised
Revolving Commitments arising from any nonratable increase in the Aggregate Revolving
Commitments under this Section.



2.03 Letters of Credit.




     (a)  The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more
Alternative Currencies for the account of McAfee, any of its Subsidiaries or the Irish
Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the
Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit
issued for the account of McAfee, any of its Subsidiaries or the Irish Borrower or any of
its Subsidiaries and any drawings thereunder; provided that after giving effect to
any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the aggregate
Outstanding Amount of the Revolving Loans of any Lender plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, shall not exceed
such Lender’s Revolving Commitment and (z) the Outstanding Amount of the L/C Obligations
shall not exceed the Letter of Credit Sublimit. Each request by McAfee or the Irish
Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by McAfee or the Irish Borrower, as applicable, that the L/C Credit Extension
so requested complies with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and conditions hereof,
McAfee’s and the Irish Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly McAfee and the Irish Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that have been
drawn upon and reimbursed.




     (ii) The L/C Issuer shall not issue any Letter of Credit if:




     (A) subject to Section 2.03(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Lenders holding a majority of the Revolving Commitments
have approved such expiry date; or




     (B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders that have Revolving
Commitments have approved such expiry date.




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from,



31









 






the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose
upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the L/C Issuer in good faith deems material to it;




     (B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer applicable to borrowers generally;




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $500,000;




     (D) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is to be denominated in a currency other than Dollars or an
Alternative Currency;




     (E) the L/C Issuer does not as of the issuance date of such requested Letter of
Credit issue Letters of Credit in the requested currency; or




     (F) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender or an Impacted Lender
hereunder, unless the L/C Issuer has entered into arrangements satisfactory to the
L/C Issuer with McAfee or the Irish Borrower, as applicable, or such Lender to
eliminate the L/C Issuer’s risk with respect to such Lender.




     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if
(A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in
its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.




     (vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article
X with respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article X included the L/C Issuer with respect to such acts or omissions, and (B)
as additionally provided herein with respect to the L/C Issuer.




     (vii) For the avoidance of doubt, the L/C Issuer shall not be under any obligation to
issue any Letter of Credit either (i) at the request of or for the account of the Irish
Borrower or (ii) to any Person resident in Ireland, where the L/C Issuer is not duly
authorized to carry on the business of issuing contracts of suretyship in Ireland (or
otherwise exempted under the Laws of Ireland from the requirement to have any such
authorization) or where the issuance of any such Letter of Credit by the L/C Issuer would
otherwise contravene any Law of Ireland or any other applicable jurisdiction.



32









 





     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of McAfee or the Irish Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately completed
and signed by a Responsible Officer of McAfee or the Irish Borrower, as applicable. Such
Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent
not later than 11:00 a.m. at least five (5) Business Days (or such later date and time as
the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of amendment, as the case may be.
In the case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a Business Day);
(B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address
of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of
any drawing thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested
Letter of Credit; and (H) such other matters as the L/C Issuer may require. In the case of
a request for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter
of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the
L/C Issuer may require. Additionally, McAfee or the Irish Borrower shall furnish to the L/C
Issuer and the Administrative Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C
Issuer or the Administrative Agent may require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from McAfee or the Irish
Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless the L/C Issuer has received written notice from any Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article V shall not be satisfied, then, subject
to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a
Letter of Credit for the account of McAfee, its applicable Subsidiary or the Irish Borrower
or its applicable Subsidiary or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer’s usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of such Lender’s
Applicable Percentage times the amount of such Letter of Credit.




     (iii) If McAfee or the Irish Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a
Letter of Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of Credit must
permit the L/C Issuer to prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than a day (the “Non-Extension Notice
Date”) in each such twelve-month period to be agreed upon at the time



33









 






such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, McAfee or the
Irish Borrower shall not be required to make a specific request to the L/C Issuer for any
such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall
be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of
such Letter of Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not permit any
such extension if (A) the L/C Issuer has determined that it would not be permitted, or would
have no obligation, at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.03(a) or otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is seven Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have
elected not to permit such extension or (2) from the Administrative Agent, any Lender,
McAfee or the Irish Borrower that one or more of the applicable conditions specified in
Section 5.02 is not then satisfied, and in each case directing the L/C Issuer not to
permit such extension.




     (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to McAfee or the Irish Borrower, as applicable, and the
Administrative Agent a true and complete copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the L/C Issuer shall notify McAfee or the Irish Borrower, as
applicable, and the Administrative Agent thereof. In the case of a Letter of Credit
denominated in an Alternative Currency, McAfee or the Irish Borrower, as applicable, shall
reimburse the L/C Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its
option) shall have specified in such notice that it will require reimbursement in Dollars,
or (B) in the absence of any such requirement for reimbursement in Dollars, McAfee or the
Irish Borrower, as applicable, shall have notified the L/C Issuer promptly following receipt
of the notice of drawing that McAfee or the Irish Borrower, as applicable, will reimburse
the L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing
under a Letter of Credit denominated in an Alternative Currency, the L/C Issuer shall notify
McAfee or the Irish Borrower, as applicable, of the Dollar Equivalent of the amount of the
drawing promptly following the determination thereof. Not later than 11:00 a.m. on the date
of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or
the Applicable Time on the date of any payment by the L/C Issuer under a Letter of Credit to
be reimbursed in an Alternative Currency (each such date, an “Honor Date”), McAfee
or the Irish Borrower, as applicable, shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing and in the applicable
currency. If McAfee or the Irish Borrower, as applicable, fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the
Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative
Currency) (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable
Percentage thereof. In such event, McAfee or the Irish Borrower, as applicable, shall be
deemed to have requested a Borrowing of Revolving Loans that are Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.02 for the principal amount of Base
Rate Loans, but subject to the conditions set forth in Section 5.02 (other than the
delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, the
Total Revolving Outstandings shall not exceed the



34









 






Aggregate Revolving Commitments. Any notice given by the L/C Issuer or the Administrative
Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.




     (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars,
at the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to
its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Revolving Loan that is a Base Rate Loan to McAfee or the Irish
Borrower, as applicable, in such amount. The Administrative Agent shall remit the funds so
received to the L/C Issuer in Dollars.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Revolving Loans that are Base Rate Loans because the conditions set forth in
Section 5.02 cannot be satisfied or for any other reason, McAfee or the Irish
Borrower, as applicable, shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with interest) and shall bear
interest at the Default Rate. In such event, each Lender’s payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall constitute an
L/C Advance from such Lender in satisfaction of its participation obligation under this
Section 2.03.




     (iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be
solely for the account of the L/C Issuer.




     (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, McAfee, the Irish Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving Loans
pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 5.02 (other than delivery by McAfee or the Irish Borrower, as applicable, of
a Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the
obligation of McAfee or the Irish Borrower, as applicable, to reimburse the L/C Issuer for
the amount of any payment made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, plus any administrative, processing



35









 






or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If
such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Revolving Loan included in the relevant Borrowing or L/C Advance in
respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer
submitted to any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from McAfee, the Irish Borrower or otherwise, including
proceeds of cash collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable Percentage thereof in Dollars and in the
same funds as those received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 11.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination of this
Agreement.



     (e) Obligations Absolute. The obligations of McAfee and the Irish Borrower, as
applicable, to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay
each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that
McAfee, any Subsidiary of McAfee, the Irish Borrower or any Subsidiary of the Irish Borrower
may have at any time against any beneficiary or any transferee of such Letter of Credit (or
any Person for whom any such beneficiary or any such transferee may be acting), the L/C
Issuer or any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any



36









 






payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law;




     (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to McAfee, any Subsidiary of McAfee, the Irish Borrower or any
Subsidiary of the Irish Borrower or in the relevant currency markets generally; or




     (vi) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, McAfee, any Subsidiary of McAfee, the Irish Borrower or any
Subsidiary of the Irish Borrower.


McAfee or the Irish Borrower, as applicable, shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance
with McAfee’s or the Irish Borrower’s instructions or other irregularity, McAfee or the Irish
Borrower, as applicable, will immediately notify the L/C Issuer. McAfee or the Irish Borrower, as
applicable, shall be conclusively deemed to have waived any such claim against the L/C Issuer and
its correspondents unless such notice is given as aforesaid.





     (f) Role of L/C Issuer. Each Lender, McAfee and the Irish Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly required by
such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of the L/C
Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or
willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. McAfee and the Irish
Borrower hereby assume all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however, that this assumption
is not intended to, and shall not, preclude McAfee’s or the Irish Borrower’s, as the case may be,
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable or responsible for any of the matters described in clauses (i) through (vi) of
Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, McAfee or the Irish Borrower, as the case may be, may have a claim
against the L/C Issuer, and the L/C Issuer may be liable to McAfee or the Irish Borrower, as
applicable, to the extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by McAfee or the Irish Borrower, as applicable, which McAfee or the
Irish Borrower, as applicable, proves were caused by the L/C Issuer’s willful misconduct or gross
negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.



37









 






     (g) Cash Collateral. (i) Upon the request of the Administrative Agent, (A) if
the L/C Issuer has honored any full or partial drawing request under any Letter of Credit
and such drawing has resulted in an L/C Borrowing, or (B) if, as of the Letter of Credit
Expiration Date, any L/C Obligation for any reason remains outstanding, McAfee and the Irish
Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of
all L/C Obligations.




     (ii) In addition, if the Administrative Agent notifies McAfee or the Irish Borrower at
any time that the Outstanding Amount of all L/C Obligations at such time exceeds 103%
of the Letter of Credit Sublimit then in effect, then, within two Business Days after
receipt of such notice, McAfee and the Irish Borrower shall Cash Collateralize the L/C
Obligations in an amount equal to the amount by which the Outstanding Amount of all L/C
Obligations exceeds the Letter of Credit Sublimit.




     (iii) The Administrative Agent may, at any time and from time to time after the initial
deposit of Cash Collateral, request that additional Cash Collateral be provided in order to
protect against the results of exchange rate fluctuations.




     (iv) Sections 2.04 and 9.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this Section
2.03, Section 2.04 and Section 9.02(c), “Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of
the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to by the
Lenders). Derivatives of such term have corresponding meanings. McAfee and the Irish
Borrower hereby grant to the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, a security interest in all such cash, deposit accounts and all balances therein and
all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest
bearing deposit accounts at Bank of America.



     (h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and
McAfee or the Irish Borrower, as the case may be, when a Letter of Credit is issued, the rules of
the ISP shall apply to each Letter of Credit.




     (i) Letter of Credit Fees. McAfee or the Irish Borrower, as applicable, shall pay to
the Administrative Agent for the account of each Lender in accordance with its Applicable
Percentage, in Dollars, a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter
of Credit equal to the Applicable Rate times the Dollar Equivalent of the daily amount
available to be drawn under such Letter of Credit. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.09. Letter of Credit Fees shall be computed on a
quarterly basis in arrears and due and payable on the first Business Day after the end of each
March, June, September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand; provided that no Letter of Credit Fees shall accrue in favor of a Defaulting Lender
so long as such Lender shall be a Defaulting Lender. If there is any change in the Applicable Rate
during any quarter, the daily amount available to be drawn under each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period during such quarter that
such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein,
while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.



38









 





     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. McAfee
or the Irish Borrower, as applicable, shall pay directly to the L/C Issuer for its own account, in
Dollars, a fronting fee with respect to each Letter of Credit, at the rate per annum specified in
the Bank of America Fee Letter, computed on the Dollar Equivalent of the daily amount available to
be drawn under such Letter of Credit and on a quarterly basis in arrears. Such fronting fee shall
be due and payable on the tenth Business Day after the end of each March, June, September and
December in respect of the most recently-ended quarterly period (or portion thereof, in the case of
the first payment), commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.09. In addition, McAfee
or the Irish Borrower, as applicable, shall pay directly to the L/C Issuer for its own account, in
Dollars, the customary issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable on demand and are
nonrefundable.



     (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



     (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Irish Borrower or any of its Subsidiaries, McAfee shall be obligated to
reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit. McAfee
hereby acknowledges that the issuance of Letters of Credit for the account of its Subsidiaries, the
Irish Borrower or any of its Subsidiaries inures to the benefit of McAfee, and that McAfee’s
business derives substantial benefits from the businesses of such Subsidiaries.



2.04 Prepayments.





     (a) Voluntary Prepayments of Loans. (A) McAfee may, upon notice from McAfee to
the Administrative Agent, at any time or from time to time voluntarily prepay Revolving
Loans made to it and the Term Loan in whole or in part without premium or penalty and (B)
the Irish Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Revolving Loans made to it in whole or in part without premium or
penalty; provided that (A) such notice must be received by the Administrative Agent
not later than 11:00 a.m. (1) three Business Days prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Dollars, (2) four Business Days (or five, in the case
of prepayment of Loans denominated in Special Notice Currencies) prior to any date of
prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies and (3) on the
date of prepayment of Base Rate Loans; (B) any such prepayment of Eurocurrency Rate Loans
denominated in Dollars shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if less, the entire principal amount thereof then
outstanding); (C) any prepayment of Eurocurrency Rate Loans denominated in Alternative
Currencies shall be in a minimum principal amount equal to the Dollar Equivalent of
$5,000,000 or a whole multiple equal to the Dollar Equivalent of $1,000,000 in excess
thereof (or, if less, the entire principal amount thereof then outstanding); and (D) 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, 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 Eurocurrency 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 Applicable Percentage
of such



39









 






prepayment. If such notice is given by a Borrower, such 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 Eurocurrency 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 such prepayment shall be applied to the Loans of the
Lenders in accordance with their respective Applicable Percentages.



     (b) Mandatory Prepayments of Loans.




     (i) Revolving Commitments. (A) if on any Revaluation Date, the Total Revolving
Outstandings exceed 103% of the Aggregate Revolving Commitments then in effect or (B) if for
any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving
Commitments then in effect, then the Borrowers shall immediately prepay Revolving Loans
and/or McAfee shall immediately Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; provided, however, that, subject to the
provisions of Section 2.03(g)(ii), McAfee shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.04(b)(i) unless after
the prepayment in full of the Revolving Loans the Total Revolving Outstandings exceed the
Aggregate Revolving Commitments then in effect. The Administrative Agent may, at any time
and from time to time after the initial deposit of such Cash Collateral, request that
additional Cash Collateral be provided in order to protect against the results of further
exchange rate fluctuations.




     (ii) Application of Mandatory Prepayments. All amounts required to be paid
pursuant to this Section 2.04(b) shall be applied as follows, first, ratably
to the L/C Borrowings, second, to the outstanding Revolving Loans, and,
third, to Cash Collateralize the remaining L/C Obligations;




Within the parameters of the applications set forth above, prepayments shall be applied
first to Base Rate Loans and then to Eurocurrency Rate Loans in direct order of Interest
Period maturities. All prepayments under this Section 2.04(b) shall be subject to
Section 3.05, but otherwise without premium or penalty, and shall be accompanied by
interest on the principal amount prepaid through the date of prepayment.



2.05 Termination or Reduction of Aggregate Revolving Commitments.




     (a) Optional Reductions. McAfee may, upon notice to the Administrative Agent,
terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the
Aggregate Revolving Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 12:00 noon five (5) Business Days prior to the date of
termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of
$5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) McAfee shall not terminate
or reduce the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving
Commitments and (iv) if, after giving effect to any reduction of the Aggregate Revolving
Commitments, the Letter of Credit Sublimit exceeds the amount of the Aggregate Revolving
Commitments, such sublimit shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Revolving Commitments. The amount of any such Aggregate Revolving
Commitment reduction shall not be applied to the Letter of Credit Sublimit unless otherwise
specified by McAfee.  Any reduction of the Aggregate Revolving Commitments shall be
applied to the Revolving Commitment of each Lender according to its Applicable Percentage. All
fees accrued with respect thereto until the effective date of any termination of the Aggregate
Revolving Commitments shall be paid on the effective date of such termination.



40









 





     (b) Mandatory Reductions. If after giving effect to any reduction or termination of
the Aggregate Revolving Commitments under Section 2.05(a), the Letter of Credit Sublimit
exceeds the Aggregate Revolving Commitments at such time, the Letter of Credit Sublimit shall be
automatically reduced by the amount of such excess.



2.06 Repayment of Loans.




     (a) Revolving Loans. Each Borrower shall repay to the Lenders on the Maturity Date
the aggregate principal amount of all Revolving Loans made to such Borrower outstanding on such
date.



     (b) Term Loan. McAfee shall repay to the Lenders on the Maturity Date the aggregate
principal amount of the Term Loan, unless accelerated sooner pursuant to Section 9.02.



2.07 Interest.




     (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the sum of the Eurocurrency Rate for such Interest Period plus the
Applicable Rate plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent
from a Lending Office in the United Kingdom or a Participating Member State) the Mandatory Cost;
and (ii) each Base Rate Loan 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.




     (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 any 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
Borrowers shall pay interest on the principal amount of all outstanding 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.



2.08 Fees.




     In addition to certain fees described in subsections (i) and (j) of Section 2.03:



41









 






     (a) Commitment Fee. McAfee shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee equal
to the sum of (i) the Applicable Rate times the actual daily amount by which the
Aggregate Revolving Commitments exceed the Total Revolving Outstandings and (ii) the
Applicable Rate times the amount of the Term Loan Commitment prior to the Term Loan
being drawn in accordance with Section 2.01(b). The commitment fee shall accrue at
all times from the Closing Date until the last day of the applicable Availability Period
(and thereafter so long as any Revolving Loans or L/C Obligations remain outstanding),
including at any time during which one or more of the conditions in Article V is not
met, and shall be due and payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing with the first such date to occur after the
Closing Date, and on the last day of the Availability Period (and, if applicable, thereafter
on demand); provided that no commitment fee shall accrue on any of the Revolving
Commitments or Term Loan Commitments of a Defaulting Lender so long as such Lender shall be
a Defaulting Lender. The commitment fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.




     (b) Fee Letters. McAfee shall pay to the Joint Lead Arrangers, RBS and the
Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and
at the times specified in the Fee Letters. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.



2.09 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.




     (a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank
of America’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), or, in the case of
interest in respect of Loans denominated in Alternative Currencies as to which market practice
differs from the foregoing, in accordance with such market practice. 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 2.11(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.



     (b) If, as a result of any restatement of or other adjustment to the financial statements of
McAfee or for any other reason, McAfee or the Lenders determine that (i) the Consolidated Leverage
Ratio as calculated by McAfee as of any applicable date was inaccurate and (ii) a proper
calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such
period, McAfee shall immediately and retroactively be obligated to pay to the Administrative Agent
for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand
by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for
relief with respect to McAfee under the Bankruptcy Code of the United States, automatically and
without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal
to the excess of the amount of interest and fees that should have been paid for such period over
the amount of interest and fees actually paid for such period. This paragraph shall not limit the
rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section
2.03(c)(iii), 2.03(i) or 2.07(b) or under Article IX.



42









 




McAfee’s obligations under this paragraph shall survive the termination of the Aggregate
Revolving Commitments and the repayment of all other Obligations hereunder.




2.10 Evidence of Debt.




     (a) 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
Borrowers 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 Borrowers 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 error. Upon the request of any Lender to a Borrower made through the
Administrative Agent, such Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a promissory note, which shall evidence such Lender’s Loans in addition to
such accounts or records. Each such promissory note shall (i) in the case of Revolving Loans, be
in the form of Exhibit 2.10(a)(i) (a “Revolving Note”) and (ii) in the case of the
Term Loan, be in the form of Exhibit 2.10(a)(ii) (a “Term Note”). Each Lender may
attach schedules to its Note and endorse thereon the date, Type (if applicable), amount, currency
and maturity of its Loans and payments with respect thereto.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit. In the
event of any conflict between the accounts and records maintained by the Administrative Agent and
the accounts and records of any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.



2.11 Payments Generally; Administrative Agent’s Clawback.




     (a) General. All payments to be made by the Borrowers shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise
expressly provided herein and except with respect to principal of and interest on Loans denominated
in an Alternative Currency, all payments by the Borrowers hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such payment is owed, at
the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00
p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by
the Borrowers hereunder with respect to principal and interest on Loans denominated in an
Alternative Currency shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in such
Alternative Currency and in Same Day Funds not later than the Applicable Time specified by the
Administrative Agent on the dates specified herein. Without limiting the generality of the
foregoing, the Administrative Agent may require that any payments due under this Agreement be made
in the United States. If, for any reason, any Borrower is prohibited by any Law from making any
required payment hereunder in an Alternative Currency, such Borrower shall make such payment in
Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative
Agent will promptly distribute to each Lender its Applicable Percentage (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 (i) after 2:00 p.m., in the case
of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in
the case of payments in an Alternative Currency, shall in each case be deemed received on the next



43









 




succeeding Business Day and any applicable interest or fee shall continue to accrue. If any
payment to be made by any 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 in
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 proposed date of
any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate
Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date
in accordance with 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
applicable 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 applicable Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon,
for each day from and including the date such amount is made available to such 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 Overnight Rate, 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 such Borrower, the interest rate
applicable to Base Rate Loans. If such 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 such Borrower the amount of such interest paid by such 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 such Borrower shall be without prejudice to any claim
such Borrower may have against a Lender that shall have failed to make such payment to the
Administrative Agent.




          (ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Borrower prior to the time at which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that such Borrower will not make such payment, the Administrative Agent may
assume that such Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if such Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in Same Day 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 Overnight Rate.




          A notice of the Administrative Agent to any Lender or a 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 to any Borrower as provided in
the foregoing provisions of this Article II, and such funds are not made available to such
Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set
forth in Article V are



44









 




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, to fund participations in Letters of Credit and to make payments pursuant to Section
11.04(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 11.04(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 11.04(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.



2.12 Sharing of Payments by Lenders.




     If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Loans made by it, or the
participations in L/C Obligations held by it (excluding any amounts received by the L/C Issuer to
secure the obligations of a Defaulting Lender or an Impacted Lender to fund risk participations
hereunder) resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
such Loans or participations and accrued interest thereon greater than its pro rata
share thereof as provided herein, 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 and subparticipations in L/C Obligations 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 principal of and accrued
interest on their respective Loans and other amounts owing them, provided that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations 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 a 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 or subparticipations in L/C Obligations to any assignee or
participant, other than to McAfee or any Subsidiary thereof (as to which the provisions of
this Section shall apply).



     Each Loan Party 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 such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.



45









 





ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.




     (a) Payments Free of Taxes. (i) Any and all payments by or on account of any
obligation of any Loan Party hereunder or under any other Loan Document shall to the extent
permitted by applicable Laws be made free and clear of and without reduction or withholding for any
Taxes. If, however, applicable Laws require any Loan Party or the Administrative Agent to withhold
or deduct any Tax, such Tax shall be withheld or deducted in accordance with such Laws as
determined by such Loan Party or the Administrative Agent, as the case may be, upon the basis of
the information and documentation to be delivered pursuant to subsection (e) below.




     (ii) If any Loan Party or the Administrative Agent shall be required by the Internal
Revenue Code to withhold or deduct any Taxes, including both United States Federal backup
withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall
withhold or make such deductions as are determined by the Administrative Agent to be
required based upon the information and documentation it has received pursuant to subsection
(e) below, (B) the Administrative Agent shall timely pay the full amount withheld or
deducted to the relevant Governmental Authority in accordance with the Internal Revenue
Code, and (C) to the extent that the withholding or deduction is made on account of
Indemnified Taxes or Other Taxes, the sum payable by such Loan Party shall be increased as
necessary so that after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to
the sum it would have received had no such withholding or deduction been made.




     (iii) If any Loan Party or the Administrative Agent shall be required by any applicable
Laws other than the Internal Revenue Code to withhold or deduct any Taxes from any payment,
then (A) such Loan Party or the Administrative Agent, as required by such Laws, shall
withhold or make such deductions as are determined by it to be required based upon the
information and documentation it has received pursuant to subsection (e) below, (B) such
Loan Party or the Administrative Agent, to the extent required by such Laws, shall timely
pay the full amount so withheld or deducted by it to the relevant Governmental Authority in
accordance with such Laws, and (C) to the extent that the withholding or deduction is made
on account of Indemnified Taxes or Other Taxes, the sum payable by such Loan Party shall be
increased as necessary so that after any required withholding or the making of all required
deductions (including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal
to the sum it would have received had no such withholding or deduction been made.



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



     (c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, but without duplication, each Loan Party shall, and does hereby, indemnify the
Administrative Agent, each Lender and the L/C Issuer, and shall make payment in respect thereof
within ten 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) withheld or



46









 




deducted by such Loan Party or the Administrative Agent or paid by the Administrative Agent,
such Lender or the L/C Issuer, 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. Each
Loan Party shall also, and does hereby, indemnify the Administrative Agent, and shall make payment
in respect thereof within ten days after demand therefor, for any amount which a Lender or the L/C
Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required by clause
(ii) of this subsection. A certificate as to the amount of any such payment or liability delivered
to a Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.





     (ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and
the L/C Issuer shall, and does hereby, indemnify each Loan Party and the Administrative
Agent, and shall make payment in respect thereof within ten days after demand therefor,
against any and all Taxes and any and all related losses, claims, liabilities, penalties,
interest and expenses (including the fees, charges and disbursements of any counsel for such
Loan Party or the Administrative Agent) incurred by or asserted against such Loan Party or
the Administrative Agent by any Governmental Authority as a result of the failure by such
Lender or the L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy,
inadequacy or deficiency of, any documentation required to be delivered by such Lender or
the L/C Issuer, as the case may be, to such Borrower or the Administrative Agent pursuant to
subsection (e). Each Lender and the L/C Issuer hereby authorizes the Administrative Agent
to set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer,
as the case may be, under this Agreement or any other Loan Document against any amount due
to the Administrative Agent under this clause (ii). The agreements in this clause (ii)
shall survive the resignation and/or replacement of the Administrative Agent, any assignment
of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the
Aggregate Revolving Commitments and the repayment, satisfaction or discharge of all other
Obligations.



     (d) Evidence of Payments. Upon request by a Loan Party or the Administrative Agent,
as the case may be, after any payment of Taxes by such Loan Party or by the Administrative Agent to
a Governmental Authority as provided in this Section 3.01, such Loan Party shall deliver to
the Administrative Agent or the Administrative Agent shall deliver to such Loan Party, as the case
may be, the original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of any return required by Laws to report such payment or other
evidence of such payment reasonably satisfactory to such Loan Party or the Administrative Agent, as
the case may be.



     (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to McAfee and
to the Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably
requested by McAfee or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other
reasonably requested information as will permit McAfee or the Administrative Agent, as the case may
be, to determine (A) whether or not payments made by the respective Borrowers hereunder or under
any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding
or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of,
applicable Taxes in respect of all payments to be made to such Lender by the respective Borrowers
pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in the applicable jurisdictions.




     (ii) Without limiting the generality of the foregoing, if a Borrower is resident for
tax purposes in the United States,



47









 






     (A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Internal Revenue Code shall deliver to McAfee and the
Administrative Agent executed originals of Internal Revenue Service Form W-9 or such
other documentation or information prescribed by applicable Laws or reasonably
requested by McAfee on behalf of such Borrower or the Administrative Agent as will
enable McAfee or the Administrative Agent, as the case may be, to determine whether
or not such Lender is subject to backup withholding or information reporting
requirements; and




     (B) each Foreign Lender that is entitled under the Internal Revenue Code or any
applicable treaty to an exemption from or reduction of withholding tax with respect
to payments hereunder or under any other Loan Document shall deliver to McAfee 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 McAfee on
behalf of such Borrower or the Administrative Agent, but only if such Foreign Lender
is legally entitled to do so), whichever of the following is applicable:




     (I) executed originals 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) executed originals of Internal Revenue Service Form W-8ECI,




     (III) executed originals of Internal Revenue Service Form W-8IMY and all
required supporting documentation,




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




     (V) executed originals of any other form prescribed by applicable Laws as a
basis for claiming exemption from or a reduction in United States Federal
withholding tax together with such supplementary documentation as may be prescribed
by applicable Laws to permit McAfee or the Administrative Agent to determine the
withholding or deduction required to be made.




     (iii) Each Lender shall promptly (A) notify McAfee and the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed exemption or
reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that any Borrower or the Administrative Agent make any withholding or deduction
for taxes from amounts payable to such Lender.




     (iv) Each of the Borrowers shall promptly deliver to the Administrative Agent or any
Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to
the



48









 






Closing Date (or such later date on which it first becomes a Borrower), and in a timely
fashion thereafter, such documents and forms required by any relevant taxing authorities
under the Laws of any jurisdiction, duly executed and completed by such Borrower, as are
required to be furnished by such Lender or the Administrative Agent under such Laws in
connection with any payment by the Administrative Agent or any Lender of Taxes or Other
Taxes, or otherwise in connection with the Loan Documents, with respect to such
jurisdiction.



     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or the L/C Issuer 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 any Loan Party or with respect to which any Loan Party has paid additional amounts
pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund (but only
to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this
Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses and net of any loss or gain realized in the conversion of such funds from or
to another currency incurred by the Administrative Agent, such Lender or the L/C Issuer, as the
case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Loan Party, upon the request of
the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to
such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to McAfee 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 Eurocurrency Rate Loans, or to determine or charge interest rates based upon the
Eurocurrency Base 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 Borrowers through the
Administrative Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans or
to convert Base Rate Loans to Eurocurrency Rate Loans or, if such notice relates to the
unlawfulness or asserted unlawfulness of charging interest based on the Eurocurrency Rate, to make
Base Rate Loans as to which the interest rate is determined with reference to the Eurocurrency Base
Rate shall be suspended until such Lender notifies the Administrative Agent and the Borrowers that
the circumstances giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurocurrency Rate Loans of such Lender and Base Rate Loans as to
which the interest rate is determined with reference to the Eurocurrency Base Rate to Base Rate
Loans as to which the rate of interest is not determined with reference to the Eurocurrency Base
Rate, either on the last day of the Interest Period therefor, if such Lender may lawfully continue
to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurocurrency Rate Loans or Base Rate Loan. Notwithstanding the
foregoing and despite the illegality for such a Lender to make, maintain or fund Eurocurrency Rate
Loans or Base Rate Loans as to which the interest rate is determined with reference to the
Eurocurrency Base Rate, that Lender shall remain committed to make Base Rate Loans and shall be
entitled to recover interest at the



49









 




Base Rate. Upon any such prepayment or conversion, the Borrowers 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
Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered to
banks in the London interbank eurodollar market for the applicable amount and Interest Period of
such Loan, (ii) adequate and reasonable means do not exist for determining the Eurocurrency Base
Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan or in
connection with a Base Rate Loan, or (iii) the Eurocurrency Base Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Loan or in connection with a Eurocurrency 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 Borrowers and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurocurrency Rate Loans and Base Rate Loans as to
which the interest rate is determined with reference to the Eurocurrency Base Rate shall be
suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, a Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein.



3.04  Increased Costs.




     (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 (A) any reserve requirement
reflected in the Eurocurrency Rate  and (B) the requirements of the Bank of
England and the Financial Services Authority or the European Central Bank reflected in the
Mandatory Cost, other than as set forth below) or the L/C Issuer;




     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurocurrency Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except, in each case, for Indemnified Taxes or
Other Taxes which are covered by Section 3.01 and the imposition of, or any change
in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer);




     (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to
represent the cost to any Lender of complying with the requirements of the Bank of England
and/or the Financial Services Authority or the European Central Bank in relation to its
making, funding or maintaining Eurocurrency Rate Loans; or




     (iv) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by such
Lender or any Letter of Credit or participation therein;




and the result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make
any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating
in, issuing or



50









 






maintaining any Letter of Credit (or of maintaining its obligation to participate in or to
issue any Letter of Credit), or to reduce the amount of any sum received or receivable by
such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount)
then, upon request of such Lender or the L/C Issuer, McAfee will pay (or cause the Irish
Borrower to pay) to such Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for
such additional costs incurred or reduction suffered.



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



     (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts (including the calculation thereof in reasonable detail)
necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be,
as specified in subsection (a) or (b) of this Section and delivered to McAfee shall be conclusive
absent manifest error. McAfee will pay (or cause the Irish Borrower to pay) such Lender or the L/C
Issuer, as the case may be, 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 or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that no Borrower shall be required to compensate a Lender or the L/C Issuer 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 or the L/C Issuer, as the case may be, notifies
McAfee of the Change in Law giving rise to such increased costs or reductions and of such Lender’s
or the L/C Issuer’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, McAfee
shall promptly compensate (or cause the Irish Borrower to 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);



51









 






     (b) any failure by any 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 McAfee or the Irish Borrower;




     (c) any failure by any Borrower to make payment of any Loan or drawing under any Letter
of Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled
due date or any payment thereof in a different currency; or




     (d) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by McAfee pursuant to Section
11.13; or


including any loss of anticipated profits, any foreign exchange losses and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from
fees payable to terminate the deposits from which such funds were obtained or from the performance
of any foreign exchange contract. McAfee shall also pay (or cause the Irish Borrower to pay) any
customary administrative fees charged by such Lender in connection with the foregoing.




     For purposes of calculating amounts payable by McAfee (or the Irish Borrower) to the Lenders
under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate
Loan made by it at the Eurocurrency Base Rate used in determining the Eurocurrency Rate for such
Loan by a matching deposit or other borrowing in the offshore interbank eurodollar market for such
currency for a comparable amount and for a comparable period, whether or not such Eurocurrency 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 any Borrower is required to pay any additional amount to any Lender,
the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer
pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02,
then such Lender or the L/C Issuer shall, as applicable, 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 or the L/C Issuer, 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 or the L/C Issuer, as the case may be, to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case
may be. McAfee hereby agrees to pay (or to cause the Irish Borrower to pay) all reasonable costs
and expenses incurred by any Lender or the L/C Issuer in connection with any such designation or
assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any 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, McAfee may
replace such Lender in accordance with Section 11.13.



3.07 Survival.



     All of the Loan Parties’ obligations under this Article III shall survive termination
of the Aggregate Revolving Commitments and repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.



52









 





ARTICLE IV




GUARANTY




4.01 The Guaranty.




     (a) Each of the Domestic Guarantors hereby jointly and severally guarantees to the
Administrative Agent and each of the holders of the Obligations as hereinafter provided, as primary
obligor and not as surety, the prompt payment of the Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization
or otherwise) strictly in accordance with the terms thereof. The Domestic Guarantors hereby
further agree that if any of the Obligations are not paid in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Domestic Guarantors will, jointly and severally, promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of
any of the Obligations, the same will be promptly paid in full when due (whether at extended
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.



     (b) Each of the Foreign Guarantors hereby jointly and severally guarantees to the
Administrative Agent and each of the holders of the Foreign Obligations as hereinafter provided, as
primary obligor and not as surety, the prompt payment of the Foreign Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof. Each of the Foreign
Guarantors hereby further agrees that if any of such obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Foreign Guarantors will, jointly and severally, promptly pay
the same, without any demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of such obligations, the same will be promptly paid in full when due
(whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such extension or renewal. Without
prejudice to the foregoing, each Foreign Guarantor agrees jointly and severally, irrevocably and
unconditionally as a primary obligation to indemnify the Administrative Agent and each holder of
Foreign Obligations on demand by the Administrative Agent from and against any loss incurred by the
Administrative Agent and each holder of Foreign Obligations as a result of the Foreign Obligations
(or any part thereof) guaranteed by such Foreign Guarantor being or becoming void, voidable,
unenforceable or ineffective for any reason whatsoever, whether or not known to the Administrative
Agent, any such holder or any other Person, the amount of such loss being the amount which the
Administrative Agent and each holder of Foreign Obligations would otherwise have been entitled to
recover from the Foreign Guarantor.



     (c) Notwithstanding any provision to the contrary contained herein or in any other of the Loan
Documents, Swap Contracts or Treasury Management Agreements, the obligations of each Guarantor (in
its capacity as such) under this Agreement and the other Loan Documents shall be limited to an
aggregate amount equal to the largest amount that would not render such obligations subject to
avoidance under applicable Debtor Relief Laws.



4.02 Obligations Unconditional.




     (a) The obligations of the Domestic Guarantors under Section 4.01(a) are joint and
several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity
or enforceability of any of the Loan Documents, Swap Contracts or Treasury Management Agreements,
or any other agreement or instrument referred to therein, or any substitution, compromise, release,
impairment or exchange of any other guarantee of or security for any of the Obligations, and, to
the fullest extent permitted by applicable Law,



53









 




irrespective of any other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of this
Section 4.02(a) that the obligations of the Domestic Guarantors hereunder shall be absolute
and unconditional under any and all circumstances. Each Domestic Guarantor agrees that such
Domestic Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution
against McAfee or any other Domestic Guarantor for amounts paid under this Article IV until
such time as the Obligations have been paid in full and the Commitments have expired or terminated.




     (b) The obligations of the Foreign Guarantors under Section 4.01(b) are joint and
several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity
or enforceability of any of the Loan Documents or other documents relating to the Foreign
Obligations, or any substitution, compromise, release, impairment or exchange of any other
guarantee of or security for any of the Foreign Obligations, and, to the fullest extent permitted
by applicable Law, irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent
of this Section 4.02(b) that the obligations of the Foreign Guarantors hereunder shall be
absolute and unconditional under any and all circumstances. Each of the Foreign Guarantors agrees
that such Foreign Guarantor shall have no right of subrogation, indemnity, reimbursement or
contribution against the Irish Borrower or any other Foreign Guarantor for amounts paid under this
Article IV until such time as the Foreign Obligations have been paid in full and the
Commitments have expired or terminated.



     (c) Without limiting the generality of the foregoing subsections (a) and (b),
it is agreed that, to the fullest extent permitted by Law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder, which shall remain
absolute and unconditional as described above:




     (i) at any time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived;




     (ii) any of the acts mentioned in any of the provisions of any of the Loan Documents,
any Swap Contract or Treasury Management Agreement between any Loan Party and any Lender, or
any Affiliate of a Lender, or any other agreement or instrument referred to in the Loan
Documents, such Swap Contracts or such Treasury Management Agreements shall be done or
omitted;




     (iii) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Loan Documents or any other documents relating to the Obligations or any other
agreement or instrument referred to therein shall be waived or any other guarantee of any of
the Obligations or any security therefor shall be released, impaired or exchanged in whole
or in part or otherwise dealt with;




     (iv) any Lien granted to, or in favor of, the Administrative Agent or any holder of
Obligations as security for any of the Obligations shall fail to attach or be perfected; or




     (v) any of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any creditor of any
Guarantor).



     (d) With respect to its obligations hereunder, each Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever (other than those
expressly provided for in this Article IV), and any requirement that the Administrative
Agent or any holder of the Obligations exhaust any right, power or remedy or proceed against any
Person under any of the Loan Documents, any



54









 




Swap Contract or any Treasury Management Agreement between any Loan Party and any Lender, or
any Affiliate of a Lender, or any other agreement or instrument referred to in the Loan Documents,
such Swap Contracts or such Treasury Management Agreements, or against any other Person under any
other guarantee of, or security for, any of the Obligations.




4.03 Reinstatement.




     (a) The obligations of each Domestic Guarantor under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment by or on behalf of
any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder
of any of the Obligations, whether as a result of any Debtor Relief Law or otherwise, and each
Domestic Guarantor agrees that it will indemnify the Administrative Agent and each holder of the
Obligations on demand for all reasonable costs and expenses (including, without limitation, the
fees, charges and disbursements of counsel) incurred by the Administrative Agent or such holder of
the Obligations in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any Debtor Relief Law.



     (b) The obligations of each Foreign Guarantor under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment by or on behalf of
any Person in respect of the Foreign Obligations is rescinded or must be otherwise restored by any
holder of any of the Foreign Obligations, whether as a result of any Debtor Relief Law or
otherwise, and each of the Foreign Guarantors agrees that it will indemnify the Administrative
Agent and each holder of the Foreign Obligations on demand for all reasonable costs and expenses
(including the fees, charges and disbursements of counsel) incurred by the Administrative Agent or
such holder of the Obligations in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law.



4.04 Certain Additional Waivers.




     Each Guarantor acknowledges and agrees that (a) the guaranty given hereby may be enforced
without the necessity of resorting to or otherwise exhausting remedies in respect of any other
security or collateral interests, and without the necessity at any time of having to take recourse
against the Borrowers hereunder or against any collateral securing the Obligations or otherwise,
and (b) it will not assert any right to require that action first be taken against the Borrowers or
any other Person (including any co-guarantor) or pursuit of any other remedy or enforcement any
other right, and (c) nothing contained herein shall prevent or limit action being taken against the
Borrowers hereunder, under the other Loan Documents or the other documents and agreements relating
to the Obligations or, foreclosure on any security or collateral interests relating hereto or
thereto, or the exercise of any other rights or remedies available in respect thereof, if neither
the Borrowers nor the Guarantors shall timely perform their obligations, and the exercise of any
such rights and completion of any such foreclosure proceedings shall not constitute a discharge of
the Guarantors’ obligations hereunder unless as a result thereof, the Obligations shall have been
paid in full and the commitments relating thereto shall have expired or terminated, it being the
purpose and intent that the Guarantors’ obligations hereunder be absolute, irrevocable, independent
and unconditional under all circumstances. Each Guarantor agrees that such Guarantor shall have no
right of recourse to security for the Obligations, except through the exercise of rights of
subrogation pursuant to Section 4.02 and through the exercise of rights of contribution
pursuant to Section 4.06.





55












 




4.05 Remedies.





     (a) The Domestic Guarantors agree that, to the fullest extent permitted by Law, as between the
Domestic Guarantors, on the one hand, and holders of the Obligations, on the other hand, the
Obligations may be declared to be forthwith due and payable as provided in Section 9.02
(and shall be deemed to have become automatically due and payable in the circumstances specified in
Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the event of such
declaration (or the Obligations being deemed to have become automatically due and payable), the
Obligations (whether or not due and payable by any other Person) shall forthwith become due and
payable by the Domestic Guarantors for purposes of Section 4.01.



     (b) Each of the Foreign Guarantors agrees that, to the fullest extent permitted by Law, as
between the Foreign Guarantors, on the one hand, and the holders of the Foreign Obligations, on the
other hand, the Foreign Obligations may be declared to be forthwith due and payable as provided in
Section 9.02 (and shall be deemed to have become automatically due and payable in the
circumstances provided in Section 9.02) for purposes of Section 4.01
notwithstanding any stay, injunction or other prohibition preventing such declaration (or
preventing the Foreign Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or the Foreign Obligations being deemed to
have become automatically due and payable), the Foreign Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Foreign Guarantors for purposes
of Section 4.01.



4.06 Rights of Contribution.




     (a) The Domestic Guarantors hereby agree as among themselves that, in connection with payments
made hereunder, each Domestic Guarantor shall have a right of contribution from each other Domestic
Guarantor in accordance with applicable Law. Such contribution rights shall be subordinate and
subject in right of payment to the Obligations until such time as the Obligations have been
irrevocably paid in full and the commitments relating thereto shall have expired or been
terminated, and none of the Domestic Guarantors shall exercise any such contribution rights until
the Obligations have been irrevocably paid in full and the Commitments shall have expired or been
terminated.



     (b) The Foreign Guarantors hereby agree as among themselves that, in connection with payments
made hereunder, each of the Foreign Guarantors shall have a right of contribution from each other
Guarantor in accordance with applicable Law. Such contribution rights shall be subordinate and
subject in right of payment to the Obligations until such time as the Obligations have been
irrevocably paid in full and the commitments relating thereto shall have expired or been
terminated, and none of the Foreign Guarantors shall exercise any such contribution rights until
the Obligations have been irrevocably paid in full and the Commitments shall have expired or been
terminated.



4.07 Guarantee of Payment; Continuing Guarantee.




     (a) The guarantee given by the Domestic Guarantors in this Article IV is a guaranty of
payment and not of collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.



     (b) The guarantee given by the Foreign Guarantors in this Article IV is a guaranty of
payment and not of collection, is a continuing guarantee, and shall apply to all Foreign
Obligations whenever arising.



56









 





ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




5.01 Conditions of Closing.




     The obligation of the L/C Issuer and each Lender to make its initial Credit Extension to
McAfee hereunder is subject to satisfaction of the following conditions precedent:




(a) Loan Documents.




     (i) Domestic. Receipt by the Administrative Agent of executed
counterparts of this Agreement and the other Loan Documents, each properly executed
by a Responsible Officer of the signing Domestic Loan Party and, in the case of this
Agreement, by each Lender.




     (ii) Foreign. Receipt by the Administrative Agent of executed
counterparts of this Agreement and the other Loan Documents, each properly executed
by a Responsible Officer of the signing Foreign Loan Party and, in the case of this
Agreement, by each Lender.




     (b) Opinions of Counsel. Receipt by the Administrative Agent of favorable
opinions of legal counsel to the Domestic Loan Parties, addressed to the Administrative
Agent and each Lender, dated as of the Closing Date, and in form and substance satisfactory
to the Administrative Agent.




     (c) No Material Adverse Change. There shall not have occurred a material
adverse change since December 31, 2007 in the operations, business, assets, properties,
liabilities (actual or contingent) or condition (financial or otherwise) of McAfee and its
Subsidiaries, taken as a whole (it being understood that any litigation settlement that has
been disclosed by McAfee in its SEC filings during the calendar year 2008 (but prior to the
Closing Date) shall not be deemed to constitute a material adverse change).




     (d) Organization Documents, Resolutions, Etc. Receipt by the Administrative
Agent of the following, in form and substance satisfactory to the Administrative Agent:




     (i) copies of the Organization Documents of each Domestic Loan Party certified
to be true and complete as of a recent date by the appropriate Governmental
Authority of the state or other jurisdiction of its incorporation or organization,
where applicable, and certified by a secretary or assistant secretary of such
Domestic Loan Party to be true and correct as of the Closing Date;




     (ii) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Domestic 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 Domestic
Loan Party is a party; and




     (iii) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Domestic Loan Party is duly organized or



57









 







formed, and is validly existing, in good standing and qualified to engage in
business in its state of organization or formation, the state of its principal place
of business and each 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.




     (e) Financial Statements. The Administrative Agent shall have received:




     (i) the Audited Financial Statements; and




     (ii) unaudited consolidated financial statements of McAfee and its Subsidiaries
for the fiscal quarters ending June 30, 2008 and September 30, 2008 including
balance sheets and statements of income or operations, shareholders’ equity and cash
flows (the “Interim Financial Statements”).




     (f) Litigation. There shall not exist any action, suit, investigation or
proceeding pending or to the knowledge of McAfee, threatened in any court or before any
arbitrator or Governmental Authority that could reasonably be expected to have a Material
Adverse Effect.




     (g) Closing Certificate. Receipt by the Administrative Agent of a certificate
signed by a Responsible Officer of McAfee (i) certifying that the conditions specified in
Section 5.01(c) and Sections 5.02(a) and (b) have been satisfied and (ii)
containing a calculation of the Consolidated Leverage Ratio as of September 30, 2008 on a
Pro Forma Basis after giving effect to the initial Credit Extensions hereunder.




     (h) Fees. Receipt by the Administrative Agent, the Joint Lead Arrangers and
the Lenders of any fees required to be paid on or before the Closing Date.




     (i) Attorney Costs. McAfee shall have paid all fees, charges and disbursements
of counsel (including foreign 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, 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 McAfee and the Administrative
Agent).



     Without limiting the generality of the provisions of the last paragraph of Section
10.03, for purposes of determining compliance with the conditions specified in this Section
5.01, 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.



5.02 Conditions to all Credit Extensions.




     The obligation of each Lender to honor any Request for Credit Extension is subject to the
following conditions precedent:




     (a) The representations and warranties of McAfee and each other Loan Party contained in
Article VI 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



58









 







and as of the date of such Credit Extension, 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.




     (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 and, if applicable, the L/C Issuer, shall have received a
Request for Credit Extension in accordance with the requirements hereof.




     (d) In the case of a Credit Extension to be denominated in an Alternative Currency,
there shall not have occurred any change in national or international financial, political
or economic conditions or currency exchange rates or exchange controls which in the
reasonable opinion of the Administrative Agent, the Required Lenders (in the case of any
Loans to be denominated in an Alternative Currency) or the L/C Issuer (in the case of any
Letter of Credit to be denominated in an Alternative Currency) would make it impracticable
for such Credit Extension to be denominated in the relevant Alternative Currency.




     (e) If such Credit Extension is the initial Credit Extension to the Irish Borrower
hereunder, the conditions set forth in Section 5.03 have been satisfied.



     Each Request for Credit Extension submitted by McAfee or the Irish Borrower shall be deemed to
be a representation and warranty that the conditions specified in Sections 5.02(a) and
(b) have been satisfied on and as of the date of the applicable Credit Extension.



5.03 Conditions to Initial Credit Extension to the Irish Borrower.




     The obligation of the L/C Issuer and each Lender to make its initial Credit Extension to the
Irish Borrower hereunder is subject to satisfaction of the following conditions precedent:




     (a) Irish Guarantor. Receipt by the Administrative Agent of a Joinder
Agreement executed by McAfee Ireland Limited causing it to become a Guarantor hereunder.




     (b) Opinions of Counsel. Receipt by the Administrative Agent of favorable
opinions of legal counsel to the Foreign Loan Parties, addressed to the Administrative Agent
and each Lender, dated as of the Closing Date, and in form and substance satisfactory to the
Administrative Agent.




     (c) Organization Documents, Resolutions, Etc. Receipt by the Administrative
Agent of the following, in form and substance satisfactory to the Administrative Agent:




     (i) copies of the Organization Documents of each Foreign Loan Party certified
to be true and complete as of a recent date by the appropriate Governmental
Authority of the state or other jurisdiction of its incorporation or organization,
where applicable, and certified by a secretary or assistant secretary of such
Foreign Loan Party to be true and correct as of a recent date;




     (ii) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Foreign 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



59









 







this Agreement and the other Loan Documents to which such Foreign Loan Party is
a party; and




     (iii) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Foreign Loan Party is duly organized or
formed, and is validly existing, in good standing and qualified to engage in
business in its state of organization or formation, the state of its principal place
of business and each 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.




     (d) Other. To the extent not otherwise provided to the Administrative Agent
pursuant to Section 5.03(b), receipt by the Administrative Agent of the following,
in form and substance satisfactory to the Administrative Agent:




     (i) a copy of board resolutions of each Loan Party incorporated under the laws
of Ireland (A) approving the terms of, and the transactions contemplated by, the
Loan Documents to which it is a party and resolving that it execute the Loan
Documents to which it is a party; (B) authorizing a specified person or persons to
execute the Loan Documents to which it is a party on its behalf; (C) authorizing a
specified person or persons, on its behalf, to sign and/or despatch all documents
and notices (including any document, notice or other agreement to be delivered
thereunder or in connection therewith) to be signed and/or despatched by it under or
in connection with the Loan Documents to which it is a party; and (D) authorizing
McAfee to act as its agent in connection with the Loan Documents;




     (ii) a specimen of the signature of each person authorised by the resolution
referred to in subsection (c)(i) above;




     (iii) a certificate of a director of each Loan Party incorporated under the
laws of Ireland confirming that borrowing or guaranteeing, as appropriate, the
Foreign Obligations would not cause any borrowing, guaranteeing or similar limit
binding on such Person to be exceeded;




     (iv) if relevant, evidence that each Loan Party incorporated under the laws of
Ireland has done all that is necessary to follow the procedures set out in
Sub-Sections (2) to (11) of section 60 of the Companies Act, 1963 of Ireland (as
amended) in order to enable such Person to enter into the Loan Documents; and




     (v) evidence that the Irish Borrower and its Subsidiaries that are Foreign
Guarantors are members of the same group of companies consisting of a holding
company and its Subsidiaries for the purposes of Section 155 of the Companies Act,
1963 of Ireland (as amended) and Section 35 of the Companies Act, 1990 of Ireland
(as amended).



ARTICLE VI




REPRESENTATIONS AND WARRANTIES




     The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:



60









 





6.01 Existence, Qualification and Power.




     McAfee and each of its Subsidiaries (a) is duly organized or formed or incorporated, 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) in the case of each Loan Party, execute, deliver and perform its
obligations under the Loan Documents to which it is a party, 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 cases referred to in (1) clause (a), with respect to the good
standing of Subsidiaries that are not Loan Parties, (2) clause (b)(i) or (3) clause (c), each to
the extent that failure to do so could not reasonably be expected to have a Material Adverse
Effect.



6.02 Authorization; No Contravention.




     The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party have been duly authorized by all necessary corporate or other organizational
action, and do 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
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.



6.03 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
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document other than those that have already been obtained and are in full force
and effect.



6.04 Binding Effect.




     Each Loan Document has been duly executed and delivered by each Loan Party that is party
thereto. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party
that is party thereto, enforceable against each such Loan Party in accordance with its terms,
except to the extent that the enforceability thereof may be limited by applicable Debtor Relief
Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law).



6.05 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 in all material respects the financial condition of McAfee and its Subsidiaries as
of the date thereof and their results of operations for the period covered thereby, except as
otherwise expressly noted therein; and (iii) to the extent required by GAAP, show all material
indebtedness and other liabilities, direct or contingent, of McAfee and its Subsidiaries as of the
date thereof, including liabilities for taxes, material commitments and Indebtedness.



61









 





     (b) The Interim 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 in all material respects the financial condition of McAfee 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 (iii) to the extent required by GAAP, show all material indebtedness and other liabilities,
direct or contingent, of McAfee and its Subsidiaries as of the date thereof, including liabilities
for taxes, material commitments and Indebtedness.



     (c) From the date of the Audited Financial Statements to and including the Closing Date, there
has been no Disposition or any Involuntary Disposition of any material part of the business or
property of McAfee and its Subsidiaries, taken as a whole, and no purchase or other acquisition by
any of them of any business or property (including any Equity Interests of any other Person)
material in relation to the consolidated financial condition of McAfee and its Subsidiaries, taken
as a whole, in each case, which is not reflected in the foregoing financial statements or in the
notes thereto or in a subsequent filing with the SEC prior to the Closing Date and has not
otherwise been disclosed in writing to the Lenders on or prior to the Closing Date.



     (d) The financial statements delivered pursuant to Section 7.01(a) and (b) have been
prepared in accordance with GAAP (except as may otherwise be permitted under Section
7.01(a) and (b)) and present fairly (on the basis disclosed in the footnotes to such
financial statements) the consolidated and, in the case of annual financial statements delivered
pursuant to Section 7.01(a), consolidating, financial condition, results of operations and
cash flows of McAfee and its Subsidiaries as of the dates thereof and for the periods covered
thereby.



     (e) 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 (it being understood that any litigation settlement that has been
disclosed by McAfee in its SEC filings during calendar year 2008 prior to the Closing Date will not
be considered to have had a Material Adverse Effect).



6.06 No Material Litigation.




     There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of a
Responsible Officer of the Loan Parties after due and diligent investigation, threatened in
writing, at law, in equity, in arbitration or before any Governmental Authority, by or against
McAfee or any if its Subsidiaries or against any of their properties or revenues that (a) purport
to affect or pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby or (b) could reasonably be expected to have a Material Adverse Effect.



6.07 No Default.




     (a) Neither any Loan Party nor any Subsidiary thereof is in default under or with respect to
any Contractual Obligation that individually or in the aggregate could reasonably be expected to
have a Material Adverse Effect.



     (b) No Default has occurred and is continuing.



62









 





6.08 Ownership of Property.




     Each of McAfee and 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. The property of McAfee and its
Subsidiaries is subject to no Liens other than Permitted Liens.



6.09 Environmental Compliance.



Except as could not reasonably be expected to have a Material Adverse Effect:




     (a) Each of the facilities and real properties owned, leased or operated by any Loan Party or
any Subsidiary (the “Facilities”) and all operations at the Facilities are in compliance
with all applicable Environmental Laws, and there is no violation of any Environmental Law with
respect to the Facilities or the businesses operated by any Loan Party or any Subsidiary at such
time (the “Businesses”), and there are no conditions relating to the Facilities or the
Businesses that could give rise to liability under any applicable Environmental Laws.



     (b) None of the Facilities contains, or has previously contained, any Hazardous Materials at,
on or under the Facilities in amounts or concentrations that constitute or constituted a violation
of, or could give rise to liability under, Environmental Laws.



     (c) Neither any Loan Party nor any Subsidiary has received any written or verbal notice of, or
inquiry from any Governmental Authority regarding, any violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Facilities or the Businesses, nor does any Responsible
Officer of any Loan Party have knowledge or reason to believe that any such notice will be received
or is being threatened.



     (d) Hazardous Materials have not been transported or disposed of from the Facilities, or
generated, treated, stored or disposed of at, on or under any of the Facilities or any other
location, in each case by or on behalf of any Loan Party or any Subsidiary in violation of, or in a
manner that would be reasonably likely to give rise to liability under, any applicable
Environmental Law.



     (e) No judicial proceeding or governmental or administrative action is pending or, to the
knowledge of the Responsible Officers of McAfee, threatened, under any Environmental Law to which
any Loan Party or any Subsidiary is or will be named as a party, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to any Loan Party, any
Subsidiary, the Facilities or the Businesses.



     (f) There has been no release or threat of release of Hazardous Materials at or from the
Facilities, or arising from or related to the operations (including, without limitation, disposal)
of any Loan Party or any Subsidiary in connection with the Facilities or otherwise in connection
with the Businesses, in violation of or in amounts or in a manner that could give rise to liability
under Environmental Laws.



6.10 Insurance.




     The properties of the Loan Parties and their Subsidiaries are insured with financially sound
and reputable insurance companies (at the time of issuance, renewal or continuation of the
insurance policy) not Affiliates of such Persons, in such amounts, with such deductibles and
covering such risks as are



63









 







customarily carried by companies engaged in similar businesses and owning similar properties
in localities where the applicable Loan Party or the applicable Subsidiary operates.



6.11 Taxes.




     Except as set forth on Schedule 6.11 to the Disclosure Letter, the Loan Parties and
their Subsidiaries have filed all federal and state income tax returns and other material tax
returns and reports required to be filed, and have paid all federal and state income taxes 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
any Loan Party 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.



6.12 ERISA Compliance.




     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Internal Revenue Code and other federal or state Laws. Each Plan that is intended to
qualify under Section 401(a) of the Internal Revenue 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, or has been established under a prototype plan for which an IRS opinion
letter has been obtained by the plan sponsor and is valid as to the adopting employer, or is within
its applicable remedial amendment period under Section 401(b) of the Code and, to the knowledge of
the Loan Parties, nothing has occurred which would prevent, or cause the loss of, such
qualification except to the extent that it could not reasonably be expected to have a Material
Adverse Effect. Each Loan Party and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Internal Revenue Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the Internal Revenue
Code has been made with respect to any Plan. Each Loan Party and each ERISA Affiliate have made
all required contributions to each Pension Plan subject to Section 430(a) of the Internal Revenue
Code.



     (b) There are no pending or, to the knowledge of the Loan Parties, 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 Loan Party or
any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c)
of ERISA and (iii) for years beginning on or after January 1, 2008, the minimum required
contribution (as defined in Code Section 430(a)) has been contributed for any Pension Plan except
if the failure to make the minimum required contribution could not reasonably be expected to have a
Material Adverse Effect.



6.13 Subsidiaries.




     Set forth on Schedule 6.13 to the Disclosure Letter is a complete and accurate list as
of the Closing Date of each Subsidiary of any Loan Party, together with (i) jurisdiction of
organization, (ii) percentage of outstanding shares of each class owned (directly or indirectly) by
any Loan Party or any Subsidiary and (iii) identification of each Subsidiary that is a Material
Domestic Subsidiary, a Material Foreign Subsidiary and a



64









 







Guarantor. The outstanding Equity Interests of each Subsidiary of any Loan Party are validly
issued, fully paid and non-assessable.



6.14 Margin Regulations; Investment Company Act.




     (a) No Borrower is engaged or will 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 each Borrowing or drawing under each Letter of Credit, not more
than 25% of the value of the assets of McAfee and its Subsidiaries on a consolidated basis, subject
to the provisions of Section 8.01 or Section 8.05 or subject to any restriction
contained in any agreement or instrument between any Borrower and any Lender or any Affiliate of
any Lender relating to Indebtedness and within the scope of Section 9.01(e) will be margin
stock.



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



6.15 Disclosure.




     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 and taken together with McAfee’s filings with the SEC) contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Loan Parties represent
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time.



6.16 Compliance with Laws.




     Each Loan Party and each Subsidiary thereof is in compliance 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 could not reasonably be expected to have a Material Adverse Effect.



6.17 Intellectual Property; Licenses, Etc.




     Each Loan Party and its Subsidiaries own, or possess the legal 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 except to the extent that the failure to
do so could not reasonably be expected to have a Material Adverse Effect. Except for such claims
and infringements that could not reasonably be expected to have a Material Adverse Effect, no claim
has been asserted and is pending by any Person challenging or questioning the use of any IP Rights
or the validity or effectiveness of any IP Rights, nor does any Loan Party know of any such claim,
and, to the knowledge of the Responsible Officers of the Loan Parties, the use of any IP Rights by
any Loan Party or any of its Subsidiaries or the granting of a right or a license in respect of any
IP Rights from any Loan Party or any of its Subsidiaries does not infringe on the rights of any
Person.



65









 





6.18 Solvency.




     The Loan Parties are Solvent on a consolidated basis.



6.19 Legal Name; Taxpayer Identification Number.




     Set forth on Schedule 6.19 to the Disclosure Letter is the exact legal name,
jurisdiction of organization, U.S. tax payer identification number and organizational
identification number (or its foreign equivalent) of each Loan Party as of the Closing Date.



6.20 Labor Matters.




     There are no collective bargaining agreements or Multiemployer Plans covering the employees of
any Loan Party or any Subsidiary of any Loan Party as of the Closing Date and neither any Loan
Party nor any Subsidiary of any Loan Party has suffered any strikes, walkouts, work stoppages or
other material labor difficulty in the five years preceding the Closing Date.



6.21 Foreign Loan Parties.




     (a) Each Foreign Loan Party is subject to civil and commercial Laws with respect to its
obligations under this Agreement and the other Loan Documents to which it is a party (collectively
as to such Foreign Loan Party, the “Applicable Foreign Obligor Documents”), and the
execution, delivery and performance by such Foreign Loan Party of the Applicable Foreign Obligor
Documents constitute and will constitute private and commercial acts and not public or governmental
acts. No Foreign Loan Party nor any of its property has any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which
such Foreign Loan Party is organized and existing in respect of its obligations under the
Applicable Foreign Obligor Documents.



     (b) The Applicable Foreign Obligor Documents are in proper legal form under the Laws of the
jurisdiction in which each Foreign Loan Party is organized or incorporated and existing for the
enforcement thereof against such Foreign Loan Party under the Laws of such jurisdiction, and to
ensure the legality, validity, enforceability, priority or admissibility in evidence of the
Applicable Foreign Obligor Documents. It is not necessary to ensure the legality, validity,
enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor Documents
that the Applicable Foreign Obligor Documents be filed, registered or recorded with, or executed or
notarized before, any court or other authority in the jurisdiction in which the applicable Foreign
Loan Party is organized and existing or that any registration charge or stamp or similar tax be
paid in such jurisdiction on or in respect of the Applicable Foreign Obligor Documents, except for
(i) any such filing, registration, recording, execution or notarization as has been made or is not
required to be made until the Applicable Foreign Obligor Document or any other document is sought
to be enforced and (ii) any such charge or tax as has been timely paid.



     (c) Except as disclosed to the Administrative Agent in writing, there is no tax, levy, impost,
duty, fee, assessment or other governmental charge, or any deduction or withholding, imposed by any
Governmental Authority in or of the jurisdiction in which any Foreign Loan Party is organized and
existing either (i) on or by virtue of the execution or delivery of the Applicable Foreign Obligor
Documents or (ii) on any payment to be made by such Foreign Loan Party pursuant to the Applicable
Foreign Obligor Documents, except as has been disclosed to the Administrative Agent.



66









 





     (d) The execution, delivery and performance of the Applicable Foreign Obligor Documents
executed by each Foreign Loan Party are, under applicable foreign exchange control regulations of
the jurisdiction in which such Foreign Loan Party is organized and existing, not subject to any
notification or authorization except (i) such as have been made or obtained or (ii) such as cannot
be made or obtained until a later date (provided that any notification or authorization
described in clause (ii) shall be made or obtained as soon as is reasonably practicable).



ARTICLE VII




AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Loan Parties shall and shall cause each Subsidiary to:



7.01 Financial Statements.




     Deliver to the Administrative Agent and each Lender:




     (a) as soon as available, but in any event within ninety days after the end of each
fiscal year of McAfee, a consolidated balance sheet of McAfee and its Subsidiaries as at the
end of such fiscal year, and the related consolidated statements of income and comprehensive
income, stockholders’ 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 a “Big
Four” accounting firm or another independent certified public accountant of nationally
recognized standing reasonably acceptable to the Required Lenders, which report and opinion
shall be prepared in accordance with the standards of the Public Company Accounting
Oversight Board 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; and




     (b) as soon as available, but in any event within forty-five days after the end of each
of the first three fiscal quarters of each fiscal year of McAfee, a consolidated balance
sheet of McAfee and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income and comprehensive income for such fiscal quarter and for
the portion of McAfee’s fiscal year then ended, and the related consolidated statements of
stockholders’ equity, and cash flows for the portion of McAfee’s fiscal year then ended, in
each case setting forth in comparative form, as applicable, 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 and certified by the chief executive
officer, chief financial officer, chief accounting officer, treasurer or controller of
McAfee as fairly presenting in all material respects the financial condition, results of
operations, shareholders’ equity and cash flows of McAfee and its Subsidiaries in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.



7.02 Certificates; Other Information.




     Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:




     (a) within five Business Days after the delivery of the financial statements referred
to in Sections 7.01(a) and (b), a duly completed Compliance Certificate
signed by the chief



67









 







executive officer, chief financial officer, treasurer or controller of McAfee (such
Compliance Certificate shall include (i) such supplements to Schedules 6.13 and
6.19 of the Disclosure Letter, as are necessary such that, as supplemented, such
Schedules would be accurate and complete as of the date of such Compliance Certificate, (ii)
calculations demonstrating that (A) McAfee and the Domestic Guarantors, in the aggregate,
(1) own at least 80% of the assets of McAfee and its Domestic Subsidiaries and (2) earn at
least 80% of the revenues of McAfee and its Domestic Subsidiaries and (B) the Irish Borrower
and its Subsidiaries that are Foreign Guarantors, in the aggregate, (1) own at least 80% of
the assets of the Irish Borrower and its Subsidiaries and (2) earn at least 80% of the
revenues of Irish Borrower and its Subsidiaries and (iii) evidence of compliance with
Section 8.02, including all outstanding Investments and calculation of the McAfee
Liquidity Amount.




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




     (c) promptly after any request by the Administrative Agent or any Lender, 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 McAfee by independent
accountants in connection with the accounts or books of McAfee or any Subsidiary, or any
audit of any of them;




     (d) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of any Loan Party or any Subsidiary thereof 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 7.01 or any other clause of this
Section 7.02;




     (e) promptly, and in any event within five Business Days after receipt thereof by any
Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other inquiry by such agency regarding financial
or other operational results of any Loan Party or any Subsidiary thereof; and




     (f) promptly, such additional information regarding the business, financial 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 7.01(a) or (b) or
Section 7.02 (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 McAfee posts such documents, or provides a link thereto on
McAfee’s website on the Internet at the website address listed on Schedule 11.02; or (ii)
on which such documents are posted on McAfee’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 McAfee shall
notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting
of any such documents and, upon request, provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding anything
contained herein,



68









 







in every instance McAfee shall be required to provide paper copies (including by means of .pdf
files showing manual signatures) of the Compliance Certificates required by Section 7.02(a)
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 McAfee with any such
request for delivery, and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.



     Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead
Arrangers will make available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of such 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 any of the
Borrowers or their respective 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. Each Borrower hereby agrees that (w) all Borrower Materials that are to be made
available to Public Lenders 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 Borrowers shall be deemed to have authorized the
Administrative Agent, the Joint Lead Arrangers, the L/C Issuer and the Lenders to treat such
Borrower Materials as not containing any material non-public information with respect to the
Borrowers or their respective 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 11.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated as “Public Side Information;” and (z) the Administrative Agent and the Joint Lead
Arrangers 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 marked as “Public Side Information.”
Notwithstanding the foregoing, no Borrower shall be under any obligation to mark any Borrower
Materials “PUBLIC.”



7.03 Notices.




     (a) Promptly (and in any event within five (5) Business Days) notify the Administrative Agent
and each Lender of the occurrence of any Default.



     (b) Promptly (and in any event within five (5) Business Days) notify the Administrative Agent
and each Lender of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect.



     (c) Promptly (and in any event within five (5) Business Days) notify the Administrative Agent
and each Lender of the occurrence of any ERISA Event.



     (d) Promptly (and in any event within five (5) Business Days) notify the Administrative Agent
and each Lender of any material change in accounting policies or financial reporting practices by
either Borrower or any Subsidiary, including any determination by McAfee referred to in Section
2.09(b).



     Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a
Responsible Officer of McAfee setting forth details of the occurrence referred to therein and
stating what action McAfee has taken and proposes to take with respect thereto. Each notice
pursuant to Section 7.03(a) shall describe with particularity any and all provisions of
this Agreement and any other Loan Document that have been breached.



69









 





7.04 Payment of Taxes.




     Pay and discharge, as the same shall become due and payable, all its material 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 Loan Party or such Subsidiary.



7.05 Preservation of Existence, Etc.




     (a) Preserve, renew and maintain in full force and effect its legal existence and, if
applicable, good standing under the Laws of the jurisdiction of its organization or incorporation
except (i) in a transaction permitted by Section 8.04 or 8.05, and (ii) in the case
of maintenance of good standing where the failure to do so could not reasonably be expected to have
a Material Adverse Effect.



     (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
the failure to do so could not reasonably be expected to have a Material Adverse Effect.



     (c) Preserve or renew all of its IP Rights, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.



     (d) Maintain all authorizations, consents, approvals and licenses from, exemptions of, and
filings and registrations with, each Governmental Authority of the jurisdiction in which each
Foreign Loan Party is organized and existing, and all approvals and consents of each other Person
in such jurisdiction, in each case that are required in connection with the Loan Documents, where
the failure to do so could not reasonably be expected to have a Material Adverse Effect.



7.06 Maintenance of Properties.




     (a) Maintain, preserve and protect all of its properties and equipment necessary in the
operation of its business in good working order and condition, ordinary wear and tear excepted,
except where the failure to do so could not reasonably be expected to have a Material Adverse
Effect.



     (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.



     (c) Use the standard of care typical in the industry in the operation and maintenance of its
facilities, except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.



7.07 Maintenance of Insurance.




     Maintain in full force and effect insurance (including worker’s compensation insurance,
liability insurance, casualty insurance and business interruption insurance) with financially sound
and reputable insurance companies (at the time of the issuance, renewal or continuation of the
insurance policy) not Affiliates of any Loan Party, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the applicable Loan Party or the applicable
Subsidiary operates.



70









 





7.08 Compliance with Laws.




     Comply 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 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.



7.09 Books and Records.




     (a) Maintain proper books of record and account, sufficient to permit the preparation of
financial statements in accordance with GAAP, with respect to all financial transactions and
matters involving the assets and business of such Loan Party or such Subsidiary, as the case may
be.



     (b) Maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over such Loan Party or
such Subsidiary, as the case may be.



7.10 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
McAfee and at such reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to McAfee; provided, however, that unless
an Event of Default has occurred and is continuing at the time such inspection commences, McAfee
shall not be required to pay expenses relating to more than one inspection in any twelve month
period; provided, further, 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 McAfee at any time during normal
business hours and without advance notice. Notwithstanding the foregoing, so long as no Default
shall have occurred and be continuing, neither McAfee nor any Subsidiary shall be required to
disclose, permit the inspection, examination, photocopying or making extracts of, or discuss, any
document, information or other matter that (i) constitutes non-financial trade secrets or
non-financial proprietary information or (ii) the disclosure of which to the Administrative Agent
or any Lender is then prohibited by Law or any agreement binding on McAfee or any Subsidiary that
was not entered into by McAfee or such Subsidiary for the purpose of concealing information from
the Administrative Agent or any Lender.



7.11 Use of Proceeds.




     Use the proceeds of the Credit Extensions to finance working capital, capital expenditures and
other lawful corporate purposes, provided that in no event shall the proceeds of the Credit
Extensions be used in contravention of any Law or of any Loan Document.



7.12 Additional Subsidiaries.




     (a) Within thirty (30) days (or such longer period as may be agreed to by the Administrative
Agent in its sole discretion) after the acquisition or formation of any Subsidiary:




     (i) notify the Administrative Agent thereof in writing, together with the (A)
jurisdiction of formation, (B) percentage of outstanding shares of each class owned
(directly or



71









 







indirectly) by McAfee or any Subsidiary and (C) whether such Subsidiary constitutes a
Material Domestic Subsidiary or a Material Foreign Subsidiary;




     (ii) if such Subsidiary is a Material Domestic Subsidiary, cause such Person to (A)
become a Domestic Guarantor by executing and delivering to the Administrative Agent a
Joinder Agreement or such other documents as the Administrative Agent shall deem appropriate
for such purpose and (B) deliver to the Administrative Agent Organization Documents,
resolutions and favorable opinions of counsel, all in form, content and scope reasonably
satisfactory to the Administrative Agent; and




     (iii) if such Subsidiary is a Material Foreign Subsidiary, cause such Person to (A)
become a Foreign Guarantor by executing and delivering to the Administrative Agent a Joinder
Agreement or such other documents as the Administrative Agent shall deem appropriate for
such purpose and (B) deliver to the Administrative Agent Organization Documents, resolutions
and favorable opinions of counsel, all in form, content and scope reasonably satisfactory to
the Administrative Agent; provided that, subject to compliance with Section
7.12(c) below, such Material Foreign Subsidiary shall not be required to be a Foreign
Guarantor if becoming a Foreign Guarantor would be illegal in the relevant jurisdiction or
could reasonably be expected to subject directors or equivalent Persons to personal
liability.



     (b) If at any time McAfee and the Domestic Guarantors, in the aggregate, (i) own less than 80%
of the assets of McAfee and its Domestic Subsidiaries or (ii) earn less than 80% of the revenues of
McAfee and its Domestic Subsidiaries, cause another Domestic Subsidiary (or Domestic Subsidiaries)
to become a Domestic Guarantor until the conditions in this clause (b) are satisfied.



     (c) If at any time the Irish Borrower and its Subsidiaries that are Foreign Guarantors, in the
aggregate, (i) own less than 80% of the assets of the Irish Borrower and its Subsidiaries or (ii)
earn less than 80% of the revenues of Irish Borrower and its Subsidiaries, cause another Subsidiary
of the Irish Borrower (or Subsidiaries) to become a Foreign Guarantor until the conditions in this
clause (c) are satisfied.



7.13 ERISA Compliance.




     Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each
Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal
Revenue Code and other federal or state law; (b) cause each Plan that is qualified under Section
401(a) of the Internal Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Internal Revenue Code, except in the case
of each of clauses (a), (b) and (c), to the extent that the failure to do so could not reasonably
be expected to have a Material Adverse Effect.



ARTICLE VIII




NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, no
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:



8.01 Liens.




     Create, incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following:



72









 






     (a) Liens pursuant to any Loan Document;




     (b) Liens existing on the date hereof and listed on Schedule 8.01 to the
Disclosure Letter 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 8.03(b), (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 8.03(b);




     (c) Liens (other than Liens imposed under ERISA) for taxes, assessments or governmental
charges or levies 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) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business,
provided that such Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the same or are being
contested in good faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established;




     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation (including
pledges and deposits securing liability for reimbursement or indemnity arrangements and
letter of credit or bank guaranty reimbursement arrangements with respect to such
obligations), other than any Lien imposed by ERISA;




     (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature (including pledges and deposits securing letter of credit or
bank guaranty reimbursement arrangements in lieu of such obligations) incurred in the
ordinary course of business;




     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting
real property which, in the aggregate, are not substantial in amount, and which do not in
any case materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;




     (h) Liens securing judgments for the payment of money (or appeal or other surety bonds
relating to such judgments) not constituting an Event of Default under Section
9.01(h);




     (i) Liens securing Indebtedness permitted under Section 8.03(e);
provided that (i) such Liens do not at any time encumber any property or
improvements other than the property or improvements financed by such Indebtedness (other
than accessions, additions, replacements and proceeds) and provided that individual
financings of equipment provided by a single financing entity may be cross-collateralized to
other financings of equipment provided solely by such financing entity, and (ii) such Liens
attach to such property concurrently with or within 90 days after the acquisition thereof or
the completion of improvements;



73









 






     (j) leases or subleases and licenses or sublicenses granted to others not interfering
in any material respect with the business of any Loan Party or any of its Subsidiaries;




     (k) any interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign jurisdictions)
relating to, leases permitted by this Agreement;




     (l) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 8.02;




     (m) normal and customary rights of setoff and banker’s liens upon deposits of cash in
favor of banks or other depository institutions and Liens securing reasonable and customary
fees for services in favor of banks, securities intermediaries or other depository
institutions;




     (n) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection;




     (o) Liens, if any, in favor of the L/C Issuer to cash collateralize or otherwise secure
the obligations of a Defaulting Lender or an Impacted Lender to fund risk participations
hereunder; and




     (p) Liens securing Indebtedness permitted by Section 8.03(g) and other Liens
securing other obligations not constituting Indebtedness, in an aggregate amount not
exceeding $50,000,000 at any time outstanding.



8.02 Investments.




     Make any Investments, except:




     (a) Investments held by McAfee or such Subsidiary in the form of cash or Cash
Equivalents and other Investments that are permitted under McAfee’s investment policy as in
effect on the Closing Date (a copy of which has been provided to the Administrative Agent
and the Lenders) and as it may be amended from time to time with the approval of the
Administrative Agent;




     (b) Investments existing as of the Closing Date and set forth on Schedule 8.02
to the Disclosure Letter;




     (c) Investments in any Person that is a Domestic Loan Party prior to giving effect to
such Investment;




     (d) Investments (exclusive of Investments set forth on Schedule 8.02 to the
Disclosure Letter and Integration Related Investments) consisting of (i) Investments by
Foreign Loan Parties in Foreign Loan Parties and in Wholly-Owned Foreign Subsidiaries that
are not Loan Parties and (ii) if the McAfee Liquidity Amount (pro forma after giving effect
to such Investment) is greater than or equal to $250,000,000, (x) Investments by Domestic
Loan Parties in Wholly-Owned Subsidiaries that are not Loan Parties not to exceed
$50,000,000 in the aggregate at any one time outstanding, and (y) Investments by Domestic
Loan Parties in Foreign Loan Parties not to exceed, in the aggregate at any one time
outstanding, 10% of the consolidated net tangible assets of McAfee and its Subsidiaries, as
determined as of the end of the last fiscal quarter for which McAfee has provided financial
statements pursuant to Section 7.01;



74









 






     (e) Investments by any Subsidiary of McAfee that is not a Loan Party into any Loan
Party or any other Subsidiary of McAfee that is not a Loan Party;




     (f) 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 any prepayments and other credits to suppliers or vendors made 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 or in connection with a bankruptcy or reorganization;




     (g) Guarantees permitted by Section 8.03 and Guarantees of obligations (other
than Indebtedness) not otherwise prohibited by this Agreement;




     (h) Permitted Acquisitions and Integration Related Investments;




     (i) Investments consisting of loans to employees, officers and directors,
provided that (i) the proceeds of such loans shall be used solely to purchase Equity
Interests of McAfee and (ii) the aggregate amount of such Investments shall not exceed
$5,000,000 at any time outstanding;




     (j) Investments arising out of the receipt by McAfee or any Subsidiary of non-cash
consideration for any Disposition permitted under this Agreement;




     (k) Investments arising under Swap Contracts permitted pursuant to Section
8.03;




     (l) Investments made using Equity Interests of McAfee;




     (m) to the extent constituting Investments, pledges and deposits permitted pursuant to
Sections 8.01(e) and 8.01(f);




     (n) Investments of a nature not contemplated in the foregoing clauses in an amount not
to exceed $25,000,000 in the aggregate at any time outstanding.




For purposes of determining compliance with this Section 8.02, if an Investment has to be
made through one or more Persons in order to be received by its intended recipient then, as
long as such interim Investments occur contemporaneously or in prompt succession, such
Investment shall be deemed as only one Investment from the original investor to the final
recipient.



8.03 Indebtedness.




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




     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness of McAfee and its Subsidiaries listed on Schedule 8.03 to the
Disclosure Letter (and renewals, refinancings and extensions thereof; provided that
(i) the amount of such Indebtedness is not increased at the time of such refinancing,
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 (ii) the terms
relating to amortization, maturity, collateral (if any) and subordination (if any), and
other material terms taken as a whole, of any



75









 







such refinancing, renewal or extension are no less favorable in any material respect to
McAfee and its Subsidiaries or the Lenders than the terms of any agreement or instrument
governing the Indebtedness being refinanced, 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 reasonably determined by McAfee);




     (c) intercompany Indebtedness permitted under Section 8.02;




     (d) obligations (contingent or otherwise) existing or arising under any Swap Contract,
provided that 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
liabilities, commitments, investments, assets, or property held or reasonably anticipated by
such Person, or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a “market view;”




     (e) purchase money Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) hereafter incurred by McAfee or any of its Subsidiaries (or which was
incurred by a Person prior to a Permitted Acquisition in which such Person became a
Subsidiary) to finance the purchase or improvement of fixed assets or property, and
renewals, refinancings and extensions thereof (including any Indebtedness incurred to
finance the same within 90 days of such purchase or improvement), provided that (i)
the total of all such Indebtedness for all such Persons taken together shall not exceed an
aggregate principal amount of $25,000,000 at any one time outstanding; and (ii) such
Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed or
the cost of such improvements, as applicable;




     (f) Indebtedness with respect to surety, appeal, indemnity, performance or other
similar bonds in the ordinary course of business or with respect to agreements providing for
indemnification, adjustment of purchase price, earnest money or similar obligations in
connection with any Acquisition or Disposition or other uses provided for in Section
8.01(f);




     (g) other Indebtedness provided that (i) after giving effect to the incurrence
thereof on a Pro Forma Basis, the Loan Parties are in compliance with the financial
covenants set forth in Section 8.11 as of the most recent fiscal quarter for which
financial statements are delivered pursuant to Section 7.01 and (ii) if such
Indebtedness is secured, Liens securing such Indebtedness are permitted by Section
8.01(p); and




     (h) Guarantees with respect to Indebtedness permitted by this Section 8.03.



8.04 Fundamental Changes.




     Merge, dissolve, liquidate or consolidate with or into another Person, except that so long as
no Default exists or would result therefrom, (a) McAfee may merge or consolidate with any of its
Subsidiaries; provided that McAfee is the continuing or surviving Person, (b) the Irish
Borrower may merge or consolidate with any of its Subsidiaries or any Person of which it is a
Subsidiary; provided that the Irish Borrower shall be the continuing or surviving Person,
(c) any Domestic Guarantor may merge or consolidate with any other Domestic Subsidiary;
provided that a Domestic Guarantor is the continuing or surviving Person; (d) any Domestic
Subsidiary that is not a Loan Party may merge or consolidated with any other Domestic Subsidiary
that is not a Loan Party; (e) any Foreign Loan Party (other than the Irish Borrower) may be merged,
amalgamated or consolidated with or into any Loan Party (other than a Borrower) or any Subsidiary;
provided that the continuing or surviving Person is a Loan Party, and, if a Domestic Loan
Party is a party to such transaction, a Domestic Loan Party shall be the continuing or surviving
Person (or such continuing or



76









 







surviving Person becomes a Loan Party contemporaneously with such transaction), (f) any
Foreign Subsidiary that is not a Loan Party may merge or consolidated with any other Foreign
Subsidiary that is not a Loan Party; (g) McAfee or any Subsidiary may merge with any other Person
in connection with a Permitted Acquisition; provided that (i) if a Borrower is a party such
Borrower survives and (ii) if any other Loan Party is a party such Loan Party survives (or the
surviving party becomes a Loan Party contemporaneously with such transaction) and (h) any
Subsidiary that is not a Loan Party may dissolve, liquidate or wind up its affairs at any time
provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be
expected to have a Material Adverse Effect.



8.05 Dispositions.




     Make any Disposition except:



     (a) Permitted Transfers; and



     (b) Dispositions during any calendar year that, in the aggregate, (i) do not have a book value
exceeding twenty percent (20%) of the consolidated total assets of McAfee and its Subsidiaries, as
calculated in accordance with GAAP, as of the most recent consolidated financial statements of
McAfee and its Subsidiaries delivered pursuant to Section 7.01 and (ii) do not constitute
assets that produce twenty percent (20%) or more of the consolidated revenues of McAfee and its
Subsidiaries, as calculated in accordance with GAAP, as of the most recent consolidated financial
statements of McAfee and its Subsidiaries delivered pursuant to Section 7.01 for the four
fiscal quarter period ending on such date.



8.06 Restricted Payments.




     Declare or make any Restricted Payment, or incur any obligation (contingent or otherwise) to
do so, except that:




     (a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests
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) a Borrower or any Subsidiary may declare and make dividend payments or other
distributions payable solely in common Equity Interests of such Person;




     (c) McAfee may purchase, redeem or otherwise acquire Equity Interests issued by it with
the proceeds received from the substantially concurrent issuance of its Equity Interests;




     (d) McAfee may distribute rights pursuant to a shareholder rights plan or redeem such
rights; provided that (i) such redemption is in accordance with the terms of such
shareholder rights plan, (ii) upon giving effect to such redemption on a Pro Forma Basis,
the Loan Parties are in compliance with the financial covenants set forth in Section 8.11 as
of the most recent fiscal quarter end for which the Loan Parties were required to deliver
financial statements pursuant to Section 7.01(a) or (b) and (iii) the aggregate amount of
Restricted Payments made under this clause (d) during the term of this Agreement shall not
exceed $1,000,000;




     (e) McAfee may make Restricted Payments in connection with or pursuant to any of its
employee benefits plans or in connection with the employment, termination or compensation of
its employees, officers or directors; provided that (i) upon giving effect to such
redemption on a Pro Forma Basis, the Loan Parties are in compliance with the financial
covenants set forth in Section 8.11 as of the most recent fiscal quarter end for which the
Loan Parties were required to



77









 







deliver financial statements pursuant to Section 7.01(a) or (b) and (ii) the aggregate
amount of Restricted Payments made under this clause (e) during the term of this Agreement
shall not exceed $3,000,000;




     (f) McAfee may repurchase fractional shares of its Equity Interests arising out of
stock dividends, splits or combinations, business combinations or conversions of Convertible
Securities; provided that the aggregate amount of Restricted Payments made under this clause
(f) during the term of this Agreement shall not exceed $1,000,000;




     (g) McAfee may make Restricted Payments in connection with the retention of Equity
Interests in payment of withholding taxes in connection with equity-based compensation
plans; provided that the aggregate amount of Restricted Payments made under this clause (g)
during the term of this Agreement shall not exceed $20,000,000; and




     (h) a Borrower may make other Restricted Payments during the term of this Agreement so
long as (i) after giving effect to such Restricted Payment on a Pro Forma Basis either (A)
the Consolidated Leverage Ratio is less than or equal to 1.5 to 1.0 as of the most recent
fiscal quarter for which financial statements are delivered pursuant to Section 7.01
or (B) the Consolidated Leverage Ratio is less than or equal to 2.0 to 1.0 as of the most
recent fiscal quarter for which financial statements are delivered pursuant to Section
7.01 and the aggregate amount of all Restricted Payments made pursuant to this
subsection (h) during the term of this Agreement does not exceed $75,000,000 and (ii) no
Default or Event of Default exists, in each case immediately prior to and after giving
effect thereto.



8.07 Change in Nature of Business.




     Engage in any material line of business substantially different from those lines of business
conducted by McAfee and its Subsidiaries on the Closing Date or any business substantially related
or incidental thereto.



8.08 Transactions with Affiliates and Insiders.




     Enter into or permit to exist any transaction or series of transactions with any officer,
director or Affiliate of such Person other than (a) advances of working capital or transfers of
cash and assets from a Domestic Loan Party to any Domestic Loan Party, (b) advances of working
capital or transfers of cash and assets from a Foreign Loan Party to any Loan Party, (c)
intercompany transactions expressly permitted by Section 8.02, Section 8.03,
Section 8.04, Section 8.05 or Section 8.06, (d) indemnification
arrangements and normal and reasonable compensation (including equity-based compensation) and
reimbursement of expenses of current or former officers and directors, (e) extraordinary retention,
bonus or similar arrangements approved by the board of directors (or a committee thereof) of McAfee
and (f) except as otherwise specifically limited in this Agreement, other transactions which are
entered into in the ordinary course of such Person’s business on terms and conditions substantially
as favorable to such Person as would be obtainable by it in a comparable arms-length transaction
with a Person other than an officer, director or Affiliate.



8.09 Burdensome Agreements.




     Enter into, or permit to exist, any Contractual Obligation that (a) encumbers or restricts on
the ability of any such Person to (i) make Restricted Payments, (ii) pay any Indebtedness or other
obligation owed to any Loan Party, (iii) make loans or advances to any Loan Party, (iv) transfer
any of its property to any Loan Party, (v) pledge its property pursuant to the Loan Documents or
any renewals, refinancings, exchanges, refundings or extension thereof or (vi) act as a Loan Party
pursuant to the Loan Documents or



78









 







any renewals, refinancings, exchanges, refundings or extension thereof, except (in respect of
any of the matters referred to in clauses (i)-(v) above) for (1) this Agreement and the other Loan
Documents, (2) any document or instrument governing Indebtedness incurred pursuant to Section
8.03(e), provided that any such restriction contained therein relates only to the asset
or assets constructed or acquired in connection therewith, (3) any Permitted Lien or any document
or instrument governing any Permitted Lien, provided that any such restriction contained
therein relates only to the asset or assets subject to such Permitted Lien, (4) customary
restrictions and conditions contained in any agreement relating to the sale of any property
permitted under Section 8.05 pending the consummation of such sale, (5) restrictions
imposed by applicable Law, (6) contractual encumbrances existing on the Closing Date and described
in Schedule 8.09 to the Disclosure Letter, (7) customary non-assignment and transfer
restrictions in joint venture agreements and other agreements entered into in the ordinary course
of business, (8) customary provisions contained in leases or licenses of intellectual property and
other similar agreements entered into in the ordinary course of business, (9) customary provisions
restricting subletting or assignment of any lease governing a leasehold interest, (10) customary
provisions restricting assignment of any agreement entered into in the ordinary course of business
or (11) customary net worth or similar provisions contained in real property leases so long as
McAfee has determined in good faith that such net worth or similar provision could not be
reasonably expected to impair the ability of McAfee and its Subsidiaries to meet their ongoing
obligations or (b) requires the grant of any security for any obligation if such property is given
as security for the Obligations, except for any Contractual Obligation of any Subsidiary in effect
at the time such Subsidiary becomes a Subsidiary of McAfee, so long as such Contractual Obligation
was not entered into solely in contemplation of such Person becoming a Subsidiary of McAfee.



8.10 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.



8.11 Financial Covenants.




     (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end
of any fiscal quarter of McAfee to be greater than 2.0 to 1.0.



     (b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of McAfee to be less than 3.0 to 1.0.



8.12 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of
Entity.




     (a) Amend, modify or change its Organization Documents in a manner materially adverse to the
rights of the Lenders.



     (b) Change its fiscal year except that a Subsidiary may change its fiscal year end to match
the fiscal year end of McAfee.



     (c) Without providing ten (10) days prior written notice to the Administrative Agent, change
the name, state of formation or form of organization of any Loan Party.



79









 





ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES




9.01 Events of Default.




     Any of the following shall constitute an Event of Default:




     (a) Non-Payment. Any Loan Party fails to pay (i) when and as required to be
paid herein, and in the currency required hereunder, any amount of principal of any Loan or
any L/C Obligation, or (ii) within three days after the same becomes due, any interest on
any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within fifteen days
after receipt of an invoice therefor, any other amount payable hereunder or under any other
Loan Document; or




     (b) Specific Covenants. Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.01, 7.02(a),
7.03(a), 7.05(a) (with respect to the good standing status of Loan Parties),
7.10, 7.11, or 7.12 or Article VIII or




     (c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for thirty days
after the earlier of (i) notice thereof from the Administrative Agent or (ii) the date that
a Responsible Officer knows (or should have known) of such failure; or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by McAfee or any other Loan Party
herein (or any of their Responsible Officers), in any other Loan 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 (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness (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
contained in any instrument or agreement evidencing, securing or relating thereto, or any
other event occurs (other than the conversion of the Convertible Debt Securities in
accordance with their terms), 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 any
Guarantee of Indebtedness (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 McAfee or any Subsidiary 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 any Loan Party or any Subsidiary is an
Affected Party (as



80









 







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 of its Material
Subsidiaries institutes or consents to the institution of any proceeding under any Debtor
Relief Law (including any winding-up, dissolution, administration, examinership or
reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise)), or
makes an assignment, composition or compromise for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator, administrator, examiner administrative receiver, compulsory manager or
similar officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator, administrator, examiner
administrative receiver, compulsory manager or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged or unstayed
for sixty calendar days (or seven calendar days, in the case of any Foreign Loan Party); 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
undismissed or unstayed for sixty calendar days, or an order for relief is entered in any
such proceeding; or




     (g) Inability to Pay Debts; Attachment; Moratorium. (i) Any Loan Party or any
of its Material Subsidiaries becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, (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 thirty days
after its issue or levy or (iii) a moratorium is declared in respect of any indebtedness of
any Loan Party or any of its Material Subsidiaries; or




     (h) Judgments. There is entered against any Loan Party or any Subsidiary of
any Loan Party (i) one or more final judgments or orders for the payment of money in an
aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the
extent not covered by independent third-party insurance as to which the insurer has been
notified of the claim and does not dispute coverage), 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 and are not dismissed or the judgment
is not stayed or satisfied within ten days, or (B) there is a period of ten 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 any Loan Party 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) McAfee 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 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 or any other Person contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document; or



81









 






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



9.02 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 and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;




     (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 Borrowers;




     (c) require that McAfee or the Irish Borrower Cash Collateralize its L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and




     (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and
remedies available to it, the Lenders and the L/C Issuer under the Loan Documents;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under any Debtor Relief Law, the obligation of each
Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of McAfee
or the Irish Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically
become effective, in each case without further act of the Administrative Agent or any Lender.




9.03 Application of Funds.




     After the exercise of remedies provided for in Section 9.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 9.02),



     (a) any amounts received from the Domestic Loan Parties 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 (other than Foreign
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 (other than Foreign
Obligations) constituting fees, indemnities and other amounts (other than principal,
interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including
fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer
and amounts payable under Article III), ratably among them in proportion to the
respective amounts described in this clause Second payable to them;



82









 






     Third, to payment of that portion of the Obligations (other than Foreign
Obligations) constituting accrued and unpaid Letter of Credit Fees and interest on the Loans
and L/C Borrowings and fees, premiums and scheduled periodic payments, and any interest
accrued thereon, due under any Swap Contract between any Loan Party and any Lender, or any
Affiliate of a Lender, to the extent such Swap Contract is permitted by Section
8.03(d), ratably among the Lenders (and, in the case of such Swap Contracts, Affiliates
of Lenders) and the L/C Issuer in proportion to the respective amounts described in this
clause Third held by them;




     Fourth, to (a) payment of that portion of the Obligations (other than Foreign
Obligations) constituting unpaid principal of the Loans and L/C Borrowings, (b) payment of
breakage, termination or other payments, and any interest accrued thereon, due under any
Swap Contract between any Loan Party and any Lender, or any Affiliate of a Lender, to the
extent such Swap Contract is permitted by Section 8.03(d), (c) payments of amounts
due under any Treasury Management Agreement between any Loan Party and any Lender, or any
Affiliate of a Lender and (d) Cash Collateralize that portion of L/C Obligations comprised
of the aggregate undrawn amount of Letters of Credit, ratably among the Lenders (and, in the
case of such Swap Contracts, Affiliates of Lenders) and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;




     Fifth, to the payment of the Foreign Obligations in the manner provided in
Section 9.03(b); and




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



     provided that subject to Section 2.03(c), amounts used to Cash Collateralize
the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth
above; above; and



     (b) any amounts received from the Foreign Loan Parties on account of the Foreign Obligations
(and any amounts received from any Domestic Loan Party and available to be applied to the Foreign
Obligations pursuant to clause Fifth of Section 9.03(a)) shall be applied by the
Administrative Agent in the following order:




     First, to payment of that portion of the Foreign 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 Foreign 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 and
amounts payable under Article III), ratably among them in proportion to the
respective amounts described in this clause Second payable to them;




     Third, to payment of that portion of the Foreign Obligations constituting
accrued and unpaid interest on the Foreign Loans and fees, premiums and scheduled periodic
payments, and any interest accrued thereon, due under any Swap Contract between any Foreign
Loan Party and



83









 







any Lender, or any Affiliate of a Lender, to the extent such Swap Contract is permitted
by Section 8.03(d), ratably among the Lenders (and, in the case of such Swap
Contracts, Affiliates of Lenders) in proportion to the respective amounts described in this
clause Third held by them;




     Fourth, to (a) payment of that portion of the Foreign Obligations constituting
unpaid principal of the Foreign Loans, (b) payment of breakage, termination or other
payments, and any interest accrued thereon, due under any Swap Contract between any Foreign
Loan Party and any Lender, or any Affiliate of a Lender, to the extent such Swap Contract is
permitted by Section 8.03(d), and (c) payments of amounts due under any Treasury
Management Agreement between any Foreign Loan Party and any Lender, or any Affiliate of a
Lender, ratably among the Lenders (and, in the case of such Swap Contracts, Affiliates of
Lenders) in proportion to the respective amounts described in this clause Fourth
held by them; and




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



ARTICLE X




ADMINISTRATIVE AGENT




10.01 Appointment and Authority.




     Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America 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, the Lenders and the L/C Issuer, and no Loan Party shall have
rights as a third party beneficiary of any of such provisions.



10.02 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 any Loan Party 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.



10.03 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;



84









 






     (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 any Loan Party 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; provided that if the Administrative Agent has actual knowledge of a Default it
shall inform the Lenders.



     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 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 11.01 and 9.02) or (ii)
in the absence of its own gross negligence or willful misconduct. Unless the Administrative Agent
has actual knowledge of a Default, 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 McAfee, a Lender or the L/C Issuer.



     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 (v) the
satisfaction of any condition set forth in Article V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



10.04 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, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such
Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Loan Parties), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.



85









 





10.05 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.



10.06 Resignation of Administrative Agent.




     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuer and McAfee. Upon receipt of any such notice of resignation, the Required Lenders shall
have the right, in consultation with McAfee, to appoint a successor, which shall be a bank with an
office in the United States, 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 and the L/C
Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify McAfee 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 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 and the L/C Issuer 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 McAfee to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between McAfee and such successor. After the retiring
Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 11.04 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.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring L/C Issuer, (ii) the retiring L/C Issuer
shall be discharged from all of their respective duties and obligations hereunder or under the
other Loan Documents, and (iii) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit.



86









 





10.07 Non-Reliance on Administrative Agent and Other Lenders.




     Each Lender and the L/C Issuer 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 and the L/C Issuer 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.



10.08 No Other Duties; Etc.




     Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers,
syndication agents, documentation agents or co-agents 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 or the L/C Issuer hereunder.



10.09 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 or L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on any 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, L/C Obligations and all other Obligations arising under
the Loan Documents 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, the L/C Issuer and the
Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer
and the Administrative Agent under Sections 2.03(i) and (j), 2.08
and 11.04) 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 and the L/C Issuer 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 and the L/C Issuer, 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 2.08 and 11.04.



     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 or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer in any such proceeding.



87









 





10.10 Guaranty Matters.




     The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its option
and in its discretion, to release any Guarantor from its obligations under the Guaranty if such
Person (a) ceases to be a Subsidiary as a result of a transaction permitted hereunder or (b) ceases
to be a Material Domestic Subsidiary or a Material Foreign Subsidiary and the release will not
violate Section 7.12(b) or Section 7.12(c), as applicable. Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative
Agent’s authority to release any Guarantor from its obligations under the Guaranty, pursuant to
this Section 10.10.



ARTICLE XI




MISCELLANEOUS




11.01 Amendments, Etc.




     No amendment or waiver of any provision of this Agreement or any other Loan Document, and no
consent to any departure by McAfee or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and McAfee 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,
further, that




(a) no such amendment, waiver or consent shall:




     (i) extend or increase the Commitment of a Lender (or reinstate any Commitment
terminated pursuant to Section 9.02) without the written consent of such
Lender whose Commitment is being extended or increased (it being understood and
agreed that a waiver of any condition precedent set forth in Section 5.02,
Section 5.03 or of any Default or a mandatory reduction in Commitments is
not considered an extension or increase in Commitments of any Lender);




     (ii) postpone any date fixed by this Agreement or any other Loan Document for
any payment (excluding mandatory prepayments) of principal, interest, fees or other
amounts due to the Lenders (or any of them) or any scheduled reduction of the
Commitments hereunder or under any other Loan Document without the written consent
of each Lender entitled to receive such payment or whose Commitments are to be
reduced;




     (iii) reduce the principal of, or the rate of interest specified herein on, any
Loan or L/C Borrowing, or (subject to clause (i) of the final proviso to this
Section 11.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender entitled to receive
such amount; provided, however, that only the consent of the
Required Lenders shall be necessary to (A) amend the definition of “Default Rate” or
waive any obligation of any Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (B) to amend any financial covenant hereunder (or any defined term
used therein) even if the effect of such amendment would be to reduce the rate of
interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;



88









 






     (iv) change Section 2.12 or Section 9.03 in a manner that would
alter the pro rata sharing of payments required thereby without the written consent
of each Lender directly affected thereby;




     (v) change any provision of this Section 11.01(a) or the definition of
“Required Lenders” without the written consent of each Lender directly affected
thereby;




     (vi) amend Section 1.06 or the definition of “Alternative Currency”
without the written consent of each Lender that is obligated to make Credit
Extensions to the Borrowers in Alternative Currencies;




     (vii) release any Borrower or, except in connection with a transaction
permitted under Section 8.04 or Section 8.05, all or substantially
all of the Guarantors without the written consent of each Lender whose Obligations
are guarantied thereby, except to the extent such release is permitted pursuant to
Section 10.10 (in which case such release may be made by the Administrative
Agent acting alone);




     (viii) release McAfee as a Foreign Guarantor without the written consent of
each Lender whose Obligations are guarantied thereby; or




     (ix) change Section 7.12(b) or Section 7.12(c) without the written consent of
all Lenders;




     (b) prior to the termination of the Revolving Commitments, unless also signed by
Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the
Revolving Commitments, no such amendment, waiver or consent shall, (i) waive any Default for
purposes of Section 5.02(b), (ii) amend, change, waive, discharge or terminate
Sections 5.02 or 9.01 in a manner adverse to such Lenders or (iii) amend,
change, waive, discharge or terminate Section 8.11 (or any defined term used
therein) or this Section 11.01(b);




     (c) unless also signed by the L/C Issuer, no amendment, waiver or consent shall affect
the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating
to any Letter of Credit issued or to be issued by it; and




     (d) unless also signed by the Administrative Agent, no amendment, waiver or consent
shall affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document;


provided, however, that notwithstanding anything to the contrary herein, (i) the
Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto, (ii) the Disclosure Letter may be supplemented as provided in Section
7.02(a), (ii) 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, (iii) each Lender is entitled to vote as such Lender
sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges
that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the
unanimous consent provisions set forth herein and (iv) the Required Lenders shall determine whether
or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders.




89









 








11.02 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 a Loan Party, the Administrative Agent, or the L/C Issuer, to the address,
telecopier number, electronic mail address or telephone number specified for such Person on
Schedule 11.02; and




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



     Notices and other communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received; notices and other
communications 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 and other communications
delivered through electronic communications to the extent provided in subsection (b) below, shall
be effective as provided in such subsection (b).



     (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer 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, provided that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or McAfee 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



90









 







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 any Borrower, any Lender,
the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of any 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 any Borrower, any Lender, the L/C Issuer or any other Person
for indirect, special, incidental, consequential or punitive damages (as opposed to direct or
actual damages).



     (d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent and the
L/C Issuer 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
McAfee, the Administrative Agent and the L/C Issuer. 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, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices) purportedly given by or on behalf of any Loan Party 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 Loan Parties shall indemnify the
Administrative Agent, the L/C Issuer, 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 a Loan Party. 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.



11.03 No Waiver; Cumulative Remedies; Enforcement.




     No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay
by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder or under any other Loan Document 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.



     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan



91









 







Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 9.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer from exercising the rights and remedies that inure to its benefit
(solely in its capacity as L/C Issuer) hereunder and under the other Loan Documents, (c) any Lender
from exercising setoff rights in accordance with Section 11.08 (subject to the terms of
Section 2.12), or (d) any Lender from filing proofs of claim or appearing and filing
pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under
any Debtor Relief Law; and provided, further, that if at any time there is no
Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the
Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to
Section 9.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of
the preceding proviso and subject to Section 2.12, any Lender may, with the consent of the
Required Lenders, enforce any rights and remedies available to it and as authorized by the Required
Lenders.



11.04 Expenses; Indemnity; and Damage Waiver.




     (a) Costs and Expenses. The Loan Parties 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
and delivery 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 reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements
of any counsel (including foreign counsel) for the Administrative Agent, any Lender or the L/C
Issuer), and shall pay all fees and time charges for attorneys who may be employees of the
Administrative Agent, any Lender or the L/C Issuer, 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 the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.



     (b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, 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 any 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 (including in respect of any matters addressed in Section 3.01), (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents



92









 







presented in connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by a Loan Party or any of its Subsidiaries, or any Environmental
Liability related in any way to a Loan Party 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 any
Loan Party, 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 any Loan Party against an Indemnitee for a
willful breach of such Indemnitee’s obligations hereunder or under any other Loan Document, if 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 Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
them to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer 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) or the L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of 

Section 2.11(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Loan Party shall assert, and each Loan Party 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 Letter of Credit 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 L/C Issuer, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other Obligations.



11.05 Payments Set Aside.




     To the extent that any payment by or on behalf of any Loan Party is made to the Administrative
Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender
exercises



93









 







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, the L/C Issuer 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 and the L/C Issuer severally 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 applicable Overnight Rate from time to time
in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of
the Obligations and the termination of this Agreement.



11.06 Successors and Assigns.




     (a) Successors and Assigns Generally. The provisions of this Agreement and the other
Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and
their respective successors and assigns permitted hereby, except that no Borrower may assign or
otherwise transfer any of its rights or obligations hereunder or thereunder 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 subsection (b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section (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, the L/C Issuer 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 and the other Loan
Documents (including all or a portion of its Commitment and the Loans (including for purposes of
this subsection (b), participations in L/C Obligations) 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 and the related Loans at the time owing to it 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 $5,000,000 in the case of an assignment of a Revolving
Commitment (and



94









 







the related Revolving Loans thereunder) and $1,000,000 in the case of an assignment of Term
Loans unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, McAfee 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 assignee (or to an 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 Loans and Commitments, and
rights and obligations with respect thereto, assigned, except that this clause (ii) shall
not (A) prohibit any Lender from assigning all or a portion of its rights and obligations in
respect of its Revolving Commitment (and the related Revolving Loans thereunder) and its
outstanding Term Loans on a non-pro rata basis;




     (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 McAfee (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;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(i) any Term Loan Commitment or Revolving Commitment if such assignment is to a
Person that is not (1) a Lender with a Commitment in respect of the Commitment
subject to such assignment, (2) an Affiliate of such Lender or (3) an Approved Fund
with respect to such Lender or (ii) any Term Loan to a Person that is not a Lender,
an Affiliate of a Lender or an Approved Fund; and




     (C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding).




     (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 shall not be a
Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to McAfee. No such assignment shall be made to either of the
Borrowers or to any of the Borrowers’ respective Affiliates or Subsidiaries.




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




     (vii) No Assignment Resulting in Additional Indemnified Taxes. No such
assignment shall be made to any Person that, through its Lending Offices, is not capable of
lending the




95












 






applicable Alternative Currencies or Dollars to the relevant Borrowers without the
imposition of any additional Indemnified Taxes.


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 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment).
Upon request, each Borrower (at its expense), as applicable, 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
subsection (d) of this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers, 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 and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrowers, 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 Borrowers 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,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or either Borrower or any of the Borrowers’ respective 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 (including such Lender’s
participations in L/C Obligations) 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
Borrowers, the Administrative Agent, the other Lenders and the L/C Issuer 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 clauses (i) through
(viii) of the Section 11.01(a) that affects such Participant. Subject to subsection (e) of
this Section, each 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 subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 11.08
as though it were a Lender, provided such Participant agrees to be subject to Section
2.12 as though it were a Lender.



     (e) Limitation on Participant Rights. 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



96









 







is made with McAfee’s prior written consent, including its specific consent to the application of
Sections 3.01 and 3.04. 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 McAfee is notified of
the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, 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) Resignation as L/C Issuer after Assignment. Notwithstanding anything to the
contrary contained herein, if at any time Bank of America assigns all of its Revolving Commitment
and Revolving Loans pursuant to subsection (b) above, Bank of America may, upon thirty days’ notice
to McAfee and the Lenders, resign as L/C Issuer. In the event of any such resignation as L/C
Issuer, McAfee shall be entitled to appoint from among the Lenders a successor L/C Issuer
hereunder; provided, however, that no failure by McAfee to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer. If Bank of America
resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C
Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts
pursuant to Section 2.03(c)). Upon the appointment of a successor L/C Issuer, (1) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring L/C Issuer, and (2) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.



11.07 Treatment of Certain Information; Confidentiality.



     Each of the Administrative Agent, the Lenders and the L/C Issuer 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, trustees, advisors and representatives (it being understood that the Persons to
whom such disclosure is made are under an obligation of confidentiality (contractual, ethical,
employment-based or otherwise) and 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 a Loan Party and its obligations, (g) with the consent of McAfee or (h) to the extent
such Information (x) becomes publicly available other than as a result of a breach of this Section
or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than McAfee, in each case
under clauses (x) and (y) under circumstances where the recipient does not know that the
information was wrongfully provided.



97









 





     For purposes of this Section, “Information” means all information received from a Loan
Party or any Subsidiary relating to the Loan Parties or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by such Loan Party or any
Subsidiary. 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, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning McAfee 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 Federal and state securities Laws.



11.08 Set-off.



     If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and
each of their respective Affiliates is hereby authorized at any time and from 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, the L/C Issuer or any such Affiliate to or for the
credit or the account of any Borrower or any other Loan Party against any and all of the
obligations of such Borrower or such Loan Party now or hereafter existing under this Agreement or
any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such
Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document
and although such obligations of such Borrower or such Loan Party may be contingent or unmatured or
are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office
holding such deposit or obligated on such indebtedness. The rights of each Lender, the L/C Issuer
and their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates
may have. Each Lender and the L/C Issuer agrees to notify McAfee 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.



11.09 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
McAfee. 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.



11.10 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



98









 







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 5.01, 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 or other electronic imaging means shall be effective as delivery of a manually executed
counterpart of this Agreement.



11.11 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
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 or any Letter of Credit shall remain
outstanding.



11.12 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.



11.13 Replacement of Lenders.



     If (i) any Lender requests compensation under Section 3.04, (ii) any 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, (iii) a Lender (a “Non-Consenting Lender”)
does not consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document that has been approved by the Required Lenders as provided in Section 11.01 but
requires unanimous consent of all Lenders or all Lenders directly affected thereby (as applicable)
and, or (iv) any Lender is a Defaulting Lender, then McAfee 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 11.06), 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) McAfee shall have paid to the Administrative Agent the assignment fee specified in
Section 11.06(b);




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



99









 







under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the applicable Borrower(s) (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;




     (d) such assignment does not conflict with applicable Laws; and




     (e) in the case of any such assignment resulting from a Non-Consenting Lender’s failure
to consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document, the applicable replacement bank, financial institution or Fund consents to the
proposed change, waiver, discharge or termination; provided that the failure by such
Non-Consenting Lender to execute and deliver an Assignment and Assumption shall not impair
the validity of the removal of such Non-Consenting Lender and the mandatory assignment of
such Non-Consenting Lender’s Commitments and outstanding Loans and participations in L/C
Obligations pursuant to this Section 11.13 shall nevertheless be effective without
the execution by such Non-Consenting Lender of an Assignment and Assumption.



     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 McAfee to require
such assignment and delegation cease to apply.



11.14 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD
REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.



     (b) SUBMISSION TO JURISDICTION. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK CITY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO 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 NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY
OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



100









 





     (c) WAIVER OF VENUE. EACH LOAN PARTY 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 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
Each Foreign Loan Party hereby irrevocably appoints McAfee, with an address on the date hereof as
specified on Schedule 11.02 (or such other Persons as may from time to time be identified
to the Administrative Agent in writing and is deemed satisfactory to the Administrative Agent) as
its true and lawful attorney-in-fact (the “Service of Process Agent”) in its name, place
and stead to accept service of any and all writs, summons and other legal process and any such
enforcement proceeding brought in the State of New York and agrees that service by the mailing, of
copies thereof by registered or certified mail, postage prepaid, to it at the address for notices
pursuant to Section 11.02, such service to become effective 30 days after such mailing, of any
enforcement proceeding may be made upon such Service of Process Agent and that it will take such
action as necessary to continue such appointment in full force and effect or to appoint another
such Service of Process Agent satisfactory to the Administrative Agent for service of process.
McAfee hereby irrevocably accepts such appointment and agrees to serve in the capacity of Service
of Process Agent.



11.15 Waiver of Right to Trial by Jury.



     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 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.



11.16 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),
each of the Loan Parties 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 Joint Lead Arrangers are arm’s-length commercial transactions between
the Loan Parties and their respective Affiliates, on the one hand, and the Administrative Agent and
the Joint Lead Arrangers, on the



101









 







other hand, (B) each of the Loan Parties has consulted its own legal, accounting, regulatory
and tax advisors to the extent it has deemed appropriate, and (C) each of the Loan Parties 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 each Joint Lead 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 Loan Parties or any of their respective Affiliates, or
any other Person and (B) neither the Administrative Agent nor any Joint Lead Arranger has any
obligation to the Loan Parties or any of their respective 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 Joint Lead Arrangers and their
respective Affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Loan Parties and their respective Affiliates, and neither the
Administrative Agent nor any Joint Lead Arranger has any obligation to disclose any of such
interests to the Loan Parties and their respective Affiliates. To the fullest extent permitted by
law, each of the Loan Parties hereby waives and releases any claims that it may have against the
Administrative Agent and each Joint Lead Arranger with respect to any breach or alleged breach of
agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.



11.17 Electronic Execution of Assignments and Certain Other Documents.



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



11.18 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 Borrowers 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 the
Borrowers, which information includes the name and address of each Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower
in accordance with the Act. Each Borrower shall, promptly following a request by the
Administrative Agent or any Lender, provide all documentation and other information that the
Administrative Agent or such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and regulations, including the Act.



11.19 Judgment Currency.



     If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due
hereunder or any other Loan Document in one currency into another currency, the rate of exchange
used shall be that at which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency on the Business Day preceding that on
which final judgment is given. The obligation of each Borrower in respect of any such sum due from
it to the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum
is denominated



102









 







in accordance with the applicable provisions of this Agreement (the “Agreement
Currency”), be discharged only to the extent that on the Business Day following receipt by the
Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative
Agent may in accordance with normal banking procedures purchase the Agreement Currency with the
Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum
originally due to the Administrative Agent from any Borrower in the Agreement Currency, such
Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such obligation was owing against such loss. If the
amount of the Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any
excess to such Borrower (or to any other Person who may be entitled thereto under applicable law).



[SIGNATURE PAGES FOLLOW]




103









 





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



BORROWERS:



MCAFEE, INC.,

a Delaware corporation, as a Borrower and,

with respect to the Foreign Obligations, as a

Guarantor




	 	 	 	 	 
	 

	 	 	 	 
	By:

	 	/s/ Albert A. Pimentel	 	 
	 

	 	 	 	 
	Name: Albert A. Pimentel	 	 
	Title: Chief Financial Officer and Chief Operating Officer	 	 






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Given
under the Common Seal of


	 	By:
	 	/s/ Keith Krzeminski	 	 
	 

	 	 	 	 	 	 
	MCAFEE
IRELAND HOLDINGS
 LIMITED, a limited liability company

incorporated under the laws of Ireland
 was affixed hereto
in the presence of:

	 	Name:
	 	Keith Krzeminski	 	 
	 	Title:
	 	Director	 	 
	 	
By:
	 	
/s/ Doug Rice	 	 
	 

	 	 	 	
 	 	 
	 

	 	Name:
	 	Doug Rice	 	 
	 

	 	Title:
	 	Director	 	 






	 	 	 	 	 
	 

	 	 	 	 
	Witness Signature:

	 	/s/ Jared Ross	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Witness Name:

	 	Jared Ross	 	 
	 
	 	 	 	 
	Witness Occupation:

	 	Senior Corp. Counsel	 	 
	 
	 	 	 	 
	Witness Address:

	 	c/o McAfee, Inc.

5000 Headquarters Drive

Plano, Texas 75024	 	 






	 	 	 	 	 
	 

	 	 	 	 
	FOREIGN GUARANTORS:	 	 
	 
	 	 	 	 
	MCAFEE CAYMAN ISLANDS COMPANY	 	 
	a company formed under the laws of the Cayman Islands	 	 
	 
	 	 	 	 
	By:

	 	/s/ Keith Krzeminski	 	 
	 

	 	 	 	 
	Name: Keith Krzeminski	 	 
	Title: Director	 	 
	 
	 	 	 	 
	MCAFEE INTERNATIONAL BV	 	 
	a company formed under the laws of the Netherlands	 	 
	 
	 	 	 	 
	By:

	 	/s/ Anthony Emmet Ruiseal	 	 
	 

	 	 	 	 
	Name: Anthony Emmet Ruiseal	 	 
	Title: Managing Director	 	 






 









 






	 	 	 	 	 
	 
	 	 	 	 
	SAFEBOOT HOLDING BV	 	 
	a company formed under the laws of the Netherlands	 	 
	 
	By:

	 	/s/ Anthony Emmet Ruiseal	 	 
	 

	 	 	 	 
	Name: Anthony Emmet Ruiseal	 	 
	Title: Managing Director	 	 






 









 






	 	 	 	 	 	 	 

	ADMINISTRATIVE AGENT:	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kathleen M. Carry	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Kathleen M. Carry	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 






	 	 	 	 	 	 	 
	LENDERS:	 	BANK OF AMERICA,
N.A.,

as a Lender and L/C Issuer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Christina Felsing	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Christina Felsing	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	THE ROYAL BANK OF SCOTLAND PLC,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tyler McCarthy	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Tyler McCarthy	 	 
	 

	 	Title:
	 	Director	 	 






 









 






	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Richard J. Ameny, Jr.	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Richard J. Ameny, Jr.	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A.,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Meggie Chichioco	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Meggie Chichioco	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	UNION BANK OF CALIFORNIA, N.A.,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Allan B. Miner	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Allan B. Miner	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	CALIFORNIA BANK & TRUST,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Benjamin Katai	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Benjamin Katai	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	MANUFACTURERS BANK,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Sandy Lee	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Sandy Lee	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	MORGAN STANLEY BANK, N.A.,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Melissa James	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Melissa James	 	 
	 

	 	Title:
	 	Authorized Signatory	 	 






 









 





SCHEDULE 1.01




MANDATORY COST FORMULAE





	1.	 	The Mandatory Cost (to the extent applicable) is an addition to the interest rate to
compensate
Lenders for the cost of compliance with:






	 	(a)	 	the requirements of the Bank of England and/or the Financial Services Authority
(or, in
either case, any other authority which replaces all or any of its functions); or
	 
	 	(b)	 	the requirements of the European Central Bank.






	2.	 	On the first day of each Interest Period (or as soon as possible thereafter) the
Administrative
Agent shall calculate, as a percentage rate, a rate (the
“Additional Cost Rate”) for each
Lender, in
accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the
Administrative Agent as a weighted average of the Lenders’ Additional Cost Rates (weighted
in
proportion to the percentage participation of each Lender in the relevant Revolving Loan)
and
will be expressed as a percentage rate per annum. The Administrative Agent will, at the
request
of either Borrower or any Lender, deliver to such Borrower or such Lender as the case may
be, a
statement setting forth the calculation of any Mandatory Cost.
	 
	3.	 	The Additional Cost Rate for any Lender lending from a Lending Office in a Participating
Member State will be the percentage notified by that Lender to the Administrative Agent.
This
percentage will be certified by such Lender in its notice to the Administrative Agent to be
its
reasonable determination of the cost (expressed as a percentage of such Lender’s
participation in
all Revolving Loans made from such Lending Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of Revolving Loans made from that
Lending Office.
	 
	4.	 	The Additional Cost Rate for any Lender lending from a Lending Office in the United Kingdom
will be calculated by the Administrative Agent as follows:






	 	(a)	 	in relation to any Revolving Loan in Sterling:





	 	 	 	 	 
	 

	 	AB + C(B-D) + E x 0.01
 

100 - (A + C)
	 	per cent per annum 







	 	(b)	 	in relation to any Revolving Loan in any currency other than Sterling:





	 	 	 	 	 
	 

	 	E x 0.01
 

300
	 	per cent per annum 






Where:





	 	“A”	 	is the percentage of Eligible Liabilities (assuming these to be in excess of any
stated
minimum) which that Lender is from time to time required to maintain as an interest
free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.
	 
	 	“B”	 	is the percentage rate of interest (excluding the Applicable Rate, the
Mandatory Cost and any interest charged on overdue amounts pursuant to the first
sentence of Section 2.08(b) and, in the case of interest (other than on
overdue amounts) charged at the





 









 






	 	 	 	Default Rate, without counting any increase in interest rate effected by the
charging of the Default Rate) payable for the relevant Interest Period of such
Revolving Loan.
	 
	 	“C”	 	is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England.
	 
	 	“D”	 	is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.
	 
	 	“E”	 	is designed to compensate Lenders for amounts payable under the Fees Rules and is
calculated by the Administrative Agent as being the average of the most recent rates
of charge supplied by the Lenders to the Administrative Agent pursuant to
paragraph 7 below and expressed in pounds per £1,000,000.






	5.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special
Deposits” have the meanings given
to them from time
to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate)
by
the Bank of England;
	 
	 	(b)	 	“Fees Rules” means the rules on periodic fees contained in the FSA Supervision
Manual
or such other law or regulation as may be in force from time to time in respect of
the
payment of fees for the acceptance of deposits;
	 
	 	(c)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under the
activity group
A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant
to
the Fees Rules but taking into account any applicable discount rate); and
	 
	 	(d)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with,
the Fees Rules.






	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5% will be included in the formula as 5 and not as 0.05). A negative
result
obtained by subtracting D from B shall be taken as zero. The resulting figures shall be
rounded to
four decimal places.
	 
	7.	 	If requested by the Administrative Agent or either Borrower, each Lender with a Lending
Office
in the United Kingdom or a Participating Member State shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Administrative Agent and the
Borrowers, the rate of charge payable by such Lender to the Financial Services Authority
pursuant to the Fees Rules in respect of the relevant financial year of the Financial
Services
Authority (calculated for this purpose by such Lender as being the average of the Fee
Tariffs
applicable to such Lender for that financial year) and expressed in pounds per £1,000,000 of
the
Tariff Base of such Lender.
	 
	8.	 	Each Lender shall supply any information required by the Administrative Agent for the purpose
of calculating its Additional Cost Rate. In particular, but without limitation, each Lender
shall
supply the following information in writing on or prior to the date on which it becomes a
Lender:






	 	(a)	 	the jurisdiction of the Lending Office out of which it is making
available its participation in the relevant Revolving Loan; and





2









 






	 	(b)	 	any other information that the Administrative Agent may reasonably
require for such purpose.




Each Lender shall promptly notify the Administrative Agent in writing of any change to the
information provided by it pursuant to this paragraph.





	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge of
each
Lender for the purpose of E above shall be determined by the Administrative Agent based upon
the information supplied to it pursuant to paragraphs 7 and
8 above and on the
assumption that,
unless a Lender notifies the Administrative Agent to the contrary, each Lender’s obligations
in
relation to cash ratio deposits and Special Deposits are the same as those of a typical bank
from
its jurisdiction of incorporation with a lending office in the same jurisdiction as its
Lending
Office.
	 
	10.	 	The Administrative Agent shall have no liability to any Person if such determination results
in an
Additional Cost Rate which over- or under-compensates any Lender and shall be entitled to
assume that the information provided by any Lender pursuant to
paragraphs 3, 7 and 8
above is
true and correct in all respects.
	 
	11.	 	The Administrative Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based
on
the information provided by each Lender pursuant to paragraphs 3, 7 and 8 above.
	 
	12.	 	Any determination by the Administrative Agent pursuant to this Schedule in relation to a
formula,
the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the
absence of manifest error, be conclusive and binding on all parties hereto.
	 
	13.	 	The Administrative Agent may from time to time, after consultation with the Borrowers and the
Lenders, determine and notify to all parties any amendments which are
required to be made to
this Schedule in order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority or the
European
Central Bank (or, in any case, any other authority which replaces all or any of its
functions) and
any such determination shall, in the absence of manifest error, be conclusive and binding on
all
parties hereto.





3









 





Schedule 2.01 




COMMITMENTS AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 	 	Applicable
	 	 	 	 	 	 	Aggregate	 	 	 	 	 	Percentage of
	 	 	Revolving	 	Revolving	 	Term Loan	 	Term Loan
	Lender	 	Commitment	 	Commitments	 	Commitment	 	Commitments
	Bank of America, N.A.
	 	$	20,000,000	 	 	 	20.000000000	%	 	$	20,000,000	 	 	 	20.000000000	%
	The Royal Bank of Scotland plc
	 	$	20,000,000	 	 	 	20.000000000	%	 	$	20,000,000	 	 	 	20.000000000	%
	U.S. Bank National Association
	 	$	15,000,000	 	 	 	15.000000000	%	 	$	15,000,000	 	 	 	15.000000000	%
	Wells Fargo Bank, N.A.
	 	$	15,000,000	 	 	 	15.000000000	%	 	$	15,000,000	 	 	 	15.000000000	%
	Union Bank of California, N.A.
	 	$	12,500,000	 	 	 	12.500000000	%	 	$	12,500,000	 	 	 	12.500000000	%
	California Bank & Trust
	 	$	7,500,000	 	 	 	7.500000000	%	 	$	7,500,000	 	 	 	7.500000000	%
	Manufacturers Bank
	 	$	5,000,000	 	 	 	5.000000000	%	 	$	5,000,000	 	 	 	5.000000000	%
	Morgan Stanley Bank, N.A.
	 	$	5,000,000	 	 	 	5.000000000	%	 	$	5,000,000	 	 	 	5.000000000	%
	TOTAL
	 	$	100,000,000	 	 	 	100.000000000	%	 	$	100,000,000	 	 	 	100.000000000	%






 









 





Schedule 11.02 




Certain Addresses for Notice




1. Addresses for Loan Parties:




McAfee:




McAfee, Inc.

5000 Headquarters Drive

Plano, TX 75024




Attention:




	 	 	 
	Doug Rice, Vice President & Treasurer
	Email:

	 	Doug_Rice@McAfee.com
	Telephone:

	 	972-987-2032
	Facsimile:

	 	972-987-2035
	 
	 	 
	Robin Bradford, Senior Director — Corporate & Securities
	Email:

	 	Robin_Bradford@McAfee.com
	Telephone:

	 	972-987-2492
	Facsimile:

	 	972-987-2503






With a copy to:




Wilson Sonsini Goodrich & Rosati

650 Page Mill Road

Palo Alto, California 94304




Attention:




	 	 	 
	Andrew J. Hirsch
	Email:

	 	ahirsch@wsgr.com
	Telephone:

	 	650-354-4210
	Facsimile:

	 	650-493-6811
	 
	 	 
	Robert G. Day
	Email:

	 	rday@wsgr.com
	Telephone:

	 	650-320-4622
	Facsimile:

	 	650-493-6811






Irish
Borrower:




McAfee Ireland Holdings Limited

c/o McAfee Bermuda Holdings Limited

Canon’s Court

22 Victoria Street

Hamilton, HM 12

Bermuda




 









 





Attention: Corporate Secretary




With a copy to:




McAfee, Inc.

5000 Headquarters Drive

Plano, TX 75024


Attention:




	 	 	 
	Doug Rice, Vice President & Treasurer
	Email:

	 	Doug_Rice@McAfee.com
	Telephone:

	 	972-987-2032
	Facsimile:

	 	972-987-2035
	 
	 	 
	Robin Bradford, Senior Director — Corporate & Securities
	Email:

	 	Robin_Bradford@McAfee.com
	Telephone:

	 	972-987-2492
	Facsimile:

	 	972-987-2503






AND




Wilson Sonsini Goodrich & Rosati

650 Page Mill Road

Palo Alto, California 94304




Attention:




	 	 	 
	Andrew J. Hirsch
	Email:

	 	ahirsch@wsgr.com
	Telephone:

	 	650-354-4210
	Facsimile:

	 	650-493-6811
	 
	 	 
	Robert G. Day
	Email:

	 	rday@wsgr.com
	Telephone:

	 	650-320-4622
	Facsimile:

	 	650-493-6811






 









 





2. Administrative Agent and L/C Issuer:



Administrative
Agent’s Office:



(daily borrowings, payments, repaying activity, billing and fee activity)




Bank of America, N.A.

Attn: G. K. Lapitan

CA4-702-02-25

2001 Clayton Rd., Building B

Concord, CA 94520-2405




			
	Telephone:

	 	925-675-8205
	Fax:

	 	888-969-9170
	Email:

	 	g_k.lapitan@bankofamerica.com






Domestic Wiring instructions:









Bank of America N.A.

New York, NY 10017

ABA# 026009593

Account # 3750836479

Account Name: Credit Services

Ref: McAfee Inc.








Other
Notices to Administrative Agent:


(financial reporting requirements, bank group communications)




Bank of America, N.A.

Attention: Kathleen Carry

Agency Management

Mail Code: CA5-701-05-19

1455 Market Street

San Francisco, CA 94103

Telephone: 415-436-4001

Facsimile: 415-503-5001

E-mail: kathleen.carry@bankofamerica.com



For Notices as L/C Issuer:



Bank of America, N.A.

1000 West Temple Street, 7th Floor

Mail Code: CA9-705-07-05

Los Angeles, CA 90012-1514




			
	Attention:

	 	Bolivar Carrillo
	Telephone:

	 	213-481-7842
	Fax:

	 	213-457-8841
	Email:

	 	bolivar.carrillo@bankofamerica.com







 











 






Exhibit 2.02




FORM OF LOAN NOTICE




Date:                     , 20         




	 	 	 
	To:
	 	Bank of America, N.A., as Administrative Agent

	 	 	 

	Re:
	 	Credit Agreement dated as of December 22, 2008 (as amended, modified,
supplemented or extended from time to time, the “Credit
Agreement”)
among McAfee, Inc., a Delaware corporation (“McAfee”), McAfee Ireland
Holdings Limited, a limited liability company incorporated under the
laws of Ireland (the “Irish Borrower”; and together with McAfee, the
“Borrowers”), the Guarantors from time to time party thereto, the
Lenders from time to time party thereto and Bank of America, N.A., as
Administrative Agent and L/C Issuer. Capitalized terms used but not
otherwise defined herein have the meanings provided in the Credit
Agreement.







Ladies and Gentlemen:




The undersigned hereby requests (select one):





	o	 	A Borrowing of Revolving Loans
	 
	o	 	A Borrowing of the Term Loan
	 
	o	 	A conversion or continuation of Revolving Loans
	 
	o	 	A conversion or continuation of the Term Loan






	1.	 	On                     , 20          (which is a Business Day).
	 
	2.	 	Amount and currency of Borrowing:                     .
	 
	3.	 	Comprised of                      (Type of Loan requested).
	 
	4.	 	For Eurocurrency Rate Loans: with an Interest Period of
                     months.




[[[McAfee] [The Irish Borrower]] hereby represents and warrants that (a) after giving effect to any
Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate
Revolving Commitments and (ii) the aggregate Outstanding Amount of Revolving Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations
shall not exceed such Lender’s Revolving Commitment, and (b) each of the conditions set forth in
Section 5.02 of the Credit Agreement has been satisfied on and as of the date of such
Borrowing, conversion or continuation.]




	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	[MCAFEE, INC.,

a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 	 	]






 









 






	 	 	 	 	 	 	 	 	 
	[Given under the Common Seal of	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	MCAFEE IRELAND
HOLDINGS
 LIMITED, a
limited liability company 
incorporated under the laws of Ireland
was affixed hereto in the presence of:	 	Name:	 	 	 	 
	 	Title:	 	Director	 	 
	 	
By:	 	 	 	 
	 	 	 	 	 	 
	 	Name:	 	 	 	 
	 	Title:	 	Director/Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	Witness Signature:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Witness Name:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Witness Occupation:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Witness Address:

	 	 	]	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 







 









 








EXHIBIT 2.10(a)(i)




FORM OF REVOLVING NOTE




                                                            



FOR VALUE RECEIVED, [[McAfee, Inc., a Delaware corporation] [McAfee Ireland Holdings Limited, a
limited liability company incorporated under the laws of Ireland]] (the “Borrower”), hereby
promises to pay to                      or registered assigns (the “Lender”), in
accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal
amount of each Revolving Loan from time to time made by the Lender to the Borrower under that
certain Credit Agreement dated as of December 22, 2008 (as amended, modified, supplemented or
extended from time to time, the “Credit Agreement”) among [[McAfee, Inc., a Delaware
corporation (“McAfee”)] [the Borrower]], [[McAfee Ireland Holdings Limited, a limited
liability company incorporated under the laws of Ireland (the “Irish Borrower”)] [the
Borrower]], the Guarantors from time to time party thereto, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent and L/C Issuer. Capitalized terms used
but not otherwise defined herein have the meanings provided in the Credit Agreement.



The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan made to
it from the date of such Revolving Loan until such principal amount is paid in full, at such
interest rates and at such times as provided in the Credit Agreement. All payments of principal
and interest shall be made to the Administrative Agent for the account of the Lender in the
applicable currency in immediately available funds at the Administrative Agent’s Office. If any
amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Credit Agreement.



This Revolving Note is one of the Revolving Notes referred to in the Credit Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this Revolving Note shall
become, or may be declared to be, immediately due and payable all as provided in the Credit
Agreement. Revolving Loans made by the Lender shall be evidenced by one or more loan accounts or
records maintained by the Lender in the ordinary course of business. The Lender may also attach
schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving
Loans and payments with respect thereto.



The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest
and demand and notice of protest, demand, dishonor and nonpayment of this Revolving Note.



THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.




	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	[MCAFEE, INC.,

a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	] 	 



 









 






	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	[Given under the Common Seal of	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	MCAFEE IRELAND HOLDINGS LIMITED, 	 	Name:	 	 	 	 
	a limited liability company	 	Title:	 	Director	 	 
	incorporated under the laws of Ireland
was affixed hereto in the presence of:	 	
By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
		 	Name:	 	 	 	 
		 	Title:	 	Director/Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	Witness Signature:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Witness Name:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Witness Occupation:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Witness Address:

	 	 	]	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 






 









 








EXHIBIT 2.10(a)(ii)




FORM OF TERM NOTE




                                                            



FOR VALUE RECEIVED, McAfee, Inc., a Delaware corporation (“McAfee”), hereby promises to pay
to                      or registered assigns (the “Lender”), in accordance with the
provisions of the Credit Agreement (as hereinafter defined), the principal amount of the Term Loan
made by the Lender to McAfee under that certain Credit Agreement dated as of December 22, 2008 (as
amended, modified, supplemented or extended from time to time, the “Credit Agreement”)
among McAfee, McAfee Ireland Holdings Limited, a limited liability company incorporated under the
laws of Ireland, the Guarantors from time to time party thereto, the Lenders from time to time
party thereto and Bank of America, N.A., as Administrative Agent and L/C Issuer. Capitalized terms
used but not otherwise defined herein have the meanings provided in the Credit Agreement.



McAfee promises to pay interest on the unpaid principal amount of the Term Loan from the date of
the Term Loan until such principal amount is paid in full, at such interest rates and at such times
as provided in the Credit Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately available funds at the
Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest, to be paid upon demand, from the due date thereof until the date of
actual payment (and before as well as after judgment) computed at the per annum rate set forth in
the Credit Agreement.



This Term Note is one of the Term Notes referred to in the Credit Agreement, is entitled to the
benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this Term Note shall
become, or may be declared to be, immediately due and payable all as provided in the Credit
Agreement. The Term Loan made by the Lender shall be evidenced by one or more loan accounts or
records maintained by the Lender in the ordinary course of business. The Lender may also attach
schedules to this Term Note and endorse thereon the date, amount and maturity of the Term Loan and
payments with respect thereto.



McAfee, for itself, its successors and assigns, hereby waives diligence, presentment, protest and
demand and notice of protest, demand, dishonor and nonpayment of this Term Note.



THIS TERM NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.




	 	 	 	 	 	 	 
	 	 	MCAFEE, INC.,

a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 







 









 








Exhibit 7.02




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                                 , 20          




	 	 	 
	To:
	 	Bank of America, N.A., as Administrative Agent

	 	 	 
	Re:
	 	Credit Agreement dated as of December 22, 2008 (as
amended, modified, supplemented or extended from time to
time, the “Credit Agreement”) among McAfee, Inc., a
Delaware corporation (“McAfee”), McAfee Ireland Holdings
Limited, a limited liability company incorporated under
the laws of Ireland (the “Irish Borrower”; together with
McAfee, the “Borrowers”), the Guarantors from time to time
party thereto, the Lenders from time to time party
thereto, Bank of America, N.A., as Administrative Agent
and L/C Issuer. Capitalized terms used but not otherwise
defined herein have the meanings provided in the Credit
Agreement.







Ladies and Gentlemen:



The undersigned Responsible Officer hereby certifies as of the date hereof that [he/she] is the
                     of McAfee, and that, in [his/her] capacity as such, [he/she] is authorized to
execute and deliver this Certificate to the Administrative Agent on the behalf of McAfee, and that:



[Use following paragraph 1 for fiscal year-end financial statements:]



[1. Attached hereto as Schedule 1 are the year-end audited financial statements required by
Section 7.01(a) of the Credit Agreement for the fiscal year of McAfee ended as of the above
date, together with the report and opinion of an independent certified public accountant required
by such section.]



[Use following paragraph 1 for fiscal quarter-end financial statements:]



[1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 7.01(b) of the Credit Agreement for the fiscal quarter of McAfee ended as of the
above date. Such financial statements fairly present in all material respects the financial
condition, results of operations and cash flows of McAfee and its Subsidiaries in accordance with
GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the
absence of footnotes.]



2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has
made, or has caused to be made, a detailed review of the transactions and condition (financial or
otherwise) of McAfee during the accounting period covered by the attached financial statements.



3. A review of the activities of McAfee and its Subsidiaries during such fiscal period has been
made under the supervision of the undersigned with a view to determining whether during such fiscal
period McAfee and its Subsidiaries performed and observed all their Obligations under the Loan
Documents, and



[select one:]



[to the best knowledge of the undersigned during such fiscal period, each Loan Party has performed
and observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]




 









 







[or:]



[the following covenants or conditions have not been performed or observed and the following is a
list of each such Default and its nature and status:]



4. The financial covenant analyses and calculation of Consolidated Interest Coverage Ratio and
Consolidated Leverage Ratio set forth on Schedule 2 attached hereto are true and accurate
on and as of the date of this Certificate.



5. Attached hereto as Schedule 3 are calculations demonstrating that (A) McAfee and the
Domestic Guarantors, in the aggregate, (i) own at least 80% of the assets of McAfee and its
Domestic Subsidiaries and (ii) earn at least 80% of the revenues of McAfee and its Domestic
Subsidiaries and (B) the Irish Borrower and its Subsidiaries that are Foreign Guarantors, in the
aggregate, (i) own at least 80% of the assets of the Irish Borrower and its Subsidiaries and (ii)
earn at least 80% of the revenues of the Irish Borrower and its Subsidiaries.



6. Attached hereto as Schedule 4 is evidence of compliance with Section 8.02,
including all outstanding Investments and calculation of the McAfee Liquidity Amount.




     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                     , 20          .



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	MCAFEE, INC.,
a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






 









 






Schedule 2

to Compliance Certificate




	 	 	 	 	 
	1. Consolidated Interest Coverage Ratio
	 	 	 	 
	 
	 	 	 	 
	(a) Consolidated EBITDA
	 	 	 	 
	 
	 	 	 	 
	(i) Consolidated Net Income
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(ii) Consolidated Interest Charges
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(iii) income tax expense
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(iv) depreciation and amortization expense
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(v) other non-cash charges or non-cash expenses
for such period (excluding write-downs of
inventory and accounts receivable and any other
charge or expense representing an accrual or
reserve for cash expenses in a future period)
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(vi) any currency translation losses
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(vii) any loss resulting from the sale of Investments
of the type specified in Section 8.02(a)
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(viii) to the extent included in calculating Consolidated
Net Income, non-cash income or gains for such
Period
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(ix) any currency translation gains
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(x) any gain resulting from the sale of Investments
of the type specified in Section 8.02(a)
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(xi) Consolidated EBITDA
	 	 	 	 
	   [Sum
of (i) + (ii) + (iii) + (iv) + (v) + (vi)
+ (vii) - (viii) - (ix) - (x)]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(b) Consolidated Interest Charges
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(c) Consolidated Interest Coverage Ratio
	 	 	 	 
	[(a)(xi)/(b)]
	 	 	 	:1.0
	 
	 	 	 	 
	 
	 	 	 	 
	2. Consolidated Leverage Ratio
	 	 	 	 
	 
	 	 	 	 
	(a) Consolidated Funded Indebtedness
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(b) Consolidated EBITDA
	 	 	 	 
	[1(a)(xi) above]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(c) Consolidated Leverage Ratio
	 	 	 	 
	[(a)/(b)]
	 	 	 	:1.0
	 
	 	 	 	 






 









 








Exhibit 7.12(a)




FORM OF DOMESTIC JOINDER AGREEMENT




     THIS DOMESTIC JOINDER AGREEMENT (the “Agreement”) dated as of                     , 20           is by
and between
                    ,
a
                     (the “ New Subsidiary”), and Bank of America, N.A., in
its capacity as Administrative Agent under that certain Credit Agreement dated as of December 22,
2008 (as amended, modified, supplemented or extended from time to time, the “Credit
Agreement”) among McAfee, Inc., a Delaware corporation (“McAfee”), McAfee Ireland
Holdings Limited, a limited liability company incorporated under the laws of Ireland (the
“Irish Borrower”; together with McAfee, the “Borrowers”), the Guarantors from time
to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as
Administrative Agent and L/C Issuer. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.



     The Loan Parties are required by Section 7.12 of the Credit Agreement to cause the New
Subsidiary to become a “Domestic Guarantor” thereunder. Accordingly, the New Subsidiary hereby
agrees as follows with the Administrative Agent, for the benefit of the Lenders:



     1. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a “Domestic
Guarantor” for all purposes of the Credit Agreement, and shall have all of the obligations of a
Domestic Guarantor thereunder as if it had executed the Credit Agreement. The New Subsidiary
hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Domestic Guarantors contained in the Credit Agreement. Without
limiting the generality of the foregoing terms of this paragraph 1, the New Subsidiary hereby
jointly and severally together with the other Domestic Guarantors, guarantees to each Lender, each
Affiliate of a Lender that enters into a Swap Contract or a Treasury Management Agreement with a
Loan Party and the Administrative Agent, as provided in Article IV of the Credit Agreement,
the prompt payment and performance of the Obligations in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration or otherwise) strictly in accordance with the terms
thereof.



     2. The New Subsidiary hereby represents and warrants to the Administrative Agent that:




     (a) The New Subsidiary’s exact legal name and jurisdiction of organization are as set
forth on the signature pages hereto.




     (b) The New Subsidiary’s taxpayer identification number and organization number are as
set forth on Schedule 1 hereto.




     (c) Attached hereto is an accurate and complete Schedule 6.13 to the Disclosure
Letter as of the date hereof.



     3. The address of the New Subsidiary for purposes of all notices and other communications is
the address designated for all Domestic Loan Parties on Schedule 11.02 to the Credit
Agreement or such other address as the New Subsidiary may from time to time notify the
Administrative Agent in writing.



     4. The New Subsidiary hereby waives acceptance by the Administrative Agent and the Lenders of
the guaranty by the New Subsidiary under Article IV of the Credit Agreement upon the
execution of this Agreement by the New Subsidiary.



 









 





     5. This Agreement may be executed in multiple counterparts, each of which shall constitute an
original but all of which when taken together shall constitute one contract.



     6. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.




 









 








     IN WITNESS WHEREOF, the New Subsidiary has caused this Joinder Agreement to be duly executed
by its authorized officer, and the Administrative Agent, for the benefit of the Lenders, has caused
the same to be accepted by its authorized officer, as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	[NEW SUBSIDIARY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






Acknowledged and accepted:




	 	 	 	 	 
	BANK OF AMERICA, N.A.,

as Administrative Agent	 	
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 






 









 






Schedule 1




Taxpayer Identification Number; Organizational Number




 









 





Exhibit 7.12(b)




FORM OF FOREIGN JOINDER AGREEMENT




     THIS FOREIGN JOINDER AGREEMENT (the “Agreement”) dated as of                     , 20           is by
and between                     , a                      (the “New Subsidiary”), and Bank of America, N.A., in
its capacity as Administrative Agent under that certain Credit Agreement dated as of December 22,
2008 (as amended, modified, supplemented or extended from time to time, the “Credit
Agreement”) among McAfee, Inc., a Delaware corporation (“McAfee”), McAfee Ireland
Holdings Limited, a limited liability company incorporated under the laws of Ireland (the
“Irish Borrower”; together with McAfee, the “Borrowers”), the Guarantors from time
to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as
Administrative Agent and L/C Issuer. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.



     The Loan Parties are required by Section 7.12 of the Credit Agreement to cause the New
Subsidiary to become a “Foreign Guarantor” thereunder. Accordingly, the New Subsidiary hereby
agrees as follows with the Administrative Agent, for the benefit of the Lenders:



     1. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a “Foreign
Guarantor” for all purposes of the Credit Agreement, and shall have all of the obligations of a
Foreign Guarantor thereunder as if it had executed the Credit Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Foreign Guarantors contained in the Credit Agreement. Without
limiting the generality of the foregoing terms of this paragraph 1, the New Subsidiary hereby
jointly and severally together with the other Foreign Guarantors, guarantees to each Lender, each
Affiliate of a Lender that enters into a Swap Contract or a Treasury Management Agreement with a
Foreign Loan Party, and the Administrative Agent, as provided in Article IV of the Credit
Agreement, the prompt payment and performance of the Foreign Obligations in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in accordance
with the terms thereof.



     2. The New Subsidiary hereby represents and warrants to the Administrative Agent that:




     (a) The New Subsidiary’s exact legal name and jurisdiction of formation are as set
forth on the signature pages hereto.




     (b) The New Subsidiary’s taxpayer identification number and organization number, if
any, are as set forth on Schedule 1 hereto.




     (c) Attached hereto is an accurate and complete Schedule 6.13 to the Disclosure
Letter as of the date hereof.



     3. The address of the New Subsidiary for purposes of all notices and other communications is
the address designated for all Foreign Loan Parties on Schedule 11.02 to the Credit
Agreement or such other address as the New Subsidiary may from time to time notify the
Administrative Agent in writing.



     4. The New Subsidiary hereby waives acceptance by the Administrative Agent and the Lenders of
the guaranty by the New Subsidiary under Article IV of the Credit Agreement upon the
execution of this Agreement by the New Subsidiary.



 









 





     5. This Agreement may be executed in multiple counterparts, each of which shall constitute an
original but all of which when taken together shall constitute one contract.



     6. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.




 









 








     IN WITNESS WHEREOF, the New Subsidiary has caused this Joinder Agreement to be duly executed
by its authorized officer, and the Administrative Agent, for the benefit of the Lenders, has caused
the same to be accepted by its authorized officer, as of the day and year first above written.



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	[NEW SUBSIDIARY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






Acknowledged and accepted:




	 	 	 	 	 
	BANK OF AMERICA, N.A.,


as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 






 









 






Schedule 1




Taxpayer Identification Number;

Organizational Number





 









 








Exhibit 11.06(b)




FORM OF ASSIGNMENT AND ASSUMPTION



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



For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and
the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights
and obligations as a Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage interest identified
below of all of such outstanding rights and obligations of the Assignor under the respective
facilities identified below (including, without limitation, the Letters of Credit and the
Guarantees included in such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as, the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or warranty by the
Assignor.




	 	 	 	 	 
	1.

	 	Assignor:
	 	                                                            
	 
	 	 	 	 
	2.

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

	 	Borrowers:
	 	McAfee, Inc., a Delaware corporation and
McAfee Ireland Holdings Limited, a limited liability company
incorporated under the laws of Ireland
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	Bank of America, N.A., as the administrative agent under the Credit
Agreement
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	Credit Agreement dated as of December 22, 2008 (as amended, modified, supplemented or extended
from time to time, the “Credit Agreement”) among McAfee, Inc., a Delaware corporation
(“McAfee”), McAfee Ireland Holdings Limited, a limited liability company incorporated under the
laws of Ireland (the “Irish Borrower”; together with
McAfee, the “Borrowers”), the Guarantors
from time to time party thereto, the Lenders from time to time party thereto and Bank of
America, N.A., as Administrative Agent and L/C Issuer.






 









 






	 	 	 	 	 
	6.

	 	Assigned Interest:	 	 






	 	 	 	 	 	 	 	 	 
	Facility Assigned1
	 	Aggregate Amount of

Commitment/Loans

for all Lenders
	 	Amount of

Commitment/Loans

Assigned2
	 	Percentage Assigned of

Commitment/Loans3
	 	CUSIP

Number
	 
	 
	 






	 	 	 	 	 
	7.

	 	Trade Date:
	 	                                        
	 
	 	 	 	 
	8.

	 	Effective Date:
	 	                                        






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




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	ASSIGNOR:	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	ASSIGNEE:	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 








 




			
	1	 	Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g. “Revolving Commitment” or “Term Loan Commitment”)
	 
	2	 	Amount to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date.
	 
	3	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.





 









 





	 	 	 	 	 
	 

	 	 	 	 
	[Consented to and]4 Accepted:	 	 
	 
	 	 	 	 
	[BANK OF AMERICA,
N. A.,

as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:

	 	 	 	]
	 
	 	 	 	 
	Consented to:	 	 
	 
	[MCAFEE, INC., 

a Delaware corporation	 	 
	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:

	 	]	 	 








 




			
	4 	 	 To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement.





 









 





	 	 	 	 	 
	 

	 	 	 	 
	[Consented to:] 5	 	 
	 
	 	 	 	 
	[BANK OF AMERICA,
N.A.,

as L/C Issuer	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:

	 	]	 	 








 




			
	5	 	To be added only if the consent of the L/C Issuer is
required by the terms of the Credit Agreement.




 









 










Annex 1 to Assignment and Assumption




STANDARD TERMS AND CONDITIONS



1. Representations and Warranties.



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



1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 7.01 thereof, as applicable, and
such other documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on
the basis of which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (v) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.



Each of the Assignee and the Assignor represents and warrants that this assignment complies in all
respects with the provisions of Section 11.06 of the Credit Agreement.



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



3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This
Assignment and Assumption shall be governed by, and construed in accordance with, the law of the
State of New York.