exv10w61



 




Exhibit 10.61


     EXECUTION COPY



 

 





SECURED CREDIT AGREEMENT




dated as of




October 5, 2007




among




NETWORK APPLIANCE, INC., as the Borrower




The Lenders Party Hereto




and




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent



 






J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger




 

 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE I

	DEFINITIONS

	 
	 	 	 	 
	SECTION 1.01. Defined Terms

	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings

	 	 	14	 
	SECTION 1.03. Terms Generally

	 	 	14	 
	SECTION 1.04. Accounting Terms; GAAP

	 	 	14	 
	 
	 	 	 	 
	ARTICLE II

	THE CREDITS

	 
	 	 	 	 
	SECTION 2.01. Commitments

	 	 	15	 
	SECTION 2.02. Loans and Borrowings

	 	 	15	 
	SECTION 2.03. Requests for Borrowings

	 	 	15	 
	SECTION 2.04. Intentionally Omitted
	 	 	16	 
	SECTION 2.05. Intentionally Omitted
	 	 	16	 
	SECTION 2.06. Intentionally Omitted
	 	 	16	 
	SECTION 2.07. Funding of Borrowings

	 	 	16	 
	SECTION 2.08. Interest Elections

	 	 	16	 
	SECTION 2.09. Termination and Reduction of Commitments

	 	 	17	 
	SECTION 2.10. Repayment of Loans; Evidence of Debt

	 	 	18	 
	SECTION 2.11. Prepayment of Loans

	 	 	19	 
	SECTION 2.12. Fees

	 	 	19	 
	SECTION 2.13. Interest

	 	 	20	 
	SECTION 2.14. Alternate Rate of Interest

	 	 	21	 
	SECTION 2.15. Increased Costs

	 	 	21	 
	SECTION 2.16. Break Funding Payments

	 	 	22	 
	SECTION 2.17. Taxes

	 	 	22	 
	SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	23	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 	 	25	 
	SECTION 2.20. Expansion Option

	 	 	25	 
	SECTION 2.21. Senior Debt

	 	 	26	 
	 
	 	 	 	 
	ARTICLE III

	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 
	SECTION 3.01. Organization; Powers; Subsidiaries

	 	 	27	 
	SECTION 3.02. Authorization; Enforceability

	 	 	27	 
	SECTION 3.03. Governmental Approvals; No Conflicts

	 	 	27	 
	SECTION 3.04. Financial Condition; No Material Adverse Change

	 	 	27	 
	SECTION 3.05. Properties and Insurance

	 	 	28	 
	SECTION 3.06. Litigation, Labor Matters and Environmental Matters

	 	 	28	 
	SECTION 3.07. Compliance with Laws and Agreements; No Burdensome Restrictions

	 	 	29	 





 









 




Table
of Contents
(continued)




	 	 	 	 	 
	 	 	Page
	 
	SECTION 3.08. Investment and Holding Company Status

	 	 	29	 
	SECTION 3.09. Taxes

	 	 	29	 
	SECTION 3.10. ERISA

	 	 	29	 
	SECTION 3.11. Disclosure

	 	 	29	 
	SECTION 3.12. Federal Reserve Regulations

	 	 	29	 
	SECTION 3.13. No Default

	 	 	29	 
	 
	 	 	 	 
	ARTICLE IV

	CONDITIONS

	 
	 	 	 	 
	SECTION 4.01. Effective Date

	 	 	30	 
	SECTION 4.02. Each Credit Event

	 	 	31	 
	 
	 	 	 	 
	ARTICLE V

	AFFIRMATIVE COVENANTS

	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information

	 	 	31	 
	SECTION 5.02. Notices of Material Events

	 	 	32	 
	SECTION 5.03. Existence; Conduct of Business

	 	 	33	 
	SECTION 5.04. Payment of Obligations

	 	 	33	 
	SECTION 5.05. Maintenance of Properties; Insurance

	 	 	33	 
	SECTION 5.06. Books and Records; Inspection Rights

	 	 	33	 
	SECTION 5.07. Compliance with Laws and Contractual Obligations

	 	 	33	 
	SECTION 5.08. Use of Proceeds

	 	 	33	 
	SECTION 5.09. Subsidiary Guaranty

	 	 	34	 
	SECTION 5.10. Collateral

	 	 	34	 
	 
	 	 	 	 
	ARTICLE VI

	NEGATIVE COVENANTS

	 
	 	 	 	 
	SECTION 6.01. Subsidiary Indebtedness

	 	 	34	 
	SECTION 6.02. Liens

	 	 	35	 
	SECTION 6.03. Fundamental Changes and Asset Sales

	 	 	36	 
	SECTION 6.04. Speculative Swap Agreements

	 	 	37	 
	SECTION 6.05. Transactions with Affiliates

	 	 	37	 
	SECTION 6.06. Restrictive Agreements

	 	 	37	 
	SECTION 6.07. Financial Covenants

	 	 	38	 






ii









 




Table
of Contents
(continued)





	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE VII

	EVENTS OF DEFAULT

	 
	 	 	 	 
	ARTICLE VIII

	THE ADMINISTRATIVE AGENT

	 
	 	 	 	 
	ARTICLE IX

	MISCELLANEOUS

	 
	 	 	 	 
	SECTION 9.01. Notices

	 	 	43	 
	SECTION 9.02. Waivers; Amendments

	 	 	44	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver

	 	 	44	 
	SECTION 9.04. Successors and Assigns

	 	 	45	 
	SECTION 9.05. Survival

	 	 	47	 
	SECTION 9.06. Counterparts; Integration; Effectiveness

	 	 	48	 
	SECTION 9.07. Severability

	 	 	48	 
	SECTION 9.08. Right of Setoff

	 	 	48	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process; Waiver of Immunity

	 	 	48	 
	SECTION 9.10. WAIVER OF JURY TRIAL

	 	 	49	 
	SECTION 9.11. Headings

	 	 	49	 
	SECTION 9.12. Confidentiality

	 	 	49	 
	SECTION 9.13. USA PATRIOT Act

	 	 	50	 






iii









 




Table
of Contents
(continued)




	 	 	 	 	 
	 	 	Page





EXHIBITS:





Exhibit A — Form of Assignment and Assumption




Exhibit B — Form of Opinion of Loan Parties’ Counsel




Exhibit C — List of Closing Documents




Exhibit D — Form of Subsidiary Guaranty




Exhibit E — Form of Pledge Agreement




Exhibit F-1 — Form of Tri-Party Control Agreement




Exhibit F-2 — Form of Safekeeping Control Agreement




Exhibit G — Margin Requirements




Exhibit H — Form of Compliance Certificate




Exhibit I — Form of Increasing Lender Supplement




Exhibit J — Form of Augmenting Lender Supplement





iv











 





          SECURED CREDIT AGREEMENT (this “Agreement”) dated as of October 5, 2007 among NETWORK
APPLIANCE, INC., the LENDERS from time to time party hereto, and JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Administrative Agent.




          The parties hereto agree as follows:




ARTICLE I




Definitions




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




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




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




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




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




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




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




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




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




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




          “Assignment and Assumption” means an assignment and assumption agreement entered into
by a Lender and an assignee (with the consent of any party whose consent is required by Section




 









 







9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other
form approved by the Administrative Agent.




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




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




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




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




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




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




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




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in
the London interbank market.




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




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




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




2









 








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




          “Collateral” means all assets upon which a security interest or Lien is from time to
time granted to the Administrative Agent, for the benefit of the relevant Holders of Secured
Obligations, under any of the Collateral Documents or under any of the other Loan Documents.




          “Collateral Documents” means the Pledge Agreement, the Control Agreements, and all
agreements, instruments and documents executed in connection with this Agreement pursuant to which
the Administrative Agent is granted a security interest in the Collateral, including, without
limitation, all security agreements, loan agreements, notes, guarantees, subordination agreements,
pledges, powers of attorney, consents, assignments, contracts, fee letters, notices, leases,
financing statements and all other written matter whether heretofore, now, or hereafter executed by
or on behalf of the Borrower or any of its Subsidiaries and delivered to the Administrative Agent
or any of the Lenders in connection with this Agreement, together with all agreements and documents
referred to therein or contemplated thereby.




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




          “Consolidated Debt for Borrowed Money” means at any time (1) the sum, without
duplication, of (a) items that, in accordance with GAAP, would be classified as indebtedness on the
consolidated balance sheet of Borrower and its Subsidiaries and (b) the capitalized portion of any
synthetic leases minus (2) the then aggregate outstanding principal amount of Indebtedness
under this Agreement and under that certain Loan Agreement dated as of March 31, 2006 by and among
Network Appliance Global Ltd. and JPMorgan Chase Bank, National Association as initial lender and
as administrative agent.




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




3









 







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




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




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




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




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




          “Control Agreements” means (i) the Tri Party Control Agreement of even date herewith
in the form of Exhibit F-1 by and among the Borrower, the Administrative Agent and J.P.
Morgan Securities Inc. (as amended, restated, supplemented or otherwise modified from time to time)
and (ii) the Safekeeping Control Agreement of even date herewith in the form of Exhibit F-2
by and among the Borrower, the Administrative Agent and JPMorgan Chase Bank, National Association
(as amended, restated, supplemented or otherwise modified from time to time).




          “Credit Event” means a Borrowing.




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




          “Determination Date” shall mean (i) so long as no Event of Default has occurred and is
continuing, the last Business Day of each successive two week period, beginning on October 5, 2007
and (ii) if an Event of Default has occurred and is continuing, any date as the Administrative
Agent may elect in its sole discretion.




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




4









 








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




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




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




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




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




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




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




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




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




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




5









 







the imposition upon the Borrower or any of its ERISA Affiliates of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.




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




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




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




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




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




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




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




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




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




6









 








          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.




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




          “Holders of Secured Obligations” means the holders of the Secured Obligations from
time to time and shall include (i) each Lender in respect of its Loans, (ii) the Administrative
Agent and the Lenders in respect of all other present and future obligations and liabilities of the
Borrower and each Subsidiary of every type and description arising under or in connection with this
Agreement or any other Loan Document, (iii) each indemnified party under Section 9.03 in respect of
the obligations and liabilities of the Borrower to such Person hereunder and under the other Loan
Documents, and (iv) their respective successors and (in the case of a Lender, permitted)
transferees and assigns.




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




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




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




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




7









 








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




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




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




          “Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect, or such
other period as is requested by the Borrower and is acceptable to each Lender; provided,
that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Borrowing
only, such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.




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




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




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




          “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or other security interest in, on or of such asset and
(b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or
title retention agreement (or




8









 







any financing lease having substantially the same economic effect as any of the foregoing)
relating to such asset.




          “Liquid Investments” means unrestricted cash and other unrestricted Permitted
Investments reasonably satisfactory to the Administrative Agent.




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




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




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




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




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




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




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




          “Maturity Date” means October 5, 2012.




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




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




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




9









 







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




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




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




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




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




          “Permitted Encumbrances” means:





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




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




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




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




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




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




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




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



10









 






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




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




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




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




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




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


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




          “Permitted Investments” means:





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




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




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




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




     (e) money market funds that (i) comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, as amended, to the
extent such money market fund is governed thereby, (ii) are rated AA by S&P and Aa by
Moody’s and (iii) have portfolio assets of at least $5,000,000,000;




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




     (g) investments made pursuant to a cash management investment policy approved by the
board of directors of the Person making such investment and as in effect on the Effective
Date, as



11









 






such policy may be amended or otherwise modified from time to time with the written
consent of the Administrative Agent.



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




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




          “Pledge Agreement” means the Pledge Agreement of even date herewith in the form of
Exhibit E and executed by the Borrower in favor of the Administrative Agent (as amended,
restated, supplemented or otherwise modified from time to time).




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




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




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




          “Relevant Permitted Liens” means Liens permitted under clauses (a) through (m) of the
definition of Permitted Encumbrances and clause (e) of Section 6.02.




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




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




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




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




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




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




12









 








          “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.




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




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




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




          “Subsidiary” means any subsidiary of the Borrower.




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




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




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




          “Swap Obligations” of a Person means any and all obligations of such Person, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including




13









 







all renewals, extensions and modifications thereof and substitutions therefor), under (a) any
and all Swap Agreements, and (b) any and all cancellations, buy backs, reversals, terminations or
assignments of any such Swap Agreement transaction.




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




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




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




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




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




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




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




14









 








ARTICLE II




The Credits




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




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




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




          (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $1,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000;
provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the Aggregate Commitment. Borrowings of more than one Type may be outstanding
at the same time; provided that there shall not at any time be more than a total of
fifteen (15) Eurodollar Borrowings outstanding.




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




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





     (i) the aggregate amount of the requested Borrowing;




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




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



15









 






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




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


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




          SECTION 2.04. Intentionally Omitted.




          SECTION 2.05. Intentionally Omitted.




          SECTION 2.06. Intentionally Omitted.




          SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 12:00 noon, New York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts so received, in like funds,
to an account of the Borrower maintained with the Administrative Agent in New York City and
designated by the Borrower in the applicable Borrowing Request.




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




          SECTION 2.08. Interest Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.




16









 








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




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





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




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




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




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


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




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




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




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




17









 








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




          (c) The Borrower shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section at least three (3) Business Days prior
to the effective date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to
this Section shall be irrevocable; provided that a notice of termination of the
Commitments delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if
such condition is not satisfied. Any termination or reduction of the Commitments shall be
permanent. Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.




          SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Revolving Loan on the Maturity Date.




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




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




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




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




18









 








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




          (b) If as of any Determination Date, and for any reason, the aggregate outstanding
principal amount of the Revolving Credit Exposures exceeds the value (on a margin-adjusted basis
based on the requirements described on Exhibit G, as amended, restated, supplemented or otherwise
modified from time to time by the Administrative Agent with the consent of the Borrower) of
Liquid Investments of the Borrower maintained with the Administrative Agent (or an Affiliate
thereof) and pledged to the Administrative Agent for the benefit of the relevant Holders of
Secured Obligations pursuant to the Collateral Documents (the “Pledged Investments”),
then the Borrower shall, within five (5) Business Days of the determination of such excess, make
a mandatory prepayment of the Secured Obligations or pledge additional Liquid Investments of the
Borrower pursuant to Collateral Documents, in each case in an amount equal to such excess.
Notwithstanding the foregoing, so long as no Default has occurred and is then continuing and at
the Borrower’s option, the Administrative Agent shall hold any such prepayment to be applied to
Eurodollar Loans in escrow (either (x) in an account under the sole dominion and control of the
Administrative Agent or (y) in an account maintained with the Administrative Agent or an
Affiliate thereof and in respect of which the Borrower has executed and delivered the Pledge
Agreement and the Control Agreements or other Collateral Documents in form and substance
reasonably satisfactory to the Administrative Agent) for the benefit of the Holders of Secured
Obligations and shall release such amounts upon the expiration of the Interest Periods applicable
to any such Eurodollar Loans being prepaid (it being understood and agreed that interest shall
continue to accrue on the Secured Obligations until such time as such prepayments are released
from escrow and applied to reduce the Secured Obligations); provided, however, that upon
the occurrence of a Default, such escrowed amounts may be applied to Eurodollar Loans without
regard to the expiration of any Interest Period and the Borrower shall make all payments under
Section 3.4 resulting therefrom.




          (c) The Borrower shall notify the Administrative Agent by telephone (confirmed by email to
claudia.kech@jpmchase.com or such other email addresses as are specified by the Administrative
Agent to the Borrower from time to time) of any prepayment hereunder (other than a mandatory
prepayment in accordance with paragraph (b) of this Section) (i) in the case of prepayment of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days
before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment
is given in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.09. Promptly following receipt of any such
notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted
in the case of an advance of a Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in such prepaid
Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by
Section 2.13.




          SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at 0.05% on the average daily
amount of the unused portion of the Commitment of such Lender during the period from and including
the Effective Date to but excluding the date on which such Commitment terminates; provided
that, if such Lender continues to have any Revolving Credit Exposure after its Commitment
terminates, then such



19









 






commitment fee shall continue to accrue on the daily amount of such Lender’s Revolving Credit
Exposure from and including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure. Accrued commitment fees shall
be payable in arrears on the last day of March, June, September and December of each year and on
the date on which the Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any commitment fees accruing after the date on which the
Commitments terminate shall be payable on demand. All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). For purposes of computing commitment fees, the
Commitment of each Lender shall be deemed used to the extent of the Revolving Credit Exposure of
such Lender.




          (b) Intentionally Omitted.




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




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




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




          (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus 0.125%.




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




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




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




20









 








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





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




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


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




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




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




     (ii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender;



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




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




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




21









 








          (d) Failure or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender pursuant to this
Section for any increased costs or reductions incurred more than 270 days prior to the date that
such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s intention to claim compensation therefor; provided
further that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.




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




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




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




          (c) The Borrower shall indemnify the Administrative Agent and each Lender, within ten (10)
days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent, such Lender on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed
or asserted on or attributable to amounts payable under this Section) and any penalties,



22









 






interest and reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate setting forth in reasonable detail the
calculation of the amount of such payment or liability delivered to the Borrower by a Lender, or
by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive
absent manifest error.




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




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




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




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




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




23









 








          (b) Any proceeds of Collateral received by the Administrative Agent (i) not constituting a
specific payment of principal, interest, fees or other sum payable under the Loan Documents
(which shall be applied as specified by the Borrower) or (ii) after an Event of Default has
occurred and is continuing and the Administrative Agent so elects or the Required Lenders so
direct, such funds shall be applied ratably first, to pay any fees, indemnities, or
expense reimbursements under the Loan Documents, including amounts then due under the Loan
Documents to the Administrative Agent from the Borrower or any other Loan Party, second,
to pay any fees or expense reimbursements then due under the Loan Documents to the Lenders from
the Borrower or any other Loan Party, third, to pay interest then due and payable on the
relevant Loans secured by such Collateral ratably, fourth, to prepay principal on the
relevant Loans secured by such Collateral ratably (with amounts applied to the relevant Loans
applied to installments of such Loans in inverse order of maturity), and fifth, to the
payment of any other Secured Obligation due to the Administrative Agent or any Lender by any Loan
Party. The Administrative Agent and the Lenders shall have the continuing and exclusive right to
apply and reverse and reapply any and all such proceeds and payments to any portion of the
Secured Obligations.




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




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




          (e) Unless the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has
not in fact made such payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed to it to but
excluding the



24









 






date of payment to the Administrative Agent, at the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation.




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




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




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




          SECTION 2.20. Expansion Option. The Borrower may from time to time elect to increase
the Commitments or enter into one or more tranches of term loans (each an “Incremental Term
Loan”), in each case in minimum increments of $50,000,000 so long as, after giving effect
thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed
$250,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or
more Lenders (each Lender so agreeing to an increase in its Commitment, or to participate in such
Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial
institutions or other entities (each such new bank, financial institution or other entity, an
“Augmenting Lender”), to increase their existing Commitments, or to participate in such
Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each
Augmenting Lender, shall be subject to the approval of the Borrower and the Administrative Agent
and (ii) (x) in the case of an Increasing Lender, the Borrower and such





25









 







Increasing Lender execute an agreement substantially in the form of Exhibit I hereto,
and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an
agreement substantially in the form of Exhibit J hereto. Increases and new Commitments and
Incremental Term Loans created pursuant to this Section 2.20 shall become effective on the date
agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting
Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the
foregoing, no increase in the Commitments (or in the Commitment of any Lender) or tranche of
Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date
of the effectiveness of such increase or Incremental Term Loans, (A) the conditions set forth in
paragraphs (a) and (b) of Section 4.02 shall be satisfied or waived by the Required Lenders and the
Administrative Agent shall have received a certificate to that effect dated such date and executed
by a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma
basis reasonably acceptable to the Administrative Agent) with the covenants contained in Section
6.07 and (ii) the Administrative Agent shall have received documents consistent with those
delivered on the Effective Date as to the corporate power and authority of the Borrower to borrow
hereunder after giving effect to such increase. On the effective date of any increase in the
Commitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and
Augmenting Lender shall make available to the Administrative Agent such amounts in immediately
available funds as the Administrative Agent shall determine, for the benefit of the other Lenders,
as being required in order to cause, after giving effect to such increase and the use of such
amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving
Loans of all the Lenders to equal its Applicable Percentage of such outstanding Revolving Loans,
and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have
repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the
Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related
Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with
the requirements of Section 2.03). The deemed payments made pursuant to clause (ii) of the
immediately preceding sentence shall be accompanied by payment of all accrued interest on the
amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by
the Borrower pursuant to the provisions of Section 2.16 if the deemed payment occurs other than on
the last day of the related Interest Periods. The Incremental Term Loans (a) shall rank pari passu
in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date
(but may have amortization prior to such date) and (c) shall be treated substantially the same as
(and in any event no more favorably than) the Revolving Loans; provided that (i) the terms
and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date
may provide for material additional or different financial or other covenants or prepayment
requirements applicable only during periods after the Maturity Date and (ii) the Incremental Term
Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made
hereunder pursuant to an amendment (an “Incremental Term Loan Amendment”) to this Agreement
and, as appropriate, the other Loan Documents, executed by the Borrower, each Augmenting Lender
participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan
Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement
and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the
Administrative Agent, to effect the provisions of this Section 2.20.




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




26









 








ARTICLE III




Representations and Warranties




          The Borrower represents and warrants to the Lenders that:




          SECTION 3.01. Organization; Powers; Subsidiaries. Each of the Borrower and its
Subsidiaries is duly incorporated or organized, validly existing and in good standing (to the
extent such concept applies to such entity) under the laws of the jurisdiction of its incorporation
or organization, as the case may be, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, is qualified to do
business in, and is in good standing in, every jurisdiction where such qualification is required.
Schedule 3.01 to the Disclosure Letter (as supplemented from time to time) identifies each
Subsidiary, if such Subsidiary is a Material Subsidiary that is a Domestic Subsidiary, the
jurisdiction of its incorporation or organization, as the case may be, the percentage of issued and
outstanding shares of each class in its capital or other equity interests owned by the Borrower and
the other Subsidiaries and, if such percentage is not 100% (excluding directors’ qualifying shares
as required by law), a description of each class issued and outstanding. All of the outstanding
shares in its capital and other equity interests of each Subsidiary are validly issued and
outstanding and fully paid and nonassessable and all such shares and other equity interests
indicated on Schedule 3.01 to the Disclosure Letter as owned by the Borrower or another
Subsidiary are owned, beneficially, legally and/or of record, by the Borrower or any Subsidiary
free and clear of all Liens other than Permitted Encumbrances. Except as indicated on Schedule
3.01 to the Disclosure Letter, there are no outstanding commitments or other obligations of the
Borrower or any Subsidiary to issue, and no options, warrants or other rights of any Person to
acquire, any shares of any class in its capital or other equity interests of the Borrower or any
Subsidiary.




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




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




          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended April 27, 2007 reported
on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended July 27, 2007, certified by its chief financial
officer. Such financial



27









 






statements present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and
for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.




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




          SECTION 3.05. Properties and Insurance. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property
material to its business, except for minor defects in title that do not interfere with its ability
to conduct its business as currently conducted or to utilize such properties for their intended
purposes. The Borrower maintains, and has caused each Subsidiary to maintain, with financially
sound and reputable insurance companies insurance on all their real and personal property in such
amounts, subject to such deductibles and self-insurance retentions and covering such properties and
risks as are customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations. There are no Liens on any of the real or personal
properties of the Borrower or any Subsidiary except for Liens permitted by Section 6.02.




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




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




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




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




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




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




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




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




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




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




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




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





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ARTICLE IV




Conditions




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





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




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




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




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




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




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



30









 






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


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




          SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing is subject to the satisfaction of the following conditions:





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




     (b) At the time of and immediately after giving effect to such Borrowing, no Default
shall have occurred and be continuing.


Each Borrowing shall be deemed to constitute a representation and warranty by the Borrower on the
date thereof as to the matters specified in paragraphs (a) and (b) of this Section.




ARTICLE V




Affirmative Covenants




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




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





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




     (b) within forty-five (45) days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet and related
statements of operations, shareholders’ equity and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures
for the corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results of operations
of the Borrower and its



31









 







consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes;




     (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a compliance certificate of a Financial Officer of the Borrower in the form of
Exhibit H hereto (i) certifying as to whether a Default has occurred and is
continuing and, if a Default has occurred and is continuing, specifying the details thereof
and any action taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Section 6.07 and (iii)
stating whether any change in GAAP or in the application thereof has occurred since the date
of the audited financial statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements accompanying such
certificate;




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




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


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




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





     (a) the occurrence of any Default;




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




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




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



32









 




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




          SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business except where the failure to do so would not
reasonably be expected to result in a Material Adverse Effect; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section
6.03.




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




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




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




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




          SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only to finance
the working capital needs, and for general corporate purposes, of the Borrower and its Subsidiaries
in the ordinary course of business. No part of the proceeds of any Loan will be used,



33









 






whether
directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X. Following the application of the proceeds of each Borrowing, not
more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its
Subsidiaries on a consolidated basis) subject to the provisions of Section 6.02 or Section 6.03 or
subject to any restriction contained in any Loan Document will be “margin stock” within the meaning
of Regulation U.




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




          SECTION 5.10. Collateral. The Borrower will cause Liquid Investments of the Borrower
in an aggregate amount of not less than the then outstanding principal amount of the Revolving
Credit Exposures (on a margin-adjusted basis based on the requirements described on Exhibit G, as
amended, restated supplemented or otherwise modified from time to time by the Administrative Agent
with the consent of the Borrower) to be subject at all times (subject to the 5-Business Day period
for mandatory prepayment set forth in Section 2.11(b)) to first priority, perfected Liens (subject
only to Relevant Permitted Liens) in favor of the Administrative Agent for the benefit of the
relevant Holders of Secured Obligations to secure the Secured Obligations in accordance with the
terms and conditions of the Collateral Documents and to take all such actions reasonably requested
by the Administrative Agent in connection therewith.




ARTICLE VI




Negative Covenants




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




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




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




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




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




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




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




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




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




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




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




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




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




          (a) Permitted Encumbrances;




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




          (c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person
becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other
property or




35









 







assets of the Borrower or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be, and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;




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




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




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




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




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




          (i) Liens created under the Collateral Documents.




          SECTION 6.03. Fundamental Changes and Asset Sales.




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



36









 




dissolution is in
the best interests of the Borrower, (v) the Borrower may merge with any other Person so long as
the Borrower is the surviving entity, (vi) any Subsidiary may merge with any other Person so long
as the surviving entity is, in the case of a Subsidiary Guarantor, the Subsidiary Guarantor, and
in all other cases, a wholly owned Subsidiary and (vii) any Subsidiary other than a Subsidiary
Guarantor may merge into, and Borrower or any Subsidiary may dispose of assets to, any other
Person so long as Borrower delivers a certificate to the Administrative Agent demonstrating pro
forma compliance with Section 6.07 after giving effect to such transaction.




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



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



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




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




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



37









 






Indebtedness permitted by this Agreement if such restrictions or conditions apply only to
the property or assets securing such Indebtedness and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases, licenses, joint venture agreements and other agreements
entered into in the ordinary course of business restricting the assignment thereof.




          SECTION 6.07. Financial Covenants.




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




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




ARTICLE VII




Events of Default




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




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




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




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




          (d) (i) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02(a), 5.03 (with respect to the Borrower’s existence), 5.08, 5.09 or 5.10
or in Article VI or (ii) any Loan Document shall for any reason not be or shall cease to be in
full force and effect or is declared to be null and void, or the Borrower or any Subsidiary takes
any action for the purpose of terminating, repudiating or rescinding any Loan Document or any of
its obligations thereunder or any Lien in favor of the Administrative Agent under the Loan
Documents shall not have the priority contemplated by the Loan Documents, subject to Relevant
Permitted Liens;




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




38









 








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




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




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




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




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




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




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




          (m) a Change in Control shall occur;




39









 







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




ARTICLE VIII




The Administrative Agent




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




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




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


40









 








negligence or willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the Administrative
Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or
have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or
in connection with any Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or in connection with any Loan Document, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on
the Collateral or the existence of the Collateral or (vi) the satisfaction of any condition set
forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.




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




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




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




          Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate,



41









 






continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished hereunder or thereunder.




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




          Except with respect to the exercise of setoff rights of any Lender, in accordance with Section
9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that
it will not take any action, nor institute any actions or proceedings, against the Borrower or with
respect to any Loan Document, without the prior written consent of the Required Lenders or, as may
be provided in this Agreement or the other Loan Documents, with the consent of the Administrative
Agent.




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




          In its capacity, the Administrative Agent is a “representative” of the Holders of Secured
Obligations within the meaning of the term “secured party” as defined in the New York Uniform
Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the
Collateral Documents to which it is a party and to take all action contemplated by such documents.
Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent)
shall have the right individually to seek to realize upon the security granted by any Collateral
Document, it being understood and agreed that such rights and remedies may be exercised solely by
the Administrative Agent for the benefit of the relevant Holders of Secured Obligations upon the
terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any
Person as collateral security for the Secured Obligations, the Administrative Agent is hereby
authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the
relevant Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and
perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the relevant
Holders of Secured Obligations. The Lenders hereby authorize the Administrative Agent, at its
option and in its discretion, to release any Lien granted to or held by the Administrative Agent
upon any Collateral (i) upon termination of the Commitments and payment and satisfaction of all of
the Secured Obligations (other than contingent indemnity obligations) at any time arising under or
in respect of this Agreement or the Loan Documents or the transactions contemplated hereby or
thereby; (ii) as permitted by, but only in accordance with, the terms of the applicable Loan
Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless
such release is required to be approved by all of the Lenders hereunder. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s
authority to release particular types or items of Collateral pursuant hereto. Upon any sale or
transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan
Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable,
and upon at least five Business Days’ prior written request by the Borrower to the Administrative
Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to)
execute such documents as may be necessary to evidence the release of the Liens granted to the
Administrative Agent for the benefit of the relevant Holders of Secured Obligations herein or
pursuant hereto upon the Collateral that was sold or transferred;




42









 







provided, however, that (i) the Administrative Agent shall not be required to
execute any such document on terms which, in the Administrative Agent’s opinion, would expose the
Administrative Agent to liability or create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the
Borrower or any Subsidiary in respect of) all interests retained by the Borrower or any Subsidiary,
including (without limitation) the proceeds of the sale, all of which shall continue to constitute
part of the Collateral.




          The Administrative Agent is hereby authorized by the Lenders and their affiliated Holders of
Secured Obligations to execute and deliver any documents necessary or appropriate to create and
perfect the rights of pledge for the benefit of the relevant Holders of Secured Obligations.




ARTICLE IX




Miscellaneous




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





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




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




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



          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or communications.




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




43









 








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




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




          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
in connection with the preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated) and (ii) all reasonable out-of-pocket expenses
incurred by the Administrative Agent, or any Lender, including the reasonable fees, charges and
disbursements of any counsel for the Administrative Agent, or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents, including its rights
under this Section, or in connection with the Loans made hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of
such Loans.




          (b) The Borrower shall indemnify the Administrative Agent, and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related reasonable expenses, including the reasonable fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with,



44









 






or as a result of (i) the execution or delivery of any Loan Document or any agreement or
instrument contemplated thereby, the performance by the parties hereto of their respective
obligations thereunder or the consummation of the Transactions or any other transactions
contemplated thereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental Liability of the Borrower or any of
its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory
to the extent any Indemnitee is a party thereto; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities
or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee.




          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent under paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to the Administrative Agent, 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
in its capacity as such.




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




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




          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to
the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.





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




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



45









 






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




     (B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement;




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




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



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




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




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




          (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”). The entries in the Register shall be conclusive absent manifest error,
and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the



46









 






terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.




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




          (c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section
2.18(d) as though it were a Lender.




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




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




          SECTION 9.05. Survival. All covenants, agreements, representations and warranties made
by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in



47









 






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




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




          SECTION 9.07. Severability. Any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions thereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.




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




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




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or proceeding arising out of or relating
to any Loan



48









 






Document, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan Document against any
Loan Party or its properties in the courts of any jurisdiction.




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




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




          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.




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




          SECTION 9.12. Confidentiality. Each of the Administrative Agent, the and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) on a need to know basis to its and its Affiliates’ directors,
officers, employees and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority, (c) to the extent required by applicable laws or regulations
or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as those of this Section,
to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or
its



49









 






advisors) to any swap or derivative transaction relating to the Borrower and its obligations,
(g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or any agreement contemplated by
clause (f) of this Section or (ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes of this Section,
“Information” means all information received from the Borrower relating to the Borrower, any
Subsidiary or their respective business, other than any such information that is available to the
Administrative Agent, or any Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the date hereof,
such information is clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall be considered to
have complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.



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




     ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS AFFILIATES, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES) AND
ITS SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT
THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE
INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE
PROCEDURES AND APPLICABLE LAW.



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




[Signature Pages Follow]




50









 








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




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC.,

as the Borrower

 	 
	 	By  	/s/ Ingemar Lanevi
 	 
	 	 	Name:  	Ingemar Lanevi 	 
	 	 	Title:  	VP and Corporate Treasurer 	 
	 
	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
individually as a Lender and as Administrative Agent

 	 
	 	By  	/s/ Anthony Galea
 	 
	 	 	Name:  	Anthony Galea 	 
	 	 	Title:  	Vice President 	 



Signature
Page to Secured Credit Agreement

Network Appliance, Inc.

October 2007




 









 








SCHEDULE 2.01




COMMITMENTS




	 	 	 	 	 
	LENDER	 	COMMITMENT
	 
	 	 	 	 
	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
	 	$	250,000,000	 
	 
	 	 	 	 
	TOTAL COMMITMENTS
	 	$	250,000,000	 






 









 






EXHIBIT A




FORM OF ASSIGNMENT AND ASSUMPTION




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




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




	 	 	 
	1. Assignor:

	 	 

	 
	 	 
	2. Assignee:

	 	 

[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 
	3. Borrower(s):

	 	Network Appliance, Inc.
	 
	 	 
	4. Administrative Agent:

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

	 	The Secured Credit Agreement
dated as of October 5, 2007 among
Network Appliance, Inc., the
Lenders parties thereto and
JPMorgan Chase Bank, National
Association, as Administrative
Agent
	 
	 	 
	6. Assigned Interest:
	 	 








 




			
	1	 	Select as applicable.




 









 










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






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



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



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




	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title:  	 	 
	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	Consented to and Accepted:


JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, 

as Administrative Agent

 	 	 
	By:  	 	 	 
	 	Title:  	 	 	 
	 
	[Consented to:]3



NETWORK APPLIANCE, INC.

 	 	 
	By:  	 	 	 
	 	Title:  	 	 	 
	 





 




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






2











 





ANNEX I




[_____________]1




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




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




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




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




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






 




			
	1	 	Describe Credit Agreement at option of Administrative
Agent.




 









 









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





2









 








EXHIBIT B




OPINION OF COUNSEL FOR THE LOAN PARTIES




[ATTACHED]




 









 





EXHIBIT C




LIST OF CLOSING DOCUMENTS




NETWORK APPLIANCE, INC.




SECURED CREDIT FACILITY




October 5, 2007




LIST OF CLOSING DOCUMENTS1




A. LOAN DOCUMENTS





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





EXHIBITS




	 	 	 	 	 
	Exhibit A
	 	—	 	Form of Assignment and Assumption
	Exhibit B
	 	—	 	Form of Opinion of Loan Parties’ Counsel
	Exhibit C
	 	—	 	List of Closing Documents
	Exhibit D
	 	—	 	Form of Subsidiary Guaranty
	Exhibit E
	 	—	 	Form of Pledge Agreement
	Exhibit F-1
	 	—	 	Form of Tri-Party Control Agreement
	Exhibit F-2
	 	—	 	Form of Safekeeping Control Agreement
	Exhibit G
	 	—	 	Margin Requirements
	Exhibit H
	 	—	 	Form of Compliance Certificate
	Exhibit I
	 	—	 	Form of Increasing Lender Supplement
	Exhibit J
	 	—	 	Form of Augmenting Lender Supplement







	2.	 	Disclosure Letter executed by the Borrower in favor of the Administrative Agent and the
Lenders.






	3.	 	Notes executed by the Borrower in favor of each of the Lenders, if any, which has requested a
note pursuant to Section 2.10(e) of the Credit Agreement.
	 
	4.	 	Pledge Agreement executed by the Borrower in favor of the Administrative Agent.
	 
	5.	 	Tri-Party Control Agreement executed by the Borrower, the Administrative Agent and J.P.
Morgan Securities Inc.







 




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




 









 











	6.	 	Safekeeping Control Agreement executed by the Borrower, the Administrative Agent and JPMorgan
Chase Bank, National Association





B. CORPORATE DOCUMENTS





	7.	 	Certificate of a Director, Secretary or Assistant Secretary or other duly appointed and
authorized officer of the Borrower certifying (i) that there have been no changes in the
Certificate of Incorporation or other charter document of the Borrower, as attached thereto
and as certified as of a recent date by the Secretary of State (or analogous governmental
entity) of the jurisdiction of its incorporation or organization, since the date of the
certification thereof by such secretary of state, (ii) the By-Laws or other applicable
organizational document, as attached thereto, of the Borrower as in effect on the date of such
certification, (iii) resolutions of the Board of Directors or other governing body of the
Borrower authorizing the execution, delivery and performance of each Loan Document to which it
is a party, and (iv) the names and true signatures of the incumbent officers of the Borrower
authorized to sign the Loan Documents to which it is a party and authorized to request a
Borrowing under the Credit Agreement.






	8.	 	Good Standing Certificate for the Borrower from the Secretary of State (or analogous
governmental entity) of the jurisdiction of its organization.





C. OPINIONS





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





D. CLOSING CERTIFICATES AND MISCELLANEOUS





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




2









 











EXHIBIT D




FORM OF SUBSIDIARY GUARANTY




GUARANTY




          THIS GUARANTY (as amended, restated, supplemented or otherwise modified from time to time,
this “Guaranty”) is made as of [               ], 2007, by and among each of the undersigned (the
“Initial Guarantors” and along with any additional Subsidiaries of the Borrower which
become parties to this Guaranty by executing a supplement hereto in the form attached as Annex I,
the “Guarantors”) in favor of the Administrative Agent, for the ratable benefit of the
Holders of Guaranteed Obligations (as defined below), under the Credit Agreement referred to below.




WITNESSETH




          WHEREAS, NETWORK APPLIANCE, INC., a Delaware corporation (the “Borrower”), the
institutions from time to time parties thereto as lenders (the “Lenders”), and JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, in its capacity as contractual representative (the
“Administrative Agent”), have entered into a certain Secured Credit Agreement dated as of
October 5, 2007 (as the same may be amended, modified, supplemented and/or restated, and as in
effect from time to time, the “Credit Agreement”), providing, subject to the terms and
conditions thereof, for extensions of credit and other financial accommodations to be made by the
Lenders to the Borrower;




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




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




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




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




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





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



 









 







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




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




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



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




          SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally guarantees,
jointly with the other Guarantors and severally, the full and punctual payment and performance when
due (whether at stated maturity, upon acceleration or otherwise) of the Secured Obligations,
including, without limitation, (i) the principal of and interest on each Loan made to the Borrower
pursuant to the Credit Agreement, (ii) all other amounts payable by the Borrower or any of its
Subsidiaries under the Credit Agreement and the other Loan Documents and (iii) the punctual and
faithful performance, keeping, observance, and fulfillment by the Borrower of all of the
agreements, conditions, covenants, and obligations of the Borrower contained in the Loan Documents
(all of the foregoing being referred to collectively as the “Guaranteed Obligations” and the
holders from time to time of the Guaranteed Obligations being referred to collectively as the
“Holders of Guaranteed Obligations”). Upon (x) the failure by the Borrower or any of its
Affiliates, as applicable, to pay punctually any such amount or perform such obligation, and (y)
such failure continuing beyond any applicable grace or notice and cure period, each of the
Guarantors agrees that it shall forthwith on demand pay such amount or perform such obligation at
the place and in the manner specified in the Credit Agreement or the relevant Loan Document, as the
case may be. Each of the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable
and unconditional guaranty of payment and is not a guaranty of collection.




2









 








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





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




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




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




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




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




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




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



3









 






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




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




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




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




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



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




          SECTION 6. General Waivers; Additional Waivers.





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



4









 






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




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




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




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




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



5









 






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



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





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




     (B) Subordination of Intercompany Indebtedness. Each Guarantor agrees that any and
all claims of such Guarantor against the Borrower or any other Guarantor hereunder (each an
“Obligor”) with respect to any “Intercompany Indebtedness” (as hereinafter defined),
any endorser, obligor or any other guarantor of all or any part of the Guaranteed
Obligations, or against any of its properties shall be subordinate and subject in right of
payment to the prior payment, in full and in cash, of all Guaranteed Obligations (other than
contingent indemnity obligations); provided that, as long as no Event of Default has
occurred and is continuing, such Guarantor may receive payments of principal and interest
from any Obligor with respect to Intercompany Indebtedness. Notwithstanding any right of
any Guarantor to ask, demand, sue for, take or receive any payment from any Obligor, all
rights, liens and security interests of such Guarantor, whether now or hereafter arising and
howsoever existing, in any assets of any other Obligor shall be and are subordinated to the
rights of the Holders of Guaranteed Obligations and the Administrative Agent in those
assets. No Guarantor shall have any right to possession of any such asset or to foreclose
upon any such asset, whether by judicial action or otherwise, unless and until all of the
Guaranteed Obligations (other than contingent indemnity obligations) shall have been fully
paid and satisfied (in cash) and all financing arrangements pursuant to any Loan Document
have been terminated. If all or any part of the assets of any Obligor, or the proceeds



6









 







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



          SECTION 8. Contribution with Respect to Guaranteed Obligations.





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




     (B) As of any date of determination, the “Allocable Amount” of any Guarantor shall be
equal to the maximum amount of the claim which could then be recovered from such Guarantor
under this Guaranty without rendering such claim voidable or avoidable under Section 548 of



7









 







Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.




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




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




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



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




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




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




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




          SECTION 13. Changes in Writing. Other than in connection with the addition of
additional Subsidiaries, which become parties hereto by executing a supplement hereto in the form
attached as Annex I, neither this Guaranty nor any provision hereof may be changed, waived,
discharged




8









 







or terminated orally, but only in writing signed by each of the Guarantors and the
Administrative Agent with the consent of the Required Lenders under the Credit Agreement.




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




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





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




     (B) WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT
OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER AND FURTHER WAIVES ANY RIGHT
TO INTERPOSE ANY COUNTERCLAIM (OTHER THAN ANY COMPULSORY COUNTERCLAIM) RELATED TO THIS
GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY IN SUCH ACTION.




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



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




9









 








          SECTION 17. Taxes, Expenses of Enforcement, etc.





     (A) Taxes.




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




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




          (iii) The Guarantors hereby agree to indemnify the Administrative Agent, each Lender
and any other Holder of Guaranteed Obligations for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on amounts payable under
this Section 17(A)) paid by the Administrative Agent, such Lender or such other Holder of
Guaranteed Obligations and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. Payments due under this indemnification shall be
made within thirty (30) days of the date the Administrative Agent, such Lender or such other
Holder of Guaranteed Obligations makes demand therefor.




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




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



10









 





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




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




          SECTION 20. Severability. Wherever possible, each provision of this Guaranty shall
be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Guaranty.




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




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




          SECTION 23. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due from any Guarantor hereunder in the currency expressed
to be payable herein (the “specified currency”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative Agent’s main New
York City office on the Business Day preceding that on which final, non-appealable judgment is
given. The obligations of each Guarantor in respect of any sum due hereunder shall,
notwithstanding any judgment in a currency other than the specified currency, be discharged only to
the extent that on the Business Day following receipt by any Holder of Guaranteed Obligations
(including the Administrative Agent), as the case may be, of any sum adjudged to be so due in such
other currency such Holder of Guaranteed Obligations (including the Administrative Agent), as the
case may be, may in accordance with normal, reasonable banking




11









 







procedures purchase the specified currency with such other currency. If the amount of the
specified currency so purchased is less than the sum originally due to such Holder of Guaranteed
Obligations (including the Administrative Agent), as the case may be, in the specified currency,
each Guarantor agrees, to the fullest extent that it may effectively do so, as a separate
obligation and notwithstanding any such judgment, to indemnify such Holder of Guaranteed
Obligations (including the Administrative Agent), as the case may be, against such loss, and if the
amount of the specified currency so purchased exceeds (a) the sum originally due to any Holder of
Guaranteed Obligations (including the Administrative Agent), as the case may be, in the specified
currency and (b) amounts shared with other Holders of Guaranteed Obligations as a result of
allocations of such excess as a disproportionate payment to such other Holder of Guaranteed
Obligations under Section 2.18 of the Credit Agreement, such Holder of Guaranteed Obligations
(including the Administrative Agent), as the case may be, agrees, by accepting the benefits hereof,
to remit such excess to such Guarantor.




Remainder of Page Intentionally Blank.




12









 








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




	 	 	 	 	 
	 	[INITIAL GUARANTORS TO COME]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



13









 






	 	 	 	 	 



	 	 	 	 	 
	Acknowledged and Agreed

as of the date first written above:



JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



14









 






	 	 	 	 	 



ANNEX I TO GUARANTY




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




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




15









 








	 	 	 	 	 
	 	[NAME OF NEW GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 



16









 






	 	 	 	 	 



EXHIBIT E




FORM OF PLEDGE AGREEMENT









PLEDGE AGREEMENT




               THIS PLEDGE AGREEMENT (this “Agreement”) is made as of October 5, 2007, by NETWORK
APPLIANCE, INC, a Delaware corporation (the “undersigned” or the “Borrower”), in
favor of the Administrative Agent, for the ratable benefit of the Holders of Secured Obligations,
under the Credit Agreement referred to below. Terms defined in the Credit Agreement (as
hereinafter defined) and not otherwise defined herein have, as used herein, the respective meanings
provided for therein.




WITNESSETH




          WHEREAS, the Borrower, the institutions from time to time parties thereto as lenders (the
“Lenders”), and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, individually and in its capacity
as contractual representative (the “Administrative Agent”) for itself and the other
Lenders, have entered into a certain Secured Credit Agreement dated as of October 5, 2007 (as the
same may be amended, modified, supplemented and/or restated, and as in effect from time to time,
the “Credit Agreement”), providing, subject to the terms and conditions thereof, for
extensions of credit and other financial accommodations to be made by the Lenders to the Borrower;




          WHEREAS, it is a condition precedent to the extension of credit by the Lenders under the
Credit Agreement that the undersigned execute and deliver this Agreement as security for certain of
its obligations under the Credit Agreement; and





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



     In consideration of one of more loans, or other financial accommodations extended by the
Lenders (including the Administrative Agent in its individual capacity), the undersigned and the
Administrative Agent agree as follows:



     1. Definitions.




          “Account Assets” means all Deposits, Securities, securities entitlements and any other
assets held in trust, or in any custody, subcustody, safekeeping, investment management accounts,
or other accounts of the undersigned with the Administrative Agent or any other custodian, trustee
or Clearing System or held by any Intermediary (all of which shall be considered “financial assets”
under the UCC).




17









 








          “Clearing System” means the Depository Trust Company (“DTC”) and such other
clearing or safekeeping system that may from time to time be used in connection with transactions
relating to or the custody of any Securities, and any depository for any of the foregoing.




          “Collateral” means: (i) the Deposits, Securities and Account Assets (as defined
below) that are listed on Exhibit A; (ii) all additions to, and proceeds, renewals,
investments, reinvestments and substitutions of, the foregoing, whether or not listed on
Exhibit A; (iii) all certificates, receipts and other instruments evidencing any of the
foregoing.




          “Deposits” means the deposits of the undersigned with the Administrative Agent
(whether or not held in trust, or in any custody, subcustody, safekeeping, investment management
accounts, or other accounts of the undersigned with the Administrative Agent).




          “Liabilities” means all Secured Obligations, whether now existing or hereafter
incurred or acquired, whether matured or unmatured, liquidated or unliquidated, direct or indirect,
absolute or contingent, primary or secondary, sole, joint, several or joint and several, secured or
unsecured, arising by operation of law or otherwise arising in connection with the Collateral, this
Agreement or any other Liability Document and all related costs and expenses incurred by the
Administrative Agent.




          “Liability Document” means any Loan Document or any other instrument, agreement or
document evidencing, governing or delivered in connection with the Liabilities.




          “Securities” means the stocks, bonds and other instruments and securities, whether or
not held in trust or in any custody, subcustody, safekeeping, investment management accounts or
other accounts of the undersigned with the Administrative Agent or any other custodian, trustee or
Clearing System or held by any party as a financial intermediary or securities intermediary (the
“Intermediary”).




          “UCC” means the Uniform Commercial Code in effect in the State of New York. Unless
the context otherwise requires, all terms used in this Agreement which are defined in the UCC will
have the meanings stated in the UCC.




     2. Grant of Security Interest.




     As security for the payment of all the Liabilities, the undersigned pledges to the
Administrative Agent and grants to the Administrative Agent, in each case for the ratable benefit
of the Holders of Secured Obligations in respect of the Liabilities, a security interest in and a
right of setoff against, the Collateral.



     3. Agreements of the Undersigned and Rights of the Administrative Agent.




     The undersigned agrees as follows and irrevocably authorizes, upon the occurrence and during
the continuance of an Event of Default (as defined in Section 7 below), the Administrative Agent to
exercise the rights listed below, at its option, for its own benefit, either in its own name or in
the name of the undersigned, and appoints the Administrative Agent as its attorney-in-fact to take
all action permitted under this Agreement.



     (a) Deposits: The Administrative Agent may: (i) renew the Deposits on terms and for periods
the Administrative Agent deems appropriate; (ii) demand, collect, and receive payment of any monies
or proceeds due or to become due under the Deposits; (iii) execute any instruments required for the
withdrawal or repayment of the Deposits; (iv) in all respects deal with the Deposits as the owner.



18









 





     (b) Securities: The Administrative Agent may: (i) transfer to the account of the
Administrative Agent any Securities whether in the possession of, or registered in the name of, any
Clearing System or held otherwise; (ii) transfer to the account of the Administrative Agent with
any Federal Reserve Administrative Agent any Securities held in book entry form with any such
Federal Reserve Administrative Agent; and (iii) transfer to the name of the Administrative Agent or
its nominee any Securities registered in the name of the undersigned and held by the Administrative
Agent and complete and deliver any necessary stock powers or other transfer instruments.



     The undersigned grants to the Administrative Agent an irrevocable proxy to vote any and all
Securities and give consents, waivers and ratifications in connection with those Securities after
the occurrence and during the continuance of an Event of Default.



     All payments, distributions and dividends in securities, property or cash shall be paid
directly to and, at the discretion of the Administrative Agent, retained by the Administrative
Agent and held by it, until applied as provided in this Agreement, as additional Collateral.



     (c) General: The Administrative Agent may, in its name, or in the name of the undersigned:
(i) execute and file financing statements under the UCC or any other filings or notices necessary
or desirable to create, perfect or preserve its security interest, all without notice (except as
required by applicable law and not waivable) and without liability except to account for property
actually received by it and (ii) after the occurrence and during the continuance of an Event of
Default (x) demand, sue for, collect or receive any money or property at any time payable or
receivable on account of or in exchange for, or make any compromise or settlement deemed desirable
with respect to, any item of the Collateral (but shall be under no obligation to do so); (y) make
any notification (to the issuer of any certificate or Security, or otherwise, including giving any
notice of exclusive control to the Intermediary) or take any other action in connection with the
perfection or preservation of its security interest or any enforcement of remedies, and retain any
documents evidencing the title of the undersigned to any item of the Collateral; (iv) issue
entitlement orders with respect to any of the Collateral to any Intermediary without the consent of
the undersigned.



     The undersigned agrees that it will not file or permit to be filed any financing or like
statement with respect to the Collateral in which the Administrative Agent is not named as the sole
secured party, consent or be a party to any securities account control agreement or other similar
agreement with any Intermediary (an “Account Control Agreement”) to which the
Administrative Agent is not also a party or sell, assign, or otherwise dispose of, grant any option
with respect to, or pledge, or otherwise encumber the Collateral. At the reasonable request of the
Administrative Agent the undersigned agrees to do all other things which the Administrative Agent
may deem necessary or advisable in order to perfect and preserve the security interest and to give
effect to the rights granted to the Administrative Agent under this Agreement or enable the
Administrative Agent to comply with any applicable laws or regulations. Notwithstanding the
foregoing, subject to compliance with any mandatory legal requirements placed upon it to the
contrary, the Administrative Agent does not assume any duty with respect to the Collateral and is
not required to take any action to collect, preserve or protect its or the undersigned’s rights in
any item of the Collateral. The undersigned releases the Administrative Agent and agrees to hold
the Administrative Agent harmless from any claims, causes of action and demands at any time arising
with respect to this Agreement, the use or disposition of any item of the Collateral or any action
taken or omitted to be taken by the Administrative Agent with respect thereto, subject to
Administrative Agent’s compliance with such mandatory legal requirements and other than claims,
causes of action and demands arising from the gross negligence or willful misconduct of
Administrative Agent.



     The rights granted to the Administrative Agent pursuant to this Agreement are in addition to
the rights granted to the Administrative Agent in any custody, investment management, trust,
Account Control



19









 







Agreement or similar agreement. In case of conflict between the provisions of this Agreement and
of any other such agreement, the provisions of this Agreement will prevail.



     4. Application. Upon the maturity of each item of Collateral or the receipt by Borrower of
any interest on Deposits and Securities and cash dividends on Securities, the Borrower hereby
directs the Administrative Agent to deposit or maintain such amounts in the Money Market Fund
listed on Exhibit A hereto as additional Collateral unless otherwise directed by the Borrower in
accordance with Section 5.



     5. Value, Supplements, Withdrawals and Substitutions of the Collateral.



     (a) The undersigned agrees that at all times the aggregate value of the Collateral may not be
less than the amount required under Section 5.10 of the Credit Agreement, subject to the grace
period set forth therein. The undersigned will supplement the Collateral to the extent necessary
to ensure compliance with this provision.



     (b) To the extent the aggregate value of the Collateral exceeds the amount required under
Section 5.10 of the Credit Agreement (including due to any reduction in the Commitments), Borrower
shall be permitted to withdraw Account Assets to the extent of such excess. In addition to the
foregoing, the Borrower shall be permitted at any time to withdraw Account Assets for the purpose
of substitution of Collateral of equal or greater value or to reinvest Account Assets in any other
assets constituting Collateral which are pledged pursuant to Collateral Documents. To facilitate
the foregoing, Administrative Agent agrees to give any instructions that may be necessary in
accordance with the terms of any Control Agreement to permit such withdrawal.



     6. Currency Conversion.



     For calculation purposes, any currency in which the Collateral is denominated (the
“Collateral Currency”) will be converted into the currency of the Liabilities (the
“Liability Currency”) at the spot rate of exchange for the purchase of the Liability
Currency with the Collateral Currency quoted by the Administrative Agent at such place as the
Administrative Agent deems appropriate (or, if no such rate is quoted on any relevant date,
estimated by the Administrative Agent on the basis of the Administrative Agent’s last quoted spot
rate) or another prevailing rate that the Administrative Agent reasonably deems more appropriate.



     7. Representations and Warranties.



     The undersigned represents and warrants: (a) the undersigned is the sole owner of the
Collateral; (b) the Collateral is free of all encumbrances except for the security interest in
favor of the Administrative Agent created by this Agreement or any other Loan Document and except
for Relevant Permitted Liens; (c) no authorizations, consents or approvals and no notice to or
filing with any governmental authority or regulatory body is required for the execution and
delivery of this Agreement; (d) the execution, delivery and performance of this Agreement will not
violate any provisions of applicable law, regulation or order and will not result in the breach of,
or constitute a default, or require any consent under, any material agreement, instrument or
document to which the undersigned is a party or by which it or any of its property may be bound;
(e) the Securities are not subject to any restrictions or limitations relating to a holding period,
manner of sale, volume limitation, public information or notice requirements; and (f) it is duly
organized and validly existing under the laws of the jurisdiction of its organization, it has full
power and authority to execute, deliver and perform this Agreement, the execution, delivery and
performance have been duly authorized, will not conflict with any provisions of its governing
instruments and the Agreement is a legal, valid and binding obligation of the undersigned,
enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights



20









 







generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.



     8. Event of Default.




     If an Event of Default under the Credit Agreement (an “Event of Default”) shall occur
and be continuing, then, the Administrative Agent will be entitled to exercise any of the rights
and remedies under this Agreement.



     9. Remedies.




     The Administrative Agent will have the rights and remedies under the UCC and the other rights
granted to the Administrative Agent under this Agreement, and, without limiting the foregoing, but
subject to the occurrence and continuance of an Event of Default , without notice or demand, to
sell, redeem, offset, setoff, debit, charge or otherwise dispose of or liquidate into cash any such
Collateral and/or to apply it or the proceeds thereof to repay any of the Liabilities in accordance
with Section 2.18 of the Credit Agreement (regardless of whether any such Liabilities are
contingent, unliquidated or unmatured or whether the Administrative Agent has any other recourse to
the undersigned or any other Loan Party or any other collateral or assets). The Administrative
Agent may exercise its rights without regard to any premium or penalty from liquidation of any
Collateral and without regard to the undersigned’s basis or holding period for any Collateral.



     In connection with the exercise of its remedies, the Administrative Agent may sell in the
Borough of Manhattan, New York City, or elsewhere, in one or more sales or parcels, at the price as
the Administrative Agent deems best, for cash or on credit or for other property, for immediate or
future delivery, any item of the Collateral, at any broker’s board or at public or private sale, in
any reasonable manner permissible under the UCC (except that, to the extent permissible under the
UCC, the undersigned waives any requirements of the UCC) and the Administrative Agent or anyone
else may be the purchaser of the Collateral and hold it free from any claim or right including,
without limitation, any equity of redemption of the undersigned, which right the undersigned
expressly waives. The Administrative Agent may in its sole discretion elect to conduct any sale
(and related offers) of any Collateral in such a manner as to avoid the need for registration or
qualification thereof under any Federal or state securities laws, that such conduct may include
restrictions (including as to potential purchasers) and other requirements (such as purchaser
representations) which may result in prices or other terms less favorable than those which might
have been obtained through a public sale not subject to such restrictions and requirements and that
any offer and sale so conducted shall be deemed to have been made in a commercially reasonable
manner.



     In connection with the exercise of its remedies, the Administrative Agent may also, in its
sole discretion: (i) convert any part of the Collateral Currency into the Liability Currency; (ii)
hold any monies or proceeds representing the Collateral in a cash collateral account in the
Liability Currency or other currency that the Administrative Agent reasonably selects; (iii) invest
such monies or proceeds on behalf of the undersigned; and (iv) apply any portion of the Collateral,
first, to all costs and expenses of the Administrative Agent, second, to the payment of interest on
the Liabilities and any fees or commissions to which the Administrative Agent may be entitled,
third, to the payment of principal of the Liabilities, whether or not then due, and fourth, to the
undersigned.



     The undersigned will pay to the Administrative Agent all expenses (including reasonable
attorneys’ fees and legal expenses incurred by the Administrative Agent and the allocated costs of
its in-house counsel) in connection with the exercise of any of the Administrative Agent’s rights
or obligations under this Agreement or the Liability Documents. The undersigned will take any
action reasonably requested by the



21









 







Administrative Agent to allow it to sell or dispose of the Collateral. Notwithstanding that the
Administrative Agent may continue to hold Collateral and regardless of the value of the Collateral,
the undersigned will remain liable for the payment in full of any unpaid balance of the
Liabilities.



     10. Termination or Release.




     Upon the payment in full in cash of the Liabilities (other than contingent indemnity
obligations) and termination of the Commitments under the Credit Agreement, the security interest
in all Collateral created under this Agreement shall terminate and all rights of the Administrative
Agent and the other Lenders to the Collateral shall revert to the Borrower. Upon any such
termination, the Administrative Agent will, at the Borrower’s expense, execute and deliver to
Borrower such documents as Borrower shall reasonably request to evidence such termination.



     Upon any withdrawal by Borrower of any Collateral that is permitted under Section 5(b) of this
Agreement, the security interest in such Collateral shall be automatically released. Upon any such
termination, the Administrative Agent will, at the Borrower’s expense, execute and deliver to
Borrower such documents as Borrower shall reasonably request to evidence such release.



     11. Jurisdiction.




     The undersigned consents to the non-exclusive jurisdiction of the State and Federal courts
sitting in the City of New York and agrees that suit may be brought against the undersigned in
those courts or in any other jurisdiction where the undersigned or any of its assets may be found,
and the undersigned irrevocably submits to the jurisdiction of those courts. The undersigned
consents to the service of process by mailing copies of process to the Borrower at its most recent
mailing address in the records of the Administrative Agent. The undersigned further agrees that
any action or proceeding brought against the Administrative Agent may be brought only in a New York
State or United States Federal court sitting in New York County. To the extent that the Borrower
may be or become entitled to claim for itself or its property any immunity on the ground of
sovereignty or the like from suit, court jurisdiction, attachment prior to judgment, attachment in
aid of execution of a judgment or execution of a judgment, and to the extent that in any such
jurisdiction there may be attributed such an immunity (whether or not claimed), the Borrower hereby
irrevocably agrees not to claim and hereby irrevocably waives such immunity with respect to its
obligations hereunder or under the other Liability Documents.



     The undersigned agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit or proceeding in such state and
hereby waives any defense on the basis of an inconvenient forum. Nothing herein shall affect the
right of the Administrative Agent to serve legal process in any other manner permitted by law or
affect the right of the Administrative Agent to bring any action or proceeding against the
undersigned or its property in the courts of any other jurisdiction.



     12. Waiver of Jury Trial.




     THE UNDERSIGNED AND THE BANK EACH WAIVE ANY RIGHT TO JURY TRIAL.




     13. Notices.




     Unless otherwise agreed in writing, notices may be given to the Administrative Agent and the
undersigned in accordance with Section 9.01 of the Credit Agreement.



     14. Miscellaneous.




22









 








     (a) The Administrative Agent may assign any of the Collateral and any of its interests in
this Agreement (and may assign the Liabilities to any party) in accordance with the Credit
Agreement and will be fully discharged from all responsibility as to the assigned Collateral. That
assignee will have all the obligations, powers and rights of the Administrative Agent hereunder,
but only as to the assigned Collateral.



     (b) No amendment or waiver of any provision of this Agreement nor consent to any departure by
the undersigned will be effective unless it is in writing and signed by the undersigned and the
Administrative Agent and will be effective only in that specific instance and for that specific
purpose. No failure on the part of the Administrative Agent to exercise, and no delay in
exercising, any right will operate as a waiver or preclude any other or further exercise or the
exercise of any other right.



     (c) The rights and remedies in this Agreement are cumulative and not exclusive of any rights
and remedies which the Administrative Agent may have under law or under other agreements or
arrangements with the undersigned or any other Loan Party.



     (d) The provisions of this Agreement are intended to be severable. If for any reason any
provision of this Agreement is not valid or enforceable in whole or in part in any jurisdiction,
that provision will, as to that jurisdiction, be ineffective to the extent of that invalidity or
unenforceability without in any manner affecting the validity or enforceability in any other
jurisdiction or the remaining provisions of this Agreement.



     (e) The term “undersigned” will include the heirs, executors, administrators, assigns and
successors of the undersigned.



     (f) The undersigned hereby waives presentment, notice of dishonor and protest of all
instruments included in or evidencing the Liabilities or the Collateral and any other notices and
demands, whether or not relating to those instruments.



     (g) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF
NEW YORK.



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



	 	 	 	 	 
	 	NETWORK APPLIANCE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 
	Address for notices:

	 	 
	 	 	 
	 	 	 
	 	 	 
	Telecopier:
	 	 
	Telephone:
	 	 
	 
	 	 
	ACCEPTED:
	 	 
	 
	 	 
	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,







23









 






	 	 	 	 	 
	as Administrative Agent

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



	 	 	 
	Address for notices to the

Administrative Agent:

	 	 
	 	 
	JPMorgan Chase Bank, National Association
	 	 
	 	 	 
	 	 	 
	 	 	 
	Attn:
	 	 
	Telecopier:
	 	 
	Telephone:
	 	 







24











 





EXHIBIT A




DESCRIPTION OF THE COLLATERAL




1. Deposits




	 	 	 	 	 	 	 	 	 	 	 
	Type of	 	Location	 	 	 	 	 	 	 	 
	Deposit	 	(NY,	 	 	 	 	 	 	 	 
	(CD, TD,	 	IBF-NY,	 	Contract or	 	Issue or	 	Maturity	 	Principal
	etc.)	 	etc.)	 	Certificate No.	 	Opening Date	 	Date	 	Amount
	 	 	 	 	 	 	 	 	 	 	 
	None	 	 	 	 	 	 	 	 	 	 






2. Stocks, Bonds and Other Instruments and Securities




	 	 	 	 	 	 	 	 	 
	Nature of Security	 	 	 	 	 	Number of	 	Face Amount	 	Certificate
	or Obligation	 	Name of Issuer	 	Units	 	(if Applicable)	 	Number





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Cusip	 	Issuer	 	Cpn	 	Yld	 	Value	 	Maturity	 	Quantity
	3128X5Z84
	 	FREDDIE MAC	 	 	5.400	 	 	 	4.891	 	 	4/17/2007	 	10/17/2007	 	$	5,000,000.00	 
	3136F6FZ7
	 	Fannie Mae	 	 	3.820	 	 	 	3.820	 	 	10/18/2004	 	10/18/2007	 	$	1,500,000.00	 
	31331XVN9
	 	FED FARM CREDIT	 	 	5.250	 	 	 	5.236	 	 	4/23/2007	 	10/23/2007	 	$	5,000,000.00	 
	31331SBN2
	 	Federal Farm Credit Bank	 	 	3.500	 	 	 	3.500	 	 	10/26/2004	 	10/26/2007	 	$	1,000,000.00	 
	3136F64B2
	 	FNMA Clbl Not Called (O)	 	 	4.280	 	 	 	4.280	 	 	4/29/2005	 	10/26/2007	 	$	1,000,000.00	 
	05565UAA7
	 	BP Canada Finance	 	 	3.375	 	 	 	3.947	 	 	6/15/2005	 	10/31/2007	 	$	1,000,000.00	 
	31331SMB6
	 	FFCB Clbl Not Called (O)	 	 	3.700	 	 	 	3.700	 	 	2/2/2005	 	11/2/2007	 	$	2,000,000.00	 
	31359MB36
	 	FNMA Clbl Not Called (O)	 	 	4.250	 	 	 	4.250	 	 	5/2/2005	 	11/2/2007	 	$	1,000,000.00	 
	3133XCJS3
	 	Fannie Mae	 	 	4.300	 	 	 	4.300	 	 	8/9/2005	 	11/9/2007	 	$	2,000,000.00	 
	3136F6JP5
	 	Fannie Mae	 	 	3.490	 	 	 	3.490	 	 	11/9/2004	 	11/9/2007	 	$	1,000,000.00	 
	59018YNZ0
	 	Merrill Lynch	 	 	4.000	 	 	 	3.983	 	 	2/24/2005	 	11/15/2007	 	$	1,500,000.00	 
	02635PSA2
	 	Amer Genl Fin	 	 	4.500	 	 	 	5.340	 	 	5/30/2006	 	11/15/2007	 	$	5,000,000.00	 
	59018YNZ0
	 	Merrill Lynch	 	 	4.000	 	 	 	5.200	 	 	9/25/2006	 	11/15/2007	 	$	3,000,000.00	 
	33900QBE3
	 	Fleet Boston	 	 	4.200	 	 	 	4.370	 	 	8/9/2005	 	11/30/2007	 	$	1,505,000.00	 
	949746CK5
	 	WELLS FARGO SF	 	 	5.250	 	 	 	4.283	 	 	7/14/2005	 	12/1/2007	 	$	1,500,000.00	 
	36962GVW1
	 	General Electric Credit Corp	 	 	6.500	 	 	 	4.499	 	 	7/20/2005	 	12/10/2007	 	$	1,210,000.00	 
	36962GVW1
	 	General Electric Credit Corp	 	 	6.500	 	 	 	4.329	 	 	7/1/2005	 	12/10/2007	 	$	1,500,000.00	 
	3136F7AQ0
	 	FNMA Clbl Not Called (O)	 	 	4.000	 	 	 	4.000	 	 	6/14/2005	 	12/14/2007	 	$	1,000,000.00	 
	073902BG2
	 	Bear Sterns	 	 	6.750	 	 	 	4.541	 	 	3/11/2005	 	12/15/2007	 	$	1,000,000.00	 
	590188HX9
	 	Merrill Lynch	 	 	6.560	 	 	 	5.491	 	 	9/1/2006	 	12/16/2007	 	$	3,000,000.00	 
	590188HX9
	 	Merrill Lynch	 	 	6.560	 	 	 	5.250	 	 	4/7/2006	 	12/16/2007	 	$	1,000,000.00	 
	065913AE5
	 	Bank Boston	 	 	6.500	 	 	 	5.425	 	 	9/20/2006	 	12/19/2007	 	$	1,500,000.00	 
	172967DB4
	 	Citigroup Inc	 	 	4.200	 	 	 	5.301	 	 	8/11/2006	 	12/20/2007	 	$	2,500,000.00	 
	3128X4DF5
	 	Freddie Mac	 	 	4.200	 	 	 	4.200	 	 	6/28/2005	 	12/28/2007	 	$	1,500,000.00	 
	3133XCBC6
	 	Federal Home Loan Bank	 	 	4.140	 	 	 	4.140	 	 	6/28/2005	 	12/28/2007	 	$	2,000,000.00	 
	3133XC4Z3
	 	Federal Home Loan Bank	 	 	4.125	 	 	 	4.125	 	 	7/6/2005	 	1/4/2008	 	$	2,000,000.00	 
	3133XABC0
	 	FHLB Clbl 10/11/07 (Q)	 	 	4.500	 	 	 	4.005	 	 	1/11/2005	 	1/11/2008	 	$	2,800,000.00	 
	22541LAF0
	 	Credit Suisse	 	 	4.625	 	 	 	3.996	 	 	2/1/2005	 	1/15/2008	 	$	1,500,000.00	 
	36962GZZ0
	 	General Electric Credit Corp	 	 	4.250	 	 	 	4.215	 	 	5/11/2005	 	1/15/2008	 	$	1,000,000.00	 
	38141GCS1
	 	Goldman Sachs	 	 	4.125	 	 	 	4.168	 	 	6/15/2005	 	1/15/2008	 	$	1,000,000.00	 
	38141GCS1
	 	Goldman Sachs	 	 	4.125	 	 	 	5.300	 	 	6/9/2006	 	1/15/2008	 	$	3,000,000.00	 
	524908FD7
	 	Lehman Brothers	 	 	4.000	 	 	 	4.187	 	 	6/22/2005	 	1/22/2008	 	$	1,000,000.00	 
	31331SML4
	 	FFCB Clbl Not Called (O)	 	 	3.790	 	 	 	3.790	 	 	1/28/2005	 	1/28/2008	 	$	2,000,000.00	 






25









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cusip	 	Issuer	 	Cpn	 	Yld	 	Value	 	Maturity	 	Quantity
	06406MAW8
	 	Bank of New York Inc	 	 	3.800	 	 	 	4.372	 	 	8/9/2005	 	2/1/2008	 	$	2,000,000.00	 
	172967BS9
	 	Citicorp	 	 	3.500	 	 	 	4.064	 	 	7/7/2005	 	2/1/2008	 	$	2,000,000.00	 
	172967BS9
	 	Citicorp	 	 	3.500	 	 	 	5.309	 	 	8/4/2006	 	2/1/2008	 	$	2,095,000.00	 
	31359MXP3
	 	Fannie Mae	 	 	3.875	 	 	 	3.875	 	 	2/1/2005	 	2/1/2008	 	$	1,500,000.00	 
	90331VAW2
	 	US Bancorp	 	 	6.500	 	 	 	5.471	 	 	8/11/2006	 	2/1/2008	 	$	3,629,000.00	 
	3136F6UH0
	 	FNMA Clbl 11/1/07 (Q)	 	 	4.000	 	 	 	4.000	 	 	2/1/2005	 	2/1/2008	 	$	1,500,000.00	 
	3136F6VY2
	 	Fannie Mae	 	 	4.000	 	 	 	4.000	 	 	2/8/2005	 	2/8/2008	 	$	1,500,000.00	 
	339030AG3
	 	Fleet Boston	 	 	3.850	 	 	 	4.212	 	 	3/15/2005	 	2/15/2008	 	$	2,000,000.00	 
	339030AG3
	 	Fleet Finl Group	 	 	3.850	 	 	 	5.060	 	 	10/4/2006	 	2/15/2008	 	$	2,000,000.00	 
	524909AY4
	 	Lehman Bros Inc	 	 	6.625	 	 	 	5.250	 	 	4/18/2006	 	2/15/2008	 	$	1,000,000.00	 
	79549BGP6
	 	Salomon Sb Hldgs	 	 	6.500	 	 	 	5.550	 	 	7/17/2006	 	2/15/2008	 	$	1,500,000.00	 
	79549BGP6
	 	Salomon Sb Hldgs	 	 	6.500	 	 	 	4.150	 	 	5/11/2005	 	2/15/2008	 	$	2,000,000.00	 
	3136F6YQ6
	 	Fannie Mae	 	 	4.000	 	 	 	4.000	 	 	2/22/2005	 	2/22/2008	 	$	2,000,000.00	 
	36962GP57
	 	General Electric Credit Corp	 	 	4.125	 	 	 	5.178	 	 	1/3/2007	 	3/4/2008	 	$	1,158,000.00	 
	36962GP57
	 	General Electric Credit Corp	 	 	4.125	 	 	 	5.018	 	 	12/13/2006	 	3/4/2008	 	$	3,500,000.00	 
	3136F7JZ1
	 	FNMA Clbl Not Called (Q)	 	 	4.750	 	 	 	4.750	 	 	9/7/2005	 	3/7/2008	 	$	1,000,000.00	 
	949746JQ5
	 	WELLS FARGO BANK INTL NY	 	 	4.125	 	 	 	4.177	 	 	3/11/2005	 	3/10/2008	 	$	2,000,000.00	 
	949746JQ5
	 	WELLS FARGO BANK INTL NY	 	 	4.125	 	 	 	5.178	 	 	1/3/2007	 	3/10/2008	 	$	2,500,000.00	 
	949746JQ5
	 	WELLS FARGO & CO	 	 	4.125	 	 	 	5.750	 	 	4/20/2006	 	3/10/2008	 	$	5,000,000.00	 
	949746JQ5
	 	WELLS FARGO & CO	 	 	4.125	 	 	 	5.750	 	 	4/25/2006	 	3/10/2008	 	$	5,000,000.00	 
	02666QWG4
	 	American Honda Finance	 	 	4.250	 	 	 	5.127	 	 	10/4/2006	 	3/11/2008	 	$	3,000,000.00	 
	91159HGG9
	 	US Bancorp	 	 	3.125	 	 	 	5.078	 	 	12/21/2006	 	3/15/2008	 	$	2,100,000.00	 
	338915AJ0
	 	Fleet Finl Group	 	 	6.500	 	 	 	5.261	 	 	1/26/2007	 	3/15/2008	 	$	2,440,000.00	 
	3133XB3T0
	 	Federal Home Loan Bank	 	 	4.160	 	 	 	4.160	 	 	3/28/2005	 	3/28/2008	 	$	1,500,000.00	 
	337358BK0
	 	WACHOVIA BANK NA, NEW YORK	 	 	6.400	 	 	 	4.639	 	 	7/18/2005	 	4/1/2008	 	$	1,500,000.00	 
	066050CU7
	 	Bankamerica Corp	 	 	6.250	 	 	 	5.185	 	 	4/30/2007	 	4/1/2008	 	$	2,000,000.00	 
	524909AZ1
	 	Lehman Brothers	 	 	6.500	 	 	 	4.643	 	 	7/20/2005	 	4/15/2008	 	$	1,000,000.00	 
	06606HD87
	 	Bankboston Na	 	 	6.375	 	 	 	5.240	 	 	4/18/2006	 	4/15/2008	 	$	1,465,000.00	 
	59018YQU8
	 	Merrill Lynch	 	 	3.700	 	 	 	4.928	 	 	12/11/2006	 	4/21/2008	 	$	3,030,000.00	 
	59018YQU8
	 	Merrill Lynch	 	 	3.700	 	 	 	5.172	 	 	4/26/2007	 	4/21/2008	 	$	2,000,000.00	 
	8447HACE2
	 	Southtrust Bank	 	 	3.125	 	 	 	4.270	 	 	7/21/2005	 	5/15/2008	 	$	2,000,000.00	 
	338915AL5
	 	FLEETBOSTON FINL CORP	 	 	6.375	 	 	 	5.561	 	 	6/13/2006	 	5/15/2008	 	$	5,000,000.00	 
	74433KCR6
	 	PRUDENTIAL FUNDING LLC	 	 	6.600	 	 	 	5.867	 	 	5/16/2006	 	5/15/2008	 	$	4,000,000.00	 
	634902HQ6
	 	Natl City Bk Oh	 	 	3.300	 	 	 	5.071	 	 	3/23/2007	 	5/15/2008	 	$	1,000,000.00	 
	634902HQ6
	 	Natl City Bk Oh	 	 	3.300	 	 	 	5.490	 	 	7/31/2006	 	5/15/2008	 	$	1,745,000.00	 
	634902HQ6
	 	Natl City Bk Oh	 	 	3.300	 	 	 	5.070	 	 	3/22/2007	 	5/15/2008	 	$	2,000,000.00	 
	8447HACE2
	 	Southtrust Bk Na	 	 	3.125	 	 	 	5.200	 	 	4/24/2006	 	5/15/2008	 	$	1,000,000.00	 
	025818EM3
	 	AMER EXPRESS CREDIT	 	 	3.000	 	 	 	5.389	 	 	4/20/2006	 	5/16/2008	 	$	4,000,000.00	 
	257661AF5
	 	Donaldson Lufkin	 	 	6.500	 	 	 	5.290	 	 	5/2/2006	 	6/1/2008	 	$	1,028,000.00	 
	31359MD59
	 	FNMA Clbl Not Called (O)	 	 	4.125	 	 	 	4.125	 	 	6/16/2005	 	6/16/2008	 	$	1,000,000.00	 
	441812FY5
	 	Household Intl	 	 	6.400	 	 	 	5.200	 	 	5/3/2007	 	6/17/2008	 	$	2,000,000.00	 
	3133XLAG8
	 	FED HOME LN BANK	 	 	5.450	 	 	 	5.022	 	 	6/18/2007	 	6/18/2008	 	$	4,000,000.00	 
	073902CC0
	 	Bear Sterns	 	 	2.875	 	 	 	4.393	 	 	7/26/2005	 	7/2/2008	 	$	1,000,000.00	 
	59018YRN3
	 	Merrill Lynch	 	 	3.125	 	 	 	5.200	 	 	4/21/2006	 	7/15/2008	 	$	1,000,000.00	 
	59018YRN3
	 	Merrill Lynch	 	 	3.125	 	 	 	5.200	 	 	4/21/2006	 	7/15/2008	 	$	1,000,000.00	 
	90331VAZ5
	 	Us Bank Na	 	 	6.300	 	 	 	5.060	 	 	10/6/2006	 	7/15/2008	 	$	1,885,000.00	 
	31331SR39
	 	Federal Farm Credit Bank	 	 	4.440	 	 	 	4.440	 	 	7/18/2005	 	7/18/2008	 	$	1,500,000.00	 
	31359MF32
	 	FNMA Clbl Not Called (O)	 	 	5.000	 	 	 	5.230	 	 	5/3/2006	 	7/25/2008	 	$	1,000,000.00	 
	31359MYF4
	 	Fannie Mae	 	 	4.400	 	 	 	4.400	 	 	7/28/2005	 	7/28/2008	 	$	1,500,000.00	 
	3136F7GA9
	 	FNMA Clbl Not Called (Q)	 	 	4.750	 	 	 	4.750	 	 	7/28/2005	 	7/28/2008	 	$	2,000,000.00	 
	06423AAN3
	 	BANK ONE CORP	 	 	6.000	 	 	 	5.528	 	 	4/16/2007	 	8/1/2008	 	$	5,000,000.00	 
	31359MYM9
	 	Fannie Mae	 	 	4.500	 	 	 	4.500	 	 	8/4/2005	 	8/4/2008	 	$	1,500,000.00	 
	524908JA9
	 	Lehman Brothers	 	 	3.500	 	 	 	5.488	 	 	6/21/2006	 	8/7/2008	 	$	1,085,000.00	 
	524908JA9
	 	Lehman Brothers	 	 	3.500	 	 	 	5.308	 	 	8/16/2006	 	8/7/2008	 	$	3,000,000.00	 
	524908JA9
	 	Lehman Bros Hldg	 	 	3.500	 	 	 	5.110	 	 	3/23/2007	 	8/7/2008	 	$	3,000,000.00	 
	524908JA9
	 	Lehman Bros Hldg	 	 	3.500	 	 	 	5.150	 	 	4/25/2007	 	8/7/2008	 	$	5,000,000.00	 
	90331HKW2
	 	US Bancorp	 	 	4.400	 	 	 	5.171	 	 	1/17/2007	 	8/15/2008	 	$	2,394,000.00	 
	92976FAS2
	 	WACHOVIA BANK NA, NEW YORK	 	 	4.375	 	 	 	5.223	 	 	4/27/2006	 	8/15/2008	 	$	4,675,000.00	 






26









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cusip	 	Issuer	 	Cpn	 	Yld	 	Value	 	Maturity	 	Quantity
	92976FAS2
	 	Wachovia Bank Na	 	 	4.375	 	 	 	5.040	 	 	10/3/2006	 	8/15/2008	 	$	2,000,000.00	 
	949746JB8
	 	Wells Fargo & Co	 	 	4.000	 	 	 	5.140	 	 	9/25/2006	 	8/15/2008	 	$	5,000,000.00	 
	3128X4HA2
	 	Freddie Mac	 	 	4.625	 	 	 	4.625	 	 	8/22/2005	 	8/22/2008	 	$	1,500,000.00	 
	173034GU7
	 	Citicorp	 	 	7.250	 	 	 	5.370	 	 	8/11/2006	 	9/1/2008	 	$	1,000,000.00	 
	173034GU7
	 	Citicorp	 	 	7.250	 	 	 	5.500	 	 	6/19/2006	 	9/1/2008	 	$	1,500,000.00	 
	459745FK6
	 	INTL LEASE FINANCE CORP	 	 	4.350	 	 	 	5.760	 	 	4/20/2006	 	9/15/2008	 	$	5,100,000.00	 
	3133XGVX9
	 	FHLB Clbl 9/19/07 (O)	 	 	5.250	 	 	 	5.250	 	 	9/27/2006	 	9/19/2008	 	$	3,000,000.00	 
	4041A0AG3
	 	HBOS PLC	 	 	3.750	 	 	 	5.235	 	 	4/20/2006	 	9/30/2008	 	$	5,000,000.00	 
	931142BU6
	 	WAL-MART STORES	 	 	3.375	 	 	 	5.191	 	 	5/12/2006	 	10/1/2008	 	$	7,000,000.00	 
	3136F73A3
	 	FNMA Clbl 10/10/07 (O)	 	 	5.300	 	 	 	5.196	 	 	10/10/2006	 	10/10/2008	 	$	5,000,000.00	 
	590188JK5
	 	Merrill Lynch	 	 	6.375	 	 	 	5.491	 	 	8/4/2006	 	10/15/2008	 	$	3,500,000.00	 
	52517PC58
	 	Lehman Brothers	 	 	5.450	 	 	 	5.418	 	 	6/5/2006	 	10/22/2008	 	$	5,350,000.00	 
	59018YWG2
	 	Merrill Lynch	 	 	4.831	 	 	 	5.180	 	 	9/6/2006	 	10/27/2008	 	$	2,000,000.00	 
	59018YWG2
	 	Merrill Lynch	 	 	4.831	 	 	 	5.380	 	 	8/2/2006	 	10/27/2008	 	$	2,500,000.00	 
	125577AP1
	 	CIT GROUP INC	 	 	3.875	 	 	 	7.833	 	 	6/11/2007	 	11/3/2008	 	$	2,000,000.00	 
	17303MJC4
	 	Citicorp	 	 	6.375	 	 	 	5.457	 	 	8/28/2006	 	11/15/2008	 	$	3,000,000.00	 
	17303MJC4
	 	Citicorp	 	 	6.375	 	 	 	5.200	 	 	9/22/2006	 	11/15/2008	 	$	3,120,000.00	 
	17303MJC4
	 	Citicorp	 	 	6.375	 	 	 	5.250	 	 	8/31/2006	 	11/15/2008	 	$	5,000,000.00	 
	33738MAC5
	 	First Union Natl	 	 	5.800	 	 	 	4.950	 	 	3/30/2007	 	12/1/2008	 	$	3,000,000.00	 
	33738MAC5
	 	First Union Natl	 	 	5.800	 	 	 	4.950	 	 	4/4/2007	 	12/1/2008	 	$	3,000,000.00	 
	717818W46
	 	Philadelphia Indl-B	 	 	4.940	 	 	 	4.939	 	 	12/14/2006	 	12/1/2008	 	$	1,560,000.00	 
	892332AH0
	 	TOYOTA MTR CRED	 	 	5.500	 	 	 	5.201	 	 	6/19/2006	 	12/15/2008	 	$	5,000,000.00	 
	441812KF0
	 	Household Fin Co	 	 	4.125	 	 	 	5.210	 	 	5/8/2007	 	12/15/2008	 	$	2,000,000.00	 
	05565UAB5
	 	BP Canada Finance	 	 	3.625	 	 	 	4.988	 	 	10/12/2006	 	1/15/2009	 	$	1,500,000.00	 
	64952WAB9
	 	New York Life Global Fdg	 	 	3.875	 	 	 	5.346	 	 	5/22/2006	 	1/15/2009	 	$	3,000,000.00	 
	16161ABK3
	 	Chase Manhat Crp	 	 	6.500	 	 	 	4.970	 	 	3/29/2007	 	1/15/2009	 	$	3,000,000.00	 
	38143UAA9
	 	Goldman Sachs	 	 	3.875	 	 	 	4.951	 	 	3/20/2007	 	1/15/2009	 	$	2,578,000.00	 
	319455BU4
	 	First Chicago	 	 	6.375	 	 	 	4.960	 	 	3/30/2007	 	1/30/2009	 	$	5,000,000.00	 
	760719AM6
	 	HSBC	 	 	9.700	 	 	 	6.214	 	 	4/11/2006	 	2/1/2009	 	$	3,000,000.00	 
	441812GE8
	 	HOUSEHOLD FINANCE CORP	 	 	5.875	 	 	 	5.345	 	 	4/28/2006	 	2/1/2009	 	$	3,000,000.00	 
	90331HHZ9
	 	US Bancorp	 	 	3.750	 	 	 	5.152	 	 	10/17/2006	 	2/6/2009	 	$	3,500,000.00	 
	36962GN83
	 	Gen Elec Cap Crp	 	 	4.000	 	 	 	4.900	 	 	10/2/2006	 	2/17/2009	 	$	3,040,000.00	 






3. All Assets Held or To Be Held in the Following Custody or Subcustody Accounts, Safekeeping
Accounts, Investment Management Accounts and/or other account with Intermediary:




	 	 	 	 	 
	Type of Account	 	Account Number	 	Entity/Location
	 	 	 	 	 
	Securities Account
	 	678970
	 	J.P. Morgan Securities Inc.
	 	 	 	 	 
	Securities Custody Account
	 	893004211
	 	JPMorgan Chase Bank, National Association







27












 





EXHIBIT F-1




FORM OF TRI-PARTY CONTROL AGREEMENT




TRI-PARTY CONTROL AGREEMENT

(“Control Agreement”)

Date: October 5, 2007




Re:     Pledge of Collateral described in attached Pledge Agreement (the “Pledge”)




     The undersigned (“Debtor”) has granted to JPMORGAN CHASE BANK, National Association, as
Administrative Agent (“Secured Party”) a security interest in Collateral held in account number
678970 (such account or any successor accounts, collectively, the “Securities Account”) to secure
indebtedness owing to Secured Party in connection with that certain Secured Credit Agreement dated
as of October 5, 2007 by and among the Debtor, the Lenders party thereto and the Secured Party (as
such agreement may be amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”). J.P. MORGAN SECURITIES INC. (“Securities Intermediary”) represents to Secured
Party as follows: (a) The Collateral described in the Pledge is a complete and accurate statement
of the Securities Account and all of the listed Collateral has been endorsed to Securities
Intermediary or in blank. (b) The Securities Account and the rights of Debtor in the account are
valid and legally binding obligations of the Securities Intermediary. (c) On the date of this
Control Agreement, Securities Intermediary does not know of any claim to or interest in the
Securities Account other than the interests of Debtor and Secured Party.



     Debtor irrevocably directs Securities Intermediary to make all notations in Security
Intermediary’s records pertaining to the Securities Account that are necessary or appropriate to
reflect the above Pledge, to move Collateral from the existing Securities Account to establish a
new Securities Account, with a new account number, for the purpose of holding the Collateral, if
need be, and to style the Securities Account to read:



“JPMORGAN CHASE BANK, NATIONAL ASSOCIATION — Collateral Account for Network Appliance, Inc.”



or any abbreviations made by Securities Intermediary for operational purposes.




     Debtor irrevocably instructs Securities Intermediary to follow only instructions received from
the Secured Party, furnished in writing, without further consent of Debtor concerning (1) the
payment or reinvestment of dividends or distributions and (2) the redemption, transfer, sale or any
other disposition or transaction concerning the Collateral or the income and principal proceeds,
substitutions and reinvestment of Collateral. However, until further notice from Secured Party,
(i) Debtor may receive all income, including dividends and interest (but not stock splits, stock
dividends, cash equity distributions, liquidating distributions or other non cash principal
disbursements) from either Securities Intermediary or Secured Party, and (ii) Debtor may originate
trading instructions to the Securities Intermediary to make substitutions for and additions to the
Collateral, all of which are Collateral to be held in the Securities Account subject to the Pledge
in favor of Secured Party. Without the prior written consent of Secured Party, no withdrawal of
Collateral from the Securities Account by Debtor will be permitted under any circumstances, except
for prepayments required under the Credit Agreement and (if permitted by this Control Agreement and
then only until further notice by Secured Party) distributions of income or substitution of new
Collateral of equal or greater value. Any additional securities delivered to the Securities
Account and noted on Security Intermediary’s records to reflect the Pledge will be subject to the
Pledge without any further documentation. Any distribution privileges granted to Debtor may be
revoked in writing solely by Secured Party if an Event of Default (as defined in the Credit
Agreement) has occurred and is continuing.



     Debtor also irrevocably authorizes and directs Securities Intermediary to send all notices,
statements and all other communications concerning the Collateral or the Securities Account, in
addition to Debtor, to the following address or any other address Secured Party may specify in
writing:



Attn: Alex McKindra

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

560 Mission Street

18th Floor

San Francisco, California 94105

Telecopy No. (415) 315-8483




     Secured Party may exercise its rights under the Pledge, this Control Agreement or other loan
documents without any further consent of Debtor or any other person. Securities Intermediary is
directed to follow all of Secured Party’s instructions without investigating the reason for any
action taken by the Secured Party or the existence of any default. Secured Party’s signature alone
will be sufficient authority for the exercise of any rights by Secured Party and a receipt from
Secured Party alone will be a full release and discharge for Securities Intermediary. Except as
otherwise permitted above with respect to distributions of income to Debtor, checks for all or any
part of the Collateral will be payable only to the order of Secured Party if, when and in such
amounts as may be requested by Secured Party.



     Neither Securities Intermediary nor any of its respective partners, trustees, officers,
employees or affiliates will breach any duty to Debtor if it complies in good faith with the
instructions contained in this Control Agreement or fails to comply with any contrary or
inconsistent instructions that may



 









 




subsequently be issued by the Debtor. The Debtor further holds harmless and indemnifies each of
them against any claim, loss, cost or expense arising out of any actions or omissions taken by any
person in reliance on or compliance with the instructions and authorizations contained in this
Control Agreement except for any claim, loss, cost or expense arising from such person’s gross
negligence or willful misconduct. The instructions contained in this Control Agreement may be
revoked and the terms of this Control Agreement may be amended by Debtor only if Securities
Intermediary receives (i) Secured Party’s written consent to the revocation or amendment, or (ii)
Secured Party’s written notification that the Pledge has been terminated. The rights and powers
granted to Secured Party in this Control Agreement are powers coupled with an interest and will
neither be affected by the bankruptcy of Debtor nor by the lapse of time.




     Securities Intermediary agrees to hold the Collateral and the Securities Account (including
any free credit balances) for and on behalf of the Secured Party and as bailee in possession for
Secured Party. Securities Intermediary subordinates any liens, claims or rights it may have
against the Securities Account or any Collateral carried in the Securities Account in favor of
Secured Party except for its standard commission or fee and any unsettled trades. Securities
Intermediary will not agree to comply with any third party orders or instructions concerning the
Securities Account without the prior written consent of Secured Party.



     All items of income including dividends, interest and other income, gain, expense and loss
recognized in the Securities Account must be reported by Securities Intermediary or Secured Party
in the name and tax identification number of Debtor.



     This Control Agreement benefits the Secured Party and its successors and assigns and is
binding on Debtor and Securities Intermediary and their respective successors and assigns. This
Control Agreement is governed by, and construed in accordance with, the laws of the State of New
York, which shall also be deemed to be Securities Intermediary’s jurisdiction. This Control
Agreement is intended to be “an agreement” within the meaning of Section 8-110(e) of the New York
Uniform Commercial Code.



[Signature Page Follows]




2









 







This written agreement represents the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties.




     There are no unwritten oral agreements between the parties.



	 	 	 	 	 
	DEBTOR:





NETWORK APPLIANCE, INC.

 	 	 
	By:  	 	 	 
	 	Title: 	 	 	 
	 	 	 	 
	 



SECURED PARTY: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT




	 	 	 	 	 
	By:  	 	 	 
	 	Title: 	 	 	 
	 	 	 	 
	 



ACCEPTED AND AGREED TO BY SECURITIES INTERMEDIARY:




	 	 	 	 	 
	J.P. MORGAN SECURITIES INC.

 	 	 
	By: 	 	 	 
	 	Print Name: 	 	 	 
	 	Title:  	 	 	 



3









 






	 	 	 	 	 



EXHIBIT F-2




FORM OF SAFEKEEPING CONTROL AGREEMENT




SAFEKEEPING ACCOUNT CONTROL AGREEMENT




October 5, 2007



JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as administrative agent under the Credit Agreement
defined below (the “Secured Party”); NETWORK APPLIANCE, INC. (the “Customer”); and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION (the “Bank”) hereby agree as follows:




PREAMBLE





	1.	 	The Bank has established at the request of the Customer a securities custody account number
893004211 in the name of Customer (the “Account”).
	 
	2.	 	The Customer has entered into a Secured Credit Agreement dated as of October 5, 2007 with the
Secured Party and certain lenders from time to time party thereto (as amended, supplemented or
otherwise modified from time to time, the “Credit Agreement”).
	 
	3.	 	The Customer has granted the Secured Party a security interest in the Account pursuant to
agreement.
	 
	4.	 	The Secured Party and the Customer and the Bank, at the request of the Secured Party and the
Customer, are entering into this Agreement to provide for the control of the Account and to
perfect the security interest of Secured Party in the Account. It is understood that the Bank
has no responsibility with respect to the validity or perfection of the security interest
otherwise than to act in accordance with the terms of this Agreement.





DEFINITIONS




     As used herein the following terms shall have the following meanings:



     “Entitlement Holder” shall mean a person identified in the records of the Bank as the
person having a Security Entitlement against the Bank.



     “Entitlement Order” shall mean a notification communicated to the Bank directing
transfer or redemption of a Financial Asset which the Entitlement Holder has a Security
Entitlement.



     “Financial Assets” shall mean any securities and other property held in the Account,
but does not include any cash credit balance that may be maintained in the Account.



     “Pledged Assets” shall mean any Financial Assets and any cash credit balance which may
be maintained in the Account.



     “Security Entitlement” shall mean the rights and property interest of an Entitlement
Holder with respect to a Financial Asset specified in Part 5 of Article 8 of the New York Uniform
Commercial Code (the “UCC”).



TERMS




     Section 1. The Account. Exhibit A attached hereto is a complete and accurate statement of
the Pledged Assets currently maintained in the Account. Exhibit A does not reflect any Financial
Assets which are registered in the name of the Customer, payable to the Customer’s order, or
specifically endorsed to the Customer, which have not been endorsed to the Bank or in blank. To
the Bank’s knowledge, the Security Entitlements arising out of the Financial Assets carried in the
Account are valid and legally binding obligations of the Bank, and except for the claims and
interest of the Secured Party and the Customer in the Account (subject to any claim in favor of the
Bank permitted under Section 2 hereof), the Bank has not been notified in writing of any claim to
or interest in the Account.



     Section 2. Priority of Lien. The Bank hereby acknowledges the security interest granted to
the Secured Party by the Customer. The Bank hereby waives and releases all liens, encumbrances,
claims and rights of setoff it may have against the Account or any Pledged Assets carried in the
Account, except that the Bank shall retain a lien on any Pledged Assets in the Account for the
payment of its fees and for the payment of any Pledged Assets credited to the Account for which
payment or reimbursement to the Bank has not been made or received. The Bank will not agree with
any third party to comply with Entitlement Orders concerning the Account originated by such third
party without the prior written consent of the Secured Party and the Customer.



 









 





     Section 3. Control. The Bank will comply with Entitlement Orders and other directions
originated by the Secured Party concerning the Account without further consent by the Customer.
(Exhibit B attached hereto contains the names of persons authorized to give to the Bank Entitlement
Orders and other directives regarding the Pledged Assets on behalf of the Secured Party.) Except
as otherwise provided by Section 2 above and 4 below, the Bank shall comply with Entitlement Orders
and other directions concerning Pledged Assets held in the Account at the direction of the Customer
or its authorized representatives, until such time as the Secured Party delivers a written notice
to the Bank in the form annexed hereto as Exhibit C, that the Secured Party is thereby exercising
exclusive control over the Account (such notice may be referred to herein as the “Notice of
Exclusive Control”). After the Bank receives the Notice of Exclusive Control, it will promptly
cease complying with Entitlement Orders or other directions concerning the Account originated by
the Customer or its representatives.



     Section 4. Payment of Income; Voting Rights; Withdrawals. Unless the Bank has received a
Notice of Exclusive Control, the Bank shall (a) without further action by the Customer or Secured
Party, (i) remit or make available to the Customer all interest, dividends and other income on the
Financial Assets in the Account, and (ii) pursuant to the terms of the Account agreement with the
Customer, send to the Customer any proxies and other voting rights and corporate actions received
by the Bank in respect of the Pledged Assets and follow any instructions and directions from the
Customer in respect of such proxies and rights, and (b) comply with each Entitlement Order and
other directive received from the Customer.



     Section 5. Statements, Confirmations and Notices of Adverse Claims. The Bank will send or
make available by electronic means copies of all statements and confirmations concerning the
Account to each of the Customer and the Secured Party, at the address set forth in the heading of
this Agreement or such other address or location as instructed by the Customer and the Secured
Party. If any person notifies the Bank of its assertion of any lien, encumbrance or adverse claim
against the Account or in any Financial Asset contained therein, the Bank will promptly notify the
Secured Party and the Customer thereof.



     Section 6. Responsibility of the Bank. The Bank shall have no responsibility or liability to
the Secured Party for executing settlements of Financial Assets held in the Account at the
direction of the Customer or its authorized representatives, or complying with Entitlement Orders
or other directions concerning the Account from the Customer or its authorized representatives,
which are received by the Bank before the Bank has received, and had a reasonable opportunity to
comply with, a Notice of Exclusive Control. The Bank shall have no responsibility or liability to
the Customer for complying with a Notice of Exclusive Control or complying with Entitlement Orders
or other directives concerning the Account originated by the Secured Party. The Bank shall have no
duty to investigate or make any determination as to whether a default exists under any agreement
between the Customer and the Secured Party and shall comply with a Notice of Exclusive Control even
if it believes that no such default exists. This Agreement does not create any obligation or duty
for the Bank other than those expressly set forth herein.



     Section 7. Standard of Care. Notwithstanding any provision contained herein or in any other
document or instrument to the contrary, neither the Bank nor any of its officers, employees or
agents shall be liable for (i) following the instruction of the Secured Party and (ii) in all other
respects, shall not be liable for any action taken or not taken by it (or them) under or in
connection with this Agreement, except for the Bank’s (or their) own gross negligence or willful
misconduct. In no event shall the Bank be liable for indirect, special or consequential damages of
any kind whatsoever (including lost profits and lost business opportunity) even if it is advised of
the possibility of such damages and regardless of the form of action in which any such damages may
be claimed. Without limiting the foregoing, and notwithstanding any provision to the contrary
elsewhere, the Bank and its officers, employees and agents.:




	a.	 	shall have no responsibilities, obligations or duties other than those expressly set forth in
this Agreement, and no implied duties, responsibilities or obligations shall be read into this
Agreement against the Bank; without limiting the foregoing, the Bank shall have no duty to
preserve, exercise or enforce rights in the Pledged Assets (against prior parties or
otherwise);
	 
	b.	 	may in any instance where the Bank determines that it lacks or is uncertain as to its
authority to take or refrain from taking certain action, or as to the requirements of this
Agreement under any circumstance before it, delay or refrain from taking action unless and
until it has received instructions from the Secured Party or advice from legal counsel (or
other appropriate advisor), as the case may be;
	 
	c.	 	so long as it and they shall have acted (or refrained from acting) in good faith, shall not
be liable for any error of judgment in any action taken, suffered or omitted by, or for any
act done or step taken, suffered or omitted by, or for any mistake of fact or law, unless such
action constitutes gross negligence or willful misconduct on its (or their) part;
	 
	d.	 	may consult with legal counsel selected by it (or other experts for the Secured Party or the
Customer), and shall not be liable for any action taken or not taken by it or them in good
faith in accordance with the advice of such experts;
	 
	e.	 	will not be responsible to the Secured Party for any statement, warranty or representation
made by any party other than the Bank in connection with this Agreement;
	 
	f.	 	will have no duty to ascertain or inquire as to the performance or observance by the Customer
of any of the terms, conditions or covenants of any security agreement with the Secured Party;




2









 












	g.	 	will not be responsible to the Secured Party or the Customer for the due execution, legality,
validity, enforceability, genuineness, effectiveness or sufficiency of this Agreement,
(provided, however, that the Bank warrants below that the Bank has legal capacity to enter
into this Agreement);
	 
	h.	 	will not incur any liability by acting or not acting in reliance upon any notice, consent,
certificate, statement or other instrument or writing believed by it or them to be genuine and
signed or sent by the proper party or parties;
	 
	i.	 	will not incur liability for any notice, consent, certificate, statement, wire instruction,
telecopy, or other writing which is delayed, canceled or changed without the actual knowledge
of the Bank;
	 
	j.	 	shall not be deemed to have or be charged with notice or knowledge of any fact or matter
unless a written notice thereof has been received by the Bank at the address and to the person
designated in (or as subsequently designated pursuant to) this Agreement;
	 
	k.	 	shall not be obligated or required by any provision of this Agreement to expend or risk the
Bank’s own funds, or to take any action (including but not limited to the institution or
defense of legal proceedings) which in its or their judgment may cause it or them to incur or
suffer any expense or liability; provided, however, if the Bank elects to take any such action
it shall be entitled to security or indemnity for the payment of the costs, expenses
(including but not limited to attorneys’ fees) and liabilities which may be incurred therein
or thereby, satisfactory to the Bank;
	 
	l.	 	shall not incur any liability for acts or omissions of any domestic or foreign depository or
book-entry system for the central handling of Financial Assets or any domestic or foreign
custodian or subcustodian; and
	 
	m.	 	shall not be responsible for the title, validity or genuineness of any Financial Asset in or
delivered into the Account.





     Section 8. Indemnification of the Bank.



     (a) The Customer and the Secured Party, jointly and severally, agree to indemnify and hold
the Bank and its directors, officers, agents and employees (collectively the “Indemnitees”)
harmless from and against any and all claims, liabilities, losses, damages, fines, penalties, and
expenses, including out-of-pocket and incidental expenses and legal fees (collectively
“Losses”) that may be imposed on, incurred by, or asserted against, the Indemnitees or any
of them for following any Entitlement Orders, instructions or other directions upon which the Bank
is authorized to rely pursuant to the terms of this Agreement.



     (b) In addition to and not in limitation of paragraph (a) immediately above, the Customer and
the Secured Party also jointly and severally agree to indemnify and hold the Indemnitees and each
of them harmless from and against any and all Losses that may be imposed on, incurred by, or
asserted against, the Indemnitees or any of them in connection with or arising out of the Bank’s
performance under this Agreement, provided the Indemnitees have not acted with gross negligence or
engaged in willful misconduct.



     (c) The foregoing indemnifications shall survive any termination of this Agreement



     Section 9. Compliance with Legal Process and Judicial Orders. If any Pledged Assets subject
to this Agreement are at any time attached or levied upon, or in case the transfer, delivery,
redemption or withdrawal of any such Pledged Assets shall be stayed or enjoined, or in the case of
any other legal process or judicial order affecting such Pledged Assets, the Bank is authorized to
comply with any such order in any matter as the Bank or its legal counsel reasonably deems
appropriate. If the Bank complies with any process, order, writ, judgment or decree relating to
the Pledged Assets subject to this Agreement, then the Bank shall not be liable to the Customer or
the Secured Party or to any other person or entity even if such order or process is subsequently
modified, vacated or otherwise determined to have been without legal force or effect.



     Section 10. Force Majeure. The Bank shall not be responsible for delays or failures in
performance resulting from acts beyond its control. Such acts shall include but not be limited to
acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization,
expropriation, currency restrictions, governmental regulations superimposed after the fact, fire,
communication line failures, power failures, earthquakes or other disasters.



     Section 11. Representations. The Customer represents and warrants that (i) it is duly
incorporated or organized and is validly existing in good standing in its jurisdiction of
incorporation or organization, (ii) the execution, delivery and performance of this Agreement and
all documents and instruments to be delivered hereunder or thereunder has been duly authorized by
the Customer, (iii) the person executing this Agreement on its behalf has been duly authorized to
act on its behalf, (iv) this Agreement constitutes its legal, valid, binding and enforceable
agreement, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law, and (v) its entry into this Agreement will
not violate any agreement, law, rule or regulation by which it is bound or by which any of its
assets are affected.



     Section 12. Customer Agreement. In the event of a conflict between this Agreement and any
other agreement between the Bank and the Customer relating to the Account, the terms of this
Agreement will prevail, and in all other respects the terms of the other agreement relating to the
Account shall apply with respect to any matters not covered by this Agreement. Regardless of any
provision in any such agreement, the State of New York shall be deemed to be the Bank’s location
for the purposes of this Agreement and the perfection and priority of the Secured Party’s security
interest in the Account.



     Section 13. Termination. The rights and powers granted herein to the Secured Party have been
granted in order to perfect its security interest in the Account, are powers coupled with an
interest and will neither be affected by the bankruptcy of the Customer nor by the lapse of time.
The obligations



3









 




of the Bank under this Agreement shall continue in effect (i) until the security interest of the
Secured Party in the Account has been terminated and the Secured Party has notified the Bank of
such termination in writing, or (ii) this Agreement is terminated. Any of the parties may
terminate this Agreement upon 30 days’ prior written notice to both of the other parties hereto;
provided, however, that any Pledged Assets which have not been released by the Secured Party at or
prior to the time of termination shall be transferred to a substitute bank designated by the
Customer and acceptable to the Secured Party. The provisions of Sections 7 and 8 shall survive the
termination of this Agreement.




     Section 14. Entire Agreement. This Agreement and the exhibits hereto and the agreements and
instruments required to be executed and delivered hereunder set forth the entire agreement of the
parties with respect to the subject matter hereof and supersede and discharge all prior agreements
(written or oral) and negotiations and all contemporaneous oral agreements concerning such subject
matter and negotiations. There are no oral conditions precedent to the effectiveness of this
Agreement.



     Section 15. Amendments. No amendment, modification or termination of this Agreement or
waiver of any right hereunder shall be binding on any party hereto unless it is in writing and is
signed by the party to be charged.



     Section 16. Severability. If any term or provision set forth in this Agreement shall be
invalid or unenforceable, the remainder of this Agreement, or the application of such terms or
provisions to persons or circumstances, other than those to which it is held invalid or
unenforceable, shall be construed in all respects as if such invalid or unenforceable term or
provision were omitted.



     Section 17. Successors. The terms of this Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their respective successors and assigns.



     Section 18. Rules of Construction. In this Agreement, words in the singular number include
the plural, and in the plural include the singular; words of the masculine gender include the
feminine and the neuter, and when the sense so indicates words of the neuter gender may refer to
any gender and the word “or” is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They do not define,
limit or describe the scope or intent of the provisions of this Agreement.



     Section 19. Notices. Any notice, request, entitlement Order or other communication required
or permitted to be given under this Agreement shall be in writing and deemed to have been properly
given when delivered in person, or when sent by telecopy or other electronic means (acceptable to
the Bank, if to the Bank) and electronic confirmation of error free receipt is received, or after
being sent by certified or registered United States mail, return receipt requested, postage
prepaid:



If to the Bank:




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

14201 North Dallas Parkway, 9th Floor

Dallas, Texas 75254

Attention: Richard Synrod/Prudence Ferdinand

Telephone: (469) 477-8224

Telecopier: (877) 537-1236




If to the Customer:

Network Appliance, Inc.

7301 Kit Creek Road

Research Triangle Park, North Carolina 27709

Attention: Ingemar Lanevi

Telephone: (408) 822-6000

Telecopier: (408) 822-4412




If to the Secured Party:

JPMorgan Chase Bank, National Association

560 Mission Street, 18th Floor

San Francisco, California 94105

Attention: Alex McKindra

Telephone: (415) 315-8223

Telecopier: (415) 315-8483




     Section 20. Counterparts. This Agreement may be executed in any number of counterparts, all
of which shall constitute one and the same instrument, and any party hereto may execute this
Agreement by signing and delivering one or more counterparts.



     Section 21. Choice of Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to laws as to conflicts of laws, and shall
be binding on the parties hereto and their respective successors and assigns.



4









 





     Section 22. Fees. The Customer shall pay to the Bank the compensation agreed upon in writing
from time to time and any other includable expenses incurred in connection herewith.



     Section 23. Consent to Jurisdiction and Service. The Secured Party and the Customer each
hereby absolutely and irrevocably consents and submits to the jurisdiction of the courts of the
State of New York and of any Federal court located in the County and State of New York in
connection with any actions or proceedings brought against the Secured Party or the Customer by the
Bank or by the Secured Party or the Customer against the Bank and arising out of or relating to
this Agreement. Each party hereto hereby irrevocably waives any objection on the grounds of venue,
forum non conveniens, or any similar grounds, and irrevocably consents to service of process by
mail or in any other manner permitted by New York law, and irrevocably waives its right to any jury
trial.



5









 





     IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the date set
forth above.



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	NETWORK APPLIANCE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




6











 





EXHIBIT A




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cusip	 	Issuer	 	Cpn	 	Yld	 	Value	 	Maturity	 	Quantity
	3128X5Z84
	 	FREDDIE MAC	 	 	5.400	 	 	 	4.891	 	 	4/17/2007	 	10/17/2007	 	$	5,000,000.00	 
	3136F6FZ7
	 	Fannie Mae	 	 	3.820	 	 	 	3.820	 	 	10/18/2004	 	10/18/2007	 	$	1,500,000.00	 
	31331XVN9
	 	FED FARM CREDIT	 	 	5.250	 	 	 	5.236	 	 	4/23/2007	 	10/23/2007	 	$	5,000,000.00	 
	31331SBN2
	 	Federal Farm Credit Bank	 	 	3.500	 	 	 	3.500	 	 	10/26/2004	 	10/26/2007	 	$	1,000,000.00	 
	3136F64B2
	 	FNMA Clbl Not Called (O)	 	 	4.280	 	 	 	4.280	 	 	4/29/2005	 	10/26/2007	 	$	1,000,000.00	 
	05565UAA7
	 	BP Canada Finance	 	 	3.375	 	 	 	3.947	 	 	6/15/2005	 	10/31/2007	 	$	1,000,000.00	 
	31331SMB6
	 	FFCB Clbl Not Called (O)	 	 	3.700	 	 	 	3.700	 	 	2/2/2005	 	11/2/2007	 	$	2,000,000.00	 
	31359MB36
	 	FNMA Clbl Not Called (O)	 	 	4.250	 	 	 	4.250	 	 	5/2/2005	 	11/2/2007	 	$	1,000,000.00	 
	3133XCJS3
	 	Fannie Mae	 	 	4.300	 	 	 	4.300	 	 	8/9/2005	 	11/9/2007	 	$	2,000,000.00	 
	3136F6JP5
	 	Fannie Mae	 	 	3.490	 	 	 	3.490	 	 	11/9/2004	 	11/9/2007	 	$	1,000,000.00	 
	59018YNZ0
	 	Merrill Lynch	 	 	4.000	 	 	 	3.983	 	 	2/24/2005	 	11/15/2007	 	$	1,500,000.00	 
	02635PSA2
	 	Amer Genl Fin	 	 	4.500	 	 	 	5.340	 	 	5/30/2006	 	11/15/2007	 	$	5,000,000.00	 
	59018YNZ0
	 	Merrill Lynch	 	 	4.000	 	 	 	5.200	 	 	9/25/2006	 	11/15/2007	 	$	3,000,000.00	 
	33900QBE3
	 	Fleet Boston	 	 	4.200	 	 	 	4.370	 	 	8/9/2005	 	11/30/2007	 	$	1,505,000.00	 
	949746CK5
	 	WELLS FARGO SF	 	 	5.250	 	 	 	4.283	 	 	7/14/2005	 	12/1/2007	 	$	1,500,000.00	 
	36962GVW1
	 	General Electric Credit Corp	 	 	6.500	 	 	 	4.499	 	 	7/20/2005	 	12/10/2007	 	$	1,210,000.00	 
	36962GVW1
	 	General Electric Credit Corp	 	 	6.500	 	 	 	4.329	 	 	7/1/2005	 	12/10/2007	 	$	1,500,000.00	 
	3136F7AQ0
	 	FNMA Clbl Not Called (O)	 	 	4.000	 	 	 	4.000	 	 	6/14/2005	 	12/14/2007	 	$	1,000,000.00	 
	073902BG2
	 	Bear Sterns	 	 	6.750	 	 	 	4.541	 	 	3/11/2005	 	12/15/2007	 	$	1,000,000.00	 
	590188HX9
	 	Merrill Lynch	 	 	6.560	 	 	 	5.491	 	 	9/1/2006	 	12/16/2007	 	$	3,000,000.00	 
	590188HX9
	 	Merrill Lynch	 	 	6.560	 	 	 	5.250	 	 	4/7/2006	 	12/16/2007	 	$	1,000,000.00	 
	065913AE5
	 	Bank Boston	 	 	6.500	 	 	 	5.425	 	 	9/20/2006	 	12/19/2007	 	$	1,500,000.00	 
	172967DB4
	 	Citigroup Inc	 	 	4.200	 	 	 	5.301	 	 	8/11/2006	 	12/20/2007	 	$	2,500,000.00	 
	3128X4DF5
	 	Freddie Mac	 	 	4.200	 	 	 	4.200	 	 	6/28/2005	 	12/28/2007	 	$	1,500,000.00	 
	3133XCBC6
	 	Federal Home Loan Bank	 	 	4.140	 	 	 	4.140	 	 	6/28/2005	 	12/28/2007	 	$	2,000,000.00	 
	3133XC4Z3
	 	Federal Home Loan Bank	 	 	4.125	 	 	 	4.125	 	 	7/6/2005	 	1/4/2008	 	$	2,000,000.00	 
	3133XABC0
	 	FHLB Clbl 10/11/07 (Q)	 	 	4.500	 	 	 	4.005	 	 	1/11/2005	 	1/11/2008	 	$	2,800,000.00	 
	22541LAF0
	 	Credit Suisse	 	 	4.625	 	 	 	3.996	 	 	2/1/2005	 	1/15/2008	 	$	1,500,000.00	 
	36962GZZ0
	 	General Electric Credit Corp	 	 	4.250	 	 	 	4.215	 	 	5/11/2005	 	1/15/2008	 	$	1,000,000.00	 
	38141GCS1
	 	Goldman Sachs	 	 	4.125	 	 	 	4.168	 	 	6/15/2005	 	1/15/2008	 	$	1,000,000.00	 
	38141GCS1
	 	Goldman Sachs	 	 	4.125	 	 	 	5.300	 	 	6/9/2006	 	1/15/2008	 	$	3,000,000.00	 
	524908FD7
	 	Lehman Brothers	 	 	4.000	 	 	 	4.187	 	 	6/22/2005	 	1/22/2008	 	$	1,000,000.00	 
	31331SML4
	 	FFCB Clbl Not Called (O)	 	 	3.790	 	 	 	3.790	 	 	1/28/2005	 	1/28/2008	 	$	2,000,000.00	 
	06406MAW8
	 	Bank of New York Inc	 	 	3.800	 	 	 	4.372	 	 	8/9/2005	 	2/1/2008	 	$	2,000,000.00	 
	172967BS9
	 	Citicorp	 	 	3.500	 	 	 	4.064	 	 	7/7/2005	 	2/1/2008	 	$	2,000,000.00	 
	172967BS9
	 	Citicorp	 	 	3.500	 	 	 	5.309	 	 	8/4/2006	 	2/1/2008	 	$	2,095,000.00	 
	31359MXP3
	 	Fannie Mae	 	 	3.875	 	 	 	3.875	 	 	2/1/2005	 	2/1/2008	 	$	1,500,000.00	 
	90331VAW2
	 	US Bancorp	 	 	6.500	 	 	 	5.471	 	 	8/11/2006	 	2/1/2008	 	$	3,629,000.00	 
	3136F6UH0
	 	FNMA Clbl 11/1/07 (Q)	 	 	4.000	 	 	 	4.000	 	 	2/1/2005	 	2/1/2008	 	$	1,500,000.00	 
	3136F6VY2
	 	Fannie Mae	 	 	4.000	 	 	 	4.000	 	 	2/8/2005	 	2/8/2008	 	$	1,500,000.00	 
	339030AG3
	 	Fleet Boston	 	 	3.850	 	 	 	4.212	 	 	3/15/2005	 	2/15/2008	 	$	2,000,000.00	 
	339030AG3
	 	Fleet Finl Group	 	 	3.850	 	 	 	5.060	 	 	10/4/2006	 	2/15/2008	 	$	2,000,000.00	 
	524909AY4
	 	Lehman Bros Inc	 	 	6.625	 	 	 	5.250	 	 	4/18/2006	 	2/15/2008	 	$	1,000,000.00	 
	79549BGP6
	 	Salomon Sb Hldgs	 	 	6.500	 	 	 	5.550	 	 	7/17/2006	 	2/15/2008	 	$	1,500,000.00	 
	79549BGP6
	 	Salomon Sb Hldgs	 	 	6.500	 	 	 	4.150	 	 	5/11/2005	 	2/15/2008	 	$	2,000,000.00	 
	3136F6YQ6
	 	Fannie Mae	 	 	4.000	 	 	 	4.000	 	 	2/22/2005	 	2/22/2008	 	$	2,000,000.00	 
	36962GP57
	 	General Electric Credit Corp	 	 	4.125	 	 	 	5.178	 	 	1/3/2007	 	3/4/2008	 	$	1,158,000.00	 
	36962GP57
	 	General Electric Credit Corp	 	 	4.125	 	 	 	5.018	 	 	12/13/2006	 	3/4/2008	 	$	3,500,000.00	 
	3136F7JZ1
	 	FNMA Clbl Not Called (Q)	 	 	4.750	 	 	 	4.750	 	 	9/7/2005	 	3/7/2008	 	$	1,000,000.00	 
	949746JQ5
	 	WELLS FARGO BANK INTL NY	 	 	4.125	 	 	 	4.177	 	 	3/11/2005	 	3/10/2008	 	$	2,000,000.00	 
	949746JQ5
	 	WELLS FARGO BANK INTL NY	 	 	4.125	 	 	 	5.178	 	 	1/3/2007	 	3/10/2008	 	$	2,500,000.00	 
	949746JQ5
	 	WELLS FARGO & CO	 	 	4.125	 	 	 	5.750	 	 	4/20/2006	 	3/10/2008	 	$	5,000,000.00	 
	949746JQ5
	 	WELLS FARGO & CO	 	 	4.125	 	 	 	5.750	 	 	4/25/2006	 	3/10/2008	 	$	5,000,000.00	 






7









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cusip	 	Issuer	 	Cpn	 	Yld	 	Value	 	Maturity	 	Quantity
	02666QWG4
	 	American Honda Finance	 	 	4.250	 	 	 	5.127	 	 	10/4/2006	 	3/11/2008	 	$	3,000,000.00	 
	91159HGG9
	 	US Bancorp	 	 	3.125	 	 	 	5.078	 	 	12/21/2006	 	3/15/2008	 	$	2,100,000.00	 
	338915AJ0
	 	Fleet Finl Group	 	 	6.500	 	 	 	5.261	 	 	1/26/2007	 	3/15/2008	 	$	2,440,000.00	 
	3133XB3T0
	 	Federal Home Loan Bank	 	 	4.160	 	 	 	4.160	 	 	3/28/2005	 	3/28/2008	 	$	1,500,000.00	 
	337358BK0
	 	WACHOVIA BANK NA, NEW YORK	 	 	6.400	 	 	 	4.639	 	 	7/18/2005	 	4/1/2008	 	$	1,500,000.00	 
	066050CU7
	 	Bankamerica Corp	 	 	6.250	 	 	 	5.185	 	 	4/30/2007	 	4/1/2008	 	$	2,000,000.00	 
	524909AZ1
	 	Lehman Brothers	 	 	6.500	 	 	 	4.643	 	 	7/20/2005	 	4/15/2008	 	$	1,000,000.00	 
	06606HD87
	 	Bankboston Na	 	 	6.375	 	 	 	5.240	 	 	4/18/2006	 	4/15/2008	 	$	1,465,000.00	 
	59018YQU8
	 	Merrill Lynch	 	 	3.700	 	 	 	4.928	 	 	12/11/2006	 	4/21/2008	 	$	3,030,000.00	 
	59018YQU8
	 	Merrill Lynch	 	 	3.700	 	 	 	5.172	 	 	4/26/2007	 	4/21/2008	 	$	2,000,000.00	 
	8447HACE2
	 	Southtrust Bank	 	 	3.125	 	 	 	4.270	 	 	7/21/2005	 	5/15/2008	 	$	2,000,000.00	 
	338915AL5
	 	FLEETBOSTON FINL CORP	 	 	6.375	 	 	 	5.561	 	 	6/13/2006	 	5/15/2008	 	$	5,000,000.00	 
	74433KCR6
	 	PRUDENTIAL FUNDING LLC	 	 	6.600	 	 	 	5.867	 	 	5/16/2006	 	5/15/2008	 	$	4,000,000.00	 
	634902HQ6
	 	Natl City Bk Oh	 	 	3.300	 	 	 	5.071	 	 	3/23/2007	 	5/15/2008	 	$	1,000,000.00	 
	634902HQ6
	 	Natl City Bk Oh	 	 	3.300	 	 	 	5.490	 	 	7/31/2006	 	5/15/2008	 	$	1,745,000.00	 
	634902HQ6
	 	Natl City Bk Oh	 	 	3.300	 	 	 	5.070	 	 	3/22/2007	 	5/15/2008	 	$	2,000,000.00	 
	8447HACE2
	 	Southtrust Bk Na	 	 	3.125	 	 	 	5.200	 	 	4/24/2006	 	5/15/2008	 	$	1,000,000.00	 
	025818EM3
	 	AMER EXPRESS CREDIT	 	 	3.000	 	 	 	5.389	 	 	4/20/2006	 	5/16/2008	 	$	4,000,000.00	 
	257661AF5
	 	Donaldson Lufkin	 	 	6.500	 	 	 	5.290	 	 	5/2/2006	 	6/1/2008	 	$	1,028,000.00	 
	31359MD59
	 	FNMA Clbl Not Called (O)	 	 	4.125	 	 	 	4.125	 	 	6/16/2005	 	6/16/2008	 	$	1,000,000.00	 
	441812FY5
	 	Household Intl	 	 	6.400	 	 	 	5.200	 	 	5/3/2007	 	6/17/2008	 	$	2,000,000.00	 
	3133XLAG8
	 	FED HOME LN BANK	 	 	5.450	 	 	 	5.022	 	 	6/18/2007	 	6/18/2008	 	$	4,000,000.00	 
	073902CC0
	 	Bear Sterns	 	 	2.875	 	 	 	4.393	 	 	7/26/2005	 	7/2/2008	 	$	1,000,000.00	 
	59018YRN3
	 	Merrill Lynch	 	 	3.125	 	 	 	5.200	 	 	4/21/2006	 	7/15/2008	 	$	1,000,000.00	 
	59018YRN3
	 	Merrill Lynch	 	 	3.125	 	 	 	5.200	 	 	4/21/2006	 	7/15/2008	 	$	1,000,000.00	 
	90331VAZ5
	 	Us Bank Na	 	 	6.300	 	 	 	5.060	 	 	10/6/2006	 	7/15/2008	 	$	1,885,000.00	 
	31331SR39
	 	Federal Farm Credit Bank	 	 	4.440	 	 	 	4.440	 	 	7/18/2005	 	7/18/2008	 	$	1,500,000.00	 
	31359MF32
	 	FNMA Clbl Not Called (O)	 	 	5.000	 	 	 	5.230	 	 	5/3/2006	 	7/25/2008	 	$	1,000,000.00	 
	31359MYF4
	 	Fannie Mae	 	 	4.400	 	 	 	4.400	 	 	7/28/2005	 	7/28/2008	 	$	1,500,000.00	 
	3136F7GA9
	 	FNMA Clbl Not Called (Q)	 	 	4.750	 	 	 	4.750	 	 	7/28/2005	 	7/28/2008	 	$	2,000,000.00	 
	06423AAN3
	 	BANK ONE CORP	 	 	6.000	 	 	 	5.528	 	 	4/16/2007	 	8/1/2008	 	$	5,000,000.00	 
	31359MYM9
	 	Fannie Mae	 	 	4.500	 	 	 	4.500	 	 	8/4/2005	 	8/4/2008	 	$	1,500,000.00	 
	524908JA9
	 	Lehman Brothers	 	 	3.500	 	 	 	5.488	 	 	6/21/2006	 	8/7/2008	 	$	1,085,000.00	 
	524908JA9
	 	Lehman Brothers	 	 	3.500	 	 	 	5.308	 	 	8/16/2006	 	8/7/2008	 	$	3,000,000.00	 
	524908JA9
	 	Lehman Bros Hldg	 	 	3.500	 	 	 	5.110	 	 	3/23/2007	 	8/7/2008	 	$	3,000,000.00	 
	524908JA9
	 	Lehman Bros Hldg	 	 	3.500	 	 	 	5.150	 	 	4/25/2007	 	8/7/2008	 	$	5,000,000.00	 
	90331HKW2
	 	US Bancorp	 	 	4.400	 	 	 	5.171	 	 	1/17/2007	 	8/15/2008	 	$	2,394,000.00	 
	92976FAS2
	 	WACHOVIA BANK NA, NEW YORK	 	 	4.375	 	 	 	5.223	 	 	4/27/2006	 	8/15/2008	 	$	4,675,000.00	 
	92976FAS2
	 	Wachovia Bank Na	 	 	4.375	 	 	 	5.040	 	 	10/3/2006	 	8/15/2008	 	$	2,000,000.00	 
	949746JB8
	 	Wells Fargo & Co	 	 	4.000	 	 	 	5.140	 	 	9/25/2006	 	8/15/2008	 	$	5,000,000.00	 
	3128X4HA2
	 	Freddie Mac	 	 	4.625	 	 	 	4.625	 	 	8/22/2005	 	8/22/2008	 	$	1,500,000.00	 
	173034GU7
	 	Citicorp	 	 	7.250	 	 	 	5.370	 	 	8/11/2006	 	9/1/2008	 	$	1,000,000.00	 
	173034GU7
	 	Citicorp	 	 	7.250	 	 	 	5.500	 	 	6/19/2006	 	9/1/2008	 	$	1,500,000.00	 
	459745FK6
	 	INTL LEASE FINANCE CORP	 	 	4.350	 	 	 	5.760	 	 	4/20/2006	 	9/15/2008	 	$	5,100,000.00	 
	3133XGVX9
	 	FHLB Clbl 9/19/07 (O)	 	 	5.250	 	 	 	5.250	 	 	9/27/2006	 	9/19/2008	 	$	3,000,000.00	 
	4041A0AG3
	 	HBOS PLC	 	 	3.750	 	 	 	5.235	 	 	4/20/2006	 	9/30/2008	 	$	5,000,000.00	 
	931142BU6
	 	WAL-MART STORES	 	 	3.375	 	 	 	5.191	 	 	5/12/2006	 	10/1/2008	 	$	7,000,000.00	 
	3136F73A3
	 	FNMA Clbl 10/10/07 (O)	 	 	5.300	 	 	 	5.196	 	 	10/10/2006	 	10/10/2008	 	$	5,000,000.00	 
	590188JK5
	 	Merrill Lynch	 	 	6.375	 	 	 	5.491	 	 	8/4/2006	 	10/15/2008	 	$	3,500,000.00	 
	52517PC58
	 	Lehman Brothers	 	 	5.450	 	 	 	5.418	 	 	6/5/2006	 	10/22/2008	 	$	5,350,000.00	 
	59018YWG2
	 	Merrill Lynch	 	 	4.831	 	 	 	5.180	 	 	9/6/2006	 	10/27/2008	 	$	2,000,000.00	 
	59018YWG2
	 	Merrill Lynch	 	 	4.831	 	 	 	5.380	 	 	8/2/2006	 	10/27/2008	 	$	2,500,000.00	 
	125577AP1
	 	CIT GROUP INC	 	 	3.875	 	 	 	7.833	 	 	6/11/2007	 	11/3/2008	 	$	2,000,000.00	 
	17303MJC4
	 	Citicorp	 	 	6.375	 	 	 	5.457	 	 	8/28/2006	 	11/15/2008	 	$	3,000,000.00	 
	17303MJC4
	 	Citicorp	 	 	6.375	 	 	 	5.200	 	 	9/22/2006	 	11/15/2008	 	$	3,120,000.00	 
	17303MJC4
	 	Citicorp	 	 	6.375	 	 	 	5.250	 	 	8/31/2006	 	11/15/2008	 	$	5,000,000.00	 
	33738MAC5
	 	First Union Natl	 	 	5.800	 	 	 	4.950	 	 	3/30/2007	 	12/1/2008	 	$	3,000,000.00	 
	33738MAC5
	 	First Union Natl	 	 	5.800	 	 	 	4.950	 	 	4/4/2007	 	12/1/2008	 	$	3,000,000.00	 
	717818W46
	 	Philadelphia Indl-B	 	 	4.940	 	 	 	4.939	 	 	12/14/2006	 	12/1/2008	 	$	1,560,000.00	 
	892332AH0
	 	TOYOTA MTR CRED	 	 	5.500	 	 	 	5.201	 	 	6/19/2006	 	12/15/2008	 	$	5,000,000.00	 






8









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cusip	 	Issuer	 	Cpn	 	Yld	 	Value	 	Maturity	 	Quantity
	441812KF0
	 	Household Fin Co	 	 	4.125	 	 	 	5.210	 	 	5/8/2007	 	12/15/2008	 	$	2,000,000.00	 
	05565UAB5
	 	BP Canada Finance	 	 	3.625	 	 	 	4.988	 	 	10/12/2006	 	1/15/2009	 	$	1,500,000.00	 
	64952WAB9
	 	New York Life Global Fdg	 	 	3.875	 	 	 	5.346	 	 	5/22/2006	 	1/15/2009	 	$	3,000,000.00	 
	16161ABK3
	 	Chase Manhat Crp	 	 	6.500	 	 	 	4.970	 	 	3/29/2007	 	1/15/2009	 	$	3,000,000.00	 
	38143UAA9
	 	Goldman Sachs	 	 	3.875	 	 	 	4.951	 	 	3/20/2007	 	1/15/2009	 	$	2,578,000.00	 
	319455BU4
	 	First Chicago	 	 	6.375	 	 	 	4.960	 	 	3/30/2007	 	1/30/2009	 	$	5,000,000.00	 
	760719AM6
	 	HSBC	 	 	9.700	 	 	 	6.214	 	 	4/11/2006	 	2/1/2009	 	$	3,000,000.00	 
	441812GE8
	 	HOUSEHOLD FINANCE CORP	 	 	5.875	 	 	 	5.345	 	 	4/28/2006	 	2/1/2009	 	$	3,000,000.00	 
	90331HHZ9
	 	US Bancorp	 	 	3.750	 	 	 	5.152	 	 	10/17/2006	 	2/6/2009	 	$	3,500,000.00	 
	36962GN83
	 	Gen Elec Cap Crp	 	 	4.000	 	 	 	4.900	 	 	10/2/2006	 	2/17/2009	 	$	3,040,000.00	 







9











 




EXHIBIT B


Anthony Galea


Anne Biancardi


Stephen Price


David Gibbs


Alex McKindra


and any other officer or employee of the Secured Party


10








 





EXHIBIT C




[to be placed on Secured Party’s Letterhead]




NOTICE OF EXCLUSIVE CONTROL




                                                                         
   20     



	 	 	 	 
	JPMorgan Chase Bank, National Association
	[Address] 	 	 	 
	 	 	 
	 	 	 
	Attention: 	 
	 	 







Re: Safekeeping Account Control Agreement dated as of October 5, 2007 (the
“Agreement”) among JPMorgan Chase Bank, National Association, as
Administrative Agent, as Secured Party, Network Appliance, Inc., as Customer, and
JPMorgan Chase Bank, National Association, as Bank, relating to Securities Account No.
893004211


Ladies and Gentlemen:




     This constitutes the Notice of Exclusive Control referred to in the above referenced
Agreement.



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent

 	 
	 	By:  	


 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



11









 





EXHIBIT G




MARGIN REQUIREMENTS




	 	 	 	 	 	 	 
	 	 	Remaining Maturity/ S&P/ Moody’s	 	 	 	 
	Type of Security	 	Rating	 	Valuation Percentage	 	Ratio Level
	 
	JPMorgan Certificates
of Deposit (Must be
through JPMorgan)
	 	 	 	100%	 	1.00x
	 
	 	 	 	 	 	 
	US Treasury Treasuries
	 	Less than 1 year	 	99%	 	1.01x
	 
	 	More than 1 year less than 5 years	 	98%	 	1.02x
	 
	 	More than 5 years less than 10 years	 	97%	 	1.03x
	 
	 	Over 10 years	 	96%	 	1.04x
	 
	 	 	 	 	 	 
	US Agency Securities
	 	Less than 1 year	 	99%	 	1.01x
	 
	 	More than 1 year less than 5 years	 	98%	 	1.02x
	 
	 	More than 5 years less than 10 years	 	97%	 	1.03x
	 
	 	Over 10 years less than 30 years	 	96%	 	1.04x
	 
	 	 	 	 	 	 
	USD Commercial Paper
	 	A1/P1 Less than or equal to 270 days	 	95%	 	1.05x
	 
	 	 	 	 	 	 
	Money Market Funds
(Must be through
JPMorgan)
	 	US Gov’t	 	95%	 	1.05x
	 
	 	Treasury Plus	 	95%	 	1.05x
	 
	 	Cash Management	 	90%	 	1.11x
	 
	 	100% US Treasury	 	95%	 	1.05x
	 
	 	Federal Money Market	 	95%	 	1.05x
	 
	 	 	 	 	 	 
	Medium Term Notes,
Corporate Bonds,
Corporate
	 	AAA	 	95%	 	1.05x
	Debentures, Floating
Rate Notes, and
Auction
	 	AA	 	93%	 	1.08x
	Rate Securities
	 	A (with Maturity less than 3 months)	 	90%	 	1.11x
	 
	 	A (with Maturity more than 3 months)	 	80%	 	1.25x
	 
	 	 	 	 	 	 
	Other (Bankers
Acceptances,
Eurodollar deposits,
Time Deposits,
Repurchase
Agreements, Sovereign
& Supranational
Issuers)
	 	 	 	0%	 	NM







 









 






EXHIBIT H




FORM OF COMPLIANCE CERTIFICATE





			
	To:	 	The Lenders parties to the
Credit Agreement Described Below





          This Compliance Certificate is furnished pursuant to that certain Secured Credit Agreement
dated as of October 5, 2007 (as amended, modified, renewed or extended from time to time, the
“Agreement”) among Network Appliance, Inc. (the “Borrower”), the Lenders party thereto and
JPMorgan Chase Bank, National Association, as Administrative Agent for the Lenders. Unless
otherwise defined herein, capitalized terms used in this Compliance Certificate have the meanings
ascribed thereto in the Agreement.




          THE UNDERSIGNED HEREBY CERTIFIES THAT:





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





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




           





           





           





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



 









 





	 	 	 	 	 
	 	NETWORK APPLIANCE, INC.
 	 
	
 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



2









 





SCHEDULE I




Compliance
as of                     , ____ with

Provisions of ____ and ____ of

the Agreement




3









 





EXHIBIT I




FORM OF INCREASING LENDER SUPPLEMENT




          INCREASING
LENDER SUPPLEMENT, dated                     , 20___ (this “Supplement”), by and
among each of the signatories hereto, to the Secured Credit Agreement, dated as of October 5, 2007
(as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Network Appliance, Inc. (the “Borrower”), the Lenders party thereto
and JPMorgan Chase Bank, National Association, as administrative agent (in such capacity, the
“Administrative Agent”).




WITNESSETH




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




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




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




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




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




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




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




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




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




4









 





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




[INSERT NAME OF INCREASING LENDER]




	 	 	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 


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




	 	 	 	 	 
	NETWORK APPLIANCE, INC.
 	 
	By:  	 	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Acknowledged as of the date first written above:




	 	 	 	 	 
	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION as Administrative Agent

 	 	 
	By:  	 	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



5









 





EXHIBIT J




FORM OF AUGMENTING LENDER SUPPLEMENT




          AUGMENTING LENDER SUPPLEMENT, dated                     , 20___ (this “Supplement”), to the
Secured Credit Agreement, dated as of October 5, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among Network Appliance,
Inc. (the “Borrower”), the Lenders party thereto and JPMorgan Chase Bank, National
Association, as administrative agent (in such capacity, the “Administrative Agent”).




WITNESSETH




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




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




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




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




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




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




          [                  ]





6









 








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




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




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




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




[remainder of this page intentionally left blank]




7









 





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




[INSERT NAME OF AUGMENTING LENDER]




	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 


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




	 	 	 	 	 
	NETWORK APPLIANCE, INC.

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 


Acknowledged as of the date first written above:




	 	 	 	 	 
	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION 

as Administrative Agent

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 




8