{"id":40987,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/credit-agreement-symantec.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"credit-agreement-symantec","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/credit-agreement-symantec.html","title":{"rendered":"Credit Agreement – Symantec"},"content":{"rendered":"

CREDIT AGREEMENT dated as of September 8, 2010, among SYMANTEC CORPORATION as
\nBorrower, the LENDERS party hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION,
\nas Administrative Agent. The parties hereto agree as follows: ARTICLE
\nI<\/strong> DEFINITIONS<\/strong> Section 1.1 Defined Terms. As used in
\nthis Agreement, the following terms have the meanings specified below: “ABR”,
\nwhen used in reference to any Loan or Borrowing, refers to whether such Loan, or
\nthe Loans comprising such Borrowing, are bearing interest at a rate determined
\nby reference to the Alternate Base Rate. “Adjusted LIBO Rate” means, with
\nrespect to any Eurodollar Borrowing for any Interest Period, an interest rate
\nper annum (rounded upwards, if necessary, to the next 1\/16 of 1%) equal to (a)
\nthe LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve
\nRate. “Administrative Agent” means Wells Fargo, in its capacity as
\nadministrative agent for the Lenders hereunder, or any successor administrative
\nagent. “Administrative Questionnaire” means an Administrative Questionnaire in a
\nform supplied by the Administrative Agent. “Affiliate” means, with respect to a
\nspecified Person, another Person that directly, or indirectly through one or
\nmore intermediaries, Controls or is Controlled by or is under common Control
\nwith the Person specified. “Alternate Base Rate” means, for any day, a rate per
\nannum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the
\nFederal Funds Effective Rate in effect on such day plus 1<\/sup>\/2 of 1% and
\n(c) the LIBO Rate for an Interest Period of 1 month in effect on such day plus
\n1.0%, as adjusted to conform to changes as of the opening of business on the
\ndate of any such change of such LIBO Rate. Any change in the Alternate Base Rate
\ndue to a change in the Prime Rate, the Federal Funds Effective Rate or the LIBO
\nRate shall be effective from and including the effective date of such change in
\nthe Prime Rate, the Federal Funds Effective Rate or the LIBO Rate, respectively.
\n“Anniversary Date” means September 8, 2011 and September 8 in each succeeding
\ncalendar year occurring during the term of this Agreement. “Applicable
\nPercentage” means, with respect to any Lender, the percentage of the total
\nCommitments represented by such Lender153s Commitment. If the Commitments<\/p>\n

1<\/p>\n

\n

have terminated or expired, the Applicable Percentages shall be determined
\nbased upon the Commitments most recently in effect, giving effect to any
\nassignments. “Applicable Rate” means, for any day, with respect to any
\nEurodollar Loan, any ABR Loan (including any Swingline Loan) or the facility
\nfees payable hereunder, as the case may be, the applicable rate per annum set
\nforth across from the caption “Applicable Rate for Eurodollar Loans”,
\n“Applicable Rate for ABR Loans and Swingline Loans” or “Facility Fee” in the
\ntable below, as the case may be, based upon the Consolidated Leverage Ratio, as
\nmore fully described below.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Level 1<\/p>\n<\/td>\n

<\/td>\n\n

Level 2<\/p>\n<\/td>\n

<\/td>\n\n

Level 3<\/p>\n<\/td>\n

<\/td>\n\n

Level 4<\/p>\n<\/td>\n

<\/td>\n\n

Level 5<\/p>\n<\/td>\n<\/tr>\n

\n

Consolidated
\nLeverage Ratio<\/p>\n<\/td>\n

<\/td>\n\n

Less than or equal
\nto 0.50:1.00<\/p>\n<\/td>\n

<\/td>\n\n

Less than or equal
\nto 1.00:1.00 but
\ngreater than
\n0.50:1.00<\/p>\n<\/td>\n

<\/td>\n\n

Less than or equal
\nto 1.75:1.00 but
\ngreater than
\n1.00:1.00<\/p>\n<\/td>\n

<\/td>\n\n

Less than or equal
\nto 2.25:1.00 but
\ngreater than
\n1.75:1.00<\/p>\n<\/td>\n

<\/td>\n\n

Greater than
\n2.25:1.00<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Facility Fee<\/p>\n<\/td>\n

<\/td>\n\n

0.15%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

0.175<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

0.225<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

0.275<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

0.375<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Applicable Rate for
\nEurodollar Loans<\/p>\n<\/td>\n

<\/td>\n\n

1.10%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

1.325<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

1.525<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

1.725<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

2.125<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Applicable Rate for ABR Loans and Swingline Loans<\/p>\n<\/td>\n

<\/td>\n\n

0.10%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

0.325<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

0.525<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

0.725<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

1.125<\/p>\n<\/td>\n

\n

%<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

The Consolidated Leverage Ratio shall be determined on the basis of the most
\nrecent certificate of the Borrower to be delivered pursuant to Section 5.1(a) or
\nSection 5.1(b), as the case may be, for the most recently ended fiscal quarter
\nor fiscal year of the Borrower, as applicable, and any change in the
\nConsolidated Leverage Ratio shall be effective one Business Day after the date
\non which the Administrative Agent receives such certificate, provided, that
\nuntil the Borrower has delivered to the Administrative Agent such certificate
\npursuant to Section 5.1(b) in respect of the second fiscal quarter of fiscal
\n2011, the Consolidated Leverage Ratio shall be deemed to be at Level 3;
\nprovided, further, that for so long as the Borrower has not delivered such
\ncertificate when due pursuant to Section 5.1(a) or Section 5.1(b), as the case
\nmay be, the Consolidated Leverage Ratio shall be deemed to be at Level 4 until
\nthe respective certificate is delivered to the Administrative Agent. “Approved
\nFund” has the meaning assigned to such term in Section 9.4. “Arrangers” means
\nWells Fargo Securities, LLC, Banc of America Securities LLC and Citigroup Global
\nMarkets Inc., in their capacity as joint lead arrangers and joint bookrunners.\n<\/p>\n

2<\/p>\n

\n

“Assignment and Assumption” means an assignment and assumption entered into
\nby a Lender and an assignee (with the consent of any party whose consent is
\nrequired by Section 9.4), and accepted by the Administrative Agent, in the form
\nof Exhibit A or any other form approved by the Administrative Agent.
\n“Availability Period” means the period from and including the Effective Date to
\nbut excluding the earlier of the Maturity Date and the date of termination of
\nthe Commitments. “Board” means the Board of Governors of the Federal Reserve
\nSystem of the United States of America. “Borrower” means Symantec Corporation, a
\nDelaware corporation. “Borrowing” means (a) Revolving Loans of the same Type,
\nmade, converted or continued on the same date and, in the case of Eurodollar
\nLoans, as to which a single Interest Period is in effect or (b) a Swingline
\nLoan. “Borrowing Request” means a request by the Borrower for a Revolving
\nBorrowing in accordance with Section 2.3. “Business Day” means any day that is
\nnot a Saturday, Sunday or other day on which commercial banks in New York City
\nor Charlotte, North Carolina are authorized or required by law to remain closed;
\nprovided that, when used in connection with a Eurodollar Loan, the term
\n“Business Day” shall also exclude any day on which banks are not open for
\ndealings in dollar deposits in the London interbank market. “Capital Lease
\nObligations” of any Person means the obligations of such Person to pay rent or
\nother amounts under any lease of (or other arrangement conveying the right to
\nuse) real or personal property, or a combination thereof, which obligations are
\nrequired to be classified and accounted for as capital leases on a balance sheet
\nof such Person under GAAP, and the amount of such obligations shall be the
\ncapitalized amount thereof determined in accordance with GAAP. “Cash
\nCollateralize” shall mean to pledge and deposit with or deliver to the
\nAdministrative Agent, for the benefit of the Administrative Agent, or the
\nSwingline Lender and the Lenders, as collateral for obligations in respect of
\nSwingline Loans, or obligations of Lenders to fund participations in respect of
\neither thereof (as the context may require), cash or deposit account balances
\nor, if the Swingline Lender benefiting from such collateral shall agree in its
\nsole discretion, other credit support, in each case pursuant to documentation in
\nform and substance satisfactory to (a) the Administrative Agent and (b) the
\nSwingline Lender. “Cash Collateral” shall have a meaning correlative to the
\nforegoing and shall include the proceeds of such cash collateral and other
\ncredit support. “Change in Control” means (a) any “person” or “group” (as such
\nterms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
\n1934, but excluding any employee benefit plan of such Person or its
\nsubsidiaries, and any person or entity acting<\/p>\n

3<\/p>\n

\n

in its capacity as trustee, agent or other fiduciary or administrator of any
\nsuch plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5
\nunder the Securities Exchange Act of 1934, except that a person or group shall
\nbe deemed to have “beneficial ownership” of all securities that such person or
\ngroup has the right to acquire (such right, an “option right”), whether such
\nright is exercisable immediately or only after the passage of time), directly or
\nindirectly, of 35% or more of the Equity Interests of the Borrower entitled to
\nvote for members of the board of directors on a fully diluted basis (i.e.,
\ntaking into account all such securities that such person or group has the right
\nto acquire pursuant to any option right); (b) occupation of a majority of the
\nseats (other than vacant seats) on the board of directors of the Borrower by
\nPersons who were neither (i) nominated by the board of directors of the Borrower
\nnor (ii) appointed by directors so nominated; or (c) the acquisition of direct
\nor indirect Control of the Borrower by any Person or group. “Change in Law”
\nmeans (a) the adoption of any law, rule or regulation after the date of this
\nAgreement, (b) any change in any law, rule or regulation or in the
\ninterpretation or application thereof by any Governmental Authority charged with
\nthe enforcement, interpretation or administration thereof after the date of this
\nAgreement or (c) compliance by any Lender (or, for purposes of Section 2.15(b),
\nby any lending office of such Lender or by such Lender153s holding company, if
\nany) with any request, guideline or directive (whether or not having the force
\nof law) of any Governmental Authority made or issued after the date of this
\nAgreement. “Class”, when used in reference to any Loan or Borrowing, refers to
\nwhether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
\nor Swingline Loans. “Code” means the Internal Revenue Code of 1986. “Commitment”
\nmeans, with respect to each Lender, the commitment of such Lender to make
\nRevolving Loans and to acquire participations in Swingline Loans hereunder,
\nexpressed as an amount representing the maximum aggregate amount of such
\nLender153s Revolving Credit Exposure hereunder, as such commitment may be (a)
\nreduced from time to time pursuant to Section 2.9 and (b) reduced or increased
\nfrom time to time pursuant to assignments by or to such Lender pursuant to
\nSection 2.20 or Section 9.4. The initial amount of each Lender153s Commitment is
\nset forth on Schedule 2.1. The initial aggregate amount of the Lenders153
\nCommitments is $1,000,000,000. “Commitment Increase” has the meaning set forth
\nin Section 2.20(a) hereof. “Consolidated EBITDA” means, with respect to any
\nPerson for any period, an amount equal to (a) Consolidated Net Income (before
\ndiscontinued operations) of such Person for such period plus (b) the sum of, in
\neach case to the extent reflected as a charge in the calculation of such
\nConsolidated Net Income of such Person for such period in accordance with GAAP,
\nbut without duplication, (i) income tax expense, (ii) Consolidated Interest
\nExpense, (iii) depreciation, depletion, and amortization of intangibles or
\nfinancing or acquisition costs and (iv) all non-cash charges and non-cash<\/p>\n

4<\/p>\n

\n

losses for such period (including, but not limited to, stock option expense
\nand restructuring and impairment charges) minus (c) the sum of, in each case to
\nthe extent included in the calculation of Consolidated Net Income of such Person
\nfor such period in accordance with GAAP, but without duplication, (i) any credit
\nfor income tax, (ii) any amounts of interest income, (iii) gains from
\nextraordinary items for such period, (iv) any aggregate net gain from the sale,
\nexchange or other disposition of capital assets by such Person, (v) cash
\npayments for previously reserved charges of the sort described in clause (iv),
\nand (vi) any other non-cash gains which have been added in determining
\nConsolidated Net Income. “Consolidated Funded Debt” of any person means (a) all
\nobligations of such person that would be classified as indebtedness in
\naccordance with GAAP (it being understood that convertible securities subject to
\nFinancial Accounting Standard Board Staff Position APB 14-1 shall be accounted
\nfor as set forth therein), (b) obligations of such person with respect to
\nletters of credit, whether drawn or undrawn, contingent or otherwise and (c) all
\nguarantees or other contingent obligations of such person with respect to any
\nindebtedness of others, determined on a consolidated basis in accordance with
\nGAAP. “Consolidated Interest Expense” means, for any period, total cash interest
\nexpense (including that attributable to Capital Lease Obligations) of the
\nBorrower and its Subsidiaries for such period with respect to all outstanding
\nIndebtedness of the Borrower and its Subsidiaries (including all commissions,
\ndiscounts and other fees and charges owed with respect to letters of credit and
\nbankers153 acceptance financing and net costs under Swap Agreements in respect of
\ninterest rates to the extent such net costs are allocable to such period in
\naccordance with GAAP). “Consolidated Leverage Ratio” means, as of the last day
\nof any period, the ratio of (a) Consolidated Funded Debt on such day to (b)
\nConsolidated EBITDA for such period. “Consolidated Net Income” means, for any
\nperiod, the consolidated net income (or loss) of the Borrower and its
\nSubsidiaries, determined on a consolidated basis in accordance with GAAP;
\nprovided that there shall be excluded (a) the income (or deficit) of any Person
\naccrued prior to the date it becomes a Subsidiary of the Borrower or is merged
\ninto or consolidated with the Borrower or any of its Subsidiaries, (b) the
\nincome (or deficit) of any Person (other than a Subsidiary of the Borrower) in
\nwhich the Borrower or any of its Subsidiaries has an ownership interest, except
\nto the extent that any such income is actually received by the Borrower or such
\nSubsidiary in the form of dividends or similar distributions and (c) the
\nundistributed earnings of any Subsidiary of the Borrower to the extent that the
\ndeclaration or payment of dividends or similar distributions by such Subsidiary
\nis not at the time permitted by the terms of any contractual obligation (other
\nthan under any Loan Document) or requirement of law applicable to such
\nSubsidiary. “Control” means the possession, directly or indirectly, of the power
\nto direct or cause the direction of the management or policies of a Person,
\nwhether through the ability<\/p>\n

5<\/p>\n

\n

to exercise voting power, by contract or otherwise. “Controlling” and
\n“Controlled” have meanings correlative thereto. “Debtor Relief Laws” means the
\nBankruptcy Code of the United States of America, and all other liquidation,
\nconservatorship, bankruptcy, assignment for the benefit of creditors,
\nmoratorium, rearrangement, receivership, insolvency, reorganization, or similar
\ndebtor relief Laws of the United States or other applicable jurisdictions from
\ntime to time in effect. “Default” means any event or condition which constitutes
\nan Event of Default or which upon notice, lapse of time or both would, unless
\ncured or waived, become an Event of Default. “Defaulting Lender” means, subject
\nto Section 2.22(b), any Lender that, as determined by the Administrative Agent
\n(with notice to the Borrower of such determination), (a) has failed to perform
\nany of its funding obligations hereunder, including in respect of its Loans or
\nparticipations in Swingline Loans, within three Business Days of the date
\nrequired to be funded by it hereunder, (b) has notified the Borrower or the
\nAdministrative Agent that it does not intend to comply with its funding
\nobligations or has made a public statement to that effect with respect to its
\nfunding obligations hereunder or under other agreements in which it commits to
\nextend credit, (c) has failed, within three Business Days after request by the
\nAdministrative Agent, to confirm in a manner satisfactory to the Administrative
\nAgent that it will comply with its funding obligations, or (d) has, or has a
\ndirect or indirect parent company that has, (i) become the subject of a
\nproceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver,
\ncustodian, conservator, trustee, administrator, assignee for the benefit of
\ncreditors or similar Person charged with reorganization or liquidation of its
\nbusiness or assets, including the Federal Deposit Insurance Corporation or any
\nother state or federal regulatory authority acting in such a capacity; provided
\nthat a Lender shall not be a Defaulting Lender solely by virtue of the ownership
\nor acquisition of any equity interest in that Lender or any direct or indirect
\nparent company thereof by a Governmental Authority. “Disclosed Matters” means
\nthe actions, suits and proceedings and the environmental matters disclosed in
\nSchedule 3.6. “dollars” or “$” refers to lawful money of the United States of
\nAmerica. “Domestic Subsidiary” means any Subsidiary that is organized under the
\nlaws of any political subdivision of the United States. “Effective Date” means
\nthe date on which the conditions specified in Section 4.1 are satisfied (or
\nwaived in accordance with Section 9.2). “Environmental Laws” means all laws,
\nrules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
\nnotices or binding agreements issued, promulgated or entered into by any
\nGovernmental Authority, relating in any way to the<\/p>\n

6<\/p>\n

\n

environment, preservation or reclamation of natural resources, the
\nmanagement, release or threatened release of any Hazardous Material or to health
\nand safety matters. “Environmental Liability” means any liability, contingent or
\notherwise (including any liability for damages, costs of environmental
\nremediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
\ndirectly or indirectly resulting from or based upon (a) violation of any
\nEnvironmental Law, (b) the generation, use, handling, transportation, storage,
\ntreatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
\nMaterials, (d) the release or threatened release of any Hazardous Materials into
\nthe environment or (e) any contract, agreement or other consensual arrangement
\npursuant to which liability is assumed or imposed with respect to any of the
\nforegoing. “Equity Interests” means shares of capital stock, partnership
\ninterests, membership interests in a limited liability company, beneficial
\ninterests in a trust or other equity ownership interests in a Person, and any
\nwarrants, options or other rights entitling the holder thereof to purchase or
\nacquire any such equity interest. “ERISA” means the Employee Retirement Income
\nSecurity Act of 1974. “ERISA Affiliate” means any trade or business (whether or
\nnot incorporated) that, together with the Borrower, is treated as a single
\nemployer under Section 414(b) or (c) of the Code or, solely for purposes of
\nSection 302 of ERISA and Section 412 of the Code, is treated as a single
\nemployer under Section 414 of the Code. “ERISA Event” means (a) any “reportable
\nevent”, as defined in Section 4043 of ERISA or the regulations issued thereunder
\nwith respect to a Plan (other than an event for which the 30 day notice period
\nis waived); (b) the failure of any Plan or Multiemployer Plan to satisfy the
\nminimum funding standard of Section 412 of the Code or Section 302 of ERISA,
\nwhether or not waived; (c) the filing pursuant to Section 412(c) of the Code or
\nSection 302(c) of ERISA of an application for a waiver of the minimum funding
\nstandard with respect to any Plan, or the filing pursuant to Section 431(d) of
\nthe Code or Section 304(d) of ERISA of an application for the extension of
\namortization periods with respect to any Multiemployer Plan; (d) the incurrence
\nby the Borrower or any of its ERISA Affiliates of any liability under Title IV
\nof ERISA with respect to the termination of any Plan; (e) the receipt by the
\nBorrower or any ERISA Affiliate from the PBGC or a plan administrator of any
\nnotice relating to an intention to terminate any Plan or Plans or to appoint a
\ntrustee to administer any Plan; (f) the incurrence by the Borrower or any of its
\nERISA Affiliates of any liability with respect to the withdrawal or partial
\nwithdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
\nBorrower or any ERISA Affiliate of any notice, or the receipt by any
\nMultiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
\nconcerning the imposition of Withdrawal Liability or a determination that a
\nMultiemployer Plan is, or is expected to be, insolvent or in reorganization,
\nwithin the meaning of Title IV of ERISA.<\/p>\n

7<\/p>\n

\n

“Eurodollar”, when used in reference to any Loan or Borrowing, refers to
\nwhether such Loan, or the Loans comprising such Borrowing, are bearing interest
\nat a rate determined by reference to the Adjusted LIBO Rate. “Event of Default”
\nhas the meaning assigned to such term in ARTICLE VII. “Excluded Taxes” means,
\nwith respect to the Administrative Agent, any Lender or any other recipient of
\nany payment to be made by or on account of any obligation of the Borrower
\nhereunder, (a) income or franchise taxes imposed on (or measured by) its net
\nincome by the United States of America, or by the jurisdiction under the laws of
\nwhich such recipient is organized or in which its principal office is located
\nor, in the case of any Lender, in which its applicable lending office is
\nlocated, (b) any branch profits taxes imposed by the United States of America or
\nany similar tax imposed by any other jurisdiction in which the Borrower is
\nlocated, (c) in the case of a Foreign Lender (other than an assignee pursuant to
\na request by the Borrower under Section 2.19(b)), any United States withholding
\ntax that is imposed on amounts payable to such Foreign Lender at the time such
\nForeign Lender becomes a party to this Agreement (or designates a new lending
\noffice) or is attributable to such Foreign Lender153s failure to comply with
\nSection 2.17(e), except to the extent that such Foreign Lender (or its assignor,
\nif any) was entitled, at the time of designation of a new lending office (or
\nassignment), to receive additional amounts from the Borrower with respect to
\nsuch withholding tax pursuant to Section 2.17(a) and (d) any taxes imposed on
\nany “withholdable payment” payable to such recipient as a result of the failure
\nof such recipient to satisfy the applicable requirements as set forth in FATCA
\nafter December 31, 2012. “Existing Credit Agreement” means that certain Credit
\nAgreement dated as of July 12, 2006, among the Borrower, the lenders named
\ntherein, and JPMorgan Chase Bank, as administrative agent. “FATCA” means
\nSections 1471 through 1474 of the Code. “Federal Funds Effective Rate” means,
\nfor any day, the weighted average (rounded upwards, if necessary, to the next
\n1\/100 of 1%) of the rates on overnight Federal funds transactions with members
\nof the Federal Reserve System arranged by Federal funds brokers, as published on
\nthe next succeeding Business Day by the Federal Reserve Bank of New York, or, if
\nsuch rate is not so published for any day that is a Business Day, the average
\n(rounded upwards, if necessary, to the next 1\/100 of 1%) of the quotations for
\nsuch day for such transactions received by the Administrative Agent from three
\nFederal funds brokers of recognized standing selected by it. “Financial Officer”
\nmeans the chief financial officer, principal accounting officer, treasurer or
\ncontroller of the Borrower. “Foreign Lender” means any Lender that is organized
\nunder the laws of a jurisdiction other than that in which the Borrower is
\nlocated. For purposes of this definition, the United States of America, each
\nState thereof and the District of Columbia shall be deemed to constitute a
\nsingle jurisdiction.<\/p>\n

8<\/p>\n

\n

“Fronting Exposure” shall mean, at any time there is a Defaulting Lender,
\nsuch Defaulting Lender153s Applicable Percentage of outstanding Swingline Loans
\nmade by the Swingline Lender other than Swingline Loans as to which such
\nDefaulting Lender153s participation obligation has been (a) reallocated to other
\nLenders or Cash Collateralized in accordance with Section 2.22 or (b) funded by
\nsuch Defaulting Lender in accordance with Section 2.5. “GAAP” means generally
\naccepted accounting principles in the United States of America. “Governmental
\nAuthority” means the government of the United States of America, any other
\nnation or any political subdivision thereof, whether state or local, and any
\nagency, authority, instrumentality, regulatory body, court, central bank or
\nother entity exercising executive, legislative, judicial, taxing, regulatory or
\nadministrative powers or functions of or pertaining to government (including any
\nsupra-national bodies such as the European Union or the European Central Bank).
\n“Guarantee” of or by any Person (the “guarantor”) means any obligation,
\ncontingent or otherwise, of the guarantor guaranteeing or having the economic
\neffect of guaranteeing any Indebtedness or other obligation of any other Person
\n(the “primary obligor”) in any manner, whether directly or indirectly, and
\nincluding any obligation of the guarantor, direct or indirect, (a) to purchase
\nor pay (or advance or supply funds for the purchase or payment of) such
\nIndebtedness or other obligation or to purchase (or to advance or supply funds
\nfor the purchase of) any security for the payment thereof, (b) to purchase or
\nlease property, securities or services for the purpose of assuring the owner of
\nsuch Indebtedness or other obligation of the payment thereof, (c) to maintain
\nworking capital, equity capital or any other financial statement condition or
\nliquidity of the primary obligor so as to enable the primary obligor to pay such
\nIndebtedness or other obligation or (d) as an account party in respect of any
\nletter of credit or letter of guaranty issued to support such Indebtedness or
\nobligation; provided, that the term Guarantee shall not include endorsements for
\ncollection or deposit in the ordinary course of business, or customary
\nindemnification obligations entered into in connection with any acquisition or
\ndisposition of assets or of other entities (other than to the extent that the
\nprimary obligations that are the subject of such Guarantee would be considered
\nIndebtedness hereunder). “Guarantor” means any Material Subsidiary of the
\nBorrower that has delivered the Guaranty pursuant to Section 4.1(f) or a
\nGuaranty Accession pursuant to Section 5.10 hereof. “Guaranty” has the meaning
\nset forth in Section 4.1(f) hereof. “Guaranty Accession” has the meaning set
\nforth in the Guaranty. “Hazardous Materials” means all explosive or radioactive
\nsubstances or wastes and all hazardous or toxic substances, wastes or other
\npollutants, including petroleum or petroleum distillates, asbestos or asbestos
\ncontaining materials, polychlorinated<\/p>\n

9<\/p>\n

\n

biphenyls, radon gas, infectious or medical wastes and all other substances
\nor wastes of any nature regulated pursuant to any Environmental Law.
\n“Indebtedness” of any Person at any date means, without duplication, (a) all
\nindebtedness of such Person for borrowed money, (b) all obligations of such
\nPerson for the deferred purchase price of property or services (other than
\ncurrent trade payables incurred in the ordinary course of such Person153s
\nbusiness), (c) all obligations of such Person evidenced by notes, bonds,
\ndebentures or other similar instruments, (d) all indebtedness created or arising
\nunder any conditional sale or other title retention agreement with respect to
\nproperty acquired by such Person (even though the rights and remedies of the
\nseller or lender under such agreement in the event of default are limited to
\nrepossession or sale of such property), (e) all Capital Lease Obligations of
\nsuch Person, (f) all obligations of such Person, contingent or otherwise, as an
\naccount party or applicant under or in respect of acceptances, letters of
\ncredit, surety bonds or similar arrangements, (g) the liquidation value of all
\nredeemable preferred capital stock of such Person, (h) all Guarantees of such
\nPerson in respect of obligations of the kind referred to in clauses (a) through
\n(g) above, (i) all obligations of the kind referred to in clauses (a) through
\n(h) above secured by (or for which the holder of such obligation has an existing
\nright, contingent or otherwise, to be secured by) any Lien on property
\n(including accounts and contract rights) owned by such Person, whether or not
\nsuch Person has assumed or become liable for the payment of such obligation, and
\n(j) for the purposes of Section 7(f) and (g) only, the net obligations of such
\nPerson in respect of all Swap Agreements entered into with a particular
\ncounterparty. The Indebtedness of any Person shall include the Indebtedness of
\nany other entity (including any partnership in which such Person is a general
\npartner) to the extent such Person is liable therefor as a result of such
\nPerson153s ownership interest in or other relationship with such entity, except to
\nthe extent the terms of such Indebtedness expressly provide that such Person is
\nnot liable therefor. “Indemnified Taxes” means Taxes other than Excluded Taxes.
\n“Information Memorandum” means the Administrative Documents dated August, 2010
\nrelating to the Borrower and the Transactions. “Interest Election Request” means
\na request by the Borrower to convert or continue a Revolving Borrowing in
\naccordance with Section 2.8. “Interest Payment Date” means (a) with respect to
\nany ABR Loan (other than a Swingline Loan), the last day of each March, June,
\nSeptember and December, (b) with respect to any Eurodollar Loan, the last day of
\nthe Interest Period applicable to the Borrowing of which such Loan is a part
\nand, in the case of a Eurodollar Borrowing with an Interest Period of more than
\nthree months153 duration, each day prior to the last day of such Interest Period
\nthat occurs at intervals of three months153 duration after the first day of such
\nInterest Period, and (c) with respect to any Swingline Loan, the day that such
\nLoan is required to be repaid. “Interest Period” means with respect to any
\nEurodollar Borrowing, the period commencing on the date of such Borrowing and
\nending on the numerically corresponding<\/p>\n

10<\/p>\n

\n

day in the calendar month that is one, two, three or six months (or, with the
\nconsent of each Lender, a shorter period, or nine or twelve months) thereafter,
\nas the Borrower may elect; provided, that (i) if any Interest Period would end
\non a day other than a Business Day, such Interest Period shall be extended to
\nthe next succeeding Business Day unless, in the case of a Eurodollar Borrowing
\nonly, such next succeeding Business Day would fall in the next calendar month,
\nin which case such Interest Period shall end on the next preceding Business Day
\nand (ii) any Interest Period pertaining to a Eurodollar Borrowing that commences
\non the last Business Day of a calendar month (or on a day for which there is no
\nnumerically corresponding day in the last calendar month of such Interest
\nPeriod) shall end on the last Business Day of the last calendar month of such
\nInterest Period. For purposes hereof, the date of a Borrowing initially shall be
\nthe date on which such Borrowing is made and, in the case of a Revolving
\nBorrowing, thereafter shall be the effective date of the most recent conversion
\nor continuation of such Borrowing. “Lenders” means the Persons listed on
\nSchedule 2.1 and any other Person that shall have become a party hereto pursuant
\nto an Assignment and Assumption or pursuant to Section 2.20(c), other than any
\nsuch Person that ceases to be a party hereto pursuant to an Assignment and
\nAssumption. Unless the context otherwise requires, the term “Lenders” includes
\nthe Swingline Lender. “LIBO Rate” means, with respect to any Eurodollar
\nBorrowing for any Interest Period, the rate appearing on Reuters Screen LIBOR01
\nPage (or on any successor or substitute page of such Service, or any successor
\nto or substitute for such Service, providing rate quotations comparable to those
\ncurrently provided on such page of such Service, as determined by the
\nAdministrative Agent from time to time for purposes of providing quotations of
\ninterest rates applicable to dollar deposits in the London interbank market) at
\napproximately 11:00 a.m., London time, two Business Days prior to the
\ncommencement of such Interest Period, as the rate for dollar deposits with a
\nmaturity comparable to such Interest Period. In the event that such rate is not
\navailable at such time for any reason, then the “LIBO Rate” with respect to such
\nEurodollar Borrowing for such Interest Period shall be the rate at which dollar
\ndeposits of $5,000,000 and for a maturity comparable to such Interest Period are
\noffered by the principal London office of the Administrative Agent in
\nimmediately available funds in the London interbank market at approximately
\n11:00 a.m., London time, two Business Days prior to the commencement of such
\nInterest Period. “Lien” means, with respect to any asset, (a) any mortgage, deed
\nof trust, lien, pledge, hypothecation, encumbrance, charge or security interest
\nin, on or of such asset, (b) the interest of a vendor or a lessor under any
\nconditional sale agreement, capital lease or title retention agreement (or any
\nfinancing lease having substantially the same economic effect as any of the
\nforegoing) relating to such asset and (c) in the case of securities, any
\npurchase option, call or similar right of a third party with respect to such
\nsecurities. “Loan Documents” means this Agreement, the Notes (if any) and the
\nGuaranty and any supplements to the Guaranty delivered pursuant to Section 5.10
\nhereof.<\/p>\n

11<\/p>\n

\n

“Loan Parties” means the Borrower and the Guarantors. “Loans” means the loans
\nmade by the Lenders to the Borrower pursuant to this Agreement. “Material
\nAdverse Effect” means a material adverse effect on (a) the business, financial
\ncondition or operations of the Borrower and the Subsidiaries taken as a whole,
\n(b) the ability of the Borrower to perform any of its obligations under this
\nAgreement or any of the other Loan Documents or (c) the rights of or benefits
\navailable to the Lenders under this Agreement and the other Loan Documents.
\n“Material Indebtedness” means Indebtedness (other than the Loans), or
\nobligations in respect of one or more Swap Agreements, of any one or more of the
\nBorrower and its Subsidiaries in a principal amount exceeding $50,000,000. For
\npurposes of determining Material Indebtedness, the “principal amount” of the
\nobligations of the Borrower or any Subsidiary in respect of any Swap Agreement
\nat any time shall be the maximum aggregate amount (giving effect to any netting
\nagreements) that the Borrower or such Subsidiary would be required to pay if
\nsuch Swap Agreement were terminated at such time. “Material Subsidiary” means,
\nat any date of determination, a Domestic Subsidiary of the Borrower (other than
\nas set forth on Schedule 1.1) that, either individually or together with its
\nSubsidiaries, taken as a whole, has total tangible assets exceeding $50,000,000
\nas of the most recent available quarterly or year-end financial statements;
\nprovided however that a Domestic Subsidiary shall not be a Material Subsidiary
\nif the provision of a Guaranty by it would give rise to or increase the amount
\nincludable in income of the Company pursuant to Section 956 of the Code.
\n“Maturity Date” means September 8, 2014. “Measurement Period” means, at any date
\nof determination, the most recently completed four consecutive fiscal quarters
\nof the Borrower on or immediately prior to such date. “Minority Interests” means
\nany shares of stock of any class of a Subsidiary (other than directors153
\nqualifying shares as required by law) that are not owned by the Borrower and\/or
\none or more of its Subsidiaries. “Multiemployer Plan” means a multiemployer plan
\nas defined in Section 4001(a)(3) of ERISA, and to which the Borrower or any
\nERISA Affiliate makes, is obligated to make, or has been obligated to make,
\ncontributions. “Note” has the meaning set forth in Section 2.10. “Other Taxes”
\nmeans any and all present or future stamp, court or documentary taxes or any
\nother excise, property, intangible, recording, filing or similar Taxes which
\narise from any payment made, from the execution, delivery, performance,
\nenforcement or registration of, from the receipt or perfection of a security
\ninterest under, or otherwise<\/p>\n

12<\/p>\n

\n

with respect to, this Agreement and the other Loan Documents. Other Taxes
\nshall not include any Excluded Taxes. “Participant” has the meaning set forth in
\nSection 9.4. “Payment Office” means the office of the Administrative Agent
\ndesignated on Schedule 2.1 under the heading “Instructions for wire transfers to
\nthe Administrative Agent,” or such other office as the Administrative Agent may
\ndesignate to the Lenders and the Borrower for such purpose from time to time.
\n“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in
\nERISA and any successor entity performing similar functions. “Permitted
\nEncumbrances” means: (a) Liens imposed by law for taxes that are not yet due or
\nare being contested in compliance with Section 5.4; (b) carriers153,
\nwarehousemen153s, mechanics153, materialmen153s, landlord153s, repairmen153s and other
\nlike Liens imposed by law, arising in the ordinary course of business and
\nsecuring obligations that are not overdue by more than 30 days or are being
\ncontested in compliance with Section 5.4; (c) pledges and deposits made in the
\nordinary course of business in compliance with workers153 compensation,
\nunemployment insurance and other social security laws or regulations; (d)
\ndeposits to secure the performance of bids, trade contracts, leases, statutory
\nobligations, surety and appeal bonds, performance bonds and other obligations of
\na like nature incurred in the ordinary course of business; (e) judgment liens in
\nrespect of judgments that do not constitute an Event of Default under clause (k)
\nof ARTICLE VII or securing appeal or other surety bonds relating to such
\njudgments; (f) Liens arising under repurchase agreements, reverse repurchase
\nagreements, securities lending and borrowing agreements and similar
\ntransactions; (g) Liens arising from precautionary filings in respect of
\noperating leases; (h) Liens arising from leases, licenses, subleases or
\nsublicenses which do not (A) interfere in any material respect with the business
\nof the Borrower or any Subsidiary or (B) secure any Indebtedness; (i) Liens on
\ncash collateral or government securities to secure obligations under Swap
\nAgreements and letters of credit, provided, that the aggregate<\/p>\n

13<\/p>\n

\n

value of such collateral so pledged by the Borrower and its Subsidiaries does
\nnot at any time exceed $25 million in the aggregate; (j) Liens in favor of
\ncustoms and revenue authorities arising as a matter of law to secure payment of
\ncustoms duties in connection with the importation of goods; (k) Liens securing
\nobligations (other than obligations representing Indebtedness for borrowed
\nmoney) under operating or similar agreements entered into in the ordinary course
\nof business; (l) easements, zoning restrictions, rights-of-way and similar
\nencumbrances on real property imposed by law or arising in the ordinary course
\nof business that do not secure any monetary obligations and do not materially
\ndetract from the value of the affected property or interfere with the ordinary
\nconduct of business of the Borrower or any Subsidiary; provided <\/em>that
\nthe term “Permitted Encumbrances” shall not include any Lien securing
\nIndebtedness. “Person” means any natural person, corporation, limited liability
\ncompany, trust, joint venture, association, company, partnership, Governmental
\nAuthority or other entity. “Plan” means any employee pension benefit plan (other
\nthan a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
\nSection 412 of the Code or Section 302 of ERISA, and with respect to which the
\nBorrower or any ERISA Affiliate is (or, if such plan were terminated, would
\nunder Section 4069 of ERISA be deemed to be) an “employer” as defined in Section
\n3(5) of ERISA. “Prime Rate” means the rate of interest per annum publicly
\nannounced from time to time by Wells Fargo as its “prime rate.” The “prime rate”
\nis a rate set by Wells Fargo based upon various factors including Wells Fargo153s
\ncosts and desired return, general economic conditions and other factors, and is
\nused as a reference point for pricing some loans, which may be priced at, above,
\nor below such announced rate. “Register” has the meaning set forth in Section
\n9.4. “Related Parties” means, with respect to any specified Person, such
\nPerson153s Affiliates and the respective directors, officers, employees, agents
\nand advisors of such Person and such Person153s Affiliates. “Required Lenders”
\nmeans, at any time, Lenders having more than 50% of the aggregate amount of the
\nCommitments or, if the Commitments shall have been terminated, holding more than
\n50% of the aggregate unpaid principal amount of the total Revolving Credit
\nExposures at such time. The Commitment and Revolving Credit Exposure of any
\nDefaulting Lender shall be disregarded in determining Required Lenders at any
\ntime.<\/p>\n

14<\/p>\n

\n

“Revolving Credit Exposure” means, with respect to any Lender at any time,
\nthe sum of the outstanding principal amount of such Lender153s Revolving Loans and
\nits Swingline Exposure at such time. “Revolving Loan” means a Loan made pursuant
\nto Section 2.3. “Statutory Reserve Rate” means a fraction (expressed as a
\ndecimal), the numerator of which is the number one and the denominator of which
\nis the number one minus the aggregate of the maximum reserve percentages
\n(including any marginal, special, emergency or supplemental reserves) expressed
\nas a decimal established by the Board to which the Administrative Agent is
\nsubject for Eurocurrency funding (currently referred to as “Eurocurrency
\nLiabilities” in Regulation D of the Board). Such reserve percentages shall
\ninclude those imposed pursuant to such Regulation D. Eurodollar Loans shall be
\ndeemed to constitute Eurocurrency funding and to be subject to such reserve
\nrequirements without benefit of or credit for proration, exemptions or offsets
\nthat may be available from time to time to any Lender under such Regulation D or
\nany comparable regulation. The Statutory Reserve Rate shall be adjusted
\nautomatically on and as of the effective date of any change in any reserve
\npercentage. “subsidiary” means, with respect to any Person (the “parent”) at any
\ndate, any corporation, limited liability company, partnership, association or
\nother entity the accounts of which would be consolidated with those of the
\nparent in the parent153s consolidated financial statements if such financial
\nstatements were prepared in accordance with GAAP as of such date, as well as any
\nother corporation, limited liability company, partnership, association or other
\nentity (a) of which securities or other ownership interests representing more
\nthan 50% of the equity or more than 50% of the ordinary voting power or, in the
\ncase of a partnership, more than 50% of the general partnership interests are,
\nas of such date, owned, controlled or held, or (b) that is, as of such date,
\notherwise Controlled, by the parent or one or more subsidiaries of the parent or
\nby the parent and one or more subsidiaries of the parent and which is required
\nby GAAP to be consolidated in the consolidated financial statements of the
\nparent. “Subsidiary” means any subsidiary of the Borrower. “Swap Agreement”
\nmeans any agreement with respect to any swap, forward, future or derivative
\ntransaction or option or similar agreement involving, or settled by reference
\nto, one or more rates, currencies, commodities, equity or debt instruments or
\nsecurities, or economic, financial or pricing indices or measures of economic,
\nfinancial or pricing risk or value or any similar transaction or any combination
\nof these transactions; provided that no phantom stock or similar plan providing
\nfor payments only on account of services provided by current or former
\ndirectors, officers, employees or consultants of the Borrower or the
\nSubsidiaries shall be a Swap Agreement. “Swingline Borrowing Request” means a
\nrequest by the Borrower for a Swingline Borrowing in accordance with Section
\n2.5.<\/p>\n

15<\/p>\n

\n

“Swingline Commitment” means an amount equal to the lesser of (a) $20,000,000
\nand (b) the total Commitments. The Swingline Commitment is part of, and not in
\naddition to, the total Commitments. “Swingline Exposure” means, at any time, the
\naggregate principal amount of all Swingline Loans outstanding at such time. The
\nSwingline Exposure of any Lender at any time shall be its Applicable Percentage
\nof the total Swingline Exposure at such time. “Swingline Lender” means Wells
\nFargo, in its capacity as lender of Swingline Loans hereunder. “Swingline Loan”
\nmeans a Loan made pursuant to Section 2.5. “Taxes” means any and all present or
\nfuture taxes, levies, imposts, duties, deductions, charges or withholdings
\nimposed by any Governmental Authority. “Transactions” means the execution,
\ndelivery and performance by the Loan Parties of each Loan Document to which it
\nis a party, the borrowing of Loans and the use of the proceeds thereof. “Type”,
\nwhen used in reference to any Loan or Borrowing, refers to whether the rate of
\ninterest on such Loan, or on the Loans comprising such Borrowing, is determined
\nby reference to the Adjusted LIBO Rate or the Alternate Base Rate. “Wells Fargo”
\nmeans Wells Fargo Bank, National Association. “Withdrawal Liability” means
\nliability to a Multiemployer Plan as a result of a complete or partial
\nwithdrawal from such Multiemployer Plan, as such terms are defined in Part I of
\nSubtitle E of Title IV of ERISA. Section 1.2 Classification of Loans and
\nBorrowings. For purposes of this Agreement, Loans may be classified and referred
\nto by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or
\nby Class and Type (e.g., a “Eurodollar Revolving Loan”). Borrowings also may be
\nclassified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type
\n(e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar
\nRevolving Borrowing”). Section 1.3 Terms Generally. The definitions of terms
\nherein shall apply equally to the singular and plural forms of the terms
\ndefined. Whenever the context may require, any pronoun shall include the
\ncorresponding masculine, feminine and neuter forms. The words “include”,
\n“includes” and “including” shall be deemed to be followed by the phrase “without
\nlimitation”. The word “will” shall be construed to have the same meaning and
\neffect as the word “shall”. Unless the context requires otherwise (a) any
\ndefinition of or reference to any agreement, instrument or other document herein
\nshall be construed as referring to such agreement, instrument or other document
\nas from time to time amended, supplemented or otherwise modified (subject to any
\nrestrictions on such amendments, supplements or modifications set forth herein),
\n(b) any reference herein to any Person shall be construed to include such
\nPerson153s successors and assigns, (c) the words “herein”, “hereof” and
\n“hereunder”, and words of similar import, shall be construed to refer to this
\nAgreement in its entirety and not<\/p>\n

16<\/p>\n

\n

to any particular provision hereof, (d) all references herein to Articles,
\nSections, Exhibits and Schedules shall be construed to refer to Articles and
\nSections of, and Exhibits and Schedules to, this Agreement, (e) the words
\n“asset” and “property” shall be construed to have the same meaning and effect
\nand to refer to any and all tangible and intangible assets and properties,
\nincluding cash, securities, accounts and contract rights and (f) any reference
\nto any law shall include all statutory and regulatory provisions consolidating,
\namending, replacing or interpreting such law and any reference to any law or
\nregulation shall, unless otherwise specified, refer to such law or regulation as
\namended, modified or supplemented from time to time. Section 1.4 Accounting
\nTerms; GAAP. Except as otherwise expressly provided herein, all terms of an
\naccounting or financial nature shall be construed in accordance with GAAP, as in
\neffect from time to time; provided that, if the Borrower notifies the
\nAdministrative Agent that the Borrower requests an amendment to any provision
\nhereof to eliminate the effect of any change occurring after the date hereof in
\nGAAP or in the application thereof on the operation of such provision (or if the
\nAdministrative Agent notifies the Borrower that the Required Lenders request an
\namendment to any provision hereof for such purpose), regardless of whether any
\nsuch notice is given before or after such change in GAAP or in the application
\nthereof, then such provision shall be interpreted on the basis of GAAP as in
\neffect and applied immediately before such change shall have become effective
\nuntil such notice shall have been withdrawn or such provision amended in
\naccordance herewith. Notwithstanding the foregoing, all financial statements
\ndelivered hereunder shall be prepared, and all financial covenants contained
\nherein shall be calculated, without giving effect to any election under the
\nStatement of Financial Accounting Standards No. 159 (ASC 825) (or any similar
\naccounting principle) permitting or requiring a Person to value its financial
\nliabilities or Indebtedness at the fair value thereof. ARTICLE
\nII<\/strong> THE CREDITS<\/strong> Section 2.1 Commitments. Subject to the
\nterms and conditions set forth herein, each Lender agrees to make Revolving
\nLoans to the Borrower from time to time during the Availability Period in an
\naggregate principal amount that will not result in (a) such Lender153s Revolving
\nCredit Exposure exceeding such Lender153s Commitment or (b) the sum of the total
\nRevolving Credit Exposures exceeding the total Commitments. Within the foregoing
\nlimits and subject to the terms and conditions set forth herein, the Borrower
\nmay borrow, prepay and reborrow Revolving Loans. Section 2.2 Loans and
\nBorrowings. (a) Each Revolving Loan shall be made as part of a Borrowing
\nconsisting of Revolving Loans made by the Lenders in accordance with their
\nApplicable Percentage. The failure of any Lender to make any Loan required to be
\nmade by it shall not relieve any other Lender of its obligations hereunder;
\nprovided that the Commitments of the Lenders are several and no Lender shall be
\nresponsible for any other Lender153s failure to make Loans as required.<\/p>\n

17<\/p>\n

\n

(b) Subject to Section 2.14, each Revolving Borrowing shall be comprised
\nentirely of ABR Loans or Eurodollar Loans as the Borrower may request in
\naccordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at
\nits option may make any Eurodollar Loan by causing any domestic or foreign
\nbranch or Affiliate of such Lender to make such Loan; provided that any exercise
\nof such option shall not affect the obligation of the Borrower to repay such
\nLoan in accordance with the terms of this Agreement. (c) At the commencement of
\neach Interest Period for any Eurodollar Revolving Borrowing, such Borrowing
\nshall be in an aggregate amount that is an integral multiple of $1,000,000 and
\nnot less than $10,000,000. At the time that each ABR Revolving Borrowing is
\nmade, such Borrowing shall be in an aggregate amount that is an integral
\nmultiple of $1,000,000 and not less than $10,000,000; provided that an ABR
\nRevolving Borrowing may be in an aggregate amount that is equal to the entire
\nunused balance of the total Commitments. Each Swingline Loan shall be in an
\namount that is an integral multiple of $500,000 and not less than $1,000,000.
\nBorrowings of more than one Type and Class may be outstanding at the same time;
\nprovided that there shall not at any time be more than a total of five
\nEurodollar Revolving Borrowings outstanding. (d) Notwithstanding any other
\nprovision of this Agreement, the Borrower shall not be entitled to request, or
\nto elect to convert or continue, any Borrowing if the Interest Period requested
\nwith respect thereto would end after the Maturity Date. Section 2.3 Requests for
\nRevolving Borrowings. To request a Revolving Borrowing, the Borrower shall
\nnotify the Administrative Agent of such request by telephone (a) in the case of
\na Eurodollar Borrowing, not later than 12:00 noon, Charlotte, North Carolina
\ntime, three Business Days before the date of the proposed Borrowing or (b) in
\nthe case of an ABR Borrowing, not later than 12:00 noon, Charlotte, North
\nCarolina time, one Business Day before the date of the proposed Borrowing. Each
\nsuch telephonic Borrowing Request shall be irrevocable and shall be confirmed
\npromptly by hand delivery or telecopy to the Administrative Agent of a written
\nBorrowing Request in substantially the form of Exhibit B-1 attached hereto and
\nsigned by the Borrower. Each such telephonic and written Borrowing Request shall
\nspecify the following information in compliance with Section 2.2: (i) the
\naggregate amount of the requested Borrowing; (ii) the date of such Borrowing,
\nwhich shall be a Business Day; (iii) whether such Borrowing is to be an ABR
\nBorrowing or a Eurodollar Borrowing; (iv) in the case of a Eurodollar Borrowing,
\nthe initial Interest Period to be applicable thereto, which shall be a period
\ncontemplated by the definition of the term “Interest Period”; and (v) the
\nlocation and number of the Borrower153s account to which funds are to be
\ndisbursed, which shall comply with the requirements of Section 2.7.<\/p>\n

18<\/p>\n

\n

If no election as to the Type of Revolving Borrowing is specified, then the
\nrequested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
\nis specified with respect to any requested Eurodollar Revolving Borrowing, then
\nthe Borrower shall be deemed to have selected an Interest Period of one month153s
\nduration. Promptly following receipt of a Borrowing Request in accordance with
\nthis Section, the Administrative Agent shall advise each Lender of the details
\nthereof and of the amount of such Lender153s Loan to be made as part of the
\nrequested Borrowing. Section 2.4 [Reserved]. Section 2.5 Swingline Loans. (a)
\nSubject to the terms and conditions set forth herein, the Swingline Lender
\nagrees to make Swingline Loans to the Borrower from time to time during the
\nAvailability Period, in an aggregate principal amount at any time outstanding
\nthat will not result in (i) the aggregate principal amount of outstanding
\nSwingline Loans exceeding the Swingline Commitment or (ii) the sum of the total
\nRevolving Credit Exposures exceeding the total Commitments; provided that the
\nSwingline Lender shall not be required to make a Swingline Loan to refinance an
\noutstanding Swingline Loan. Within the foregoing limits and subject to the terms
\nand conditions set forth herein, the Borrower may borrow, prepay and reborrow
\nSwingline Loans. Notwithstanding the foregoing, the Swingline Lender shall not
\nmake any Swingline Loan to the Borrower if any Lender is at that time a
\nDefaulting Lender, unless the Swingline Lender has entered into arrangements,
\nincluding the delivery of Cash Collateral, satisfactory to the Swingline Lender
\n(in its sole discretion) with the Borrower or such Lender to eliminate the
\nSwingline Lender153s actual or potential Fronting Exposure (after giving effect to
\nSection 2.22(a)(iv)) with respect to the Defaulting Lender arising from either
\nthe Swingline Loan then proposed to be made or that Swingline Loan and all other
\nSwingline Exposure as to which the Swingline Lender has actual or potential
\nFronting Exposure, as it may elect in its sole discretion. (b) To request a
\nSwingline Loan, the Borrower shall notify the Administrative Agent of such
\nrequest by telephone (confirmed by telecopy), not later than 1:00 p.m.
\nCharlotte, North Carolina time, on the day of a proposed Swingline Loan. Each
\nsuch notice shall be irrevocable, shall specify the requested date (which shall
\nbe a Business Day) and amount of the requested Swingline Loan and shall be
\nconfirmed promptly by hand delivery or telecopy to the Administrative Agent of a
\nwritten Swingline Borrowing Request in substantially the form of Exhibit B-2
\nattached hereto and signed by the Borrower. The Administrative Agent will
\npromptly advise the Swingline Lender of any such notice received from the
\nBorrower. The Swingline Lender shall make each Swingline Loan available to the
\nBorrower by means of a credit to the general deposit account of the Borrower
\nwith the Swingline Lender by 3:00 p.m., Charlotte, North Carolina time, on the
\nrequested date of such Swingline Loan. (c) The Swingline Lender may by written
\nnotice given to the Administrative Agent not later than 10:00 a.m., Charlotte,
\nNorth Carolina time, on any Business Day require the Lenders to acquire
\nparticipations on such Business Day in all or a portion of the Swingline Loans
\noutstanding. Such notice shall specify the aggregate amount of Swingline Loans
\nin which Lenders will participate. Promptly upon receipt of such notice, the
\nAdministrative Agent will give notice thereof to each Lender, specifying in such
\nnotice such Lender153s Applicable<\/p>\n

19<\/p>\n

\n

Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and
\nunconditionally agrees, upon receipt of notice as provided above, to pay to the
\nAdministrative Agent, for the account of the Swingline Lender, such Lender153s
\nApplicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges
\nand agrees that its obligation to acquire participations in Swingline Loans
\npursuant to this paragraph is absolute and unconditional and shall not be
\naffected by any circumstance whatsoever, including (i) any set-off,
\ncounterclaim, recoupment, defense or other right that such Lender may have
\nagainst the Swingline Lender, the Administrative Agent, the Borrower or any
\nother Person for any reason whatsoever, (ii) the occurrence or continuance of
\nany Default, or (iii) the failure of any conditions set forth in Section 4.2 or
\nelsewhere herein to be satisfied. Each Lender shall comply with its obligation
\nunder this paragraph by wire transfer of immediately available funds, in the
\nsame manner as provided in Section 2.7 with respect to Loans made by such Lender
\n(and Section 2.7 shall apply, mutatis mutandis, to the payment obligations of
\nthe Lenders), and the Administrative Agent shall promptly pay to the Swingline
\nLender the amounts so received by it from the Lenders. The Administrative Agent
\nshall notify the Borrower of any participations in any Swingline Loan acquired
\npursuant to this paragraph, and thereafter payments in respect of such Swingline
\nLoan shall be made to the Administrative Agent and not to the Swingline Lender.
\nAny amounts received by the Swingline Lender from the Borrower (or other party
\non behalf of the Borrower) in respect of a Swingline Loan after receipt by the
\nSwingline Lender of the proceeds of a sale of participations therein shall be
\npromptly remitted to the Administrative Agent; any such amounts received by the
\nAdministrative Agent shall be promptly remitted by the Administrative Agent to
\nthe Lenders that shall have made their payments pursuant to this paragraph and
\nto the Swingline Lender, as their interests may appear; provided that any such
\npayment so remitted shall be repaid to the Swingline Lender or to the
\nAdministrative Agent, as applicable, if and to the extent such payment is
\nrequired to be refunded to the Borrower for any reason. The purchase of
\nparticipations in a Swingline Loan pursuant to this paragraph shall not relieve
\nthe Borrower of any default in the payment thereof. Section 2.6 [Reserved].
\nSection 2.7 Funding of Borrowings. (a) Each Lender shall make each Loan to be
\nmade by it hereunder on the proposed date thereof by wire transfer of
\nimmediately available funds by 2:00 p.m., Charlotte, North Carolina time, to the
\naccount of the Administrative Agent most recently designated by it for such
\npurpose by notice to the Lenders; provided that Swingline Loans shall be made as
\nprovided in Section 2.5. The Administrative Agent will make such Loans available
\nto the Borrower by promptly crediting the amounts so received, in like funds, to
\nan account of the Borrower maintained with the Administrative Agent in
\nCharlotte, North Carolina and designated by the Borrower in the applicable
\nBorrowing Request. (b) Unless the Administrative Agent shall have received
\nnotice from a Lender prior to the proposed date of any Borrowing that such
\nLender will not make available to the Administrative Agent such Lender153s
\nApplicable Percentage of such Borrowing, the Administrative Agent may assume
\nthat such Lender has made such Applicable Percentage available on such date in
\naccordance with paragraph (a) of this Section and may, in reliance upon such
\nassumption, make available to the Borrower a corresponding amount. In such
\nevent, if a<\/p>\n

20<\/p>\n

\n

Lender has not in fact made its Applicable Percentage of the applicable
\nBorrowing available to the Administrative Agent, then the applicable Lender and
\nthe Borrower severally agree to pay to the Administrative Agent forthwith on
\ndemand such corresponding amount with interest thereon, for each day from and
\nincluding the date such amount is made available to the Borrower to but
\nexcluding the date of payment to the Administrative Agent, at (i) in the case of
\nsuch Lender, the greater of the Federal Funds Effective Rate and a rate
\ndetermined by the Administrative Agent in accordance with banking industry rules
\non interbank compensation or (ii) in the case of the Borrower, the interest rate
\napplicable to ABR Loans. If such Lender pays such amount to the Administrative
\nAgent, then such amount shall constitute such Lender153s Loan included in such
\nBorrowing. Section 2.8 Interest Elections. (a) Each Revolving Borrowing
\ninitially shall be of the Type specified in the applicable Borrowing Request
\nand, in the case of a Eurodollar Revolving Borrowing, shall have an initial
\nInterest Period as specified in such Borrowing Request. Thereafter, the Borrower
\nmay elect to convert such Borrowing to a different Type or to continue such
\nBorrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
\nInterest Periods therefore, all as provided in this Section. The Borrower may
\nelect different options with respect to different portions of the affected
\nBorrowing, in which case each such portion shall be allocated among the Lenders
\nholding the Loans comprising such Borrowing in accordance with their Applicable
\nPercentage, and the Loans comprising each such portion shall be considered a
\nseparate Borrowing. This Section shall not apply to Swingline Borrowings, which
\nmay not be converted or continued. (b) To make an election pursuant to this
\nSection, the Borrower shall notify the Administrative Agent of such election by
\ntelephone by the time that a Borrowing Request would be required under Section
\n2.3 if the Borrower were requesting a Revolving Borrowing of the Type resulting
\nfrom such election to be made on the effective date of such election. Each such
\ntelephonic request shall be irrevocable and shall be confirmed promptly by hand
\ndelivery or telecopy to the Administrative Agent of a written request (an
\n“Interest Election Request”) in substantially the form of Exhibit C attached
\nhereto and signed by the Borrower. (c) Each telephonic and written Interest
\nElection Request shall specify the following information in compliance with
\nSection 2.2: (i) the Borrowing to which such Interest Election Request applies
\nand, if different options are being elected with respect to different portions
\nthereof, the portions thereof to be allocated to each resulting Borrowing (in
\nwhich case the information to be specified pursuant to clauses (iii) and (iv)
\nbelow shall be specified for each resulting Borrowing); (ii) the effective date
\nof the election made pursuant to such Interest Election Request, which shall be
\na Business Day; (iii) whether the resulting Borrowing is to be an ABR Borrowing
\nor a Eurodollar Borrowing; and<\/p>\n

21<\/p>\n

\n

(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest
\nPeriod to be applicable thereto after giving effect to such election, which
\nshall be a period contemplated by the definition of the term “Interest Period”.
\nIf any such Interest Election Request requests a Eurodollar Borrowing but does
\nnot specify an Interest Period, then the Borrower shall be deemed to have
\nselected an Interest Period of one month153s duration. (d) Promptly following
\nreceipt of an Interest Election Request, the Administrative Agent shall advise
\neach Lender of the details thereof and of such Lender153s portion of each
\nresulting Borrowing. (e) If the Borrower fails to deliver a timely Interest
\nElection Request with respect to a Eurodollar Revolving Borrowing prior to the
\nend of the Interest Period applicable thereto, then, unless such Borrowing is
\nrepaid as provided herein, at the end of such Interest Period such Borrowing
\nshall be converted to an ABR Borrowing. Notwithstanding any contrary provision
\nhereof, if an Event of Default has occurred and is continuing (i) no outstanding
\nRevolving Borrowing may be converted to or continued as a Eurodollar Borrowing
\nand (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted
\nto an ABR Borrowing at the end of the Interest Period applicable thereto.
\nSection 2.9 Termination and Reduction of Commitments. (a) Unless previously
\nterminated, the Commitments and the Swingline Commitment shall terminate on the
\nMaturity Date. (b) The Borrower may at any time terminate, or from time to time
\nreduce, the Commitments; provided that (i) each reduction of the Commitments
\nshall be in an amount that is an integral multiple of $1,000,000 and not less
\nthan $10,000,000, (ii) the Borrower shall not terminate or reduce the
\nCommitments if, after giving effect to any concurrent prepayment of the Loans in
\naccordance with Section 2.11, the sum of the Revolving Credit Exposures would
\nexceed the total Commitments, and (iii) if, after giving effect to any reduction
\nof the Commitments, the Swingline Commitment exceeds the total Commitments, the
\nSwingline Commitment shall be automatically reduced by the amount of such
\nexcess. (c) The Borrower shall notify the Administrative Agent of any election
\nto terminate or reduce the Commitments under paragraph (b) of this Section at
\nleast three Business Days prior to the effective date of such termination or
\nreduction, specifying such election and the effective date thereof. Promptly
\nfollowing receipt of any notice, the Administrative Agent shall advise the
\nLenders of the contents thereof. Each notice delivered by the Borrower pursuant
\nto this Section shall be irrevocable; provided that a notice of termination of
\nthe Commitments delivered by the Borrower may state that such notice is
\nconditioned upon the effectiveness of other credit facilities, in which case
\nsuch notice may be revoked by the Borrower (by notice to the Administrative
\nAgent on or prior to the specified effective date) if such condition is not
\nsatisfied. Any termination or reduction of the Commitments shall be permanent.
\nEach reduction of the Commitments shall be applied to the Lenders in accordance
\nwith their respective Applicable Percentage.<\/p>\n

22<\/p>\n

\n

Section 2.10 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
\nunconditionally promises to pay (i) to the Administrative Agent for the account
\nof each Lender the then unpaid principal amount of each Revolving Loan on the
\nMaturity Date, and (ii) to the Swingline Lender the then unpaid principal amount
\nof each Swingline Loan on the earlier of the Maturity Date and the first date
\nafter such Swingline Loan is made that is the 15th or last day of a calendar
\nmonth and is at least two Business Days after such Swingline Loan is made;
\nprovided that on each date that a Revolving Borrowing is made, the Borrower
\nshall repay all Swingline Loans then outstanding. (b) Each Lender shall maintain
\nin accordance with its usual practice an account or accounts evidencing the
\nindebtedness of the Borrower to such Lender resulting from each Loan made by
\nsuch Lender, including the amounts of principal and interest payable and paid to
\nsuch Lender from time to time hereunder. (c) The Administrative Agent shall
\nmaintain accounts in which it shall record (i) the amount of each Loan made
\nhereunder, the Class and Type thereof and the Interest Period applicable
\nthereto, (ii) the amount of any principal or interest due and payable or to
\nbecome due and payable from the Borrower to each Lender hereunder and (iii) the
\namount of any sum received by the Administrative Agent hereunder for the account
\nof the Lenders and each Lender153s share thereof. (d) The entries made in the
\naccounts maintained pursuant to paragraph (b) or (c) of this Section shall be
\nprima facie evidence of the existence and amounts of the obligations recorded
\ntherein (absent manifest error); provided that the failure of any Lender or the
\nAdministrative Agent to maintain such accounts or any error therein shall not in
\nany manner affect the obligation of the Borrower to repay the Loans in
\naccordance with the terms of this Agreement. (e) Any Lender may request that
\nLoans made by it be evidenced by a promissory note (a “Note”). In such event,
\nthe Borrower shall prepare, execute and deliver to such Lender a Note payable to
\nthe order of such Lender (or, if requested by such Lender, to such Lender and
\nits registered assigns) in substantially the form of Exhibit D attached hereto.
\nThereafter, the Loans evidenced by such Note and interest thereon shall at all
\ntimes (including after assignment pursuant to Section 9.4) be represented by one
\nor more promissory notes in such form payable to the order of the payee named
\ntherein (or, if such promissory note is a registered note, to such payee and its
\nregistered assigns). Section 2.11 Prepayment of Loans. (a) The Borrower shall
\nhave the right at any time and from time to time to prepay any Borrowing in
\nwhole or in part, subject to prior notice in accordance with paragraph (b) of
\nthis Section. (b) The Borrower shall notify the Administrative Agent (and, in
\nthe case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
\n(confirmed by telecopy) of any prepayment hereunder (i) in the case of
\nprepayment of a Eurodollar Revolving Borrowing, not later than 12:00 noon,
\nCharlotte, North Carolina time, three Business Days before the date of<\/p>\n

23<\/p>\n

\n

prepayment, (ii) in the case of prepayment of an ABR Revolving Borrowing, not
\nlater than 11:00 a.m., Charlotte, North Carolina time, one Business Day before
\nthe date of prepayment or (iii) in the case of prepayment of a Swingline Loan,
\nnot later than 2:00 p.m., Charlotte, North Carolina time, on the date of
\nprepayment. Each such notice shall be irrevocable and shall specify the
\nprepayment date and the principal amount of each Borrowing or portion thereof to
\nbe prepaid; provided that, if a notice of prepayment is given in connection with
\na conditional notice of termination of the Commitments as contemplated by
\nSection 2.9, then such notice of prepayment may be revoked if such notice of
\ntermination is revoked in accordance with Section 2.9. Promptly following
\nreceipt of any such notice relating to a Revolving Borrowing, the Administrative
\nAgent shall advise the Lenders of the contents thereof. Each partial prepayment
\nof any Revolving Borrowing shall be in an amount that would be permitted in the
\ncase of an advance of a Revolving Borrowing of the same Type as provided in
\nSection 2.2. Each prepayment of a Revolving Borrowing shall be applied ratably
\nto the Loans of the Lenders in accordance with their respective Applicable
\nPercentages. Prepayments shall be accompanied by accrued interest to the extent
\nrequired by Section 2.13 and any costs incurred as contemplated by Section 2.16.
\nSection 2.12 Fees. (a) The Borrower agrees to pay to the Administrative Agent
\nfor the account of each Lender a facility fee, which shall accrue at the
\nrelevant percentage set forth across from the heading “Facility Fee” in the
\ndefinition of “Applicable Rate” on the daily amount of the Commitment of such
\nLender (whether used or unused) during the period from and including the date
\nhereof to but excluding the date on which such Commitment terminates; provided
\nthat, if such Lender continues to have any Revolving Credit Exposure after its
\nCommitment terminates, then such facility fee shall continue to accrue on the
\ndaily amount of such Lender153s Revolving Credit Exposure from and including the
\ndate on which its Commitment terminates to but excluding the date on which such
\nLender ceases to have any Revolving Credit Exposure. Accrued facility fees shall
\nbe payable in arrears on the last day of March, June, September and December of
\neach year and on the date on which the Commitments terminate, commencing on the
\nfirst such date to occur after the date hereof; provided that any facility fees
\naccruing after the date on which the Commitments terminate shall be payable on
\ndemand. All facility fees shall be computed on the basis of a year of 360 days
\nand shall be payable for the actual number of days elapsed (including the first
\nday but excluding the last day). (b) The Borrower agrees to pay to the
\nAdministrative Agent, for its own account, fees payable in the amounts and at
\nthe times separately agreed upon between the Borrower and the Administrative
\nAgent. (c) All fees payable hereunder shall be paid on the dates due, in
\nimmediately available funds, to the Administrative Agent for distribution, in
\nthe case of facility fees, to the Lenders. Fees paid shall not be refundable
\nunder any circumstances. Section 2.13 Interest. (a) The Loans comprising each
\nABR Borrowing (including each Swingline Loan) shall bear interest at the
\nAlternate Base Rate plus the Applicable Rate.<\/p>\n

24<\/p>\n

\n

(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the
\nAdjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
\nApplicable Rate. (c) Notwithstanding the foregoing, at all times when a Default
\nhas occurred hereunder and is continuing, all amounts outstanding hereunder
\nshall bear interest, after as well as before judgment, at a rate per annum equal
\nto (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise
\napplicable to such Loan as provided in the preceding paragraphs of this Section
\nor (ii) in the case of any other amount, 2% plus the rate applicable to ABR
\nLoans as provided in paragraph (a) of this Section. (d) Accrued interest on each
\nLoan shall be payable in arrears on each Interest Payment Date for such Loan
\nand, in the case of Revolving Loans, upon termination of the Commitments;
\nprovided that (i) interest accrued pursuant to paragraph (c) of this Section
\nshall be payable on demand, (ii) in the event of any repayment or prepayment of
\nany Loan (other than a prepayment of an ABR Revolving Loan prior to the end of
\nthe Availability Period), accrued interest on the principal amount repaid or
\nprepaid shall be payable on the date of such repayment or prepayment and (iii)
\nin the event of any conversion of any Eurodollar Revolving Loan prior to the end
\nof the current Interest Period therefore, accrued interest on such Loan shall be
\npayable on the effective date of such conversion. (e) All interest hereunder
\nshall be computed on the basis of a year of 360 days, except that interest
\ncomputed by reference to the Alternate Base Rate at times when the Alternate
\nBase Rate is based on the Prime Rate shall be computed on the basis of a year of
\n365 days (or 366 days in a leap year), and in each case shall be payable for the
\nactual number of days elapsed (including the first day but excluding the last
\nday). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall
\nbe determined by the Administrative Agent, and such determination shall be
\nconclusive absent manifest error. Section 2.14 Alternate Rate of Interest. If
\nprior to the commencement of any Interest Period for a Eurodollar Borrowing: (a)
\nthe Administrative Agent determines (which determination shall be conclusive
\nabsent manifest error) that adequate and reasonable means do not exist for
\nascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
\nInterest Period; or (b) the Administrative Agent is advised by the Required
\nLenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
\nInterest Period will not adequately and fairly reflect the cost to such Lenders
\n(or Lender) of making or maintaining their Loans (or its Loan) included in such
\nBorrowing for such Interest Period; then the Administrative Agent shall give
\nnotice thereof to the Borrower and the Lenders by telephone or telecopy as
\npromptly as practicable thereafter and, until the Administrative Agent notifies
\nthe Borrower and the Lenders that the circumstances giving rise to such notice
\nno longer exist, (i) any Interest Election Request that requests the conversion
\nof any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a
\nEurodollar Borrowing shall be ineffective,<\/p>\n

25<\/p>\n

\n

and (ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing,
\nsuch Borrowing shall be made as an ABR Borrowing. Section 2.15 Increased Costs.
\n(a) If any Change in Law shall: (i) impose, modify or deem applicable any
\nreserve, special deposit or similar requirement against assets of, deposits with
\nor for the account of, or credit extended by, any Lender (except any such
\nreserve requirement reflected in the Adjusted LIBO Rate); or (ii) impose on any
\nLender or the London interbank market any other condition affecting this
\nAgreement or Eurodollar Loans made by such Lender; and the result of any of the
\nforegoing shall be to increase the cost to such Lender of making or maintaining
\nany Eurodollar Loan (or of maintaining its obligation to make any such Loan) or
\nto increase the cost to such Lender or to reduce the amount of any sum received
\nor receivable by such Lender hereunder (whether of principal, interest or
\notherwise), then the Borrower will pay to such Lender such additional amount or
\namounts as will compensate such Lender for such additional costs incurred or
\nreduction suffered. (b) If any Lender determines that any Change in Law
\nregarding capital requirements has or would have the effect of reducing the rate
\nof return on such Lender153s capital or on the capital of such Lender153s holding
\ncompany, if any, as a consequence of this Agreement or the Loans made by such
\nLender to a level below that which such Lender or such Lender153s holding company
\ncould have achieved but for such Change in Law (taking into consideration such
\nLender153s policies and the policies of such Lender153s holding company with respect
\nto capital adequacy), then from time to time the Borrower will pay to such
\nLender such additional amount or amounts as will compensate such Lender or such
\nLender153s holding company for any such reduction suffered. (c) A certificate of a
\nLender setting forth the amount or amounts necessary to compensate such Lender
\nor its holding company, as the case may be, as specified in paragraph (a) or (b)
\nof this Section shall be delivered to the Borrower and shall be conclusive
\nabsent manifest error. The Borrower shall pay such Lender the amount shown as
\ndue on any such certificate within 10 days after receipt thereof. (d) Failure or
\ndelay on the part of any Lender to demand compensation pursuant to this Section
\nshall not constitute a waiver of such Lender153s right to demand such
\ncompensation; provided that the Borrower shall not be required to compensate a
\nLender pursuant to this Section for any increased costs or reductions incurred
\nmore than 270 days prior to the date that such Lender notifies the Borrower of
\nthe Change in Law giving rise to such increased costs or reductions and of such
\nLender153s intention to claim compensation therefore; provided further that, if
\nthe Change in Law giving rise to such increased costs or reductions is
\nretroactive, then the 270-day period referred to above shall be extended to
\ninclude the period of retroactive effect thereof.<\/p>\n

26<\/p>\n

\n

Section 2.16 Break Funding Payments. In the event of (a) the payment or
\nprepayment of any principal of any Eurodollar Loan other than on the last day of
\nan Interest Period applicable thereto (whether voluntary, mandatory, automatic,
\nby reason of acceleration, or otherwise), (b) the conversion of any Eurodollar
\nLoan other than on the last day of the Interest Period applicable thereto, (c)
\nthe failure to borrow, convert, continue or prepay any Eurodollar Loan on the
\ndate specified in any notice delivered pursuant hereto (regardless of whether
\nsuch notice may be revoked under Section 2.11(b) and is revoked in accordance
\ntherewith), or (d) the assignment of any Eurodollar Loan other than on the last
\nday of the Interest Period applicable thereto as a result of a request by the
\nBorrower pursuant to Section 2.19, then, in any such event, the Borrower shall
\ncompensate each Lender for the loss, cost and expense attributable to such
\nevent. In the case of a Eurodollar Loan, such loss, cost or expense to any
\nLender shall be deemed to include an amount determined by such Lender to be the
\nexcess, if any, of (i) the amount of interest which would have accrued on the
\nprincipal amount of such Loan had such event not occurred, at the Adjusted LIBO
\nRate that would have been applicable to such Loan, for the period from the date
\nof such event to the last day of the then current Interest Period therefore (or,
\nin the case of a failure to borrow, convert or continue, for the period that
\nwould have been the Interest Period for such Loan), over (ii) the amount of
\ninterest which would accrue on such principal amount for such period at the
\ninterest rate which such Lender would bid were it to bid, at the commencement of
\nsuch period, for dollar deposits of a comparable amount and period from other
\nbanks in the Eurodollar market. A certificate of any Lender setting forth any
\namount or amounts that such Lender is entitled to receive pursuant to this
\nSection shall be delivered to the Borrower and shall be conclusive absent
\nmanifest error. The Borrower shall pay such Lender the amount shown as due on
\nany such certificate within 10 days after receipt thereof. Section 2.17 Taxes.
\n(a) Any and all payments by or on account of any obligation of the Borrower
\nhereunder shall be made free and clear of and without deduction for any
\nIndemnified Taxes or Other Taxes; provided that if the Borrower shall be
\nrequired to deduct any Indemnified Taxes or Other Taxes from such payments, then
\n(i) the sum payable shall be increased as necessary so that after making all
\nrequired deductions (including deductions applicable to additional sums payable
\nunder this Section) the Administrative Agent or Lender (as the case may be)
\nreceives an amount equal to the sum it would have received had no such
\ndeductions been made, (ii) the Borrower shall make such deductions and (iii) the
\nBorrower shall pay the full amount deducted to the relevant Governmental
\nAuthority in accordance with applicable law. (b) In addition, the Borrower shall
\npay any Other Taxes to the relevant Governmental Authority in accordance with
\napplicable law. (c) The Borrower shall indemnify the Administrative Agent and
\neach Lender, within 10 days after written demand therefore, for the full amount
\nof any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
\nLender, as the case may be, on or with respect to any payment by or on account
\nof any obligation of the Borrower hereunder (including Indemnified Taxes or
\nOther Taxes imposed or asserted on or attributable to amounts payable under this
\nSection) and any penalties, interest and reasonable expenses arising therefrom
\nor with respect thereto, whether or not such Indemnified Taxes or Other Taxes
\nwere correctly or legally imposed or asserted by the relevant Governmental
\nAuthority. A certificate as to the amount of<\/p>\n

27<\/p>\n

\n

such payment or liability delivered to the Borrower by a Lender, or by the
\nAdministrative Agent on its own behalf or on behalf of a Lender, shall be
\nconclusive absent manifest error. (d) As soon as practicable after any payment
\nof Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
\nthe Borrower shall deliver to the Administrative Agent the original or a
\ncertified copy of a receipt issued by such Governmental Authority evidencing
\nsuch payment, a copy of the return reporting such payment or other evidence of
\nsuch payment reasonably satisfactory to the Administrative Agent. (e) Any
\nForeign Lender shall deliver to the Borrower and the Administrative Agent (in
\nsuch number of copies as shall be requested by the recipient) on or prior to the
\ndate on which such Foreign Lender becomes a Lender under this Agreement (and
\nfrom time to time thereafter upon the request of the Borrower or the
\nAdministrative Agent, but only if such Foreign Lender is legally entitled to do
\nso), whichever of the following is applicable: (i) duly completed copies of
\nInternal Revenue Service Form W-8BEN claiming eligibility for benefits of an
\nincome tax treaty to which the United States of America is a party; (ii) duly
\ncompleted copies of Internal Revenue Service Form W-ECI; (iii) in the case of a
\nForeign Lender claiming the benefits of the exemption for portfolio interest
\nunder section 881(c) of the Code, (x) a certificate to the effect that such
\nForeign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of
\nthe Code, (B) a “10 percent shareholder” of the Borrower within the meaning of
\nsection 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation”
\ndescribed in section 881(c)(3)(C) of the Code and (y) duly completed copies of
\nInternal Revenue Service Form W-8BEN, or (iv) any other form prescribed by
\napplicable law as a basis for claiming exemption from or a reduction in United
\nStates Federal withholding tax duly completed together with such supplementary
\ndocumentation as may be prescribed by applicable law to permit the Borrower to
\ndetermine the withholding or deduction required to be made. In addition, each
\nLender shall deliver such other documentation prescribed by applicable law as
\nwill enable the Borrower or the Administrative Agent to determine whether or not
\nsuch Lender is subject to backup withholding or information reporting
\nrequirements. (f) If the Administrative Agent or a Lender determines, in its
\nsole discretion, that it has received a refund of any Taxes or Other Taxes as to
\nwhich it has been indemnified by the Borrower or with respect to which the
\nBorrower has paid additional amounts pursuant to this Section 2.17, it shall pay
\nover such refund to the Borrower (but only to the extent of indemnity payments
\nmade, or additional amounts paid, by the Borrower under this Section 2.17 with
\nrespect to the Taxes or Other Taxes giving rise to such refund), net of all
\nout-of-pocket expenses of the Administrative Agent or such Lender and without
\ninterest (other than any interest paid by the relevant Governmental Authority
\nwith respect to such refund); provided, that the Borrower, upon the request of
\nthe Administrative Agent or such Lender, agrees to repay the amount paid over to
\nthe Borrower (plus any penalties, interest or other charges imposed by the
\nrelevant<\/p>\n

28<\/p>\n

\n

Governmental Authority) to the Administrative Agent or such Lender in the
\nevent the Administrative Agent or such Lender is required to repay such refund
\nto such Governmental Authority. This Section shall not be construed to require
\nthe Administrative Agent or any Lender to make available its tax returns (or any
\nother information relating to its taxes which it deems confidential) to the
\nBorrower or any other Person. (g) If a payment made to a Lender under any Loan
\nDocument would be subject to U.S. Federal withholding Tax imposed by FATCA if
\nsuch Lender fails to comply with the applicable reporting requirements of FATCA
\n(including those contained in Section 1471(b) or 1472(b) of the Code, as
\napplicable), such Lender shall comply with such applicable reporting
\nrequirements and shall deliver to the Borrower and the Administrative Agent (A)
\na certification signed by the chief financial officer, principal accounting
\nofficer, treasurer or controller, and (B) other documentation reasonably
\nrequested by the Borrower and the Administrative Agent sufficient for the
\nAdministrative Agent and the Borrower to comply with their obligations under
\nFATCA and to determine that such Lender has complied with such applicable
\nreporting requirements. Section 2.18 Payments Generally; Pro Rata Treatment;
\nSharing of Set-offs. (a) The Borrower shall make each payment required to be
\nmade by it hereunder (whether of principal, interest or fees, or of amounts
\npayable under Section 2.15, Section 2.16 or Section 2.17, or otherwise) prior to
\n12:00 noon, Charlotte, North Carolina time, on the date when due, in immediately
\navailable funds, without set off or counterclaim. Any amounts received after
\nsuch time on any date may, in the discretion of the Administrative Agent, be
\ndeemed to have been received on the next succeeding Business Day for purposes of
\ncalculating interest thereon. All such payments shall be made to the
\nAdministrative Agent at the Payment Office, except payments to be made directly
\nto the Swingline Lender as expressly provided herein and except that payments
\npursuant to Section 2.15, Section 2.16, Section 2.17 and Section 9.3 shall be
\nmade directly to the Persons entitled thereto. The Administrative Agent shall
\ndistribute any such payments received by it for the account of any other Person
\nto the appropriate recipient promptly following receipt thereof. If any payment
\nhereunder shall be due on a day that is not a Business Day, the date for payment
\nshall be extended to the next succeeding Business Day, and, in the case of any
\npayment accruing interest, interest thereon shall be payable for the period of
\nsuch extension. All payments hereunder shall be made in dollars. (b) If at any
\ntime insufficient funds are received by and available to the Administrative
\nAgent to pay fully all amounts of principal, interest and fees then due
\nhereunder, such funds shall be applied (i) first, towards payment of interest
\nand fees then due hereunder, ratably among the parties entitled thereto in
\naccordance with the amounts of interest and fees then due to such parties, and
\n(ii) second, towards payment of principal then due hereunder, ratably among the
\nparties entitled thereto in accordance with the amounts of principal then due to
\nsuch parties. (c) If any Lender shall, by exercising any right of set off or
\ncounterclaim or otherwise, obtain payment in respect of any principal of or
\ninterest on any of its Revolving Loans or participations in Swingline Loans
\nresulting in such Lender receiving payment of a greater proportion of the
\naggregate amount of its Revolving Loans and participations in Swingline Loans\n<\/p>\n

29<\/p>\n

\n

and accrued interest thereon than the proportion received by any other
\nLender, then the Lender receiving such greater proportion shall purchase (for
\ncash at face value) participations in the Revolving Loans and participations in
\nSwingline Loans of other Lenders to the extent necessary so that the benefit of
\nall such payments shall be shared by the Lenders ratably in accordance with the
\naggregate amount of principal of and accrued interest on their respective
\nRevolving Loans and participations in and Swingline Loans; provided that (i) if
\nany such participations are purchased and all or any portion of the payment
\ngiving rise thereto is recovered, such participations shall be rescinded and the
\npurchase price restored to the extent of such recovery, without interest, and
\n(ii) the provisions of this paragraph shall not be construed to apply to any
\npayment made by the Borrower pursuant to and in accordance with the express
\nterms of this Agreement (including the application of funds arising from the
\nexistence of a Defaulting Lender) or any payment obtained by a Lender as
\nconsideration for the assignment of or sale of a participation in any of its
\nLoans to any assignee or participant, other than to the Borrower or any
\nSubsidiary or Affiliate thereof (as to which the provisions of this paragraph
\nshall apply). The Borrower consents to the foregoing and agrees, to the extent
\nit may effectively do so under applicable law, that any Lender acquiring a
\nparticipation pursuant to the foregoing arrangements may exercise against the
\nBorrower rights of set-off and counterclaim with respect to such participation
\nas fully as if such Lender were a direct creditor of the Borrower in the amount
\nof such participation. (d) Unless the Administrative Agent shall have received
\nnotice from the Borrower prior to the date on which any payment is due to the
\nAdministrative Agent for the account of the Lenders hereunder that the Borrower
\nwill not make such payment, the Administrative Agent may assume that the
\nBorrower has made such payment on such date in accordance herewith and may, in
\nreliance upon such assumption, distribute to the Lenders the amount due. In such
\nevent, if the Borrower has not in fact made such payment, then each of the
\nLenders severally agrees to repay to the Administrative Agent forthwith on
\ndemand the amount so distributed to such Lender with interest thereon, for each
\nday from and including the date such amount is distributed to it to but
\nexcluding the date of payment to the Administrative Agent, at the greater of the
\nFederal Funds Effective Rate and a rate determined by the Administrative Agent
\nin accordance with banking industry rules on interbank compensation. Section
\n2.19 Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests
\ncompensation under Section 2.15, or if the Borrower is required to pay any
\nadditional amount to any Lender or any Governmental Authority for the account of
\nany Lender pursuant to Section 2.17, then such Lender shall use reasonable
\nefforts to designate a different lending office for funding or booking its Loans
\nhereunder or to assign its rights and obligations hereunder to another of its
\noffices, branches or affiliates, if, in the judgment of such Lender, such
\ndesignation or assignment (i) would eliminate or reduce amounts payable pursuant
\nto Section 2.15 or Section 2.17, as the case may be, in the future and (ii)
\nwould not subject such Lender to any unreimbursed cost or expense and would not
\notherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
\nall reasonable costs and expenses incurred by any Lender in connection with any
\nsuch designation or assignment. (b) If any Lender requests compensation under
\nSection 2.15, or if the Borrower is required to pay any additional amount to any
\nLender or any Governmental Authority for the<\/p>\n

30<\/p>\n

\n

account of any Lender pursuant to Section 2.17, or if any Lender is a
\nDefaulting Lender, then the Borrower may, at its sole expense and effort, upon
\nnotice to such Lender and the Administrative Agent, require such Lender to
\nassign and delegate, without recourse (in accordance with and subject to the
\nrestrictions contained in Section 9.4), all its interests, rights and
\nobligations under this Agreement to an assignee that shall assume such
\nobligations (which assignee may be another Lender, if a Lender accepts such
\nassignment); provided that (i) the Borrower shall have received the prior
\nwritten consent of the Administrative Agent, which consent shall not
\nunreasonably be withheld, (ii) such Lender shall have received payment of an
\namount equal to the outstanding principal of its Loans and participations in
\nSwingline Loans, accrued interest thereon, accrued fees and all other amounts
\npayable to it hereunder, from the assignee (to the extent of such outstanding
\nprincipal and accrued interest and fees) or the Borrower (in the case of all
\nother amounts) and (iii) in the case of any such assignment resulting from a
\nclaim for compensation under Section 2.15 or payments required to be made
\npursuant to Section 2.17, such assignment will result in a reduction in such
\ncompensation or payments. A Lender shall not be required to make any such
\nassignment and delegation if, prior thereto, as a result of a waiver by such
\nLender or otherwise, the circumstances entitling the Borrower to require such
\nassignment and delegation cease to apply. Section 2.20 Increase in the Aggregate
\nCommitments. (a) The Borrower may, not more than once in any year, by notice to
\nthe Administrative Agent, request that the aggregate amount of the Commitments
\nbe increased by a minimum amount equal to $100,000,000 or an integral multiple
\nof $100,000,000 in excess thereof (each a “Commitment Increase”), to be
\neffective as of a date that is at least 90 days prior to the scheduled Maturity
\nDate then in effect (the “Increase Date”) as specified in the related notice to
\nthe Administrative Agent; provided, however, that no Default shall have occurred
\nand be continuing as of the date of such request or as of the applicable
\nIncrease Date, or shall occur as a result thereof and, provided, further, that
\nat no time shall the total aggregate Commitments hereunder exceed
\n$1,500,000,000. (b) The Administrative Agent shall promptly notify the Lenders
\nof a request by the Borrower for a Commitment Increase, which notice shall
\ninclude (i) the proposed amount of such requested Commitment Increase, (ii) the
\nproposed Increase Date and (iii) the date by which Lenders wishing to
\nparticipate in the Commitment Increase must commit to an increase in the amount
\nof their respective Commitments (the “Commitment Date”). Each Lender that is
\nwilling to participate in such requested Commitment Increase (each an
\n“Increasing Lender”) shall give written notice to the Administrative Agent on or
\nprior to the Commitment Date of the amount by which it is willing to increase
\nits Commitment. If the Lenders notify the Administrative Agent that they are
\nwilling to increase the amount of their respective Commitments by an aggregate
\namount that exceeds the amount of the requested Commitment Increase, the
\nrequested Commitment Increase shall be allocated among the Lenders willing to
\nparticipate therein in such amounts as are agreed between the Borrower and the
\nAdministrative Agent. The failure of any Lender to respond shall be deemed to be
\na refusal of such Lender to increase its Commitment. (c) Promptly following each
\nCommitment Date, the Administrative Agent shall notify the Borrower as to the
\namount, if any, by which the Lenders are willing to participate in the requested
\nCommitment Increase. If the aggregate amount by which the Lenders are willing\n<\/p>\n

31<\/p>\n

\n

to participate in any requested Commitment Increase on any such Commitment
\nDate is less than the requested Commitment Increase, then the Borrower may
\nextend offers to one or more Persons reasonably acceptable to the Administrative
\nAgent (each, an “Eligible Assignee”) to participate in any portion of the
\nrequested Commitment Increase that has not been committed to by the Lenders as
\nof the applicable Commitment Date; provided, however, that the Commitment of
\neach such Eligible Assignee shall be in an amount of $25,000,000 or an integral
\nmultiple of $1,000,000 in excess thereof. (d) On each Increase Date, each
\nEligible Assignee that accepts an offer to participate in a requested Commitment
\nIncrease in accordance with Section 2.20(c) (each such Eligible Assignee and
\neach Eligible Assignee that agrees to an extension of the Maturity Date in
\naccordance with Section 2.21(c), an “Assuming Lender”) shall become a Lender
\nparty to this Agreement as of such Increase Date and the Commitment of each
\nIncreasing Lender for such requested Commitment Increase shall be so increased
\nby such amount (or by the amount allocated to such Lender pursuant to the last
\nsentence of Section 2.20(b)) as of such Increase Date; provided, however, that
\nthe Administrative Agent shall have received on or before such Increase Date the
\nfollowing, each dated such date: (i) (A) a certificate of the Borrower signed by
\nan authorized officer of the Borrower (1) certifying and attaching the
\nresolutions adopted by the Board of Directors of the Borrower or the Executive
\nCommittee of such Board approving the Commitment Increase and the corresponding
\nmodifications to this Agreement, and (2) certifying that, before and after
\ngiving effect to such increase, (x) the representations and warranties contained
\nin Article III and the other Loan Documents are true and correct on and as of
\nthe Increase Date, except to the extent that such representations and warranties
\nspecifically refer to an earlier date, in which case they are true and correct
\nas of such earlier date, and except that for purposes of this Section 2.20, the
\nrepresentations and warranties contained in Section 3.4(a) shall be deemed to
\nrefer to the most recent statements furnished pursuant to Section 5.1, and (y)
\nno Default exists and (B) an opinion of counsel for the Borrower (which may be
\nin-house counsel) in form and substance satisfactory to the Administrative
\nAgent; (ii) a joinder agreement from each Assuming Lender, if any, in form and
\nsubstance satisfactory to such Assuming Lender, the Borrower and the
\nAdministrative Agent (each a “Joinder Agreement”), duly executed by such
\nAssuming Lender, the Administrative Agent and the Borrower; and (iii)
\nconfirmation from each Increasing Lender of the increase in the amount of its
\nCommitment in a writing satisfactory to the Borrower and the Administrative
\nAgent. (e) On each Increase Date, upon fulfillment of the conditions set forth
\nin Section 2.20(d), in the event any Revolving Loans are then outstanding, (i)
\neach relevant Increasing Lender and Assuming Lender shall make available to the
\nAdministrative Agent such amounts in immediately available funds as the
\nAdministrative Agent shall determine, for the benefit of the other Lenders, as
\nbeing required in order to cause, after giving effect to the applicable
\nCommitment Increase and the application of such amounts to make payments to such
\nother Lenders, the Revolving Loans to be held ratably by all Lenders as of such
\ndate in accordance<\/p>\n

32<\/p>\n

\n

with their respective Applicable Percentages (after giving effect to the
\nCommitment Increase), (ii) the Borrower shall be deemed to have prepaid and
\nreborrowed all outstanding Revolving Loans made to it as of such Commitment
\nIncrease Date (with each such borrowing to consist of Revolving Loans, with
\nrelated Interest Periods if applicable, specified in a notice delivered by the
\nBorrower in accordance with the requirements of Section 2.2) and (iii) the
\nBorrower shall pay to the Lenders the amounts, if any, payable under Section
\n2.16 as a result of such prepayment. (f) This Section shall supersede any
\nprovisions in Section 2.18 or Section 9.2 to the contrary. Section 2.21
\nExtension of Maturity Date. (a) At least 45 days but not more than 60 days prior
\nto the next Anniversary Date, the Borrower, by written notice to the
\nAdministrative Agent, may request an extension of the Maturity Date in effect at
\nsuch time by one calendar year from its then scheduled expiration. The
\nAdministrative Agent shall promptly notify each Lender of such request, and each
\nLender shall in turn, in its sole discretion, not later than 30 days prior to
\nsuch next Anniversary Date, notify the Borrower and the Administrative Agent in
\nwriting as to whether such Lender will consent to such extension. If any Lender
\nshall fail to notify the Administrative Agent and the Borrower in writing of its
\nconsent to any such request for extension of the Maturity Date at least 30 days
\nprior to the next Anniversary Date, such Lender shall be deemed to be a
\nDeclining Lender with respect to such request. The Administrative Agent shall
\nnotify the Borrower not later than 25 days prior to such next Anniversary Date
\nof the decision of the Lenders regarding the Borrower153s request for an extension
\nof the Maturity Date. (b) If all of the Lenders consent in writing to any such
\nrequest in accordance with subsection (a) of this Section 2.21, the Maturity
\nDate in effect at such time shall, effective as at such next Anniversary Date
\n(the “Extension Date”), be extended for one calendar year; provided that on each
\nExtension Date, no Default shall have occurred and be continuing, or shall occur
\nas a consequence thereof. If the total of the Commitments of the existing
\nLenders that have agreed so to extend their Maturity Date and the additional
\nCommitments of Eligible Assignees assumed in accordance with subsection (c) of
\nthis Section 2.21 shall be more than 50% of the aggregate amount of the
\nCommitments in effect immediately prior to the existing Maturity Date, the
\nMaturity Date in effect at such time shall, effective as at the applicable
\nExtension Date, be extended as to those Lenders that so consented (each an
\n“Extending Lender”) but shall not be extended as to any other Lender (each a
\n“Declining Lender”). To the extent that the Maturity Date is not extended as to
\nany Lender pursuant to this Section 2.21 and the Commitment of such Lender is
\nnot assumed in accordance with subsection (c) of this Section 2.21 on or prior
\nto the applicable Extension Date, the Commitment of such Declining Lender shall
\nautomatically terminate in whole on such unextended Maturity Date without any
\nfurther notice or other action by the Borrower, such Lender or any other Person
\nand any outstanding Loans, together with accrued and unpaid interest, fees and
\nother amounts due to such Declining Lender shall be paid in full on such
\nunextended Maturity Date; provided that such Declining Lender153s rights under
\nSection 2.15, Section 2.17 and Section 9.3 shall survive the Maturity Date for
\nsuch Lender as to matters occurring prior to such date. It is understood and
\nagreed that no Lender shall have any<\/p>\n

33<\/p>\n

\n

obligation whatsoever to agree to any request made by the Borrower for any
\nrequested extension of the Maturity Date. (c) If there are any Declining
\nLenders, the Borrower may arrange for one or more Extending Lenders or other
\nEligible Assignees (each such Eligible Assignee that accepts an offer to assume
\na Declining Lender153s Commitment as of the applicable Extension Date being an
\n“Assuming Lender”) to assume, effective as of the Extension Date, any Declining
\nLender153s Commitment and all of the obligations of such Declining Lender under
\nthis Agreement thereafter arising, without recourse to or warranty by, or
\nexpense to, such Declining Lender; provided, however, that the amount of the
\nCommitment of any such Assuming Lender as a result of such substitution shall in
\nno event be less than $50,000,000 unless the amount of the Commitment of such
\nDeclining Lender is less than $50,000,000, in which case such Assuming Lender
\nshall assume all of such lesser amount; and provided further that: (i) any such
\nExtending Lender or Assuming Lender shall have paid to such Declining Lender (A)
\nthe aggregate principal amount of, and any interest accrued and unpaid to the
\neffective date of the assignment on, the outstanding Loans, if any, of such
\nDeclining Lender plus (B) any accrued but unpaid fees owing to such Declining
\nLender as of the effective date of such assignment; (ii) all additional costs
\nreimbursements, expense reimbursements and indemnities payable to such Declining
\nLender, and all other accrued and unpaid amounts owing to such Declining Lender
\nhereunder, as of the effective date of such assignment shall have been paid to
\nsuch Declining Lender; and (iii) with respect to any such Assuming Lender, the
\napplicable processing and recordation fee required under Section 9.4 for such
\nassignment shall have been paid; provided further that such Declining Lender153s
\nrights under Section 2.15, Section 2.17 and Section 9.3 shall survive such
\nsubstitution as to matters occurring prior to the date of substitution. At least
\nthree Business Days prior to any Extension Date, (A) each such Assuming Lender,
\nif any, shall have delivered to the Borrower and the Administrative Agent an
\nAssignment and Assumption, in form and substance satisfactory to the Borrower
\nand the Administrative Agent (an “Assumption Agreement”), duly executed by such
\nAssuming Lender, such Declining Lender, the Borrower and the Administrative
\nAgent, (B) any such Extending Lender shall have delivered confirmation in
\nwriting satisfactory to the Borrower and the Administrative Agent as to the
\nincrease in the amount of its Commitment and (C) each Declining Lender being
\nreplaced pursuant to this Section 2.21 shall have delivered to the
\nAdministrative Agent any Note or Notes held by such Declining Lender. Upon the
\npayment or prepayment of all amounts referred to in clauses (i), (ii) and (iii)
\nof the immediately preceding sentence, each such Extending Lender or Assuming
\nLender, as of the Extension Date, will be substituted for such Declining Lender
\nunder this Agreement and shall be a Lender for all purposes of this Agreement,
\nwithout any further acknowledgment by or the consent of the other Lenders, and
\nthe obligations of each such Declining Lender hereunder shall, by the provisions
\nhereof, be released and discharged.<\/p>\n

34<\/p>\n

\n

(d) If all of the Extending and Assuming Lenders (after giving effect to any
\nassignments and assumptions pursuant to subsection (c) of this Section 2.21)
\nconsent in writing to a requested extension (whether by written consent pursuant
\nto subsection (a) of this Section 2.21, by execution and delivery of an
\nAssumption Agreement or otherwise) not later than one Business Day prior to such
\nExtension Date, the Administrative Agent shall so notify the Borrower, and, so
\nlong as no Default shall have occurred and be continuing as of such Extension
\nDate, or shall occur as a consequence thereof, the Maturity Date then in effect
\nshall be extended for the additional one-year period as described in subsection
\n(a) of this Section 2.21, and all references in this Agreement, and in the
\nNotes, if any, to the “Maturity Date” shall, with respect to each Extending
\nLender and each Assuming Lender for such Extension Date, refer to the Maturity
\nDate as so extended. Promptly following each Extension Date, the Administrative
\nAgent shall notify the Lenders (including, without limitation, each Assuming
\nLender) of the extension of the scheduled Maturity Date in effect immediately
\nprior thereto and shall thereupon record in the Register the relevant
\ninformation with respect to each such Extending Lender and each such Assuming
\nLender. Section 2.22 Defaulting Lenders. (a) Notwithstanding anything to the
\ncontrary contained in this Agreement, if any Lender becomes a Defaulting Lender,
\nthen, until such time as such Lender is no longer a Defaulting Lender, to the
\nextent permitted by applicable law: (i) Such Defaulting Lender153s right to
\napprove or disapprove any amendment, waiver or consent with respect to this
\nAgreement shall be restricted as set forth in the definition of Required Lenders
\nand in Section 9.2. (ii) Any payment of principal, interest, fees or other
\namounts received by the Administrative Agent for the account of such Defaulting
\nLender (whether voluntary or mandatory, at maturity, pursuant to Article VII or
\notherwise) shall be applied at such time or times as may be determined by the
\nAdministrative Agent as follows: first, to the payment of any amounts owing by
\nsuch Defaulting Lender to the Administrative Agent hereunder; second, to the
\npayment on a pro rata basis of any amounts owing by such Defaulting Lender to
\nthe Swingline Lender hereunder; third, if so determined by the Administrative
\nAgent or requested by the Swingline Lender, to be held as Cash Collateral for
\nfuture funding obligations of such Defaulting Lender in respect of any
\nparticipation in any Swingline Loan; fourth, as the Borrower may request (so
\nlong as no Default exists), to the funding of any Loan in respect of which that
\nDefaulting Lender has failed to fund its portion thereof as required by this
\nAgreement, as determined by the Administrative Agent; fifth, if so determined by
\nthe Administrative Agent and the Borrower, to be held in a non-interest bearing
\ndeposit account and released in order to satisfy obligations of such Defaulting
\nLender to fund Loans under this Agreement; sixth, to the payment of any amounts
\nowing to the Lenders or the Swingline Lender as a result of any judgment of a
\ncourt of competent jurisdiction obtained by any Lender or the Swingline Lender
\nagainst that Defaulting Lender as a result of such Defaulting Lender153s breach of
\nits obligations under this Agreement; seventh, so long as no Default exists, to
\nthe payment of any amounts owing to the Borrower as a result of any judgment of
\na court of competent jurisdiction obtained by the Borrower against such
\nDefaulting Lender as a result of such<\/p>\n

35<\/p>\n

\n

Defaulting Lender153s breach of its obligations under this Agreement; and
\neighth, to such Defaulting Lender or as otherwise directed by a court of
\ncompetent jurisdiction; provided that if (x) such payment is a payment of the
\nprincipal amount of any Loans in respect of which such Defaulting Lender has not
\nfully funded its appropriate share, and (y) such Loans were made at a time when
\nthe conditions set forth in Section 4.2 were satisfied or waived, such payment
\nshall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro
\nrata basis prior to being applied to the payment of any Loans of such Defaulting
\nLender. Any payments, prepayments or other amounts paid or payable to a
\nDefaulting Lender that are applied (or held) to pay amounts owed by a Defaulting
\nLender or to post Cash Collateral pursuant to this Section shall be deemed paid
\nto and redirected by such Defaulting Lender, and each Lender irrevocably
\nconsents hereto. (iii) Any Defaulting Lender shall be entitled to receive any
\nfacility fee pursuant to Section 2.12 for any period during which that Lender is
\na Defaulting Lender only to the extent allocable to the sum of (1) the
\noutstanding amount of the Revolving Loans funded by it, and (2) its Applicable
\nPercentage of the Swingline Loans for which it has provided Cash Collateral
\npursuant to Section 2.22(c) (and the Borrower shall (A) be required to pay to
\nthe Swingline Lender the amount of such fee allocable to its Fronting Exposure
\narising from that Defaulting Lender, and (B) not be required to pay the
\nremaining amount of the facility fee that otherwise would have been required to
\nhave been paid to that Defaulting Lender). (iv) All or any part of such
\nDefaulting Lender153s Swingline Exposure shall automatically (effective on the day
\nsuch Lender becomes a Defaulting Lender) be reallocated among the non-Defaulting
\nLenders in accordance with their respective Applicable Percentages (calculated
\nwithout regard to such Defaulting Lender153s Commitment) but only to the extent
\nthat (x) no Default shall have occurred and be continuing (and, unless the
\nBorrower shall have otherwise notified the Administrative Agent at the time, the
\nBorrower shall be deemed to have represented and warranted that such condition
\nis satisfied at such time), and (y) such reallocation does not cause the
\nRevolving Credit Exposure of any non-Defaulting Lender to exceed such
\nnon-Defaulting Lender153s Commitment. (v) If the reallocation described in clause
\n(iv) above cannot, or can only partially, be effected, the Borrower shall,
\nwithout prejudice to any right or remedy available to it hereunder or under law,
\nwithin 2 Business Days following notice by the Administrative Agent, Cash
\nCollateralize such Defaulting Lender153s Swingline Exposure (after giving effect
\nto any partial reallocation pursuant to clause (iv) above) in accordance with
\nthe procedures set forth in Section 2.22(c) for so long as such Swingline Loans
\nare outstanding. (b) If the Borrower, the Administrative Agent and the Swingline
\nLender agree in writing in their sole discretion that a Defaulting Lender should
\nno longer be deemed to be a Defaulting Lender, the Administrative Agent will so
\nnotify the parties hereto, whereupon as of the effective date specified in such
\nnotice and subject to any conditions set forth therein (which may include
\narrangements with respect to any Cash Collateral), that Lender will, to the
\nextent applicable, purchase that portion of outstanding Loans of the other
\nLenders or take such other<\/p>\n

36<\/p>\n

\n

actions as the Administrative Agent may determine to be necessary to cause
\nthe Revolving Loans and funded and unfunded participations in Swingline Loans to
\nbe held on a pro rata basis by the Lenders in accordance with their Applicable
\nPercentages (without giving effect to Section 2.22(a)(iv), whereupon such Lender
\nwill cease to be a Defaulting Lender; provided that no adjustments will be made
\nretroactively with respect to fees accrued or payments made by or on behalf of
\nthe Borrower while that Lender was a Defaulting Lender; and provided, further,
\nthat except to the extent otherwise expressly agreed by the affected parties, no
\nchange hereunder from Defaulting Lender to Lender will constitute a waiver or
\nrelease of any claim of any party hereunder arising from that Lender153s having
\nbeen a Defaulting Lender. (c) At any time that there shall exist a Defaulting
\nLender, within 2 Business Days upon the request of the Administrative Agent or
\nany Swingline Lender, the Borrower shall deliver to the Administrative Agent
\nCash Collateral in an amount sufficient to cover all Fronting Exposure (after
\ngiving effect to Section 2.22(a)(iv) and any Cash Collateral provided by the
\nDefaulting Lender). (i) All Cash Collateral (other than credit support not
\nconstituting funds subject to deposit) shall be maintained in blocked,
\nnon-interest bearing deposit accounts with the Administrative Agent. The
\nBorrower, and to the extent provided by any Lender, such Lender, hereby grants
\nto (and subjects to the control of) the Administrative Agent, for the benefit of
\nthe Administrative Agent and the Lenders (including the Swingline Lender), and
\nagrees to maintain, a first priority security interest in all such cash, deposit
\naccounts and all balances therein, and all other property so provided as
\ncollateral pursuant hereto, and in all proceeds of the foregoing, all as
\nsecurity for the obligations to which such Cash Collateral may be applied
\npursuant to clause (ii) below. If at any time the Administrative Agent
\ndetermines that Cash Collateral is subject to any right or claim of any Person
\nother than the Administrative Agent as herein provided, or that the total amount
\nof such Cash Collateral is less than the applicable Fronting Exposure and other
\nobligations secured thereby, the Borrower or the relevant Defaulting Lender
\nwill, promptly upon demand by the Administrative Agent, pay or provide to the
\nAdministrative Agent additional Cash Collateral in an amount sufficient to
\neliminate such deficiency. (ii) Notwithstanding anything to the contrary
\ncontained in this Agreement, Cash Collateral provided under any of this Section
\n2.22 in respect of Swingline Loans shall be held and applied to the satisfaction
\nof the specific Swingline Loans, obligations to fund participations therein
\n(including, as to Cash Collateral provided by a Defaulting Lender, any interest
\naccrued on such obligation) and other obligations for which the Cash Collateral
\nwas so provided, prior to any other application of such property as may be
\nprovided for herein. (iii) Cash Collateral (or the appropriate portion thereof)
\nprovided to reduce Fronting Exposure or other obligations shall be released
\npromptly following (i) the elimination of the applicable Fronting Exposure or
\nother obligations giving rise thereto (including by the termination of
\nDefaulting Lender status of the applicable Lender (or, as appropriate, its
\nassignee)), or (ii) the Administrative Agent153s good faith determination that
\nthere exists excess Cash Collateral; provided, however, (x) that Cash Collateral\n<\/p>\n

37<\/p>\n

\n

furnished by or on behalf of a Loan Party shall not be released during the
\ncontinuance of a Default (and following application as provided in this Section
\n2.22 may be otherwise applied in accordance with Section 2.18), and (y) the
\nPerson providing Cash Collateral and the Swingline Lender may agree that Cash
\nCollateral shall not be released but instead held to support future anticipated
\nFronting Exposure or other obligations. ARTICLE III<\/strong>
\nREPRESENTATIONS AND WARRANTIES<\/strong> The Borrower represents and
\nwarrants to the Lenders that: Section 3.1 Organization; Powers. Each of the
\nBorrower and its Subsidiaries is duly organized, validly existing and in good
\nstanding under the laws of the jurisdiction of its organization, has all
\nrequisite power and authority to carry on its business as now conducted and,
\nexcept where the failure to do so, individually or in the aggregate, could not
\nreasonably be expected to result in a Material Adverse Effect, is qualified to
\ndo business in, and is in good standing in, every jurisdiction where such
\nqualification is required. Section 3.2 Authorization; Enforceability. The
\nTransactions are within the Borrower153s corporate powers and have been duly
\nauthorized by all necessary corporate and, if required, stockholder action. This
\nAgreement has been duly executed and delivered by the Borrower and constitutes a
\nlegal, valid and binding obligation of the Borrower, enforceable in accordance
\nwith its terms, subject to applicable bankruptcy, insolvency, reorganization,
\nmoratorium or other laws affecting creditors153 rights generally and subject to
\ngeneral principles of equity, regardless of whether considered in a proceeding
\nin equity or at law. Section 3.3 Governmental Approvals; No Conflicts. The
\nTransactions (a) do not require any consent or approval of, registration or
\nfiling with, or any other action by, any Governmental Authority, except such as
\nhave been obtained or made and are in full force and effect, (b) will not
\nviolate any applicable law or regulation or the charter, by-laws or other
\norganizational documents of the Borrower or any of its Subsidiaries or any order
\nof any Governmental Authority, (c) will not violate or result in a default under
\nany indenture, agreement or other instrument binding upon the Borrower or any of
\nits Subsidiaries or its assets, or give rise to a right thereunder to require
\nany payment to be made by the Borrower or any of its Subsidiaries other than
\nsuch violations, defaults or payments that could not reasonably be expected to
\nresult in a Material Adverse Effect, and (d) will not result in the creation or
\nimposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
\nSection 3.4 Financial Condition; No Material Adverse Change. (a) The Borrower
\nhas heretofore furnished to the Lenders its consolidated balance sheet and
\nstatements of income, stockholders equity and cash flows as of and for the
\nfiscal year ended April 2, 2010, reported on by KPMG LLP, independent public
\naccountants. Such financial statements present fairly, in all material respects,
\nthe financial position and results of operations and cash flows of the Borrower
\nand its consolidated Subsidiaries as of such dates and for such periods in
\naccordance with GAAP, subject to year end audit adjustments and the absence of
\nfootnotes in the case of the statements referred to in clause (ii) above.<\/p>\n

38<\/p>\n

\n

(b) Since April 2, 2010, there has been no material adverse change in the
\nbusiness, financial condition or operations of the Borrower and its
\nSubsidiaries, taken as a whole. Section 3.5 Properties. (a) Each of the Borrower
\nand its Subsidiaries has good title to, or valid leasehold interests in or
\nrights to use, all its real and personal property material to its business,
\nexcept for minor defects in title that do not interfere with its ability to
\nconduct its business as currently conducted or to utilize such properties for
\ntheir intended purposes. (b) Each of the Borrower and its Subsidiaries owns, or
\nis licensed to use, all trademarks, tradenames, copyrights, patents and other
\nintellectual property material to its business, and the use thereof by the
\nBorrower and its Subsidiaries does not infringe upon the rights of any other
\nPerson, except for any such infringements that, individually or in the
\naggregate, could not reasonably be expected to result in a Material Adverse
\nEffect. Section 3.6 Litigation and Environmental Matters. (a) There are no
\nactions, suits or proceedings by or before any arbitrator or Governmental
\nAuthority pending against or, to the knowledge of the Borrower, threatened
\nagainst or affecting the Borrower or any of its Subsidiaries (i) that could
\nreasonably be expected, individually or in the aggregate, to result in a
\nMaterial Adverse Effect (other than the Disclosed Matters) or (ii) that involve
\nthis Agreement, any other Loan Document or the Transactions. (b) Except for the
\nDisclosed Matters and except with respect to any other matters that,
\nindividually or in the aggregate, could not reasonably be expected to result in
\na Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i)
\nhas failed to comply with any Environmental Law or to obtain, maintain or comply
\nwith any permit, license or other approval required under any Environmental Law,
\n(ii) has become subject to any Environmental Liability, (iii) has received
\nnotice of any claim with respect to any Environmental Liability or (iv) knows of
\nany basis for any Environmental Liability. (c) Since the date of this Agreement,
\nthere has been no change in the status of the Disclosed Matters that,
\nindividually or in the aggregate, could reasonably be expected to result in a
\nMaterial Adverse Effect. Section 3.7 Compliance with Laws and Agreements. Each
\nof the Borrower and its Subsidiaries is in compliance with all laws, regulations
\nand orders of any Governmental Authority applicable to it or its property and
\nall indentures, agreements and other instruments binding upon it or its
\nproperty, except where the failure to do so, individually or in the aggregate,
\ncould not reasonably be expected to result in a Material Adverse Effect. No
\nDefault has occurred and is continuing. Section 3.8 Investment Company Status.
\nNone of the Borrower, any Person Controlling the Borrower, or any Subsidiary is
\nor is required to be registered as an “investment company” under the Investment
\nCompany Act of 1940.<\/p>\n

39<\/p>\n

\n

Section 3.9 Taxes. Each of the Borrower and its Subsidiaries has timely filed
\nor caused to be filed all Tax returns and reports required to have been filed
\nand has paid or caused to be paid all Taxes required to have been paid by it,
\nexcept (a) Taxes that are being contested in good faith by appropriate
\nproceedings and for which the Borrower or such Subsidiary, as applicable, has
\nset aside on its books adequate reserves or (b) to the extent that the failure
\nto do so could not reasonably be expected to result in a Material Adverse
\nEffect. Section 3.10 ERISA. No ERISA Event has occurred or is reasonably
\nexpected to occur that, when taken together with all other such ERISA Events for
\nwhich liability is reasonably expected to occur, could reasonably be expected to
\nresult in a Material Adverse Effect. Section 3.11 Disclosure. The Borrower has
\ndisclosed to the Lenders all agreements and instruments to which it or any of
\nits Subsidiaries is subject, and all other matters known to it, that,
\nindividually or in the aggregate, could reasonably be expected to result in a
\nMaterial Adverse Effect. Neither the Information Memorandum nor any of the other
\nreports, financial statements, certificates or other information furnished by or
\non behalf of the Borrower to the Administrative Agent or any Lender in
\nconnection with the negotiation of this Agreement or delivered hereunder (as
\nmodified or supplemented by other information so furnished), taken as a whole,
\ncontains any material misstatement of fact or omits to state any material fact
\nnecessary to make the statements therein, in the light of the circumstances
\nunder which they were made, not misleading; provided that, with respect to
\nprojected financial information, the Borrower represents only that such
\ninformation was prepared in good faith based upon assumptions believed to be
\nreasonable at the time. ARTICLE IV<\/strong> CONDITIONS<\/strong>
\nSection 4.1 Effective Date. The obligations of the Lenders to make Loans
\nhereunder shall not become effective until the date on which each of the
\nfollowing conditions is satisfied (or waived in accordance with Section 9.2):
\n(a) The Administrative Agent (or its counsel) shall have received from each
\nparty hereto either (i) a counterpart of this Agreement signed on behalf of such
\nparty or (ii) written evidence satisfactory to the Administrative Agent (which
\nmay include telecopy transmission of a signed signature page of this Agreement)
\nthat such party has signed a counterpart of this Agreement. (b) The
\nAdministrative Agent shall have received a Note executed by the Borrower in
\nfavor of each Lender requesting a Note. (c) The Administrative Agent shall have
\nreceived a favorable written opinion (addressed to the Administrative Agent and
\nthe Lenders and dated the Effective Date) of Fenwick & West LLP, counsel for
\nthe Borrower, in substantially the form of Exhibit E hereto. The Borrower hereby
\nrequests such counsel to deliver such opinion. (d) The Administrative Agent
\nshall have received such documents and certificates as the Administrative Agent
\nor its counsel may reasonably request relating to the organization,<\/p>\n

40<\/p>\n

\n

existence and good standing of the Borrower, the authorization of the
\nTransactions and any other legal matters relating to the Borrower, this
\nAgreement, the other Loan Documents or the Transactions, all in form and
\nsubstance satisfactory to the Administrative Agent and its counsel. (e) The
\nAdministrative Agent shall have received a certificate, dated the Effective Date
\nand signed on behalf of the Borrower by the President, a Vice President or a
\nFinancial Officer of the Borrower, confirming compliance with the conditions set
\nforth in paragraphs (a) and (b) of Section 4.2. (f) The Administrative Agent
\nshall have received a guaranty agreement (the “Guaranty”) in substantially the
\nform of Exhibit F hereto, executed by each of the Material Subsidiaries. (g) (i)
\nAll fees and expenses (including reasonable fees, charges and disbursements of
\ncounsel to the Administrative Agent) required to be paid to the Administrative
\nAgent and the Arrangers on or before the Effective Date shall have been paid and
\n(ii) all fees required to be paid to the Lenders on or before the Effective Date
\nshall have been paid. (h) The Administrative Agent shall have received evidence
\nthat the Existing Credit Agreement has been or concurrently with the Effective
\nDate is being paid in full and terminated. (i) The Administrative Agent shall
\nhave received, to the extent requested by any of the Lenders, all documentation
\nand other information required by bank regulatory authorities under applicable
\n“know-your-customer” and anti-money laundering rules and regulations, including
\nthe USA PATRIOT Act. The Administrative Agent shall notify the Borrower and the
\nLenders of the Effective Date, and such notice shall be conclusive and binding.
\nWithout limiting the generality of the provisions of Article VIII, for purposes
\nof determining compliance with the conditions specified in this Section 4.1,
\neach Lender that has signed this Agreement shall be deemed to have consented to,
\napproved or accepted or to be satisfied with, each document or other matter
\nrequired thereunder to be consented to or approved by or acceptable or
\nsatisfactory to a Lender unless the Administrative Agent shall have received
\nnotice from such Lender prior to the proposed Effective Date specifying its
\nobjection thereto. Section 4.2 Each Credit Event. The obligation of each Lender
\nto make a Loan on the occasion of any Borrowing, and the effectiveness of any
\nCommitment Increase pursuant to Section 2.20 or any Extension of the Maturity
\nDate pursuant to Section 2.21, is subject to the satisfaction of the following
\nconditions: (a) The representations and warranties of the Borrower set forth in
\nthis Agreement (other than, after the Effective Date, as set forth in Section
\n3.4(b) and Section 3.6(a) hereof) and the other Loan Documents shall be true and
\ncorrect on and as of the date of such Borrowing, except that for purposes of
\nthis Section 4. 2, the representations and warranties contained in Section
\n3.4(a) shall be deemed to refer to the most recent statements furnished pursuant
\nto clauses (a) and (b), respectively, of Section 5.1.<\/p>\n

41<\/p>\n

\n

(b) At the time of and immediately after giving effect to such Borrowing no
\nDefault shall have occurred and be continuing. Each Borrowing, Commitment
\nIncrease and Extension of the Maturity Date shall be deemed to constitute a
\nrepresentation and warranty by the Borrower that the conditions specified in
\nparagraphs (a) and (b) of this Section have been satisfied as of the date
\nthereof. ARTICLE V<\/strong> AFFIRMATIVE COVENANTS<\/strong>
\nUntil the Commitments have expired or been terminated and the principal of and
\ninterest on each Loan and all fees payable hereunder shall have been paid in
\nfull, the Borrower covenants and agrees with the Lenders that: Section 5.1
\nFinancial Statements; Ratings Change and Other Information. The Borrower will
\nfurnish to the Administrative Agent and each Lender: (a) within 90 days after
\nthe end of each fiscal year of the Borrower, its audited consolidated balance
\nsheet and related statements of operations, stockholders153 equity and cash flows
\nas of the end of and for such year, setting forth in each case in comparative
\nform the figures for the previous fiscal year, all reported on by KPMG LLP, or
\nother independent public accountants of recognized national standing (without a
\n“going concern” or like qualification or exception and without any qualification
\nor exception as to the scope of such audit) to the effect that such consolidated
\nfinancial statements present fairly in all material respects the financial
\ncondition and results of operations of the Borrower and its consolidated
\nSubsidiaries on a consolidated basis in accordance with GAAP consistently
\napplied; (b) within 45 days after the end of each of the first three fiscal
\nquarters of each fiscal year of the Borrower, its consolidated balance sheet and
\nrelated statements of operations, stockholders153 equity and cash flows as of the
\nend of and for such fiscal quarter and the then elapsed portion of the fiscal
\nyear, setting forth in each case in comparative form the figures for the
\ncorresponding period or periods of (or, in the case of the balance sheet, as of
\nthe end of) the previous fiscal year, all certified by one of its Financial
\nOfficers as presenting fairly in all material respects the financial condition
\nand results of operations of the Borrower and its consolidated Subsidiaries on a
\nconsolidated basis in accordance with GAAP consistently applied, subject to
\nnormal year-end audit adjustments and the absence of footnotes; (c) concurrently
\nwith any delivery of financial statements under clause (a) or (b) above, a
\ncertificate of a Financial Officer of the Borrower in substantially the form of
\nExhibit G attached hereto (i) certifying as to whether a Default has occurred
\nand, if a Default has occurred, specifying the details thereof and any action
\ntaken or proposed to be taken with respect thereto, (ii) setting forth
\nreasonably detailed calculations demonstrating compliance with Section 5.9 and
\n(iii) stating whether any change in GAAP or in the application thereof has
\noccurred since the date of the audited financial statements referred to in
\nSection 3.4 and, if any such change has occurred, specifying the effect of such
\nchange on the financial statements accompanying such certificate;<\/p>\n

42<\/p>\n

\n

(d) concurrently with any delivery of financial statements under clause (a)
\nabove, a certificate of the accounting firm that reported on such financial
\nstatements stating whether they obtained knowledge during the course of their
\nexamination of such financial statements of any Default (which certificate may
\nbe limited to the extent required by accounting rules or guidelines); (e)
\npromptly after the same become publicly available, copies of all periodic and
\nother reports, proxy statements and other materials filed by the Borrower or any
\nSubsidiary with the Securities and Exchange Commission, or any Governmental
\nAuthority succeeding to any or all of the functions of said Commission, or with
\nany national securities exchange, or distributed by the Borrower to its
\nshareholders generally, as the case may be, provided, that such information
\nshall be deemed to have been delivered on the date on which such information has
\nbeen posted on the Borrower153s website on the Internet at http:\/\/www.symantec.com
\n(or any successor page) or at http:\/\/www.sec.gov; and (f) promptly following any
\nrequest therefor, such other information regarding the operations, business
\naffairs and financial condition of the Borrower or any Subsidiary, or compliance
\nwith the terms of this Agreement or any other Loan Document, as the
\nAdministrative Agent or any Lender may reasonably request. Section 5.2 Notices
\nof Material Events. The Borrower will furnish to the Administrative Agent and
\neach Lender prompt written notice of the following: (a) the occurrence of any
\nDefault; (b) the filing or commencement of any action, suit or proceeding by or
\nbefore any arbitrator or Governmental Authority against or affecting the
\nBorrower or any Affiliate thereof that, if adversely determined, could
\nreasonably be expected to result in a Material Adverse Effect; (c) the
\noccurrence of any ERISA Event that, alone or together with any other ERISA
\nEvents that have occurred, could reasonably be expected to result in a Material
\nAdverse Effect; and (d) any other development that results in, or could
\nreasonably be expected to result in, a Material Adverse Effect. Each notice
\ndelivered under this Section shall be accompanied by a statement of a Financial
\nOfficer or other executive officer of the Borrower setting forth the details of
\nthe event or development requiring such notice and any action taken or proposed
\nto be taken with respect thereto. Section 5.3 Existence; Conduct of Business.
\nThe Borrower will, and will cause each of its Subsidiaries to, do or cause to be
\ndone all things necessary to preserve, renew and keep in full force and effect
\nits legal existence and the rights, licenses, permits, privileges and franchises
\nmaterial to the conduct of its business; provided that the foregoing shall not
\nprohibit any merger, consolidation, liquidation or dissolution permitted under
\nSection 6.2.<\/p>\n

43<\/p>\n

\n

Section 5.4 Payment of Obligations. The Borrower will, and will cause each of
\nits Subsidiaries to, pay its obligations, including Tax liabilities, that, if
\nnot paid, could result in a Material Adverse Effect before the same shall become
\ndelinquent or in default, except where (a) the validity or amount thereof is
\nbeing contested in good faith by appropriate proceedings, (b) the Borrower or
\nsuch Subsidiary has set aside on its books adequate reserves with respect
\nthereto in accordance with GAAP and (c) the failure to make payment pending such
\ncontest could not reasonably be expected to result in a Material Adverse Effect.
\nSection 5.5 Maintenance of Properties; Insurance. The Borrower will, and will
\ncause each of its Subsidiaries to, (a) keep and maintain all property material
\nto the conduct of its business in good working order and condition, ordinary
\nwear and tear excepted, and (b) maintain insurance (either by way of
\nself-insurance or with financially sound and reputable insurance companies) in
\nsuch amounts and against such risks as are customarily maintained by companies
\nengaged in the same or similar businesses operating in the same or similar
\nlocations. Section 5.6 Books and Records; Inspection Rights. The Borrower will,
\nand will cause each of its Subsidiaries to, keep proper books of record and
\naccount in which full, true and correct entries are made of all dealings and
\ntransactions in relation to its business and activities as and to the extent
\nrequired by GAAP. The Borrower will, and will cause each of its Subsidiaries to,
\npermit any representatives designated by the Administrative Agent or any Lender,
\nupon reasonable prior notice, to visit and inspect its properties, to examine
\nand make extracts from its books and records, and to discuss its affairs,
\nfinances and condition with its officers and independent accountants, all at
\nsuch reasonable times and as often as reasonably requested. Section 5.7
\nCompliance with Laws. The Borrower will, and will cause each of its Subsidiaries
\nto, comply with all laws, rules, regulations and orders of any Governmental
\nAuthority applicable to it or its property, except where the failure to do so,
\nindividually or in the aggregate, could not reasonably be expected to result in
\na Material Adverse Effect. Section 5.8 Use of Proceeds. The proceeds of the
\nLoans will be used only for general corporate purposes and stock repurchases
\nunder stock repurchase programs approved by the Borrower. No part of the
\nproceeds of any Loan will be used, whether directly or indirectly, for any
\npurpose that entails a violation of any of the Regulations of the Board,
\nincluding Regulations T, U and X. Section 5.9 Consolidated Leverage Ratio. The
\nBorrower shall maintain, as of the last day of each fiscal quarter of the
\nBorrower, commencing with the first fiscal quarter of the Borrower following the
\nEffective Date, a Consolidated Leverage Ratio for the Measurement Period ending
\non such day, of not more than 3.0:1.0. Section 5.10 Additional Guarantors. If,
\nas of the date of the most recently available financial statements delivered
\npursuant to Section 5.1(a) or (b), as the case may be, any Person shall have
\nbecome a Material Subsidiary, then the Borrower shall, within 30 days after
\ndelivery of such financial statements, cause such Material Subsidiary to enter
\ninto a Guaranty Accession, unless (a) such Material Subsidiary is a direct or
\nindirect subsidiary of any Person that is not a Domestic Subsidiary or (b) in
\nthe case of any Person who shall become a Material Subsidiary as<\/p>\n

44<\/p>\n

\n

a result of an acquisition by the Borrower or any of its Subsidiaries, the
\nexecution of such a counterpart would violate any agreement to which such
\nMaterial Subsidiary shall be party (and which was not entered into upon or
\nfollowing such acquisition). ARTICLE VI<\/strong> NEGATIVE
\nCOVENANTS<\/strong> Until the Commitments have expired or terminated and the
\nprincipal of and interest on each Loan and all fees payable hereunder have been
\npaid in full, the Borrower covenants and agrees with the Lenders that: Section
\n6.1 Liens. The Borrower will not, and will not permit any Subsidiary to, create,
\nincur, assume or permit to exist any Lien on any property or asset now owned or
\nhereafter acquired by it, or assign or sell any income or revenues (including
\naccounts receivable) or rights in respect of any thereof, except: (a) Permitted
\nEncumbrances; (b) any Lien on any property or asset of the Borrower or any
\nSubsidiary existing on the date hereof and set forth in Schedule 6.1; provided
\nthat (i) such Lien shall not apply to any other property or asset of the
\nBorrower or any Subsidiary and (ii) such Lien shall secure only those
\nobligations which it secures on the date hereof and extensions, renewals and
\nreplacements thereof that do not increase the outstanding principal amount
\nthereof; (c) any Lien existing on any property or asset prior to the acquisition
\nthereof by the Borrower or any Subsidiary or existing on any property or asset
\nof any Person that becomes a Subsidiary after the date hereof prior to the time
\nsuch Person becomes a Subsidiary; provided that (i) such Lien is not created in
\ncontemplation of or in connection with such acquisition or such Person becoming
\na Subsidiary, as the case may be, (ii) such Lien shall not apply to any other
\nproperty or assets of the Borrower or any Subsidiary and (iii) such Lien shall
\nsecure only those obligations which it secures on the date of such acquisition
\nor the date such Person becomes a Subsidiary, as the case may be and extensions,
\nrenewals and replacements thereof that do not increase the outstanding principal
\namount thereof; (d) Liens on fixed or capital assets acquired, constructed or
\nimproved by the Borrower or any Subsidiary; provided that (i) such security
\ninterests and the Indebtedness secured thereby are incurred prior to or within
\n90 days after such acquisition or the completion of such construction or
\nimprovement, (ii) the Indebtedness secured thereby does not exceed 100% of the
\ncost of acquiring, constructing or improving such fixed or capital assets and
\n(iii) such security interests shall not apply to any other property or assets of
\nthe Borrower or any Subsidiary; and (e) other Liens in an aggregate amount not
\nto exceed $50 million.<\/p>\n

45<\/p>\n

\n

Section 6.2 Fundamental Changes. (a) The Borrower will not, and will not
\npermit any Subsidiary to, merge into or consolidate with any other Person, or
\npermit any other Person to merge into or consolidate with it, or sell, transfer,
\nlease or otherwise dispose of (in one transaction or in a series of
\ntransactions) all or substantially all of its assets, or all or substantially
\nall of the stock of any of its Subsidiaries (in each case, whether now owned or
\nhereafter acquired), or liquidate or dissolve, except that, if at the time
\nthereof and immediately after giving effect thereto no Default shall have
\noccurred and be continuing: (i) any Person may merge into the Borrower in a
\ntransaction in which the Borrower is the surviving corporation; (ii) any Person
\nmay merge into any Subsidiary in a transaction in which the surviving entity is
\na Subsidiary; (iii) any Subsidiary may sell, transfer, lease or otherwise
\ndispose of its assets to the Borrower or to another Subsidiary; (iv) any
\nSubsidiary may liquidate or dissolve if the Borrower determines in good faith
\nthat such liquidation or dissolution is in the best interests of the Borrower
\nand is not materially disadvantageous to the Lenders; and (v) the Borrower or
\nany of its Subsidiaries may sell any Subsidiary, or substantially all of the
\ncapital stock or assets thereof, provided, that (i) any such sale is for fair
\nmarket value, determined in good faith by the Borrower (and, if approval by its
\nboard of directors of the sale is required by applicable law or otherwise, such
\ndetermination shall be approved by its board of directors) and (ii) if such sale
\nrequires a release of all or substantially all of the value of the Guaranty,
\neach of the Lenders has provided its written consent to the extent required by
\nclause (v) of Section 9.2(b). (b) The Borrower will not, and will not permit any
\nof its Subsidiaries to, engage to any material extent in any business other than
\nbusinesses of the type conducted by the Borrower and its Subsidiaries on the
\ndate of execution of this Agreement and businesses reasonably related or
\ncomplementary thereto. Section 6.3 Subsidiary Indebtedness. Except for (i)
\nIndebtedness of its Subsidiaries described on Schedule 6.3 hereto, and (ii)
\nIndebtedness of any Subsidiary of the Borrower acquired after the Effective Date
\nand Indebtedness of a Person merged or consolidated with or into the Borrower or
\na Subsidiary of the Borrower after the Effective Date, which Indebtedness in
\neach case exists at the time of such acquisition, merger or consolidated and was
\nnot created or incurred in contemplation of such acquisition, merger or
\nconsolidation, the Borrower will not permit the aggregate principal amount of
\nIndebtedness of its Subsidiaries (excluding any Indebtedness of a Subsidiary
\nowed to the Borrower or another Subsidiary, but including any Guarantee by a
\nSubsidiary of Indebtedness of the Borrower) at any time to exceed $250,000,000.\n<\/p>\n

46<\/p>\n

\n

ARTICLE VII<\/strong>EVENTS OF DEFAULT<\/strong><\/p>\n

If any of the following events (each, an “Event of Default”) shall occur: (a)
\nthe Borrower shall fail to pay any principal of any Loan when and as the same
\nshall become due and payable, whether at the due date thereof or at a date fixed
\nfor prepayment thereof or otherwise; (b) the Borrower shall fail to pay any
\ninterest on any Loan or any fee or any other amount (other than an amount
\nreferred to in clause (a) of this Article) payable under any of the Loan
\nDocuments, when and as the same shall become due and payable, and such failure
\nshall continue unremedied for a period of three Business Days; (c) any
\nrepresentation or warranty made or deemed made by or on behalf of the Borrower
\nor any Subsidiary in or in connection with this Agreement or any other Loan
\nDocument or any amendment or modification hereof or thereof or waiver hereunder
\nor thereunder, or in any report, certificate, financial statement or other
\ndocument furnished pursuant to or in connection with this Agreement, any other
\nLoan Document or any amendment or modification hereof or thereof or waiver
\nhereunder or thereunder, shall prove to have been incorrect when made or deemed
\nmade; (d) the Borrower shall fail to observe or perform any covenant, condition
\nor agreement contained in Section 5.2(a), Section 5.3 (with respect to the
\nBorrower153s existence), Section 5.8 or Section 5.9 or in Article VI; (e) the
\nBorrower shall fail to observe or perform any covenant, condition or agreement
\ncontained any of the Loan Documents (other than those specified in clause (a),
\n(b) or (d) of this Article of this Agreement), and such failure shall continue
\nunremedied for a period of (i) 60 days in the case of Section 5.1(a) or Section
\n5.1(b), or (ii) 30 days in all other cases, in each case after notice thereof
\nfrom the Administrative Agent to the Borrower (which notice will be given at the
\nrequest of any Lender); (f) the Borrower or any Subsidiary shall fail to make
\nany payment (whether of principal or interest and regardless of amount) in
\nrespect of any Material Indebtedness, when and as the same shall become due and
\npayable (whether by scheduled maturity, required prepayment, acceleration,
\ndemand, or otherwise), after giving effect to any applicable grace period, if
\nany, specified in the agreement or instrument relating to such Material
\nIndebtedness; (g) any event or condition occurs that results in any Material
\nIndebtedness becoming due prior to its scheduled maturity or that enables or
\npermits (with or without the giving of notice, the lapse of time or both) the
\nholder or holders of any Material Indebtedness or any trustee or agent on its or
\ntheir behalf to cause any Material Indebtedness to become due, or to require the
\nprepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
\nmaturity, after giving effect to any applicable grace period, if any, specified
\nin the agreement or instrument relating to such Material Indebtedness; provided
\nthat this clause (g) shall not apply to<\/p>\n

47<\/p>\n

\n

secured Indebtedness that becomes due as a result of the voluntary sale or
\ntransfer of the property or assets securing such Indebtedness; (h) an
\ninvoluntary proceeding shall be commenced or an involuntary petition shall be
\nfiled seeking (i) liquidation, reorganization or other relief in respect of the
\nBorrower or any Subsidiary or its debts, or of a substantial part of its assets,
\nunder any Debtor Relief Law or (ii) the appointment of a receiver, trustee,
\ncustodian, sequestrator, conservator or similar official for the Borrower or any
\nSubsidiary or for a substantial part of its assets, and, in any such case, such
\nproceeding or petition shall continue undismissed for 60 days or an order or
\ndecree approving or ordering any of the foregoing shall be entered; (i) the
\nBorrower or any Subsidiary shall (i) voluntarily commence any proceeding or file
\nany petition seeking liquidation, reorganization or other relief under any
\nDebtor Relief Law, (ii) consent to the institution of, or fail to contest in a
\ntimely and appropriate manner, any proceeding or petition described in clause
\n(h) of this Article, (iii) apply for or consent to the appointment of a
\nreceiver, trustee, custodian, sequestrator, conservator or similar official for
\nthe Borrower or any Subsidiary or for a substantial part of its assets, (iv)
\nfile an answer admitting the material allegations of a petition filed against it
\nin any such proceeding, (v) make a general assignment for the benefit of
\ncreditors or (vi) take any action for the purpose of effecting any of the
\nforegoing; (j) the Borrower or any Subsidiary shall become unable, admit in
\nwriting its inability or fail generally to pay its debts as they become due; (k)
\none or more judgments for the payment of money in excess of $50,000,000
\nindividually or $100,000,000 in the aggregate shall be rendered against the
\nBorrower, any Subsidiary or any combination thereof and the same shall remain
\nundischarged for a period of 30 consecutive days during which execution shall
\nnot be effectively stayed, or any action shall be legally taken by a judgment
\ncreditor to attach or levy upon any assets of the Borrower or any Subsidiary to
\nenforce any such judgment; (l) an ERISA Event shall have occurred that, in the
\nopinion of the Required Lenders, when taken together with all other ERISA Events
\nthat have occurred, could reasonably be expected to result in a Material Adverse
\nEffect; (m) a Change in Control shall occur; or (n) any Loan Document, at any
\ntime after its execution and delivery and for any reason other than as expressly
\npermitted hereunder or thereunder or satisfaction in full of all the obligations
\nhereunder or thereunder, ceases to be in full force and effect; or any Loan
\nParty contests in any manner the validity or enforceability of any Loan
\nDocument; then, and in every such event (other than an event with respect to the
\nBorrower described in clause (h) or (i) of this Article), and at any time
\nthereafter during the continuance of such event, the Administrative Agent may,
\nand at the request of the Required Lenders shall, by notice to the Borrower,
\ntake either or both of the following actions, at the same or different times:
\n(i) terminate the Commitments, and thereupon the Commitments shall terminate
\nimmediately, and (ii) declare the Loans then outstanding to be due and payable
\nin whole (or in part, in which case<\/p>\n

48<\/p>\n

\n

any principal not so declared to be due and payable may thereafter be
\ndeclared to be due and payable), and thereupon the principal of the Loans so
\ndeclared to be due and payable, together with accrued interest thereon and all
\nfees and other obligations of the Borrower accrued hereunder, shall become due
\nand payable immediately, without presentment, demand, protest or other notice of
\nany kind, all of which are hereby waived by the Borrower; and in case of any
\nevent with respect to the Borrower described in clause (h) or (i) of this
\nArticle, the Commitments shall automatically terminate and the principal of the
\nLoans then outstanding, together with accrued interest thereon and all fees and
\nother obligations of the Borrower accrued hereunder, shall automatically become
\ndue and payable, without presentment, demand, protest or other notice of any
\nkind, all of which are hereby waived by the Borrower. ARTICLE
\nVIII<\/strong> THE ADMINISTRATIVE AGENT<\/strong> Each of the Lenders
\nhereby irrevocably appoints Wells Fargo as the Administrative Agent and
\nauthorizes the Administrative Agent to take such actions on its behalf and to
\nexercise such powers as are delegated to the Administrative Agent by the terms
\nhereof, together with such actions and powers as are reasonably incidental
\nthereto. The provisions of this Article are solely for the benefit of the
\nAdministrative Agent and the Lenders, and the Borrower shall not have rights as
\na third party beneficiary of any of such provisions. The Person serving as the
\nAdministrative Agent hereunder shall have the same rights and powers in its
\ncapacity as a Lender as any other Lender and may exercise the same as though it
\nwere not the Administrative Agent and the term “Lender” or “Lenders” shall,
\nunless otherwise expressly indicated or unless the context otherwise requires,
\ninclude the Person serving as the Administrative Agent hereunder in its
\nindividual capacity. Such Person and its Affiliates may accept deposits from,
\nlend money to and generally engage in any kind of business with the Borrower or
\nany Subsidiary or other Affiliate thereof as if it were not the Administrative
\nAgent hereunder and without any duty to account therefor to the Lenders. The
\nAdministrative Agent shall not have any duties or obligations except those
\nexpressly set forth herein and in the other Loan Documents. Without limiting the
\ngenerality of the foregoing, the Administrative Agent: (a) shall not be subject
\nto any fiduciary or other implied duties, regardless of whether a Default has
\noccurred and is continuing, (b) shall not have any duty to take any
\ndiscretionary action or exercise any discretionary powers, except discretionary
\nrights and powers expressly contemplated hereby or by the other Loan Documents
\nthat the Administrative Agent is required to exercise in writing as directed by
\nthe Required Lenders (or such other number or percentage of the Lenders as shall
\nbe necessary under the circumstances as provided in Section 9.2 or in the other
\nLoan Documents), and (c) shall not, except as expressly set forth herein and in
\nthe other Loan Documents, have any duty to disclose, and shall not be liable for
\nthe failure to disclose, any information relating to the Borrower or any of its
\nAffiliates that is communicated to or obtained by the Person serving as
\nAdministrative Agent or any of its Affiliates in any capacity. The
\nAdministrative Agent shall not be liable for any action taken or not taken by it
\n(i) with the consent or at the request of the Required Lenders (or such other
\nnumber or percentage of the Lenders as shall be necessary under the
\ncircumstances as provided in Section 9.2) or (ii) in the absence of its own
\ngross negligence or willful misconduct. The<\/p>\n

49<\/p>\n

\n

Administrative Agent shall be deemed not to have knowledge of any Default
\nunless and until written notice thereof is given to the Administrative Agent by
\nthe Borrower or a Lender, and the Administrative Agent shall not be responsible
\nfor or have any duty to ascertain or inquire into (i) any statement, warranty or
\nrepresentation made in or in connection with this Agreement or any other Loan
\nDocument, (ii) the contents of any certificate, report or other document
\ndelivered hereunder or in connection herewith, (iii) the performance or
\nobservance of any of the covenants, agreements or other terms or conditions set
\nforth herein or the occurrence of any Default, (iv) the validity,
\nenforceability, effectiveness or genuineness of this Agreement, any other Loan
\nDocument or any other agreement, instrument or document, or (v) the satisfaction
\nof any condition set forth in Article IV or elsewhere herein, other than to
\nconfirm receipt of items expressly required to be delivered to the
\nAdministrative Agent. The Administrative Agent shall be entitled to rely upon,
\nand shall not incur any liability for relying upon, any notice, request,
\ncertificate, consent, statement, instrument, document or other writing
\n(including any electronic message, Internet or intranet website posting or other
\ndistribution) believed by it to be genuine and to have been signed or sent by
\nthe proper Person. The Administrative Agent also may rely upon any statement
\nmade to it orally or by telephone and believed by it to be made by the proper
\nPerson, and shall not incur any liability for relying thereon. In determining
\ncompliance with any condition hereunder to the making of a Loan, that by its
\nterms must be fulfilled to the satisfaction of a Lender, the Administrative
\nAgent may presume that such condition is satisfactory to such Lender unless the
\nAdministrative Agent shall have received notice to the contrary from such Lender
\nprior to the making of such Loan. The Administrative Agent may consult with
\nlegal counsel (who may be counsel for the Borrower), independent accountants and
\nother experts selected by it, and shall not be liable for any action taken or
\nnot taken by it in accordance with the advice of any such counsel, accountants
\nor experts. The Administrative Agent may perform any and all of its duties and
\nexercise its rights and powers by or through any one or more sub-agents
\nappointed by the Administrative Agent. The Administrative Agent and any such
\nsub-agent may perform any and all its duties and exercise its rights and powers
\nthrough their respective Related Parties. The exculpatory provisions of the
\npreceding paragraphs shall apply to any such sub-agent and to the Related
\nParties of the Administrative Agent and any such sub-agent, and shall apply to
\ntheir respective activities in connection with the syndication of the credit
\nfacilities provided for herein as well as activities as Administrative Agent.
\nSubject to the appointment and acceptance of a successor Administrative Agent as
\nprovided in this paragraph, the Administrative Agent may resign at any time by
\nnotifying the Lenders and the Borrower. Upon any such resignation, the Required
\nLenders shall have the right, in consultation with the Borrower, to appoint a
\nsuccessor, which shall be a bank with an office in the United States, or an
\nAffiliate of any such bank with an office in the United States. If no successor
\nshall have been so appointed by the Required Lenders and shall have accepted
\nsuch appointment within 30 days after the retiring Administrative Agent gives
\nnotice of its resignation, then the retiring Administrative Agent may, on behalf
\nof the Lenders, appoint a successor Administrative Agent meeting the
\nqualifications set forth above; provided that if the Administrative Agent shall
\nnotify the Borrower and the Lenders that no qualifying Person has accepted such
\nappointment, then such resignation shall nonetheless become effective in<\/p>\n

50<\/p>\n

\n

accordance with such notice and (1) the retiring Administrative Agent shall
\nbe discharged from its duties and obligations hereunder and under the other Loan
\nDocuments and (2) all payments, communications and determinations provided to be
\nmade by, to or through the Administrative Agent shall instead be made by or to
\neach Lender directly, until such time as the Required Lenders appoint a
\nsuccessor Administrative Agent as provided for above in this Article. Upon the
\nacceptance of its appointment as Administrative Agent hereunder by a successor,
\nsuch successor shall succeed to and become vested with all the rights, powers,
\nprivileges and duties of the retiring (or retired) Administrative Agent, and the
\nretiring Administrative Agent shall be discharged from its duties and
\nobligations hereunder or under the other Loan Documents (if not already
\ndischarged therefrom as provided above in this Article). The fees payable by the
\nBorrower to a successor Administrative Agent shall be the same as those payable
\nto its predecessor unless otherwise agreed between the Borrower and such
\nsuccessor. After the Administrative Agent153s resignation hereunder, the
\nprovisions of this Article and Section 9.3 shall continue in effect for the
\nbenefit of such retiring Administrative Agent, its sub-agents and their
\nrespective Related Parties in respect of any actions taken or omitted to be
\ntaken by any of them while it was acting as Administrative Agent. Each Lender
\nacknowledges that it has, independently and without reliance upon the
\nAdministrative Agent or any other Lender or any of their Related Parties and
\nbased on such documents and information as it has deemed appropriate, made its
\nown credit analysis and decision to enter into this Agreement. Each Lender also
\nacknowledges that it will, independently and without reliance upon the
\nAdministrative Agent or any other Lender or any of their Related Parties and
\nbased on such documents and information as it shall from time to time deem
\nappropriate, continue to make its own decisions in taking or not taking action
\nunder or based upon this Agreement, any other Loan Document or any related
\nagreement or any document furnished hereunder or thereunder. Anything herein to
\nthe contrary notwithstanding, none of the Arrangers or agents listed on the
\ncover page hereof shall have any powers, duties or responsibilities under this
\nAgreement or any of the other Loan Documents, except in its capacity, as
\napplicable, as the Administrative Agent or a Lender hereunder. The Lenders
\nirrevocably authorize the Administrative Agent, at its option and in its
\ndiscretion to release any Guarantor from its obligations under the Guaranty if
\nsuch Person ceases to be a Subsidiary as a result of a transaction permitted
\nhereunder. Upon request by the Administrative Agent at any time, the Required
\nLenders will confirm in writing the Administrative Agent153s authority to release
\nany Guarantor from its obligations under the Guaranty pursuant to this
\nparagraph. ARTICLE IX<\/strong> MISCELLANEOUS<\/strong> Section
\n9.1 Notices. (a) Except in the case of notices and other communications
\nexpressly permitted to be given by telephone (and subject to paragraph (b)
\nbelow), all notices and other communications<\/p>\n

51<\/p>\n

\n

provided for herein shall be in writing and shall be delivered by hand or
\novernight courier service, mailed by certified or registered mail or sent by
\ntelecopy, as follows: (i) if to the Borrower, to it at 350 Ellis Street,
\nMountain View, CA 94043, Attention of Treasury c\/o Michael Seal (Telecopy No.
\n(650) 527 5557), with a copy to General Counsel (Telecopy No. (650) 429 9137);
\n(ii) if to the Administrative Agent, to it at Wells Fargo Bank, National
\nAssociation, 1525 W. W.T. Harris Blvd, Building 3A2, Mailcode NC 0680 Charlotte,
\nNorth Carolina 28262, Attention: Syndication Agency Services (Telephone: (704)
\n590 2706), (Telecopy: (704) 590 2782); (iii) if to the Swingline Lender, to it
\nat Wells Fargo Bank, National Association, 1525 W. W.T. Harris Blvd, Building
\n3A2, Mailcode NC 0680 Charlotte, North Carolina 28262, Attention: Syndication
\nAgency Services (Telephone: (704) 590 2706), (Telecopy: (704) 590 2782); and
\n(iv) if to any other Lender, to it at its address (or telecopy number) set forth
\nin its Administrative Questionnaire. Notices and other communications sent by
\nhand or overnight courier service, or mailed by certified or registered mail,
\nshall be deemed to have been given when received; notices and other
\ncommunications sent by telecopier shall be deemed to have been given when sent
\n(except that, if not given during normal business hours for the recipient, shall
\nbe deemed to have been given at the opening of business on the next business day
\nfor the recipient). Notices and other communications delivered through
\nelectronic communications to the extent provided in subsection (b) below, shall
\nbe effective as provided in such subsection (b). (b) Notices and other
\ncommunications to the Lenders hereunder may be delivered or furnished by
\nelectronic communications pursuant to procedures approved by the Administrative
\nAgent; provided that the foregoing shall not apply to notices pursuant to
\nArticle II unless otherwise agreed by the Administrative Agent and the
\napplicable Lender. The Administrative Agent or the Borrower may, in its
\ndiscretion, agree to accept notices and other communications to it hereunder by
\nelectronic communications pursuant to procedures approved by it; provided that
\napproval of such procedures may be limited to particular notices or
\ncommunications. (c) Any party hereto may change its address or telecopy number
\nfor notices and other communications hereunder by notice to the other parties
\nhereto. All notices and other communications given to any party hereto in
\naccordance with the provisions of this Agreement shall be deemed to have been
\ngiven on the date of receipt. (d) The Borrower agrees that the Administrative
\nAgent may make the Communications (as defined below) available to the Lenders by
\nposting the Communications on SyndTrak or a substantially similar electronic
\ntransmission system (the “Platform”). THE PLATFORM IS PROVIDED “AS IS” AND “AS
\nAVAILABLE.” The Agent Parties (as defined below) do not warrant the adequacy of
\nthe Platform and expressly disclaim liability for errors or omissions in the
\ncommunications effected thereby (the “Communications”). No warranty of any<\/p>\n

52<\/p>\n

\n

kind, express, implied or statutory, including any warranty of
\nmerchantability, fitness for a particular purpose, non-infringement of
\nthird-party rights or freedom from viruses or other code defects, is made by any
\nAgent Party in connection with the Communications or the Platform. In no event
\nshall the Administrative Agent or any of its Related Parties (collectively, the
\n“Agent Parties”) have any liability to any Loan Party, any Lender or any other
\nPerson or entity for damages of any kind, including direct or indirect, special,
\nincidental or consequential damages, losses or expenses (whether in tort,
\ncontract or otherwise) arising out of any Loan Party153s or the Administrative
\nAgent153s transmission of Communications through the Platform. Section 9.2
\nWaivers; Amendments. (a) No failure or delay by the Administrative Agent or any
\nLender in exercising any right or power hereunder shall operate as a waiver
\nthereof, nor shall any single or partial exercise of any such right or power, or
\nany abandonment or discontinuance of steps to enforce such a right or power,
\npreclude any other or further exercise thereof or the exercise of any other
\nright or power. The rights and remedies of the Administrative Agent and the
\nLenders hereunder are cumulative and are not exclusive of any rights or remedies
\nthat they would otherwise have. No waiver of any provision of this Agreement or
\nany other Loan Document or consent to any departure by the Borrower therefrom
\nshall in any event be effective unless the same shall be permitted by paragraph
\n(b) of this Section, and then such waiver or consent shall be effective only in
\nthe specific instance and for the purpose for which given. Without limiting the
\ngenerality of the foregoing, the making of a Loan shall not be construed as a
\nwaiver of any Default, regardless of whether the Administrative Agent or any
\nLender may have had notice or knowledge of such Default at the time. (b) No
\namendment or waiver of any provision of this Agreement or any other Loan
\nDocument, and no consent to any departure by the Borrower or any other Loan
\nParty therefrom, shall be effective unless in writing signed by the Required
\nLenders and the Borrower or the applicable Loan Party, as the case may be, and
\nacknowledged by the Administrative Agent, and each such waiver or consent shall
\nbe effective only in the specific instance and for the specific purpose for
\nwhich given; provided, however, that no such amendment, waiver or consent shall:
\n(i) extend or increase the Commitment of any Lender without the written consent
\nof such Lender, (ii) reduce the principal amount of any Loan or reduce the rate
\nof interest thereon, or reduce any fees payable hereunder, without the written
\nconsent of each Lender affected thereby, (iii) postpone the scheduled date of
\npayment of the principal amount of any Loan, or any interest thereon, or any
\nfees payable hereunder, or reduce the amount of, waive or excuse any such
\npayment, or postpone the scheduled date of expiration of any Commitment, without
\nthe written consent of each Lender affected thereby; provided, however, that
\nnotwithstanding clause (ii) or (iii) of this Section 9.2(b), only the consent of
\nthe Required Lenders shall be necessary (A) to amend Section 2.13(c) or to waive
\nany obligation of the Borrower to pay interest at the default rate set forth
\ntherein or (B) to amend any financial covenant hereunder (or any defined term
\nused therein) even if the effect of such amendment would be to reduce the rate
\nof interest on any Loan or to reduce any fee payable hereunder, (iv) change
\nSection 2.18(b), Section 2.18(c) or any other Section hereof providing for the
\nratable treatment of the Lenders, in each case in a manner that would alter the
\npro rata sharing of payments required thereby, without the written consent of
\neach Lender, (v) release all or substantially all of the value of the Guaranty,
\nwithout the written consent of each Lender, except to the extent the release of
\nany Guarantor is permitted pursuant to<\/p>\n

53<\/p>\n

\n

Article VIII (in which case such release may be made by the Administrative
\nAgent acting alone), (vi) change any of the provisions of this Section or the
\ndefinition of “Required Lenders” or any other provision hereof specifying the
\nnumber or percentage of Lenders required to waive, amend or modify any rights
\nhereunder or make any determination or grant any consent hereunder, without the
\nwritten consent of each Lender or (vii) waive any condition set forth in Section
\n4.1 (other than Section 4.1(g)(i)), or, in the case of the any Loans made on the
\nEffective Date, Section 4.2, without the written consent of each Lender.
\nNotwithstanding anything to the contrary herein, (i) no such agreement shall
\namend, modify or otherwise affect the rights or duties of the Administrative
\nAgent or the Swingline Lender hereunder without the prior written consent of the
\nAdministrative Agent or the Swingline Lender, as the case may be, (ii) no
\nDefaulting Lender shall have any right to approve or disapprove any amendment,
\nwaiver or consent hereunder (and any amendment, waiver or consent which by its
\nterms requires the consent of all Lenders or each affected Lender may be
\neffected with the consent of the applicable Lenders other than Defaulting
\nLenders), except that (x) the Commitment of any Defaulting Lender may not be
\nincreased or extended without the consent of such Lender and (y) any waiver,
\namendment or modification requiring the consent of all Lenders or each affected
\nLender that by its terms affects any Defaulting Lender more adversely than other
\naffected Lenders shall require the consent of such Defaulting Lender and (iii)
\nif the Administrative Agent and the Borrower shall have jointly identified (each
\nin its sole discretion) an obvious error or omission of a technical or
\nimmaterial nature, in each case, in any provision of the Loan Documents, then
\nthe Administrative Agent and the applicable Loan Parties shall be permitted to
\namend such provision and such amendment shall become effective without any
\nfurther action or consent of any other party to any Loan Document if the same is
\nnot objected to in writing by the Required Lenders within five Business Days
\nfollowing the posting of such amendment to the Lenders. Section 9.3 Expenses;
\nIndemnity; Damage Waiver. (a) The Borrower shall pay (i) all reasonable and
\ndocumented out of pocket expenses incurred by the Administrative Agent and its
\nAffiliates, including the reasonable fees, charges and disbursements of counsel
\nfor the Administrative Agent, in connection with the syndication of the credit
\nfacilities provided for herein, the preparation and (to the extent that the
\nAdministrative Agent has notified the Borrower that it is incurring such out of
\npocket expenses) administration of this Agreement, any other Loan Document or
\nany amendments, modifications or waivers of the provisions hereof or thereof
\n(whether or not the transactions contemplated hereby or thereby shall be
\nconsummated), and (ii) all out-of-pocket expenses incurred by the Administrative
\nAgent or any Lender, including the fees, charges and disbursements of any
\ncounsel for the Administrative Agent or any Lender, in connection with the
\nenforcement or protection of its rights in connection with this Agreement or any
\nother Loan Document, including its rights under this Section, or in connection
\nwith the Loans made hereunder, including all such out-of pocket expenses
\nincurred during any workout, restructuring or negotiations in respect of such
\nLoans. (b) The Borrower shall indemnify the Administrative Agent and each
\nLender, and each Related Party of any of the foregoing Persons (each such Person
\nbeing called an “Indemnitee”) against, and hold each Indemnitee harmless from,
\nany and all losses, claims, damages, liabilities and related expenses, including
\nthe fees, charges and disbursements of any counsel for any Indemnitee, incurred
\nby or asserted against any Indemnitee by any third party or by the Borrower or
\nany other Loan Party arising out of, in connection with, or as a result of (i)\n<\/p>\n

54<\/p>\n

\n

the execution or delivery of this Agreement, any other Loan Document or any
\nagreement or instrument contemplated hereby, the performance by the parties
\nhereto of their respective obligations hereunder or the consummation of the
\nTransactions or any other transactions contemplated hereby, or, in the case of
\nthe Administrative Agent (and any sub-agent thereof) and its Related Parties
\nonly, the administration of this Agreement and the other Loan Documents (ii) any
\nLoan or the use of the proceeds therefrom, (iii) any actual or alleged presence
\nor release of Hazardous Materials on or from any property owned or operated by
\nthe Borrower or any of its Subsidiaries, or any Environmental Liability related
\nin any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
\nprospective claim, litigation, investigation or proceeding relating to any of
\nthe foregoing, whether based on contract, tort or any other theory and
\nregardless of whether any Indemnitee is a party thereto; provided that such
\nindemnity shall not, as to any Indemnitee, be available to the extent that such
\nlosses, claims, damages, liabilities or related expenses are determined by a
\ncourt of competent jurisdiction by final and nonappealable judgment to have
\nresulted from the gross negligence or willful misconduct of such Indemnitee. (c)
\nTo the extent that the Borrower fails to pay any amount required to be paid by
\nit to the Administrative Agent or the Swingline Lender under paragraph (a) or
\n(b) of this Section, each Lender severally agrees to pay to the Administrative
\nAgent or the Swingline Lender, as the case may be, such Lender153s Applicable
\nPercentage (determined as of the time that the applicable unreimbursed expense
\nor indemnity payment is sought) of such unpaid amount; provided that the
\nunreimbursed expense or indemnified loss, claim, damage, liability or related
\nexpense, as the case may be, was incurred by or asserted against the
\nAdministrative Agent or the Swingline Lender in its capacity as such. (d) To the
\nextent permitted by applicable law, the Borrower shall not assert, and hereby
\nwaives, any claim against any Indemnitee, on any theory of liability, for
\nspecial, indirect, consequential or punitive damages (as opposed to direct or
\nactual damages) arising out of, in connection with, or as a result of, this
\nAgreement, any other Loan Document or any agreement or instrument contemplated
\nhereby, the Transactions or any Loan or the use of the proceeds thereof. No
\nIndemnitee shall be liable for any damages arising from the use by unintended
\nrecipients of any information or other materials distributed to such unintended
\nrecipients by such Indemnitee through telecommunications, electronic or other
\ninformation transmission systems in connection with this Agreement or the other
\nLoan Documents or the transactions contemplated hereby or thereby other than for
\ndirect or actual damages resulting from the gross negligence or willful
\nmisconduct of such Indemnitee as determined by a final and nonappealable
\njudgment of a court of competent jurisdiction. (e) All amounts due under this
\nSection shall be payable promptly after written demand therefore. Section 9.4
\nSuccessors and Assigns. (a) The provisions of this Agreement shall be binding
\nupon and inure to the benefit of the parties hereto and their respective
\nsuccessors and assigns permitted hereby, except that (i) the Borrower may not
\nassign or otherwise transfer any of its rights or obligations hereunder without
\nthe prior written consent of each Lender (and any attempted assignment or
\ntransfer by the Borrower without such consent shall be null and void) and (ii)
\nno Lender may assign or<\/p>\n

55<\/p>\n

\n

otherwise transfer its rights or obligations hereunder except in accordance
\nwith this Section. Nothing in this Agreement, expressed or implied, shall be
\nconstrued to confer upon any Person (other than the parties hereto, their
\nrespective successors and assigns permitted hereby, Participants (to the extent
\nprovided in paragraph (c) of this Section) and, to the extent expressly
\ncontemplated hereby, the Related Parties of each of the Administrative Agent and
\nthe Lenders) any legal or equitable right, remedy or claim under or by reason of
\nthis Agreement. (b) (i) Subject to the conditions set forth in paragraph (b)(ii)
\nbelow, any Lender may assign to one or more assignees all or a portion of its
\nrights and obligations under this Agreement (including all or a portion of its
\nCommitment and the Loans at the time owing to it) with the prior written consent
\n(such consent not to be unreasonably withheld) of: (A) the Borrower, provided
\nthat no consent of the Borrower shall be required for an assignment to a Lender,
\nan Affiliate of a Lender, an Approved Fund or, if an Event of Default has
\noccurred and is continuing, any other assignee; and (B) the Administrative
\nAgent, provided that no consent of the Administrative Agent shall be required
\nfor an assignment of any Commitment to an assignee that is a Lender with a
\nCommitment immediately prior to giving effect to such assignment. (ii)
\nAssignments shall be subject to the following additional conditions: (A) except
\nin the case of an assignment to a Lender or an Affiliate of a Lender or an
\nassignment of the entire remaining amount of the assigning Lender153s Commitment
\nor Loans of any Class, the amount of the Commitment or Loans of the assigning
\nLender subject to each such assignment (determined as of the date the Assignment
\nand Assumption with respect to such assignment is delivered to the
\nAdministrative Agent) shall not be less than $10,000,000 (or a greater amount
\nthat is an integral multiple of $1,000,000) unless each of the Borrower and the
\nAdministrative Agent otherwise consent, provided that no such consent of the
\nBorrower shall be required if an Event of Default has occurred and is
\ncontinuing; (B) each partial assignment shall be made as an assignment of a
\nproportionate part of all the assigning Lender153s rights and obligations under
\nthis Agreement, provided that this clause shall not be construed to prohibit the
\nassignment of a proportionate part of all the assigning Lender153s rights and
\nobligations in respect of one Class of Commitments or Loans; (C) the parties to
\neach assignment shall execute and deliver to the Administrative Agent an
\nAssignment and Assumption, together with a processing and recordation fee of
\n$3,500; (D) the assignee, if it shall not be a Lender, shall deliver to the
\nAdministrative Agent an Administrative Questionnaire in which the assignee
\ndesignates one or more Credit Contacts to whom all syndicate-level information
\n(which may contain material non-public information about the Borrower and its\n<\/p>\n

56<\/p>\n

\n

Related Parties or its securities) will be made available and who may receive
\nsuch information in accordance with the assignee153s compliance procedures and
\napplicable laws, including Federal and state securities laws; (E) No such
\nassignment shall be made to (i) any Loan Party nor any Affiliate of a Loan Party
\nor (ii) any Defaulting Lender or any of its subsidiaries, or any Person, who,
\nupon becoming a Lender hereunder, would constitute any of the foregoing Persons
\ndescribed in this clause (ii); and (F) In connection with any assignment of
\nrights and obligations of any Defaulting Lender hereunder, no such assignment
\nshall be effective unless and until, in addition to the other conditions thereto
\nset forth herein, the parties to the assignment shall make such additional
\npayments to the Administrative Agent in an aggregate amount sufficient, upon
\ndistribution thereof as appropriate (which may be outright payment, purchases by
\nthe assignee of participations or subparticipations, or other compensating
\nactions, including funding, with the consent of the Borrower and the
\nAdministrative Agent, the applicable pro rata share of Loans previously
\nrequested but not funded by the Defaulting Lender, to each of which the
\napplicable assignee and assignor hereby irrevocably consent), to (x) pay and
\nsatisfy in full all payment liabilities then owed by such Defaulting Lender to
\nthe Administrative Agent or any Lender hereunder (and interest accrued thereon),
\nand (y) acquire (and fund as appropriate) its full pro rata share of all Loans
\nand participations in Swingline Loans in accordance with its Applicable
\nPercentage. Notwithstanding the foregoing, in the event that any assignment of
\nrights and obligations of any Defaulting Lender hereunder shall become effective
\nunder applicable Law without compliance with the provisions of this paragraph,
\nthen the assignee of such interest shall be deemed to be a Defaulting Lender for
\nall purposes of this Agreement until such compliance occurs. For the purposes of
\nthis Section 9.4(b), the term “Approved Fund” has the following meaning:
\n“Approved Fund” means any Person (other than a natural person) that is engaged
\nin making, purchasing, holding or investing in bank loans and similar extensions
\nof credit in the ordinary course of its business and that is administered or
\nmanaged by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
\nAffiliate of an entity that administers or manages a Lender. (iii) Subject to
\nacceptance and recording thereof pursuant to paragraph (b)(iv) of this Section,
\nfrom and after the effective date specified in each Assignment and Assumption
\nthe assignee thereunder shall be a party hereto and, to the extent of the
\ninterest assigned by such Assignment and Assumption, have the rights and
\nobligations of a Lender under this Agreement, and the assigning Lender
\nthereunder shall, to the extent of the interest assigned by such Assignment and
\nAssumption, be released from its obligations under this Agreement (and, in the
\ncase of an Assignment and Assumption covering all of the assigning Lender153s
\nrights and obligations under this Agreement, such Lender shall cease to be a
\nparty hereto but shall continue to be entitled to the benefits of<\/p>\n

57<\/p>\n

\n

Section 2.15, Section 2.16, Section 2.17 and Section 9.3). Any assignment or
\ntransfer by a Lender of rights or obligations under this Agreement that does not
\ncomply with this Section 9.4 shall be treated for purposes of this Agreement as
\na sale by such Lender of a participation in such rights and obligations in
\naccordance with paragraph (c) of this Section. (iv) The Administrative Agent,
\nacting for this purpose as an agent of the Borrower, shall maintain at one of
\nits offices a copy of each Assignment and Assumption delivered to it and a
\nregister for the recordation of the names and addresses of the Lenders, and the
\nCommitment of, and principal amount of the Loans owing to, each Lender pursuant
\nto the terms hereof from time to time (the “Register”). The entries in the
\nRegister shall be conclusive, and the Borrower, the Administrative Agent and the
\nLenders may treat each Person whose name is recorded in the Register pursuant to
\nthe terms hereof as a Lender hereunder for all purposes of this Agreement,
\nnotwithstanding notice to the contrary. The Register shall be available for
\ninspection by the Borrower and any Lender, at any reasonable time and from time
\nto time upon reasonable prior notice. (v) Upon its receipt of a duly completed
\nAssignment and Assumption executed by an assigning Lender and an assignee, the
\nassignee153s completed Administrative Questionnaire (unless the assignee shall
\nalready be a Lender hereunder), the processing and recordation fee referred to
\nin paragraph (b) of this Section and any written consent to such assignment
\nrequired by paragraph (b) of this Section, the Administrative Agent shall accept
\nsuch Assignment and Assumption and record the information contained therein in
\nthe Register; provided that if either the assigning Lender or the assignee shall
\nhave failed to make any payment required to be made by it pursuant to Section
\n2.5(c), Section 2.6(d) or (e), Section 2.7(b), Section 2.18(d) or Section
\n9.3(c), the Administrative Agent shall have no obligation to accept such
\nAssignment and Assumption and record the information therein in the Register
\nunless and until such payment shall have been made in full, together with all
\naccrued interest thereon. No assignment shall be effective for purposes of this
\nAgreement unless it has been recorded in the Register as provided in this
\nparagraph. (c) (i) Any Lender may, without the consent of, or notice to, the
\nBorrower, the Administrative Agent or the Swingline Lender, sell participations
\nto one or more banks or other entities (a “Participant”) in all or a portion of
\nsuch Lender153s rights and obligations under this Agreement (including all or a
\nportion of its Commitment and the Loans owing to it); provided that (A) such
\nLender153s obligations under this Agreement shall remain unchanged, (B) such
\nLender shall remain solely responsible to the other parties hereto for the
\nperformance of such obligations and (C) the Borrower, the Administrative Agent
\nand the other Lenders shall continue to deal solely and directly with such
\nLender in connection with such Lender153s rights and obligations under this
\nAgreement. Any agreement or instrument pursuant to which a Lender sells such a
\nparticipation shall provide that such Lender shall retain the sole right to
\nenforce this Agreement and to approve any amendment, modification or waiver of
\nany provision of this Agreement; provided that such agreement or instrument may
\nprovide that such Lender will not, without the consent of the Participant, agree
\nto any amendment, modification or waiver described in the first proviso to
\nSection 9.2(b) that affects such Participant. Subject to paragraph (c)(ii) of
\nthis Section, the Borrower agrees that each Participant shall be entitled to the
\nbenefits of<\/p>\n

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\n

Section 2.15, Section 2.16 and Section 2.17 to the same extent as if it were
\na Lender and had acquired its interest by assignment pursuant to paragraph (b)
\nof this Section. To the extent permitted by law, each Participant also shall be
\nentitled to the benefits of Section 9.8 as though it were a Lender, provided
\nsuch Participant agrees to be subject to Section 2.18(c) as though it were a
\nLender. (ii) A Participant shall not be entitled to receive any greater payment
\nunder Section 2.15 or Section 2.17 than the applicable Lender would have been
\nentitled to receive with respect to the participation sold to such Participant,
\nunless the sale of the participation to such Participant is made with the
\nBorrower153s prior written consent. A Participant that would be a Foreign Lender
\nif it were a Lender shall not be entitled to the benefits of Section 2.17 unless
\nthe Borrower is notified of the participation sold to such Participant and such
\nParticipant agrees, for the benefit of the Borrower, to comply with Section
\n2.17(e) as though it were a Lender. (d) Any Lender may at any time pledge or
\nassign a security interest in all or any portion of its rights under this
\nAgreement to secure obligations of such Lender, including without limitation any
\npledge or assignment to secure obligations to a Federal Reserve Bank, and this
\nSection shall not apply to any such pledge or assignment of a security interest;
\nprovided that no such pledge or assignment of a security interest shall release
\na Lender from any of its obligations hereunder or substitute any such pledgee or
\nassignee for such Lender as a party hereto. Section 9.5 Survival. All covenants,
\nagreements, representations and warranties made by the Borrower herein and in
\nthe certificates or other instruments delivered in connection with or pursuant
\nto this Agreement shall be considered to have been relied upon by the other
\nparties hereto and shall survive the execution and delivery of this Agreement
\nand the making of any Loans, regardless of any investigation made by any such
\nother party or on its behalf and notwithstanding that the Administrative Agent
\nor any Lender may have had notice or knowledge of any Default or incorrect
\nrepresentation or warranty at the time any credit is extended hereunder, and
\nshall continue in full force and effect as long as the principal of or any
\naccrued interest on any Loan or any fee or any other amount payable under this
\nAgreement is outstanding and unpaid and so long as the Commitments have not
\nexpired or terminated. The provisions of Section 2.15, Section 2.16, Section
\n2.17 and Section 9.3 and Article VIII shall survive and remain in full force and
\neffect regardless of the consummation of the transactions contemplated hereby,
\nthe repayment of the Loans, the expiration or termination of the Commitments,
\nthe resignation of the Administrative Agent or the Swing Line Lender, the
\nreplacement of any Lender, or the termination of this Agreement or any provision
\nhereof. Section 9.6 Counterparts; Integration; Effectiveness. This Agreement may
\nbe executed in counterparts (and by different parties hereto on different
\ncounterparts), each of which shall constitute an original, but all of which when
\ntaken together shall constitute a single contract. This Agreement, the other
\nLoan Documents and any separate letter agreements with respect to fees payable
\nto the Administrative Agent constitute the entire contract among the parties
\nrelating to the subject matter hereof and supersede any and all previous
\nagreements and understandings, oral or written, relating to the subject matter
\nhereof. Except as provided in Section 4.1, this Agreement shall become effective
\nwhen it shall have been executed by the Administrative Agent and when the
\nAdministrative Agent shall have received counterparts<\/p>\n

59<\/p>\n

\n

hereof which, when taken together, bear the signatures of each of the other
\nparties hereto, and thereafter shall be binding upon and inure to the benefit of
\nthe parties hereto and their respective successors and assigns. Delivery of an
\nexecuted counterpart of a signature page of this Agreement by telecopy or other
\nelectronic imaging means shall be effective as delivery of a manually executed
\ncounterpart of this Agreement. Section 9.7 Severability. Any provision of this
\nAgreement held to be invalid, illegal or unenforceable in any jurisdiction
\nshall, as to such jurisdiction, be ineffective to the extent of such invalidity,
\nillegality or unenforceability without affecting the validity, legality and
\nenforceability of the remaining provisions hereof; and the invalidity of a
\nparticular provision in a particular jurisdiction shall not invalidate such
\nprovision in any other jurisdiction. Without limiting the foregoing provisions
\nof this Section 9.7, if and to the extent that the enforceability of any
\nprovisions in this Agreement relating to Defaulting Lenders shall be limited by
\nDebtor Relief Laws, as determined in good faith by the Administrative Agent or
\nthe Swingline Lender, as applicable, then such provisions shall be deemed to be
\nin effect only to the extent not so limited. Section 9.8 Right of Setoff. If an
\nEvent of Default shall have occurred and be continuing, each Lender and each of
\nits Affiliates is hereby authorized at any time and from time to time, to the
\nfullest extent permitted by law, to set off and apply any and all deposits
\n(general or special, time or demand, provisional or final) at any time held by,
\nand other obligations at any time owing by such Lender or Affiliate to or for
\nthe credit or the account of the Borrower against any of and all the obligations
\nof the Borrower now or hereafter existing under this Agreement held by such
\nLender, irrespective of whether or not such Lender shall have made any demand
\nunder this Agreement and although such obligations may be unmatured; provided
\nthat in the event that any Defaulting Lender shall exercise any such right of
\nsetoff, (x) all amounts so set off shall be paid over immediately to the
\nAdministrative Agent for further application in accordance with the provisions
\nof Section 2.22 and, pending such payment, shall be segregated by such
\nDefaulting Lender from its other funds and deemed held in trust for the benefit
\nof the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall
\nprovide promptly to the Administrative Agent a statement describing in
\nreasonable detail the obligations owing to such Defaulting Lender as to which it
\nexercised such right of setoff. The rights of each Lender under this Section are
\nin addition to other rights and remedies (including other rights of setoff)
\nwhich such Lender may have. Each Lender agrees to notify the Borrower and the
\nAdministrative Agent promptly after any such setoff and application, provided
\nthat the failure to give such notice shall not affect the validity of such
\nsetoff and application. Section 9.9 Governing Law; Jurisdiction; Consent to
\nService of Process. (a) This Agreement shall be construed in accordance with and
\ngoverned by the law of the State of New York. (b) The Borrower hereby
\nirrevocably and unconditionally submits, for itself and its property, to the
\nexclusive jurisdiction of the Supreme Court of the State of New York sitting in
\nNew York County and of the United States District Court of the Southern District
\nof New York, and any appellate court from any thereof, in any action or
\nproceeding arising out of or relating to this Agreement, or for recognition or
\nenforcement of any judgment, and each of the parties hereto hereby irrevocably
\nand unconditionally agrees that all claims in respect of any such action<\/p>\n

60<\/p>\n

\n

or proceeding may be heard and determined in such New York State or, to the
\nextent permitted by law, in such Federal court. Each of the parties hereto
\nagrees that a final judgment in any such action or proceeding shall be
\nconclusive and may be enforced in other jurisdictions by suit on the judgment or
\nin any other manner provided by law. Nothing in this Agreement shall affect any
\nright that the Administrative Agent or any Lender may otherwise have to bring
\nany action or proceeding relating to this Agreement against the Borrower or its
\nproperties in the courts of any jurisdiction. (c) The Borrower hereby
\nirrevocably and unconditionally waives, to the fullest extent it may legally and
\neffectively do so, any objection which it may now or hereafter have to the
\nlaying of venue of any suit, action or proceeding arising out of or relating to
\nthis Agreement in any court referred to in paragraph (b) of this Section. Each
\nof the parties hereto hereby irrevocably waives, to the fullest extent permitted
\nby law, the defense of an inconvenient forum to the maintenance of such action
\nor proceeding in any such court. (d) Each party to this Agreement irrevocably
\nconsents to service of process in the manner provided for notices in Section
\n9.1. Nothing in this Agreement will affect the right of any party to this
\nAgreement to serve process in any other manner permitted by law. Section 9.10
\nWAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
\nPERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
\nLEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
\nAGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
\nTORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
\nREPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
\nOR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
\nTO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
\nPARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
\nTHINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. Section 9.11
\nHeadings. Article and Section headings and the Table of Contents used herein are
\nfor convenience of reference only, are not part of this Agreement and shall not
\naffect the construction of, or be taken into consideration in interpreting, this
\nAgreement. Section 9.12 Confidentiality. (a) Each of the Administrative Agent
\nand the Lenders agrees to maintain the confidentiality of the Information (as
\ndefined below), except that Information may be disclosed (i) to its and its
\nAffiliates153 directors, officers, employees and agents, including accountants,
\nlegal counsel and other advisors, or to any credit insurance provider relating
\nto the Borrower and its obligations (it being understood that the Persons to
\nwhom such disclosure is made will be informed of the confidential nature of such
\nInformation and instructed to keep such Information confidential), (ii) to the
\nextent requested by any regulatory authority, (iii) to the extent required by
\napplicable laws or regulations or by any subpoena or similar legal process, (iv)
\nto any other party to this Agreement, (v) in connection with the exercise of any
\nremedies hereunder or any<\/p>\n

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\n

suit, action or proceeding relating to this Agreement or the enforcement of
\nrights hereunder, (vi) subject to an agreement containing provisions
\nsubstantially the same as those of this Section, to (A) any assignee of or
\nParticipant in, or any prospective assignee of or Participant in, any of its
\nrights or obligations under this Agreement or (B) any actual or prospective
\ncounterparty (or its advisors) to any swap or derivative transaction relating to
\nthe Borrower and its obligations, (vii) with the consent of the Borrower or
\n(viii) to the extent such Information (A) becomes publicly available other than
\nas a result of a breach of this Section or (B) becomes available to the
\nAdministrative Agent or any Lender on a nonconfidential basis from a source
\nother than the Borrower. For the purposes of this Section, “Information” means
\nall information received from the Borrower relating to the Borrower or its
\nbusiness, other than any such information that is available to the
\nAdministrative Agent or any Lender on a nonconfidential basis prior to
\ndisclosure by the Borrower; provided that, in the case of information received
\nfrom the Borrower after the date hereof, such information is clearly identified
\nat the time of delivery as confidential. Any Person required to maintain the
\nconfidentiality of Information as provided in this Section shall be considered
\nto have complied with its obligation to do so if such Person has exercised the
\nsame degree of care to maintain the confidentiality of such Information as such
\nPerson would accord to its own confidential information. (b) EACH LENDER
\nACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT
\nPURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION
\nCONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES,
\nAND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF
\nMATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC
\nINFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
\nFEDERAL AND STATE SECURITIES LAWS. (c) ALL INFORMATION, INCLUDING REQUESTS FOR
\nWAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT
\nPURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
\nSYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION
\nABOUT THE BORROWER AND ITS RELATED PARTIES OR ITS SECURITIES. ACCORDINGLY, EACH
\nLENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS
\nIDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE
\nINFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH
\nITS COMPLIANCE PROCEDURES AND APPLICABLE LAW. Section 9.13 Interest Rate
\nLimitation. Notwithstanding anything herein to the contrary, if at any time the
\ninterest rate applicable to any Loan, together with all fees, charges and other
\namounts which are treated as interest on such Loan under applicable law
\n(collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum
\nRate”) which may be contracted for, charged, taken, received or reserved by the
\nLender holding such Loan in accordance with applicable law, the rate of interest
\npayable in respect of such Loan hereunder, together with all Charges payable in
\nrespect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
\nthe interest and Charges that would have been payable in respect of such<\/p>\n

62<\/p>\n

\n

Loan but were not payable as a result of the operation of this Section shall
\nbe cumulated and the interest and Charges payable to such Lender in respect of
\nother Loans or periods shall be increased (but not above the Maximum Rate
\ntherefore) until such cumulated amount, together with interest thereon at the
\nFederal Funds Effective Rate to the date of repayment, shall have been received
\nby such Lender. Section 9.14 No Advisory or Fiduciary Responsibility. In
\nconnection with all aspects of each Transaction contemplated hereby (including
\nin connection with any amendment, waiver or other modification hereof or of any
\nother Loan Document), the Borrower acknowledges and agrees, and acknowledges its
\nAffiliates153 understanding, that: (i) (A) the arranging and other services
\nregarding this Agreement provided by the Administrative Agent and the Arrangers
\nare arm153s-length commercial transactions between the Borrower and its
\nAffiliates, on the one hand, and the Administrative Agent and the Arrangers, on
\nthe other hand, (B) the Borrower has consulted its own legal, accounting,
\nregulatory and tax advisors to the extent it has deemed appropriate, and (C) the
\nBorrower is capable of evaluating, and understands and accepts, the terms, risks
\nand conditions of the Transactions contemplated hereby and by the other Loan
\nDocuments; (ii) (A) each of the Administrative Agent and the Arrangers is and
\nhas been acting solely as a principal and, except as expressly agreed in writing
\nby the relevant parties, has not been, is not, and will not be acting as an
\nadvisor, agent or fiduciary for the Borrower or any of its Affiliates, or any
\nother Person and (B) neither the Administrative Agent nor any Arranger has any
\nobligation to the Borrower or any of its Affiliates with respect to the
\nTransactions contemplated hereby except those obligations expressly set forth
\nherein and in the other Loan Documents; and (iii) the Administrative Agent and
\nthe Arrangers and their respective Affiliates may be engaged in a broad range of
\ntransactions that involve interests that differ from those of the Borrower and
\nits Affiliates, and neither the Administrative Agent nor any Arranger has any
\nobligation to disclose any of such interests to the Borrower or its Affiliates.
\nTo the fullest extent permitted by law, the Borrower hereby waives and releases
\nany claims that it may have against the Administrative Agent and the Arrangers
\nwith respect to any breach or alleged breach of agency or fiduciary duty in
\nconnection with any aspect of any transaction contemplated hereby. Section 9.15
\nElectronic Execution of Assignments and Certain Other Documents. The words
\n“execution,” “signed,” “signature,” and words of like import in any Assignment
\nand Assumption or in any amendment or other modification hereof (including
\nwaivers and consents) shall be deemed to include electronic signatures or the
\nkeeping of records in electronic form, each of which shall be of the same legal
\neffect, validity or enforceability as a manually executed signature or the use
\nof a paper-based recordkeeping system, as the case may be, to the extent and as
\nprovided for in any applicable law, including the Federal Electronic Signatures
\nin Global and National Commerce Act, the New York State Electronic Signatures
\nand Records Act, or any other similar state laws based on the Uniform Electronic
\nTransactions Act. Section 9.16 USA PATRIOT Act. Each Lender that is subject to
\nthe requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
\ninto law October 26, 2001)) (the “Act”) hereby notifies the Borrower that
\npursuant to the requirements of the Act, it is required to obtain, verify and
\nrecord information that identifies the Borrower, which information includes the
\nname and address of the Borrower and other information that will allow such
\nLender to identify the Borrower in accordance with the Act.<\/p>\n

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