CREDIT AGREEMENT dated as of July 12, 2006 among SYMANTEC CORPORATION The Lenders Party Hereto and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION as Administrative Agent and CITICORP USA, INC. as Syndication Agent and BANK OF AMERICA, N.A., MORGAN STANLEY...
EXHIBIT 10.01
EXECUTION VERSION
dated as of
July 12, 2006
among
SYMANTEC CORPORATION
The Lenders Party Hereto
and
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION
as Administrative Agent
NATIONAL ASSOCIATION
as Administrative Agent
and
CITICORP USA, INC.
as Syndication Agent
as Syndication Agent
and
BANK OF AMERICA, N.A.,
XXXXXX XXXXXXX BANK and
UBS LOAN FINANCE LLC
as Co-Documentation Agents
XXXXXX XXXXXXX BANK and
UBS LOAN FINANCE LLC
as Co-Documentation Agents
X.X. XXXXXX SECURITIES INC.,
and
CITIGROUP GLOBAL MARKETS INC.
as Joint Bookrunners and Joint Lead Arrangers
and
CITIGROUP GLOBAL MARKETS INC.
as Joint Bookrunners and Joint Lead Arrangers
TABLE OF CONTENTS
| Page | ||||||||
| ARTICLE I DEFINITIONS | 1 | |||||||
| SECTION 1.01 | Defined Terms | 1 | ||||||
| SECTION 1.02 | Classification of Loans and Borrowings | 15 | ||||||
| SECTION 1.03 | Terms Generally | 15 | ||||||
| SECTION 1.04 | Accounting Terms; GAAP | 15 | ||||||
| ARTICLE II THE CREDITS | 16 | |||||||
| SECTION 2.01 | Commitments | 16 | ||||||
| SECTION 2.02 | Loans and Borrowings | 16 | ||||||
| SECTION 2.03 | Requests for Revolving Borrowings | 17 | ||||||
| SECTION 2.04 | [Reserved] | 17 | ||||||
| SECTION 2.05 | Swingline Loans | 17 | ||||||
| SECTION 2.06 | [Reserved] | 18 | ||||||
| SECTION 2.07 | Funding of Borrowings | 18 | ||||||
| SECTION 2.08 | Interest Elections | 19 | ||||||
| SECTION 2.09 | Termination and Reduction of Commitments | 20 | ||||||
| SECTION 2.10 | Repayment of Loans; Evidence of Debt | 21 | ||||||
| SECTION 2.11 | Prepayment of Loans | 21 | ||||||
| SECTION 2.12 | Fees | 22 | ||||||
| SECTION 2.13 | Interest | 23 | ||||||
| SECTION 2.14 | Alternate Rate of Interest | 23 | ||||||
| SECTION 2.15 | Increased Costs | 24 | ||||||
| SECTION 2.16 | Break Funding Payments | 25 | ||||||
| SECTION 2.17 | Taxes | 25 | ||||||
| SECTION 2.18 | Payments Generally; Pro Rata Treatment; Sharing of Set-offs | 27 | ||||||
| SECTION 2.19 | Mitigation Obligations; Replacement of Lenders | 28 | ||||||
| SECTION 2.20 | Increase in the Aggregate Commitments | 29 | ||||||
| SECTION 2.21 | Extension of Maturity Date | 30 | ||||||
| ARTICLE III REPRESENTATIONS AND WARRANTIES | 33 | |||||||
| SECTION 3.01 | Organization; Powers | 33 | ||||||
| SECTION 3.02 | Authorization; Enforceability | 33 | ||||||
| SECTION 3.03 | Governmental Approvals; No Conflicts | 33 | ||||||
| SECTION 3.04 | Financial Condition; No Material Adverse Change | 33 | ||||||
| SECTION 3.05 | Properties | 34 | ||||||
| SECTION 3.06 | Litigation and Environmental Matters | 34 | ||||||
| SECTION 3.07 | Compliance with Laws and Agreements | 34 | ||||||
| SECTION 3.08 | Investment and Holding Company Status | 34 | ||||||
| SECTION 3.09 | Taxes | 34 | ||||||
| SECTION 3.10 | ERISA | 35 | ||||||
| SECTION 3.11 | Disclosure | 35 | ||||||
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| Page | ||||||||
| ARTICLE IV CONDITIONS | 35 | |||||||
| SECTION 4.01 | Effective Date | 35 | ||||||
| SECTION 4.02 | Each Credit Event | 36 | ||||||
| ARTICLE V AFFIRMATIVE COVENANTS | 36 | |||||||
| SECTION 5.01 | Financial Statements; Ratings Change and Other Information | 36 | ||||||
| SECTION 5.02 | Notices of Material Events | 38 | ||||||
| SECTION 5.03 | Existence; Conduct of Business | 38 | ||||||
| SECTION 5.04 | Payment of Obligations | 38 | ||||||
| SECTION 5.05 | Maintenance of Properties; Insurance | 38 | ||||||
| SECTION 5.06 | Books and Records; Inspection Rights | 38 | ||||||
| SECTION 5.07 | Compliance with Laws | 39 | ||||||
| SECTION 5.08 | Use of Proceeds | 39 | ||||||
| SECTION 5.09 | Consolidated Leverage Ratio | 39 | ||||||
| ARTICLE VI NEGATIVE COVENANTS | 39 | |||||||
| SECTION 6.01 | Liens | 40 | ||||||
| SECTION 6.02 | Fundamental Changes | 40 | ||||||
| SECTION 6.03 | Subsidiary Indebtedness | 41 | ||||||
| ARTICLE VII EVENTS OF DEFAULT | 41 | |||||||
| ARTICLE VIII THE ADMINISTRATIVE AGENT | 43 | |||||||
| ARTICLE IX MISCELLANEOUS | 45 | |||||||
| SECTION 9.01 | Notices | 45 | ||||||
| SECTION 9.02 | Waivers; Amendments | 46 | ||||||
| SECTION 9.03 | Expenses; Indemnity; Damage Waiver | 47 | ||||||
| SECTION 9.04 | Successors and Assigns | 48 | ||||||
| SECTION 9.05 | Survival | 51 | ||||||
| SECTION 9.06 | Counterparts; Integration; Effectiveness | 51 | ||||||
| SECTION 9.07 | Severability | 52 | ||||||
| SECTION 9.08 | Right of Setoff | 52 | ||||||
| SECTION 9.09 | Governing Law; Jurisdiction; Consent to Service of Process | 52 | ||||||
| SECTION 9.10 | WAIVER OF JURY TRIAL | 53 | ||||||
| SECTION 9.11 | Headings | 53 | ||||||
| SECTION 9.12 | Confidentiality | 53 | ||||||
| SECTION 9.13 | Interest Rate Limitation | 54 | ||||||
| SECTION 9.14 | USA PATRIOT Act | 54 | ||||||
ii
SCHEDULES:
Schedule 1.01 — Subsidiaries Excluded from Material Subsidiaries
Schedule 2.01 — Commitments
Schedule 3.06 — Disclosed Matters
Schedule 6.01 — Liens
Schedule 6.03 – Subsidiary Indebtedness
EXHIBITS:
Exhibit A — Form of Assignment and Assumption
Exhibit B — Form of Revolving Note
Exhibit C — Form of Opinion of Borrower’s Counsel
Exhibit D — Form of Guaranty
iii
CREDIT AGREEMENT dated as of July 12, 2006, among SYMANTEC
CORPORATION as Borrower, the LENDERS party hereto, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.
“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve
Rate.
“Administrative Agent” means JPMorgan Chase Bank, in its capacity as administrative
agent for the Lenders hereunder.
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day plus
1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change
in the Alternate Base Rate due to a change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of
such change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
“Anniversary Date” means July 12, 2007 and July 12 in each succeeding calendar year
occurring during the term of this Agreement.
“Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most
recently in effect, giving effect to any assignments.
1
“Applicable Rate” means, for any day, with respect to any Eurodollar Revolving Loan,
or with respect to the facility fees or utilization fees payable hereunder, as the case may
be, the applicable rate per annum set forth across from the caption “Applicable Margin”,
“Facility Fee ” or “Utilization Fee” in the table below, as the case may be, based upon the
Consolidated Leverage Ratio, as more fully described below.
| Xxxxx 0 | Xxxxx 0 | Xxxxx 0 | Xxxxx 0 | Xxxxx 5 | ||||||||||||||||
| Less than or | Less than or | Less than or | ||||||||||||||||||
| equal to | equal to | equal to | ||||||||||||||||||
| Consolidated | Less than or | 1.00:1.00 but | 1.75:1.00 but | 2.25:1.00 but | Greater | |||||||||||||||
| Leverage | equal to | greater than | greater than | greater than | than | |||||||||||||||
| Ratio | 0.50:1.00 | 0.50:1.00 | 1.00:1.00 | 1.75:1.00 | 2.25:1.00 | |||||||||||||||
Facility Fee |
0.060 | % | 0.070 | % | 0.080 | % | 0.100 | % | 0.150 | % | ||||||||||
Applicable
Margin |
0.190 | % | 0.230 | % | 0.270 | % | 0.350 | % | 0.500 | % | ||||||||||
Utilization
Fee |
0.050 | % | 0.050 | % | 0.100 | % | 0.100 | % | 0.100 | % | ||||||||||
The Consolidated Leverage Ratio shall be determined on the basis of the most recent
certificate of the Borrower to be delivered pursuant to Section 5.01(a) or (b), as the case
may be, for the most recently ended fiscal quarter or fiscal year of the Borrower, as
applicable, and any change in the Consolidated Leverage Ratio shall be effective one
Business Day after the date on which the Administrative Agent receives such certificate,
provided, that until the Borrower has delivered to the Administrative Agent such
certificate pursuant to Section 5.01(b) in respect of the first fiscal quarter of fiscal
2007, the Consolidated Leverage Ratio shall be deemed to be at Level 3; provided, further,
that for so long as the Borrower has not delivered such certificate when due pursuant to
Section 5.01(a) or (b), as the case may be, the Consolidated Leverage Ratio shall be deemed
to be at Level 4 until the respective certificate is delivered to the Administrative Agent.
“Approved Fund” has the meaning assigned to such term in Section 9.04.
“Assessment Rate” means, for any day, the annual assessment rate in effect on such day
that is payable by a member of the Bank Insurance Fund classified as “well capitalized” and
within supervisory subgroup “B” (or a comparable successor risk classification) within the
meaning of 12 C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance
Corporation for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of any change in
any law, rule or regulation, it is no longer possible to determine the Assessment Rate as
aforesaid, then the Assessment Rate shall be such annual rate as shall be determined by the
Administrative Agent to be representative of the cost of such insurance to the Lenders.
“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by
2
Section
9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.
“Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.
“Base CD Rate” means the sum of (a) the Three Month Secondary CD Rate multiplied by
the Statutory Reserve Rate plus (b) the Assessment Rate.
“Board” means the Board of Governors of the Federal Reserve System of the United
States of America.
“Borrower” means Symantec Corporation, a Delaware corporation.
“Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period
is in effect or (b) a Swingline Loan.
“Borrowing Request” means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.03.
“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount thereof determined
in accordance with GAAP.
“Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as
in effect on the date hereof), of Equity Interests representing more than 35% of the
aggregate ordinary voting power represented by the issued and outstanding Equity Interests
of the Borrower; (b) occupation of a majority of the seats (other than vacant seats) on the
board of directors of the Borrower by Persons who were neither (i) nominated by the board
of directors of the Borrower nor (ii) appointed by directors so nominated; or (c) the
acquisition of direct or indirect Control of the Borrower by any Person or group.
“Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the
3
interpretation
or application thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof after the date of this Agreement or (c) compliance
by any Lender (or, for purposes of Section 2.15(b), by any lending office of such Lender or
by such Lender’s holding company, if any) with any request, guideline or directive (whether
or not having the force of law) of any Governmental Authority made or issued after the date
of this Agreement.
“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Swingline Loans hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.09
and (b) reduced or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender’s Commitment is set forth on
Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Commitment, as applicable. The initial aggregate amount of the Lenders’
Commitments is $1,000,000,000.
“Commitment Increase” has the meaning set forth in Section 2.20(a) hereof.
“Consolidated EBITDA” means, with respect to any Person for any period, an amount
equal to (a) Consolidated Net Income (before discontinued operations) of such Person for
such period plus (b) the sum of, in each case to the extent included in the calculation of
such Consolidated Net Income of such Person for such period in accordance with GAAP, but
without duplication, (i) any provision for income taxes, (ii) Consolidated Interest
Expense, (iii) depreciation, depletion, and amortization of intangibles or financing or
acquisition costs, (iv) all non-cash charges and non-cash losses for such period
(including, but not limited to, stock option expense and restructuring and impairment
charges) and (v)(A) for the fiscal quarter ending September 30, 2005, $136,300,000, (B) for
the fiscal quarter ending December 30, 2005, $104,200,000, and (C) for the fiscal quarter
ending March 31, 2006, $61,300,000, (such amounts being the amounts of deferred revenue
written off as part of accounting adjustments in connection with the Borrower’s acquisition
of VERITAS Software Corporation and its subsidiaries) minus (c) the sum of, in each case to
the extent included in the calculation of Consolidated Net Income of such Person for such
period in accordance with GAAP, but without duplication, (i) any credit for income tax,
(ii) any amounts of interest income, (iii) gains from extraordinary items for such period,
(iv) any aggregate net gain from the sale, exchange or other disposition of capital assets
by such Person, (v) cash payments for previously reserved charges and (vi) any other
non-cash gains which have been added in determining Consolidated Net Income.
4
“Consolidated Funded Debt” of any person means (a) all obligations of such person that
would be classified as indebtedness in accordance with GAAP, (b) obligations of such person
with respect to letters of credit, whether drawn or undrawn, contingent or otherwise and
(c) all guarantees or other contingent obligations of such person with respect to any
indebtedness of others, determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, for any period, total cash interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and its
Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower
and its Subsidiaries (including all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers’ acceptance financing and net costs under
Swap Agreements in respect of interest rates to the extent such net costs are allocable to
such period in accordance with GAAP).
“Consolidated Leverage Ratio” means, as of the last day of any period, the ratio of
(a) Consolidated Funded Debt on such day to (b) Consolidated EBITDA for such period.
“Consolidated Net Income” means, for any period, the consolidated net income (or loss)
of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person
accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of
any Person (other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such income is
actually received by the Borrower or such Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any contractual obligation (other
than under any Loan Document) or requirement of law applicable to such Subsidiary.
“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto.
“Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of
Default.
“Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.
“dollars” or “$” refers to lawful money of the United States of America.
5
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.
“Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, release or threatened
release of any Hazardous Material or to health and safety matters.
“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or
based upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials
into the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights entitling the
holder thereof to purchase or acquire any such equity interest.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the
30 day notice period is waived); (b) the existence with respect to any Plan of an
“accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the
receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability with respect to the withdrawal or partial withdrawal
6
from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate
of any notice, concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA.
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.
“Event of Default” has the meaning assigned to such term in Article VII.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction under the laws of which
such recipient is organized or in which its principal office is located or, in the case of
any Lender, in which its applicable lending office is located, (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section 2.19(b)), any
United States withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or designates a new lending
office) or is attributable to such Foreign Lender’s failure to comply with Section 2.17(e),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to Section 2.17(a).
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for
such transactions received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
“Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.
7
“GAAP” means generally accepted accounting principles in the United States of America.
“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for
the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support such Indebtedness
or obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business, or customary indemnification
obligations entered into in connection with any acquisition or disposition of assets or of
other entities (other than to the extent that the primary obligations that are the subject
of such Guarantee would be considered Indebtedness hereunder).
“Guarantor” means any Material Subsidiary of the Borrower that has delivered the
Guaranty pursuant to Section 4.01(e) or a Guaranty Supplement pursuant to Section 5.10
hereof.
“Guaranty” has the meaning set forth in Section 4.01(e) hereof.
“Guaranty Supplement” has the meaning set forth in the Guaranty.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
“Indebtedness” of any Person at any date means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than current trade payables incurred
in the ordinary course of such Person’s business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
8
indebtedness
created or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account party or applicant under
or in respect of acceptances, letters of credit, surety bonds or similar arrangements, (g)
the liquidation value of all redeemable preferred capital stock of such Person, (h) all
Guarantees of such Person in respect of obligations of the kind referred to in clauses (a)
through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h)
above secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation, and (j) for the purposes of Section 7(h) only,
the net obligations of such Person in respect of all Swap Agreements entered into with a
particular counterparty. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person’s ownership interest
in or other relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Information Memorandum” means the Confidential Information Memorandum dated June,
2006 relating to the Borrower and the Transactions.
“Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.08.
“Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which
such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of
more than three months’ duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months’ duration after the first day of such Interest
Period, and (c) with respect to any Swingline Loan, the day that such Loan is required to
be repaid.
“Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months (or, with the consent of each
Lender, a shorter period, or nine or twelve months) thereafter, as the Borrower may elect;
provided, that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless, in the
case of a Eurodollar Borrowing only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next preceding
Business Day and (ii) any Interest Period pertaining to a Eurodollar Borrowing that
commences on the last Business Day of a calendar month (or on a day for which
9
there is no
numerically corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing, thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless
the context otherwise requires, the term “Lenders” includes the Swingline Lender.
“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Dow Xxxxx Market Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such Service,
providing rate quotations comparable to those currently provided on such page of such
Service, as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the London
interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not available at such
time for any reason, then the “LIBO Rate” with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset,
(b) the interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party with respect to
such securities.
“Loan Documents” means this Agreement, the Notes (if any) and the Guaranty and any
supplements to the Guaranty delivered pursuant to Section 5.10 hereof.
“Loan Parties” means the Borrower and the Guarantors.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.
“Material Adverse Effect” means a material adverse effect on (a) the business,
financial condition or operations of the Borrower and the Subsidiaries taken as a whole,
(b) the ability of the Borrower to perform any of its obligations under this Agreement or
10
any of the other Loan Documents or (c) the rights of or benefits available to the Lenders
under this Agreement and the other Loan Documents.
“Material Indebtedness” means Indebtedness (other than the Loans), or obligations in
respect of one or more Swap Agreements, of any one or more of the Borrower and its
Subsidiaries in a principal amount exceeding $50,000,000. For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of the Borrower or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would
be required to pay if such Swap Agreement were terminated at such time.
“Material Subsidiary” means, at any date of determination, a Domestic Subsidiary of
the Borrower (other than as set forth on Schedule 1.01) that, either individually or
together with its Subsidiaries, taken as a whole, has total assets exceeding $50,000,000 as
of the most recent available quarterly or year-end financial statements; provided however
that a Domestic Subsidiary shall not be a Material Subsidiary if the provision of a
Guaranty by it would give rise to or increase the amount includable in income of the
Company pursuant to Section 956 of the Code.
“Maturity Date” means July 11, 2011.
“Measurement Period” means, at any date of determination, the most recently completed
four consecutive fiscal quarters of the Borrower on or immediately prior to such date.
“Minority Interests” means any shares of stock of any class of a Subsidiary (other
than directors’ qualifying shares as required by law) that are not owned by the Borrower
and/or one or more of its Subsidiaries.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement and the other Loan Documents. Other Taxes shall not include any Excluded
Taxes.
“Participant” has the meaning set forth in Section 9.04.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
“Permitted Encumbrances” means:
(a) Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.04;
11
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, landlord’s, repairmen’s and
other like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being contested in compliance
with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or
regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (k) of Article VII or securing appeal or other surety bonds relating to such
judgments;
(f) Liens arising under repurchase agreements, reverse repurchase agreements,
securities lending and borrowing agreements and similar transactions;
(g) Liens arising from precautionary filings in respect of operating leases;
(h) Liens arising from leases, licenses, subleases or sublicenses which do not (A)
interfere in any material respect with the business of the Borrower or any Subsidiary or
(B) secure any Indebtedness;
(i) Liens on cash collateral or government securities to secure obligations under Swap
Agreements and letters of credit, provided, that the aggregate value of such collateral so
pledged by the Borrower and its Subsidiaries does not at any time exceed $25 million in the
aggregate;
(j) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
(k) Liens securing obligations (other than obligations representing Indebtedness for
borrowed money) under operating or similar agreements entered into in the ordinary course
of business;
(l) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from the value of the affected
property or interfere with the ordinary conduct of business of the Borrower or any
Subsidiary;
provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.
12
“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan
were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.
“Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank as its prime rate in effect at its office located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
“Register” has the meaning set forth in Section 9.04.
“Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such
Person and such Person’s Affiliates.
“Required Lenders” means, at any time, Lenders having at least 51% of the aggregate
amount of the Commitments or, if the Commitments shall have been terminated, holding at
least 51% of the aggregate unpaid principal amount of the total Revolving Credit Exposures
at such time.
“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its Swingline
Exposure at such time.
“Revolving Loan” means a Loan made pursuant to Section 2.03.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate
of the maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate, for new negotiable
nonpersonal time deposits in dollars of over $100,000 with maturities approximately equal
to three months and (b) with respect to the Adjusted LIBO Rate, for Eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar
Loans shall be deemed to constitute Eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
13
“subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the
accounts of which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the parent and
one or more subsidiaries of the parent and which is required by GAAP to be consolidated in
the consolidated financial statements of the parent.
“Subsidiary” means any subsidiary of the Borrower.
“Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial or pricing
risk or value or any similar transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of the Borrower
or the Subsidiaries shall be a Swap Agreement.
“Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time
shall be its Applicable Percentage of the total Swingline Exposure at such time.
“Swingline Lender” means JPMorgan Chase Bank, in its capacity as lender of Swingline
Loans hereunder.
“Swingline Loan” means a Loan made pursuant to Section 2.05.
“Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
“Three Month Secondary CD Rate” means, for any day, the secondary market rate for three month
certificates of deposit reported as being in effect on such day (or, if such day is not a Business
Day, the next preceding Business Day) by the Board through the public information telephone line of
the Federal Reserve Bank of New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week following such day) or,
if such rate is not so reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three month certificates of deposit of major money center banks in
New York City received at approximately 10:00 a.m., New York City time, on such day (or, if such
day is not a Business Day, on the next preceding Business Day) by the
14
Administrative Agent from three negotiable certificate of deposit dealers of recognized
standing selected by it.
“Transactions” means the execution, delivery and performance by the Borrower of this
Agreement and the other Loan Documents, the borrowing of Loans and the use of the proceeds
thereof.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference
to the Adjusted LIBO Rate, the Alternate Base Rate.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.
15
regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance herewith.
ARTICLE II
(b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of ABR
Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan
shall be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $10,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be
in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the total Commitments. Each Swingline Loan shall be in an amount that is an
integral multiple of $500,000 and not less than $1,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of five Eurodollar Revolving
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.
16
SECTION 2.03 Requests for Revolving Borrowings. To request a Revolving Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 12:00 noon, New York City time, three Business Days before the
date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon,
New York City time, one Business Day before the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and
(v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.07.
If no election as to the Type of Revolving Borrowing is specified, then the requested
Revolving Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to
any requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
SECTION 2.04 [Reserved].
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 1:00 p.m. New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and
17
shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means
of a credit to the general deposit account of the Borrower with the Swingline Lender by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such
Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph
is absolute and unconditional and shall not be affected by any circumstance whatsoever, including
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.07 with respect to Loans
made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts
so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments
in respect of such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of
the proceeds of a sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if
and to the extent such payment is required to be refunded to the Borrower for any reason. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the
Borrower of any default in the payment thereof.
SECTION 2.06 [Reserved].
18
an account of the Borrower maintained
with the Administrative Agent in New York City and designated by the Borrower in the applicable
Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the
Type resulting from such election to be made on the effective date of such election. Each
such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
19
(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing (i) no outstanding Revolving Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Revolving Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.
(b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an integral
multiple of $1,000,000 and not less than $10,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of
the Loans in accordance with Section 2.11, the sum of the Revolving Credit Exposures would exceed
the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction
20
of
the Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the obligations recorded
therein (absent manifest error); provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns in substantially the form of Exhibit B attached hereto. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
(b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing,
21
not later than 12:00
noon, New York City time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time, one
Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan,
not later than 2:00 p.m., New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by Section 2.09, then such
notice of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.09. Promptly following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of
any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of
a Revolving Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Revolving
Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.13 and any costs
incurred as contemplated by Section 2.16.
(b) For each day on which the outstanding Loans exceed 50% of the Commitments, the Borrower
agrees to pay to the Administrative Agent for the account of each Lender, a utilization fee equal
to the quotient obtained by dividing (A) the product of (1) the aggregate outstanding Loans on such
day and (2) the relevant percentage set forth across from the heading “Utilization Fee” in the
definition of “Applicable Rate” by (B) 360. This Utilization Fee shall be paid quarterly in
arrears on the first Business Day of each January, April, July and October of each year, and on the
Maturity Date.
(c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.
22
(d) All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, in the case of facility fees and participation
fees, to the Lenders. Fees paid shall not be refundable under any circumstances.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest in the case of a
Eurodollar Revolving Loan, at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the relevant percentage set forth across from the heading “Applicable Rate”.
(c) Notwithstanding the foregoing, at all times when a Default has occurred hereunder and is
continuing, all amounts outstanding hereunder shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Commitments; provided
that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any Eurodollar Revolving Loan prior to the end of the current
Interest Period therefore, accrued interest on such Loan shall be payable on the effective date of
such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.
(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in
such Borrowing for such Interest Period;
23
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective, and
(ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be
made as an ABR Borrowing if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then the Borrower will pay
to such Lender such additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s capital or on the capital of
such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such
Lender to a level below that which such Lender or such Lender’s holding company could have achieved
but for such Change in Law (taking into consideration such Lender’s policies and the policies of
such Lender’s holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender
or such Lender’s holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary to compensate
such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs or
24
reductions and of
such Lender’s intention to claim compensation therefore; provided further that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect thereof.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand therefore, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower hereunder (including
25
Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States of America is a party;
(ii) duly completed copies of Internal Revenue Service Form W-ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.
In addition, each Lender shall deliver such other documentation prescribed by applicable law
as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements.
(f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.17, it
shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.17 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses
26
of the Administrative Agent or
such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower or any other Person.
(b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall
be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in Swingline Loans and
accrued interest thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Revolving Loans and
participations in and Swingline Loans; provided that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered, such participations shall
be rescinded and the purchase price restored to the extent of such recovery,
27
without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in any of
its Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower
rights of set-off and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount
so distributed to such Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at
the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are fully paid.
(b) If any Lender requests compensation under Section 2.15, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, or if any Lender defaults in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its
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interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received
the prior written consent of the Administrative Agent, which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in Swingline Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result
in a reduction in such compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.20 Increase in the Aggregate Commitments
. (a) The Borrower may, not more than once in any year, by notice to the Administrative
Agent, request that the aggregate amount of the Commitments be increased by a minimum amount equal
to $100,000,000 or an integral multiple of $100,000,000 in excess thereof (each a “Commitment
Increase”), to be effective as of a date that is at least 90 days prior to the scheduled Maturity
Date then in effect (the “Increase Date”) as specified in the related notice to the Administrative
Agent; provided, however, that no Event of Default, or event that with the giving of notice or
passage of time or both would constitute an Event of Default, shall have occurred and be continuing
as of the date of such request or as of the applicable Increase Date, or shall occur as a result
thereof and, provided, further, that at no time shall the total aggregate Commitments hereunder
exceed $1,500,000,000.
(b) The Administrative Agent shall promptly notify the Lenders of a request by the Borrower
for a Commitment Increase, which notice shall include (i) the proposed amount of such requested
Commitment Increase, (ii) the proposed Increase Date and (iii) the date by which Lenders wishing to
participate in the Commitment Increase must commit to an increase in the amount of their respective
Commitments (the “Commitment Date”). Each Lender that is willing to participate in such requested
Commitment Increase (each an “Increasing Lender”) shall give written notice to the Administrative
Agent on or prior to the Commitment Date of the amount by which it is willing to increase its
Commitment. If the Lenders notify the Administrative Agent that they are willing to increase the
amount of their respective Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be allocated among the
Lenders willing to participate therein in such amounts as are agreed between the Borrower and the
Administrative Agent. The failure of any Lender to respond shall be deemed to be a refusal of such
Lender to increase its Commitment.
(c) Promptly following each Commitment Date, the Administrative Agent shall notify the
Borrower as to the amount, if any, by which the Lenders are willing to participate in the requested
Commitment Increase. If the aggregate amount by which the Lenders are willing to participate in
any requested Commitment Increase on any such Commitment Date is less than the requested Commitment
Increase, then the Borrower may extend offers to one or
29
more Eligible Assignees to participate in
any portion of the requested Commitment Increase that has not been committed to by the Lenders as
of the applicable Commitment Date; provided, however, that the Commitment of each such Eligible
Assignee shall be in an amount of $25,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(d) On each Increase Date, each Eligible Assignee that accepts an offer to participate in a
requested Commitment Increase in accordance with Section 2.20(c) (each such Eligible Assignee and
each Eligible Assignee that agrees to an extension of the Maturity Date in accordance with Section
2.21(c), an “Assuming Lender”) shall become a Lender party to this Agreement as of such Increase
Date and the Commitment of each Increasing Lender for such requested Commitment Increase shall be
so increased by such amount (or by the amount allocated to such Lender pursuant to the last
sentence of Section 2.20(b)) as of such Increase Date; provided, however, that the Administrative
Agent shall have received on or before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of Directors of the Borrower or
the Executive Committee of such Board approving the Commitment Increase and the
corresponding modifications to this Agreement and (B) an opinion of counsel for the Borrower
(which may be in-house counsel) in form and substance satisfactory to the Administrative
Agent;
(ii) an assumption agreement from each Assuming Lender, if any, in form and substance
satisfactory to the Assuming Lender, the Borrower and the Administrative Agent (each an
“Assumption Agreement”), duly executed by such Assuming Lender, the Administrative Agent and
the Borrower; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its
Commitment in a writing satisfactory to the Borrower and the Administrative Agent.
(e) On each Increase Date, upon fulfillment of the conditions set forth in Section 2.20(d), in
the event any Revolving Loans are then outstanding, (i) each relevant Increasing Lender and
Assuming Lender shall make available to the Administrative Agent such amounts in immediately
available funds as the Administrative Agent shall determine, for the benefit of the other Lenders,
as being required in order to cause, after giving effect to the applicable Commitment Increase and
the application of such amounts to make payments to such other Lenders, the Revolving Loans to be
held ratably by all Lenders as of such date in accordance with their respective Commitments (after
giving effect to the Commitment Increase), (ii) the Borrower shall be deemed to have prepaid and
reborrowed all outstanding Revolving Loans made to it as of such Commitment Increase Date (with
each such borrowing to consist of Revolving Loans, with related Interest Periods if applicable,
specified in a notice delivered by the Borrower in accordance with the requirements of Section
2.02) and (iii) the Borrower shall pay to the Lenders the amounts, if any, payable under Section
2.16 as a result of such prepayment.
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. (a) At least 45 days but not more than 60 days prior to the next Anniversary Date, the
Borrower, by written notice to the Administrative Agent, may request an extension of the Maturity
Date in effect at such time by one calendar year from its then scheduled expiration. The
Administrative Agent shall promptly notify each Lender of such request, and each Lender shall in
turn, in its sole discretion, not later than 30 days prior to such next Anniversary Date, notify
the Borrower and the Administrative Agent in writing as to whether such Lender will consent to such
extension. If any Lender shall fail to notify the Administrative Agent and the Borrower in writing
of its consent to any such request for extension of the Maturity Date at least 30 days prior to the
next Anniversary Date, such Lender shall be deemed to be a Declining Lender with respect to such
request. The Administrative Agent shall notify the Borrower not later than 25 days prior to such
next Anniversary Date of the decision of the Lenders regarding the Borrower’s request for an
extension of the Maturity Date.
(b) If all of the Lenders consent in writing to any such request in accordance with subsection
(a) of this Section 2.21, the Maturity Date in effect at such time shall, effective as at such next
Anniversary Date (the “Extension Date”), be extended for one calendar year; provided that on each
Extension Date, no Event of Default, or event that with the giving of notice or passage of time or
both would constitute an Event of Default, shall have occurred and be continuing, or shall occur as
a consequence thereof. If less than all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.21, the Maturity Date in effect at such time
shall, effective as at the applicable Extension Date, be extended as to those Lenders that so
consented (each an “Extending Lender”) but shall not be extended as to any other Lender (each a
“Declining Lender”). To the extent that the Maturity Date is not extended as to any Lender
pursuant to this Section 2.21 and the Commitment of such Lender is not assumed in accordance with
subsection (c) of this Section 2.21 on or prior to the applicable Extension Date, the Commitment of
such Declining Lender shall automatically terminate in whole on such unextended Maturity Date
without any further notice or other action by the Borrower, such Lender or any other Person and any
outstanding Loans, together with accrued and unpaid interest, fees and other amounts due to such
Declining Lender shall be paid in full on such unextended Maturity Date; provided that such
Declining Lender’s rights under Sections 2.15, 2.17 and 9.03 shall survive the Maturity Date for
such Lender as to matters occurring prior to such date. It is understood and agreed that no Lender
shall have any obligation whatsoever to agree to any request made by the Borrower for any requested
extension of the Maturity Date.
(c) If there are any Declining Lenders, the Borrower may arrange for one or more Extending
Lenders or other Eligible Assignees (each such Eligible Assignee that accepts an offer to assume a
Declining Lender’s Commitment as of the applicable Extension Date being an “Assuming Lender”) to
assume, effective as of the Extension Date, any Declining Lender’s Commitment and all of the
obligations of such Declining Lender under this Agreement thereafter arising, without recourse to
or warranty by, or expense to, such Declining Lender; provided, however, that the amount of the
Commitment of any such Assuming Lender as a result of such substitution shall in no event be less
than $50,000,000 unless the amount of the Commitment of such Declining Lender is less than
$50,000,000, in which case such Assuming Lender shall assume all of such lesser amount; and
provided further that:
(i) any such Extending Lender or Assuming Lender shall have paid to such Declining Lender (A) the aggregate
principal amount of, and any interest accrued
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and unpaid to the effective date of the assignment on, the outstanding Loans, if any,
of such Declining Lender plus (B) any accrued but unpaid fees owing to such Declining Lender
as of the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and indemnities
payable to such Declining Lender, and all other accrued and unpaid amounts owing to such
Declining Lender hereunder, as of the effective date of such assignment shall have been paid
to such Declining Lender; and
(iii) with respect to any such Assuming Lender, the applicable processing and
recordation fee required under Section 9.04 for such assignment shall have been paid;
provided further that such Declining Lender’s rights under Sections 2.15, 2.17 and 9.03 shall
survive such substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender, if any, shall have
delivered to the Borrower and the Administrative Agent an assumption agreement, in form and
substance satisfactory to the Borrower and the Administrative Agent (an “Assumption Agreement”),
duly executed by such Assuming Lender, such Declining Lender, the Borrower and the Administrative
Agent, (B) any such Extending Lender shall have delivered confirmation in writing satisfactory to
the Borrower and the Administrative Agent as to the increase in the amount of its Commitment and
(C) each Declining Lender being replaced pursuant to this Section 2.21 shall have delivered to the
Administrative Agent any Note or Notes held by such Declining Lender. Upon the payment or
prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the immediately preceding
sentence, each such Extending Lender or Assuming Lender, as of the Extension Date, will be
substituted for such Declining Lender under this Agreement and shall be a Lender for all purposes
of this Agreement, without any further acknowledgment by or the consent of the other Lenders, and
the obligations of each such Declining Lender hereunder shall, by the provisions hereof, be
released and discharged.
(d) If all of the Extending and Assuming Lenders (after giving effect to any assignments and
assumptions pursuant to subsection (c) of this Section 2.21) consent in writing to a requested
extension (whether by written consent pursuant to subsection (a) of this Section 2.21, by execution
and delivery of an Assumption Agreement or otherwise) not later than one Business Day prior to such
Extension Date, the Administrative Agent shall so notify the Borrower, and, so long as no Event of
Default, or event that with the giving of notice or passage of time or both would constitute an
Event of Default, shall have occurred and be continuing as of such Extension Date, or shall occur
as a consequence thereof, the Maturity Date then in effect shall be extended for the additional
one-year period as described in subsection (a) of this Section 2.21, and all references in this
Agreement, and in the Notes, if any, to the “Maturity Date” shall, with respect to each Extending
Lender and each Assuming Lender for such Extension Date, refer to the Maturity Date as so extended.
Promptly following each Extension Date, the Administrative Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) of the extension of the scheduled Maturity
Date in effect immediately prior thereto and shall thereupon record in the Register the relevant
information with respect to each such Extending Lender and each such Assuming Lender.
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ARTICLE III
The Borrower represents and warrants to the Lenders that:
(b) Since March 31, 2006, there has been no material adverse change in the business,
financial condition or operations of the Borrower and its Subsidiaries, taken as a whole.
33
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and the
use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, that could reasonably be expected to result in a
Material Adverse Effect.
34
Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
ARTICLE IV
(a) The Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to
the Administrative Agent and the Lenders and dated the Effective Date) of Fenwick & West LLP,
counsel for the Borrower, substantially in the form of Exhibit C hereto. The Borrower hereby
requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization, existence
and good standing of the Borrower, the authorization of the Transactions and any other legal
matters relating to the Borrower, this Agreement, the other Loan Documents or the Transactions, all
in form and substance satisfactory to the Administrative Agent and its counsel.
35
(d) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed on behalf of the Borrower by the President, a Vice President or a Financial Officer of the
Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section
4.02.
(e) The Administrative Agent shall have received a guaranty (the “Guaranty”) in substantially
in the form of Exhibit D hereto, executed by each of the Material Subsidiaries.
(f) The Administrative Agent shall have received all fees and other amounts due and payable
on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of
all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and
such notice shall be conclusive and binding.
(a) The representations and warranties of the Borrower set forth in this Agreement (other
than as set forth in Section 3.04(b) hereof) and the other Loan Documents shall be true and correct
on and as of the date of such Borrowing.
(b) At the time of and immediately after giving effect to such Borrowing no Default shall
have occurred and be continuing.
Each Borrowing, Commitment Increase and Extension of the Maturity Date shall be deemed to
constitute a representation and warranty by the Borrower on the date thereof as to the matters
specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full, the Borrower covenants and
agrees with the Lenders that:
(a) within 90 days after the end of each fiscal year of the Borrower, its audited
consolidated balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by KPMG LLP, or other
36
independent public accountants of recognized national standing (without a “going
concern” or like qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, its consolidated balance sheet and related statements of
operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter
and the then elapsed portion of the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 5.09 and (iii) stating whether
any change in GAAP or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying such
certificate;
(d) concurrently with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any Subsidiary with
the Securities and Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally, as the case may be, provided,
that such information shall be deemed to have been delivered on the date on which such
information has been posted on the Borrower’s website on the Internet at
xxxx://xxx.xxxxxxxx.xxx (or any successor page) or at xxxx://xxx.xxx.xxx; and
(f) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any Subsidiary,
37
or compliance with the terms of this Agreement or any other Loan Document, as the
Administrative Agent or any Lender may reasonably request.
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that
have occurred, could reasonably be expected to result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial
Officer or other executive officer of the Borrower setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken with respect
thereto.
38
and correct entries are made of all dealings and transactions in relation to its business and
activities as and to the extent required by GAAP. The Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as reasonably requested.
ARTICLE VI
Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full, the Borrower covenants and agrees with
the Lenders that:
39
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the
date hereof and set forth in Schedule 6.01; provided that (i) such Lien shall not apply to
any other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall
secure only those obligations which it secures on the date hereof and extensions, renewals
and replacements thereof that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall
not apply to any other property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date of such acquisition or
the date such Person becomes a Subsidiary, as the case may be and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower
or any Subsidiary; provided that (i) such security interests and the Indebtedness secured
thereby are incurred prior to or within 90 days after such acquisition or the completion of
such construction or improvement, (ii) the Indebtedness secured thereby does not exceed 100%
of the cost of acquiring, constructing or improving such fixed or capital assets and (iii)
such security interests shall not apply to any other property or assets of the Borrower or
any Subsidiary; and
(e) other Liens in an aggregate amount not to exceed $50 million.
(i) any Person may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation;
(ii) any Person may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary;
40
(iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to
the Borrower or to another Subsidiary;
(iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith
that such liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; and
(v) the Borrower or any of its Subsidiaries may sell any Subsidiary (other than a
Material Subsidiary), or substantially all of the capital stock or assets thereof, provided,
that any such sale is for fair market value, determined in good faith by the board of
directors of the Borrower.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related or
complementary thereto.
ARTICLE VII
If any of the following events (“Events of Default”) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under any of the Loan
Documents, when and as the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary in or in connection with this Agreement or any other Loan Document or any amendment or
modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate,
financial statement or other document furnished pursuant
41
to or in connection with this Agreement, any other Loan Document or any amendment or
modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been
incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02(a), 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 or in
Article VI;
(e) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained any of the Loan Documents (other than those specified in clause (a), (b) or (d) of this
Article of this Agreement), and such failure shall continue unremedied for a period of (i) 60 days
in the case of Sections 5.01(a) or (b), or (ii) 30 days in all other cases, in each case after
notice thereof from the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable, after giving effect to any applicable grace period, if any, specified
in the agreement or instrument relating to such Material Indebtedness;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, after
giving effect to any applicable grace period, if any, specified in the agreement or instrument
relating to such Material Indebtedness; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Subsidiary or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a general assignment
42
for the benefit of creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in excess of $50,000,000 individually or
$100,000,000 in the aggregate shall be rendered against the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce
any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect; or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.
ARTICLE VIII
Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as
43
though it were not the Administrative Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof
is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement or any other Loan Document,
(ii) the contents of any certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective
44
activities in connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article
and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent,
its sub agents and their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
(i) if to the Borrower, to it at 00000 Xxxxxxx Xxxxx Xxxx., Xxxxxxxxx, XX 00000,
Attention of Rossini Xxxxxxx (Telecopy No. (000) 000 0000), with a copy to Art Xxxxxxxxx
(Telecopy No. (000) 000 0000);
45
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and Agency Services
Group, 00 Xxxxx Xxxxxxxx, 00xx Xxxxx, Xxxxxxx, XX 00000, Attention of Xxxx Xxxxxx
(Telecopy No. (000) 000-0000), with a copy to JPMorgan Chase Bank, 000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, XX 00000, Attention of Xxxxxxx Xxxxxx (Telecopy No. (000) 000-0000);
(iii) if to the Swingline Lender, to it at JPMorgan Chase Bank, Loan and Agency
Services Group, 00 Xxxxx Xxxxxxxx, 00xx Xxxxx, Xxxxxxx, XX 00000, Attention of
Xxxx Xxxxxx (Telecopy No. (000) 000-0000); and
(iv) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in
its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
(b) Neither this Agreement, any other Loan Document nor any provision hereof or thereof may
be waived, amended or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with
the consent of the Required Lenders; provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or reduce the rate of interest thereon, or
46
reduce any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan, or any
interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written consent of each
Lender, (v) release all or substantially all of the value of the Guaranty, without the written
consent of each Lender or (vi) change any of the provisions of this Section or the definition of
“Required Lenders” or any other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent
or the Swingline Lender hereunder without the prior written consent of the Administrative Agent or
the Swingline Lender, as the case may be.
(b) The Borrower shall indemnify the Administrative Agent and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent
47
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or the Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent or the Swingline Lender, as the case may
be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or the Swingline Lender in its capacity as
such.
(d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the Transactions or any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after written demand
therefore.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an
Event of Default has occurred and is continuing, any other assignee; and
(B) the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of any Commitment to
48
an assignee that is a Lender with a Commitment immediately prior to giving
effect to such assignment.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $10,000,000 (or a greater amount that is an integral multiple
of $1,000,000) unless each of the Borrower and the Administrative Agent otherwise
consent, provided that no such consent of the Borrower shall be required if an Event
of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement,
provided that this clause shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender’s rights and obligations in respect
of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500;
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more Credit Contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower and its
related parties or its securities) will be made available and who may receive such
information in accordance with the assignee’s compliance procedures and applicable
laws, including Federal and state securities laws; and
(E) No Loan Party nor any Affiliate of a Loan Party shall be permitted to
become an assignee hereunder.
For the purposes of this Section 9.04(b), the term “Approved Fund” has the following meaning:
“Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in
the ordinary course of its business and that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the
49
interest assigned by such Assignment and Assumption, have the rights and obligations of
a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16,
2.17 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive,
and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b),
2.18(d) or 9.03(c), the Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the Register unless and
until such payment shall have been made in full, together with all accrued interest thereon.
No assignment shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent or the
Swingline Lender, sell participations to one or more banks or other entities (a “Participant”) in
all or a portion of such Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement
or instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided
50
that such agreement or instrument may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver described in the first proviso
to Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16
and 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section
2.15 or 2.17 than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
unless the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
51
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement in any court referred to in paragraph (b) of this Section. Each of the parties hereto
hereby
52
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
53
have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.
(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER
OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS RELATED PARTIES OR ITS SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND
THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT
CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE
WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
54
| SYMANTEC CORPORATION, as Borrower | ||||||
| By | /s/ Xxxxx Xxxx
|
|||||
| Name: Xxxxx Xxxx | ||||||
| Title: Executive Vice President & Chief | ||||||
| Financial Officer | ||||||
55
| JPMORGAN CHASE BANK, individually and as Administrative Agent, | ||||||
| By | /s/ Xxxxx X. Xxxxx
|
|||||
| Name: Xxxxx X. Xxxxx | ||||||
| Title: Managing Director | ||||||
56
| CITICORP USA, INC., individually and as | ||||||
| Syndication Agent, | ||||||
| By | /s/ Aurum Spiegel
|
|||||
| Name: Aurum Spiegel | ||||||
| Title: Vice President | ||||||
57
| BANK OF AMERICA, N.A., individually and as | ||||||
| Co-Documentation Agent | ||||||
| By | /s/ Xxxxx X. XxXxxxx
|
|||||
| Name: Xxxxx X. XxXxxxx | ||||||
| Title: Senior Vice President | ||||||
58
| XXXXXX XXXXXXX BANK, individually and as | ||||||
| Co-Documentation Agent | ||||||
| By | /s/ Xxxxxx Xxxxxx
|
|||||
| Name: Xxxxxx Xxxxxx | ||||||
| Title: Authorized Signatory | ||||||
59
| UBS LOAN FINANCE LLC, individually and as | ||||||
| Co-Documentation Agent | ||||||
| By | /s/ Xxxxxxx X. Xxxxxx
|
|||||
| Name: Xxxxxxx X. Xxxxxx | ||||||
| Title: Director | ||||||
| Banking Products | ||||||
| Services, US | ||||||
| By | /s/ Xxxxx X. Xxxxxx
|
|||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Associate Director | ||||||
| Banking Products | ||||||
| Services, US |
60
| BNP PARIBAS, as Lender | ||||||
| By | /s/ Xxxxxxx Xxxxxxxx
|
|||||
| Name: Xxxxxxx Xxxxxxxx | ||||||
| Title: Director | ||||||
| By | /s/ Xxxxxx Xxxxx
|
|||||
| Name: Xxxxxx Xxxxx | ||||||
| Title: Vice President | ||||||
61
| MIZUHO CORPORATE BANK, LTD., as Lender | ||||||
| By | /s/ Xxxxxxx X. Xxxx
|
|||||
| Name: Xxxxxxx X. Xxxx | ||||||
| Title: SVP & Team Leader | ||||||
62
| XXXXX FARGO BANK, N.A., as Lender | ||||||
| By | /s/ Xxxxxxx X. Xxxxxxxxxx Xxxxx
|
|||||
| Name: Xxxxxxx X. Xxxxxxxxxx Xxxxx | ||||||
| Title: Vice President | ||||||
63
| HSBC Bank USA, National Association, as Lender | ||||||
| By | /s/ Xxxxx Xxxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxxx | ||||||
| Title: Senior Vice President | ||||||
64
Schedule 1.01
Subsidiaries Excluded from Definition of “Material Subsidiary”
| Subsidiary | |||
Precise Software Solutions, Inc., a Delaware
corporation)
|
|||
WQuinn, Inc., a Delaware corporation
|
|||
Schedule 2.01
Commitments
| Revolving Loan | |||||
| Lender | Commitment | ||||
JPMorgan Chase Bank, National Association |
$ | 175,000,000 | |||
Citicorp USA, Inc. |
$ | 175,000,000 | |||
Bank of America, N.A. |
$ | 125,000,000 | |||
Xxxxxx Xxxxxxx Bank |
$ | 125,000,000 | |||
UBS Loan Finance LLC |
$ | 125,000,000 | |||
BNP Paribas |
$ | 85,000,000 | |||
Mizuho
Corporate Bank, Ltd. |
$ | 85,000,000 | |||
Xxxxx Fargo
Bank, N.A. |
$ | 75,000,000 | |||
HSBC Bank
USA, National Association |
$ | 30,000,000 | |||
TOTAL
COMMITMENTS |
$ | 1,000,000,000 | |||
Schedule 3.06
Disclosed Matters
1. None
Schedule 6.01
Liens
1. None
Schedule 6.03
Subsidiary Indebtedness
1. $520 million of 0.25% convertible subordinated notes due 2013 issued by Veritas.
EXHIBIT A
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”)
and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below (as amended, the
“Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The
Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment
is without recourse to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.
1.
|
Assignor: | |||||
2.
|
Assignee: | |||||
| [and is an Affiliate/Approved Fund of [identify Lender]1] | ||||||
3.
|
Borrower(s): | Symantec Corporation | ||||
4.
|
Administrative Agent: | JPMorgan Chase Bank, N.A., | ||||
| As the administrative agent under the Credit Agreement | ||||||
5.
|
Credit Agreement: | The $1,000,000,000 Credit Agreement dated as of |
| 1 | Select as applicable. |
Exh A - 1
| among Symantec Corporation, the Lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents parties thereto] | ||||||
6.
|
Assigned Interest: | |||||
| Aggregate Amount of | Amount of | |||||||||||
| Commitment/Loans | Commitment/Loan | Percentage Assigned of | ||||||||||
| Facility Assigned2 | for all Lenders | Assigned | Commitment/Loans3 | |||||||||
| $ | $ | % | ||||||||||
| $ | $ | % | ||||||||||
| $ | $ | % | ||||||||||
Effective
Date:
, 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFORE.]
The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire
in which the Assignee designates one or more Credit Contacts to whom all syndicate-level
information (which may contain material non-public information about the Borrower[, the Loan
Parties] and [its] [their] Related Parties or their respective securities) will be made available
and who may receive such information in accordance with the Assignee’s compliance procedures and
applicable laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
| ASSIGNOR | ||||||
| [NAME OF ASSIGNOR] | ||||||
| By: | ||||||
| Title: | ||||||
| 2 | Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. “Revolving Commitment”, “Tranche A Commitment”, “Tranche B Commitment”, etc.). | |
| 3 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
Exh A - 2
| ASSIGNEE | ||||||
| [NAME OF ASSIGNOR] | ||||||
| By: | ||||||
| Title: | ||||||
[Consented to and]4 Accepted:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
as Administrative Agent
By |
||||
| Title: | ||||
| [Consented to:]5 | ||||
| [NAME OF RELEVANT PARTY] | ||||
By |
||||
| Title: | ||||
| 4 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. | |
| 5 | To be added only if the consent of the Borrower and/or other parties (e.g. Swingline Lender) is required by the terms of the Credit Agreement. |
Exh A - 3
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document , (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
Annex 1 - 1
EXHIBIT B
FORM OF REVOLVING NOTE
$
|
Dated: |
FOR VALUE RECEIVED, the undersigned, Symantec Corporation, a Delaware corporation (the
“Borrower”), HEREBY PROMISES TO PAY to the order of ___. or its registered assigns
(the “Lender”) for the account of its applicable lending office the aggregate principal amount of
the Revolving Loans and the Swingline Loans (each as defined below) owing to the Lender by the
Borrower pursuant to the Credit Agreement dated as of July 12, 2006 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; terms
defined therein, unless otherwise defined herein, being used herein as therein defined) among the
Borrower, the Lender and certain other lender parties party thereto, and JPMorgan Chase Bank,
National Association, as Administrative Agent for the Lender and such other lender parties on the
Maturity Date.
Both principal and interest are payable in lawful money of the United States of America to
JPMorgan Chase Bank, National Association, as Administrative Agent, as provided in the Credit
Agreement. Each Revolving Loan and Swingline Loan owing to the Lender by the Borrower and the
maturity thereof, and all payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached hereto, which is part of
this Promissory Note; provided, however, that the failure of the Lender to make any such
recordation or endorsement shall not affect the Obligations of the Borrower under this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,
the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of
Loans (variously, the “Revolving Loans or the “Swingline Loans”) by the Lender to or for the
benefit of the Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Revolving Loans and Swingline Loan being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon the happening of
certain stated events and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
| SYMANTEC CORPORATION | ||||||||||
| By | ||||||||||
| Title: | ||||||||||
Exh B - 1
LOANS AND PAYMENTS OF PRINCIPAL
| Amount of | Unpaid | |||||||||||||||||
| Amount of | Principal Paid | Principal | Notation | |||||||||||||||
| Date | Loan | or Prepaid | Balance | Made By | ||||||||||||||
Exh B - 2
Exhibit C
July 12, 2006
To the Lenders and the Administrative
Agent Referred to Below
c/o JPMorgan Chase Bank N.A., as
Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Agent Referred to Below
c/o JPMorgan Chase Bank N.A., as
Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel to Symantec Corporation, a Delaware corporation (“Borrower”), in
connection with: (i) the execution and delivery by Borrower of the Credit Agreement (the “Credit
Agreement”), dated as of July 12, 2006, among Borrower, each lender from time to time that is a
party thereto (collectively, the “Lenders” and individually, a “Lender”) and JPMorgan Chase Bank
N.A., as Administrative Agent (the “Administrative Agent”), and (ii) the execution and delivery by
the Guarantors (as defined below) of the Guaranty (the “Guaranty”), dated as of July 12, 2006, made
by Veritas Software Global LLC, Veritas Operating Corporation, Veritas Software Investment Company
and Veritas Software Technology Corporation (each a “Guarantor” and collectively, the “Guarantors”)
in favor of the Lenders and the Administrative Agent (the Credit Agreement and the Guaranty
together, the “Loan Documents”). We are furnishing this opinion to you pursuant to Section 4.01(b)
of the Credit Agreement. Capitalized terms used in this opinion that are not otherwise defined
herein or in Exhibit A hereto shall have the meanings assigned to those terms in the Loan
Documents.
In rendering this opinion, we have examined such matters of law as we considered necessary for
the purpose of rendering this opinion. As to matters of fact material to the opinions expressed
herein, we have relied solely upon the representations and warranties as to factual matters
contained in, and made by Borrower pursuant to, the Management Certificate (as defined in
Exhibit A) and upon our examination of the documents identified on Exhibit A
(collectively, the “Reviewed Documents”). We have not examined, and we express no opinion with
respect to, any documents other than those described on Exhibit A or made any independent
factual investigation. Except as described on Exhibit A, bring-down certificates,
telegrams or telephonic advice of the public officials referred to on Exhibit A were not
obtained as of the date hereof. Except as described on Exhibit A, we have not caused the
search of any record of any governmental agency or third party.
In our examination of documents, we have assumed the current accuracy and completeness of (a)
the information obtained from public officials and records included in the documents identified on
Exhibit A and (b) the representations and warranties made by representatives of Borrower to
us, including, without limitation, those set forth in the
XX Xxxxxx Xxxxx Bank N.A., as Administrative Agent
The Lenders
July 12, 2006
Page 2
The Lenders
July 12, 2006
Page 2
Management Certificate. We have also assumed that all the representations and warranties made
by the Borrower in, or pursuant to, the Credit Agreement are true and complete in all material
respects. We have made no attempt to verify the accuracy of any of such information,
representations or warranties or to determine the existence or non-existence of any factual matters
other than those described above.
In our examination of documents for purposes of this opinion, we have assumed, and express no
opinion as to, the genuineness of all signatures on original documents, the authenticity and
completeness of all documents submitted to us as originals, the conformity to originals and
completeness of all documents submitted to us as copies, the lack of any undisclosed termination,
modification, waiver or amendment to any document reviewed by us, the legal competence and capacity
of all persons or entities executing the same and (except with respect to due authorization of the
Credit Agreement by Borrower and the Guaranty by the Guarantors) the due authorization, execution
and delivery of all documents where due authorization, execution and delivery are prerequisites to
the effectiveness thereof.
For the purposes of this opinion, we have also assumed, without independent investigation,
that: (a) the Loan Documents reflect the complete understanding and agreement of the parties
concerning the subject matter thereof; (b) the Credit Agreement is a legal, valid and binding
obligation of the Administrative Agent and each Lender, enforceable against the Administrative
Agent and each Lender in accordance with its terms; and (c) Borrower is not insolvent and by
executing and delivering the Credit Agreement will not become insolvent and has not intended to
incur, and will not have believed that it has incurred, debts beyond its ability to pay them as
they mature.
Our representation of the Borrower has been limited to specific matters on which the Borrower
has engaged us from time to time. As used herein, the phrases “to our knowledge” and phrases of
similar import, refer only to the actual present knowledge of the attorneys currently in this firm
representing Borrower in connection with the execution and delivery of the Credit Agreement.
Except to the extent expressly set forth herein, we have not undertaken any independent
investigation to determine the existence or absence of any fact, and no inference as to our
knowledge of any matters bearing on the accuracy of any such statement should be drawn from the
fact of our representation of the Borrower.
We do not assume any responsibility for the accuracy, completeness or fairness of any
information, including, but not limited to, financial information, furnished to you by Borrower (or
any of its agents or representatives) concerning the business, assets, operations, financial
condition or affairs of Borrower or any of its subsidiaries or any other information furnished to
you by Borrower or any of its agents or representatives.
Where statements in this opinion are qualified by the term “material” or “material adverse
effect”, those statements involve judgments and opinions as to the materiality or lack of
materiality of the following matters, which judgments and opinions are entirely those of Borrower
and its officers, after having been advised by us as to the legal effect and consequences
XX Xxxxxx Chase Bank N.A., as Administrative Agent
The Lenders
July 12, 2006
Page 3
The Lenders
July 12, 2006
Page 3
of such matters: (a) any matter to Borrower and its subsidiaries taken as a whole; or (b) any
matter to the businesses, assets, operations or financial conditions of Borrower and its
subsidiaries, taken as a whole; or (c) the ability of Borrower to pay or perform its obligations in
accordance with the terms of the Credit Agreement; or (d) the rights and remedies of the
Administrative Agent or any Lender or under the Loan Documents or any related document, instrument
or agreement.
This opinion is subject to, and we render no opinion with respect to the effect of the
following:
(a) the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium, bulk
sales, fraudulent conveyance and other similar laws now or hereafter in effect relating to
or affecting the rights and remedies of creditors generally, including, without limitation,
the effect of statutory or other law regarding fraudulent conveyances, preferential
transfers and equitable subordination;
(b) the effect of general principles of equity, including but not limited to judicial
decisions holding that certain provisions are unenforceable when their enforcement would
violate the implied covenant of good faith and fair dealing, or would be commercially
unreasonable or involve undue delay, whether or not such principles or decisions have been
codified by statute, concepts of materiality, reasonableness, good faith and fair dealing,
unconscionability and the possible unavailability of specific performance, injunctive relief
or other equitable remedies, regardless of whether considered in a proceeding in equity or
at law;
(c) the effect of limitations imposed by reason of generally applicable public policy
principles or considerations or limitations imposed by or resulting from the exercise by any
court of its discretion;
(d) the existence or effect of any implied duty or covenant of good faith and fair dealing
to which any Lender may have been or may be subject;
(e) the effect of any applicable law or court decisions that requires the Administrative
Agent or a Lender to enforce its remedies in a commercially reasonable manner;
(f) any federal or state securities laws;
(g) the effect of state and federal laws and judicial decisions that provide, among other
things, (i) that oral modifications to a contract or waivers of contractual provisions may
be enforceable, if the modification was performed, notwithstanding any express provision in
the agreement that the agreement may only be modified or an obligation thereunder waived in
writing, or (ii) that an implied agreement may be created from trade practices or course of
conduct;
XX Xxxxxx Xxxxx Bank N.A., as Administrative Agent
The Lenders
July 12, 2006
Page 4
The Lenders
July 12, 2006
Page 4
(h) the enforceability of any provision purporting to waive rights to trial by jury, service
of process or objections to the laying of venue or to forum on the basis of forum
non conveniens in connection with any litigation arising out of or
pertaining to the Loan Documents;
(i) the effect of judicial decisions that may permit the introduction of extrinsic evidence
to modify the terms or the interpretation of the Loan Documents;
(j) the effect of equitable principles on the enforceability of any provisions of the Loan
Documents providing that (i) rights or remedies are not exclusive, (ii) rights or remedies
may be exercised without notice, (iii) every right or remedy is cumulative and may be
exercised in addition to or with any other right or remedy, or (iv) the failure to exercise,
or any delay in exercising, rights or remedies available under the Loan Documents will not
operate as a waiver of any such right or remedy;
(k) applicable statutes and judicial decisions which provide, among other things, that a
court may limit the granting of attorneys’ fees to those attorneys’ fees which are
determined by the court to be reasonable and that attorneys’ fees may be granted only to a
prevailing party and that a contractual provision for attorneys’ fees is deemed to extend to
both parties (notwithstanding that such provision by its express terms benefits only one
party); and
(l) the effect of equitable principles on the enforceability of any provision in the Loan
Documents that permits or authorizes any Lender to exercise remedies or impose penalties or
an increase in interest rate for late payment or other default if it is determined that the
default is not material, the remedies or penalties bear no reasonable relation to the damage
suffered by any Lender as a result of the default or it cannot be demonstrated that the
enforcement of the remedies or penalties is reasonably necessary for the protection of any
Lender.
We call your attention to the fact that the Loan Documents provide for a guaranty by the
Guarantors as subsidiaries of Borrower, and as such, is what is known as an “upstream guaranty”
that should be supported by direct and sufficient consideration paid to the subsidiary making the
guaranty. Accordingly, we have assumed in rendering our opinions that the guaranty provided for in
the Guaranty is supported by sufficient, good and valuable consideration and that the Guarantors
are not insolvent, nor will any Guarantor be rendered insolvent by the making of the guaranty.
With respect to our opinion expressed in paragraphs 1, 6 and 7 below that Borrower and the
Guarantors are in good standing under the laws of the States of California and Delaware, we have
relied solely upon the good standing certificates provided by the California Secretary of State,
California Franchise Tax Board and the Delaware Secretary of State to the effect that Borrower and
the Guarantors are in good standing under the laws of such states.
XX Xxxxxx Chase Bank N.A., as Administrative Agent
The Lenders
July 12, 2006
Page 5
The Lenders
July 12, 2006
Page 5
With respect to our opinion in paragraph 5 below, we have relied solely upon Borrower’s
identification of those agreements of Borrower that Borrower considers to be material with respect
to the Loan Documents and the transactions contemplated to be carried out in accordance with and
pursuant to the Loan Documents and copies, supplied to us by Borrower, of such Borrower Material
Agreements that are expressly listed and identified as “Borrower Material Agreements” on
Exhibit B hereto and in the Management Certificate. We have not undertaken any independent
investigation of such matters.
We are admitted to practice law in the State of California and in the State of New York. The
opinions expressed herein are limited to the existing internal laws of the State of California, the
existing internal laws of the State of New York, and the existing federal laws of the United States
of America, assuming that such laws apply to the matters expressed herein. To the extent that any
of the Reviewed Documents (other than the Loan Documents) are governed by the laws of any
jurisdiction other than the States of California or New York, or the United States federal law as
described above, our opinion relating to those documents is based solely upon the apparent meaning
of the language, without regard to interpretation or construction that might be indicated by the
laws governing those agreements. Our opinion is limited to such California and New York state and
United States federal statutes, laws, rules or regulations as in our experience are of general
application to transactions of the sort contemplated by the Loan Documents.
With respect to our enforceability opinion in paragraph 3 below, our opinion is limited to the
existing laws of the State of New York. With respect to the Loan Documents, we have assumed that
in a proceeding outside of New York that the choice of New York state law would be given effect and
would exclusively apply to and govern the Loan Documents.
In accordance with Section 95 of the American Law Institute’s Restatement (Third) of the Law
Governing Lawyers (2000), this opinion letter is to be interpreted in accordance with customary
practices of lawyers rendering opinions to third parties in transactions of the type provided for
in the Loan Documents.
In rendering the opinions below, we are opining only as to the specific legal issues expressly
set forth therein, and no opinion shall be inferred as to any other matter or matters.
Based upon and subject to the foregoing, and subject to all of the assumptions,
qualifications, exceptions and limitations contained herein, we are of the opinion that:
1. Borrower is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware. Borrower is duly qualified to do business and is in good
standing as a foreign corporation under the laws of the State of California.
2. All corporate action on the part of Borrower, its directors and its stockholders
necessary for the authorization, execution and delivery of the Credit Agreement has been
taken.
XX Xxxxxx Xxxxx Bank N.A., as Administrative Agent
The Lenders
July 12, 2006
Page 6
The Lenders
July 12, 2006
Page 6
3. The Credit Agreement constitutes a valid and binding obligation of Borrower, enforceable
according to its terms, and the Guaranty constitutes a valid and binding obligation of the
Guarantors, enforceable in accordance with its terms.
4. The execution, delivery and performance of, and compliance with, the Credit Agreement, is
within Borrower’s corporate powers, and the execution, delivery and performance of, and
compliance with, the Guaranty, is within each Guarantor’s corporate powers.
5. The execution, delivery and performance of, and compliance with, the Credit Agreement by
the Borrower and the Guaranty by the Guarantors has not resulted and will not result in, any
violation of, or conflict with and does not constitute a default under: (i) any term of the
Certificates of Incorporation or Bylaws of Borrower, Veritas Operating Corporation, Veritas
Software Investment Company and Veritas Software Technology Corporation or the operating
agreement of Veritas Software Global LLC, or (ii) to our knowledge, any material term or
provision of any Borrower Material Agreement, or (iii) any United States federal, New York
State or California State statute, rule or regulation applicable to Borrower or any
Guarantor, or (iv) any judgment or order of any United States federal or California State
court known to us to be applicable to Borrower or any Guarantor, in each case where such
violation, conflict or default would materially and adversely affect Borrower or materially
impair the ability of Borrower to perform its obligations under the Credit Agreement or the
ability of any Guarantor to perform its obligations under the Guaranty.
6. Veritas Software Global LLC is a limited liability company duly formed and in good
standing under the laws of the State of Delaware.
8. All required action on the part of the members and managers of Veritas Software Global
LLC necessary for the authorization, execution and delivery of the Guaranty has been taken.
9. All corporate action on the part of Veritas Operating Corporation, Veritas Software
Investment Company and Veritas Software Technology Corporation, their directors and their
stockholders necessary for the authorization, execution and delivery of the Guaranty has
been taken.
XX Xxxxxx Xxxxx Bank N.A., as Administrative Agent
The Lenders
July 12, 2006
Page 7
The Lenders
July 12, 2006
Page 7
10. To our knowledge, no approval, consent, exemption, order or authorization, registration,
or declaration by, or notice to, or filing with, any California State, New York State or
United States federal governmental entity is necessary or required to be made by Borrower or
any Guarantor in connection with the execution and delivery as of the Effective Date or
performance by such party of the Credit Agreement or the Guaranty.
11. The Borrower is not, and is not required to be, registered as an “investment company” as
such term is defined in the Investment Company Act of 1940, as amended.
In addition, we supplementally inform you that, to our knowledge, except as described in
Borrower’s Annual Report on Form 10-K for the fiscal year ended March 31, 2006 (the “2006 10-K”),
there is no action, suit or proceeding pending or threatened in writing, at law, in equity, in
arbitration or before any governmental authority in the United States against Borrower or any
Guarantor which (a) purports to affect or pertain to the Credit Agreement or the Guaranty or any of
the transactions contemplated by the Credit Agreement or the Guaranty; or (b) could reasonably be
expected to have a Material Adverse Effect. Please note that we have not conducted a docket search
in any jurisdiction with respect to litigation that may be pending against the Borrower or any of
its subsidiaries or its or their property and that we are not litigation counsel to the Company in
any of the matters described in the 2006 10-K or in most other litigation matters to which the
Company or its subsidiaries are parties or by which any of their property may be bound. Other than
to request the Management Certificate, we have not undertaken any further inquiry or analysis
whatsoever in connection with the existence of, or any evaluation of. any such action, suit or
proceeding or the accuracy of such description.
This opinion is intended solely for the benefit of each Lender for the purpose of the loan
financing contemplated by the Loan Documents and is not to be used by any Lender for any other
purpose or made available to or relied upon by any other person, firm or entity, without our prior
written consent, except that you may, however, deliver a copy of this opinion to your attorneys,
and to any Eligible Assignee or Participant of any Lender and to any successor Administrative Agent
and any Eligible Assignee or Participant and any successor Administrative Agent may rely on this
opinion as if it were addressed and had been delivered to them on the date hereof. This opinion
speaks as of the date first above written, and we disclaim any duty to update or advise any Lender
of any fact, circumstance, event or change in the law or the facts that may hereafter occur or be
brought to our attention, even if it may affect or modify any of the opinions expressed herein.
| Very truly yours, | ||||||
| FENWICK & WEST LLP | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Xxxxx X. Xxxxxxxx, a Partner |
EXHIBIT A
REVIEWED DOCUMENTS
(a) Copies of the Loan Documents;
(b) The Certificate of Incorporation of Borrower certified by the Delaware Secretary of State
on July 11, 2006 and the Bylaws of Borrower certified by the Secretary of Borrower on July 12,
2006;
(c) The Certificate of Formation of Veritas Software Global LLC certified by the Delaware
Secretary of State on July 11, 2006 and the Operating Agreement of Veritas Software Global LLC
certified by the Secretary of Veritas Software Global LLC on July 12, 2006;
(d) The Certificate of Incorporation of Veritas Operating Corporation certified by the
Delaware Secretary of State on July 11, 2006 and the Bylaws of Veritas Operating Corporation
certified by the Secretary of Veritas Operating Corporation on July 12, 2006;
(e) The Certificate of Incorporation of Veritas Software Investment Company certified by the
Delaware Secretary of State on July 11, 2006 and the Bylaws of Veritas Software Investment Company
certified by the Secretary of Veritas Software Investment Company on July 12, 2006;
(f) The Certificate of Incorporation of Veritas Software Technology Corporation certified by
the Delaware Secretary of State on July 11, 2006 and the Bylaws of Veritas Software Technology
Corporation certified by the Secretary of Veritas Software Technology Corporation on July 12, 2006;
(g) Copies of resolutions adopted by the Board of Directors of Borrower on June 5, 2006
relating to the Loan Documents;
(h) Copies of resolutions adopted by the Sole Member of Veritas Software Global LLC by
unanimous written consent on July 12, 2006 relating to the Loan Documents;
(i) Copies of resolutions adopted by the Board of Directors of Veritas Operating Corporation
by unanimous written consent on July 12, 2006 relating to the Loan Documents;
(j) Copies of resolutions adopted by the Board of Directors of Veritas Software Investment
Company by unanimous written consent on July 12, 2006 relating to the Loan Documents;
(k) Copies of resolutions adopted by the Board of Directors of Veritas Software Technology
Corporation by unanimous written consent on July 12, 2006 relating to the Loan Documents;
(l) Certificate of Good Standing issued by the Secretary of State of the State of Delaware
regarding Borrower dated July 11, 2006;
(m) Certificate of Good Standing issued by the Secretary of State of the State of Delaware
regarding Veritas Software Global LLC dated July 11, 2006;
(n) Certificate of Good Standing issued by the Secretary of State of the State of Delaware
regarding Veritas Operating Corporation dated July 11, 2006;
(o) Certificate of Good Standing issued by the Secretary of State of the State of Delaware
regarding Veritas Software Investment Company dated July 11, 2006;
(p) Certificate of Good Standing issued by the Secretary of State of the State of Delaware
regarding Veritas Software Technology Corporation dated July 11, 2006;
(q) Certificate of Status issued by the Secretary of State of the State of California dated
July 11, 2006 and Certificate of Status issued by the California Franchise Tax Board dated July 11,
2006 with respect to the good standing of Borrower as a foreign corporation;
(r) Certificate of Status issued by the California Franchise Tax Board dated July 11, 2006
with respect to the good standing of Veritas Software Global LLC as a foreign limited liability
company;
(s) Certificate of Status issued by the Secretary of State of the State of California dated
July 11, 2006 and Certificate of Status issued by the California Franchise Tax Board dated July 11,
2006 with respect to the good standing of Veritas Operating Corporation as a foreign corporation;
(t) Certificate of Status issued by the Secretary of State of the State of California dated
July 11, 2006 and Certificate of Status issued by the California Franchise Tax Board dated July 11,
2006 with respect to the good standing of Veritas Software Investment Company as a foreign
corporation;
(u) Certificate of Status issued by the Secretary of State of the State of California dated
July 11, 2006 and Certificate of Status issued by the California Franchise Tax Board dated July 11,
2006 with respect to the good standing of Veritas Software Technology Corporation as a foreign
corporation;
(v) A certificate of Borrower certifying the names and true signatures of certain officers of
Borrower authorized to sign the Credit Agreement;
(w) A certificate of Veritas Software Global LLC certifying the names and true signatures of
certain officers of Veritas Software Global LLC authorized to sign the Guaranty;
(x) A certificate of Veritas Operating Corporation certifying the names and true signatures of
certain officers of Veritas Operating Corporation authorized to sign the Guaranty;
(y) A certificate of Veritas Software Investment Company certifying the names and true
signatures of certain officers of Veritas Software Investment Company authorized to sign the
Guaranty;
(z) A certificate of Veritas Software Technology Corporation certifying the names and true
signatures of certain officers of Veritas Software Technology Corporation authorized to sign the
Guaranty;
(aa) A Management Certificate addressed to us and dated of even date herewith executed by
Borrower (the “Management Certificate”); and
(bb) Copies of the agreements, each of which is listed on Exhibit B to this letter,
and which have been identified to us by Borrower on Exhibit A to the Management Certificate to be
the only material agreements of Borrower to which Borrower is a party or by which Borrower’s assets
are bound that Borrower considers to be material with respect to the Loan Documents and the
transactions contemplated to be carried out in accordance with and pursuant to the Loan Documents
(the “Borrower Material Agreements”).
| 1. | Indenture dated as of August 1, 2003 between Veritas Software Corporation & U.S. Bank National Association, as Trustee | |
| 2. | First Supplemental Indenture dated as of October 25, 2004 between Veritas Software Corporation and U.S. Bank National Association, as Trustee | |
| 3. | Second Supplemental Indenture dated as of July 2, 2005 by and between Veritas Software Corporation, Symantec Corporation and U.S. Bank National Association, as Trustee | |
| 4. | Form of Indemnification Agreement with Officers and Directors, as amended | |
| 5. | Form of Indemnification Agreement, for Officers, Directors and Key Employees | |
| 6. | Veritas Software Corporation 1993 Equity Incentive Plan, including form of Stock Option Agreement | |
| 7. | Veritas Software Corporation 1993 Director Stock Option Plan, including form of Stock Option Agreement | |
| 8. | Symantec Corporation 1996 Equity Incentive Plan, as amended, including form of Stock Option Agreement and form of Restricted Stock Purchase Agreement | |
| 9. | Symantec Corporation Deferred Compensation Plan, as adopted November 7, 1996 | |
| 10. | Symantec Corporation 1998 Employee Stock Purchase Plan, as amended | |
| 11. | Brightmail Incorporated 1998 Stock Option Plan, as amended, including form of Stock Option Agreement and Notice of Assumption | |
| 12. | Symantec Corporation Acquisition Plan, dated July 15, 1999 | |
| 13. | Symantec Corporation Stock Option Grant dated January 1, 2000 to Xxxx X. Xxxxxxxx | |
| 14. | Symantec Corporation 2000 Directors Equity Incentive Plan, as amended | |
| 15. | Symantec Corporation 2001 Non- Qualified Equity Incentive Plan | |
| 16. | Symantec Corporation 2002 Executive Officers’ Stock Purchase Plan, as amended |
| 17. | Veritas Software Corporation 2002 Directors Stock Option Plan, including form of Stock Option Agreement and form of Notice of Stock Option Grant | |
| 18. | Veritas Software Corporation 2003 Stock Incentive Plan, as amended and restated, including form of Stock Option Agreement, form of Stock Option Agreement for Executive Officers and form of Notice of Stock Option Assumption | |
| 19. | Symantec Corporation 2004 Equity Incentive Plan, as amended, including form of Stock Option Agreement (Terms and Conditions), and form of Restricted Stock Unit Award Agreement | |
| 20. | Offer Letter, dated February 8, 2006, from Symantec Corporation to Xxxxx X. Beer | |
| 21. | Employment Agreement, dated December 15, 2004, between Symantec Corporation and Xxxx Xxxxx, as amended | |
| 22. | Employment Agreement, dated December 15, 2004, between Symantec Corporation and Xxxxxx Xxxxxx, as amended | |
| 23. | Employment Agreement, dated December 15, 2004, between Symantec Corporation and Xxxx Xxxxxxxx, as amended | |
| 24. | Offer Letter, dated January 12, 2004, from Symantec Corporation to Xxxxxx X. Xxxxxx | |
| 25. | Employment Agreement, dated April 11, 1999, between Symantec Corporation and Xxxx X. Xxxxxxxx | |
| 26. | Form of FY06 Executive Incentive Plan | |
| 27. | Form of FY06 Executive Supplemental Incentive Plan | |
| 28. | Symantec Senior Executive Incentive Plan | |
| 29. | Symantec Corporation Executive Retention Plan, as amended | |
| 30. | Amended and Restated Authorized Symantec Electronic Reseller for Shop Symantec Agreement dated as of July 1, 2003 by and among Symantec Corporation, Symantec Limited and Digital River, Inc., as amended | |
| 31. | Amendment Eleven to the Amended and Restated Authorized Symantec Electronic Reseller For Shop Symantec Agreement | |
| 32. | Amended Agreement Respecting Certain Rights of Publicity, by and between Xxxxx Xxxxxx and Xxxxx Xxxxxx Computing, Inc., dated August 31, 1990 | |
| 33. | Assignment of Copyright and Other Intellectual Property Rights, by and between Xxxxx Xxxxxx and Xxxxx Xxxxxx Computing, Inc., dated August 31, 1990 |
| 34. | Form of Environmental Indemnity Agreement, dated April 23, 1999, Exhibit C between Veritas and Xxxxxxxxx Semiconductor Corporation, included as Exhibit C to that certain Agreement of Purchase and Sale, dated March 29, 1999 between Veritas and Xxxxxxxxx Semiconductor of California | |
| 35. | Indenture, dated as of June 16, 2006, between Symantec Corporation and U.S. Bank National Association, as Trustee | |
| 36. | Indenture, dated as of June 16, 2006, between Symantec Corporation and U.S. Bank National Association, as Trustee | |
| 37. | Master Terms and Conditions, between Symantec Corporation and Citibank, N.A., dated June 9, 2006, including Confirmations dated June 12, 2006 | |
| 38. | Master Terms and Conditions (for Warrants), between Symantec Corporation and Citibank, N.A, dated June 9, 2006, including Confirmations dated June 12, 2006 | |
| 39. | Master Terms and Conditions, between Symantec Corporation and Bank of America, N.A., dated June 9, 2006, including Confirmations dated June 12, 2006 | |
| 40. | Master Terms and Conditions (for Warrants), between Symantec Corporation and Bank of America, N.A., dated June 9, 2006, including Confirmations dated June 12, 2006 |
Exhibit D
EXECUTION VERSION
SUBSIDIARY GUARANTY
Dated as of July 12, 2006
From
THE GUARANTORS NAMED HEREIN
and
THE ADDITIONAL GUARANTORS REFERRED TO HEREIN
as Guarantors
in favor of
THE LENDER PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
THE CREDIT AGREEMENT REFERRED TO HEREIN
T A B L E O F C O N T E N T S
| Section | Page | |||
Section 1. Guaranty; Limitation of Liability |
3 | |||
Section 2. Guaranty Absolute |
4 | |||
Section 3. Waivers and Acknowledgments |
5 | |||
Section 4. Subrogation |
6 | |||
Section 5. Payments Free and Clear of Taxes, Etc. |
6 | |||
Section 6. Representations and Warranties |
8 | |||
Section 7. Covenants |
8 | |||
Section 8. Amendments, Guaranty Supplements, Etc. |
9 | |||
Section 9. Notices, Etc. |
9 | |||
Section 10. No Waiver; Remedies |
9 | |||
Section 11. Right of Set-off |
10 | |||
Section 12. Indemnification |
10 | |||
Section 13. Subordination |
10 | |||
Section 14. Continuing Guaranty; Assignments under the Credit Agreement |
11 | |||
Section 15. Execution in Counterparts |
12 | |||
Section 16. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. |
12 | |||
Exhibit A — Guaranty Supplement |
||||
2
SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY dated as of July 12, 2006 made by the Persons listed on the signature
pages hereof under the caption “Subsidiary Guarantors” and the Additional Guarantors (as defined in
Section 8(b)) (such Persons so listed and the Additional Guarantors being, collectively, the
"Guarantors” and, individually, each a “Guarantor”) in favor of the Lender Parties (as defined in
the Credit Agreement referred to below).
Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or
by acceleration, demand or otherwise, of all obligations of each other Loan Party now or hereafter
existing under or in respect of this Guaranty and the Credit Agreement (together, the “Loan
Documents") (including, without limitation, any extensions, modifications, substitutions,
amendments or renewals of any or all of the foregoing obligations), whether direct or indirect,
absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract
causes of action, costs, expenses or otherwise (such obligations being the “Guaranteed
Obligations”), and agrees to pay any and all expenses (including, without limitation, fees and
expenses of counsel) incurred by the Administrative Agent or any other Lender Party in enforcing
any rights under this Guaranty or any other Loan Document. Without limiting the generality of the
foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Loan Party to any Lender Party under or in
respect of the Loan Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
(b) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each
other Lender Party, hereby confirms that it is the intention of all such Persons that this Guaranty
and the obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Guaranty and the obligations of each
3
Guarantor hereunder. To effectuate the foregoing intention, the Administrative Agent, the other
Lender Parties and the Guarantors hereby irrevocably agree that the obligations of each Guarantor
under this Guaranty at any time shall be limited to the maximum amount as will result in the
obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or
conveyance. For purposes hereof, “Bankruptcy Law” means any proceeding of the type referred to in
Article VII(i) of the Credit Agreement or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to any Lender Party under this Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other
Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Lender
Parties under or in respect of the Loan Documents.
Section 2. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in
accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Lender
Party with respect thereto. The obligations of each Guarantor under or in respect of this Guaranty
are independent of the Guaranteed Obligations or any other obligations of any other Loan Party
under or in respect of the Loan Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action is
brought against the Borrower or any other Loan Party or whether the Borrower or any other Loan
Party is joined in any such action or actions. The liability of each Guarantor under this Guaranty
shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby
irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations or any other obligations of any other Loan Party under
or in respect of the Loan Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to any Loan Party
or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral, or any taking,
release or amendment or waiver of, or consent to departure from, any other guaranty, for all
or any of the Guaranteed Obligations;
(d) any manner of application of any collateral, or proceeds thereof, to all or any of
the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other obligations of any
Loan Party under the Loan Documents or any other assets of any Loan Party or any of its
Subsidiaries;
4
(e) any change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;
(f) any failure of any Lender Party to disclose to any Loan Party any information
relating to the business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Loan Party now or hereafter known to such Lender Party
(each Guarantor waiving any duty on the part of the Lender Parties to disclose such
information);
(g) the failure of any other Person to execute or deliver this Guaranty, any Guaranty
Supplement (as hereinafter defined) or any other guaranty or agreement or the release or
reduction of liability of any Guarantor or other guarantor or surety with respect to the
Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Lender Party that might
otherwise constitute a defense available to, or a discharge of, any Loan Party or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any
Lender Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower
or any other Loan Party or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence,
notice of acceptance, presentment, demand for performance, notice of nonperformance, default,
acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that any Lender Party protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take any action against any
Loan Party or any other Person or any collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by any Lender Party that in any
manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor or any other Person
or any collateral and (ii) any defense based on any right of set-off or counterclaim against or in
respect of the obligations of such Guarantor hereunder.
(d) Each Guarantor acknowledges that the Administrative Agent may, without notice to or demand
upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty,
foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to
the recovery by the Administrative Agent and the other Lender
5
Parties against such Guarantor of any
deficiency after such nonjudicial sale and any defense or benefits that may be afforded by
applicable law.
(e) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any
Lender Party to disclose to such Guarantor any matter, fact or thing relating to the business,
condition (financial or otherwise), operations, performance, properties or prospects of any other
Loan Party or any of its Subsidiaries now or hereafter known by such Lender Party.
(f) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loan Documents and that the waivers set forth
in Section 2 and this Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights
that it may now have or hereafter acquire against the Borrower, any other Loan Party or any other
insider guarantor that arise from the existence, payment, performance or enforcement of such
Guarantor’s obligations under or in respect of this Guaranty or any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of any Lender Party against the
Borrower, any other Loan Party or any other insider guarantor or any collateral, whether or not
such claim, remedy or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Borrower, any other Loan Party or any
other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any
other manner, payment or security on account of such claim, remedy or right, unless and until all
of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Commitments shall have expired or been terminated. If any amount
shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior
to the latest of (a) the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty and (b) the Maturity Date, such amount shall be received and
held in trust for the benefit of the Lender Parties, shall be segregated from other property and
funds of such Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the
same form as so received (with any necessary endorsement or assignment) to be credited and applied
to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or
unmatured, in accordance with the terms of the Loan Documents, or to be held as collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) any
Guarantor shall make payment to any Lender Party of all or any part of the Guaranteed Obligations,
(ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have
been paid in full in cash and (iii) the Maturity Date shall have occurred, the Lender Parties will,
at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations
resulting from such payment made by such Guarantor pursuant to this Guaranty.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any and all payments by or on account of any obligation of the Guarantor hereunder shall
be made free and clear of and
6
without deduction for any Indemnified Taxes or Other Taxes; provided
that if the Guarantor shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable under this Section)
the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Guarantor shall make such deductions
and (iii) the Guarantor shall pay the full amount deducted to the relevant Governmental Authority
in accordance with applicable law.
(b) In addition, the Guarantor shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The Guarantor shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by
or on account of any obligation of the Guarantor hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to the Guarantor by a Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Guarantor to a Governmental Authority, the Guarantor shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender shall deliver to the Guarantor and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under the Credit Agreement (and from time to time thereafter upon
the request of the Guarantor or the Administrative Agent, but only if such Foreign Lender is
legally entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States of America is a party;
(ii) duly completed copies of Internal Revenue Service Form W-ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation”
7
described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.
In addition, each Lender shall deliver such other documentation prescribed by applicable law
as will enable the Guarantor or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements..
(b) (f) If the Administrative Agent or a Lender determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the
Guarantor or with respect to which the Guarantor has paid additional amounts pursuant to this
Section 5, it shall pay over such refund to the Guarantor (but only to the extent of indemnity
payments made, or additional amounts paid, by the Guarantor under this Section 5 with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided, that the Guarantor, upon
the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the
Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such
Lender is required to repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available its tax returns (or
any other information relating to its taxes which it deems confidential) to the Guarantor or any
other Person.
Section 6. Representations and Warranties. Each Guarantor hereby makes each representation and warranty made in the Loan Documents by
the Borrower with respect to such Guarantor and each Guarantor hereby further represents and
warrants as follows:
(a) There are no conditions precedent to the effectiveness of this Guaranty that have
not been satisfied or waived.
(b) Such Guarantor has, independently and without reliance upon any Lender Party and
based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty and each other Loan Document to which it
is or is to be a party, and such Guarantor has established adequate means of obtaining from
each other Loan Party on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar with,
the business, condition (financial or otherwise), operations, performance, properties and
prospects of such other Loan Party.
Section 7. Covenants. Each Guarantor covenants and agrees that, so long as any part of the Guaranteed Obligations
shall remain unpaid, any Lender Party shall have any Commitment, such Guarantor will perform and
observe, and cause each of its Subsidiaries to
8
perform and observe, all of the terms, covenants and
agreements set forth in the Loan Documents on its or their part to be performed or observed or that
the Borrower has agreed to cause such Guarantor or such Subsidiaries to perform or observe.
Section 8. Amendments, Guaranty Supplements, Etc. (a) No amendment or waiver of any provision of this Guaranty and no consent to any departure
by any Guarantor therefrom shall in any event be effective unless the same shall be in writing and
signed by the Administrative Agent and the Required Lenders, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and signed by all of the
Lender Parties (other than any Lender Party that is, at such time, a Defaulting Lender), (a) reduce
or limit the obligations of any Guarantor hereunder, release any Guarantor hereunder or otherwise
limit any Guarantor’s liability with respect to the obligations owing to the Lender Parties under
or in respect of the Loan Documents, (b) postpone any date fixed for payment hereunder or
(c) change the number of Lender Parties or the percentage of (x) the Commitments or (y) the
aggregate unpaid principal amount of the Advances that, in each case, shall be required for the
Lender Parties or any of them to take any action hereunder.
(b) Upon the execution and delivery by any Person of a guaranty supplement in substantially
the form of Exhibit A hereto (each, a “Guaranty Supplement”), (i) such Person shall be referred to
as an “Additional Guarantor” and shall become and be a Guarantor hereunder, and each reference in
this Guaranty to a “Guarantor” shall also mean and be a reference to such Additional Guarantor, and
each reference in any other Loan Document to a “Subsidiary Guarantor” shall also mean and be a
reference to such Additional Guarantor, and (ii) each reference herein to “this Guaranty”,
"hereunder”, “hereof” or words of like import referring to this Guaranty, and each reference in any
other Loan Document to the “Subsidiary Guaranty”, “thereunder”, “thereof” or words of like import
referring to this Guaranty, shall mean and be a reference to this Guaranty as supplemented by such
Guaranty Supplement.
Section 9. Notices, Etc. All notices and other communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed, telecopied, telexed or
delivered to it, if to any Guarantor, addressed to it in care of the Borrower at the Borrower’s
address specified in Section 9.01 of the Credit Agreement, if to any Agent or any Lender Party, at
its address specified in Section 9.01 of the Credit Agreement, or, as to any party, at such other
address as shall be designated by such party in a written notice to each other party.
All such notices and other communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph company, transmitted
by telecopier or confirmed by telex answerback, respectively. Delivery by telecopier of an
executed counterpart of a signature page to any amendment or waiver of any provision of this
Guaranty or of any Guaranty Supplement to be executed and delivered hereunder shall be effective as
delivery of an original executed counterpart thereof.
Section 10. No Waiver; Remedies. No failure on the part of any Lender Party to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
9
Section 11. Right of Set-off. Upon (a) the occurrence and during the continuance of any Event of Default and (b) the
making of the request or the granting of the consent specified by Article VII of the Credit
Agreement to authorize the Administrative Agent to declare the Notes due and payable pursuant to
the provisions of said Article VII, each Agent and each Lender Party and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Agent, such Lender
Party or such Affiliate to or for the credit or the account of any Guarantor against any and all of
the obligations of such Guarantor now or hereafter existing under the Loan Documents, irrespective
of whether such Agent or such Lender Party shall have made any demand under this Guaranty or any
other Loan Document and although such obligations may be unmatured. Each Agent and each Lender
Party agrees promptly to notify such Guarantor after any such set-off and application; provided,
however, that the failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Agent and each Lender Party and their respective Affiliates under
this Section are in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Agent, such Lender Party and their respective Affiliates may have.
Section 12. Indemnification. (a) Without limitation on any other obligations of any Guarantor or remedies of the Lender
Parties under this Guaranty, each Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Lender Party and each of their Affiliates and
their respective officers, directors, employees, agents and advisors (each, an “Indemnified Party”)
from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party in connection with or as a result
of any failure of any Guaranteed Obligations to be the legal, valid and binding obligations of any
Loan Party enforceable against such Loan Party in accordance with their terms.
(b) Each Guarantor hereby also agrees that none of the Indemnified Parties shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to any of the Guarantors or
any of their respective Affiliates or any of their respective officers, directors, employees,
agents and advisors, and each Guarantor hereby agrees not to assert any claim against any
Indemnified Party on any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Loan Documents, the actual or proposed use of
the proceeds of the Advances, the Transaction Documents or any of the transactions contemplated by
the Transaction Documents.
(c) Without prejudice to the survival of any of the other agreements of any Guarantor under
this Guaranty or any of the other Loan Documents, the agreements and obligations of each Guarantor
contained in Section 1(a) (with respect to enforcement expenses), the last sentence of Section 2,
Section 5 and this Section 12 shall survive the payment in full of the Guaranteed Obligations and
all of the other amounts payable under this Guaranty.
Section 13. Subordination. Each Guarantor hereby subordinates any and all debts, liabilities and other obligations
owed to such Guarantor by each other Loan Party (the
10
“Subordinated Obligations”) to the Guaranteed
Obligations to the extent and in the manner hereinafter set forth in this Section 13:
(a) Prohibited Payments, Etc. Except during the continuance of a Default
(including the commencement and continuation of any proceeding under any Bankruptcy Law
relating to any other Loan Party), each Guarantor may receive regularly scheduled payments
from any other Loan Party on account of the Subordinated Obligations. After the occurrence
and during the continuance of any Default (including the commencement and continuation of
any proceeding under any Bankruptcy Law relating to any other Loan Party), however, unless
the Administrative Agent otherwise agrees, no Guarantor shall demand, accept or take any
action to collect any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under any
Bankruptcy Law relating to any other Loan Party, each Guarantor agrees that the Lender
Parties shall be entitled to receive payment in full in cash of all Guaranteed Obligations
(including all interest and expenses accruing after the commencement of a proceeding under
any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“Post
Petition Interest”)) before such Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any Default
(including the commencement and continuation of any proceeding under any Bankruptcy Law
relating to any other Loan Party), each Guarantor shall, if the Administrative Agent so
requests, collect, enforce and receive payments on account of the Subordinated Obligations
as trustee for the Lender Parties and deliver such payments to the Administrative Agent on
account of the Guaranteed Obligations (including all Post Petition Interest), together with
any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability of such
Guarantor under the other provisions of this Guaranty.
(d) Administrative Agent Authorization. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), the Administrative Agent is
authorized and empowered (but without any obligation to so do), in its discretion, (i) in
the name of each Guarantor, to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post Petition Interest), and (ii) to require each
Guarantor (A) to collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the Administrative
Agent for application to the Guaranteed Obligations (including any and all Post Petition
Interest).
Section 14. Continuing Guaranty; Assignments under the Credit Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until
the latest of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and (ii) the Maturity Date, (b) be binding upon the Guarantor, its
successors
11
and assigns and (c) inure to the benefit of and be enforceable by the Lender Parties and
their successors, transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, any Lender Party may assign or otherwise transfer all or any
portion of its rights and obligations under the Credit Agreement (including, without limitation,
all or any portion of its Commitments, the Advances owing to it and the Note or Notes held by it)
to any other Person, and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Lender Party herein or otherwise, in each case as and to the extent
provided in Section 9.04 of the Credit Agreement. No Guarantor shall have the right to assign its
rights hereunder or any interest herein without the prior written consent of the Lender Parties.
Section 15. Execution in Counterparts. This Guaranty and each amendment, waiver and consent with respect hereto may be executed in
any number of counterparts and by different parties thereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken together shall constitute
one and the same agreement. Delivery of an executed counterpart of a signature page to this
Guaranty by telecopier shall be effective as delivery of an original executed counterpart of this
Guaranty.
Section 16. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.(a) This Guaranty shall be governed by, and construed in accordance with, the laws of the
State of New York.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Guaranty or any of the other
Loan Documents to which it is or is to be a party, or for recognition or enforcement of any
judgment, and each Guarantor hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each Guarantor agrees that a
final judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Guaranty or any other Loan Document shall affect any right that any party may otherwise have to
bring any action or proceeding relating to this Guaranty or any other Loan Document in the courts
of any jurisdiction.
(c) Each Guarantor irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Guaranty or any of the
other Loan Documents to which it is or is to be a party in any New York State or federal court.
Each Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such suit, action or proceeding in any such court.
[Remainder of Page Intentionally Left Blank]
12
(d) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF
THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY LENDER PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
| VERITAS OPERATING CORPORATION | ||||||
| By | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
| VERITAS SOFTWARE GLOBAL LLC | ||||||
| By | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
| VERITAS SOFTWARE INVESTMENT COMPANY | ||||||
| By | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
| VERITAS SOFTWARE TECHNOLOGY CORPORATION | ||||||
| By | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
13
Exhibit A
To The
Subsidiary Guaranty
To The
Subsidiary Guaranty
FORM OF SUBSIDIARY GUARANTY SUPPLEMENT
__, ____
XX Xxxxxx Xxxxx Bank, National Association, as Administrative Agent
[Address of Administrative Agent]
[Address of Administrative Agent]
Attention:
Credit Agreement dated as of July 12, 2006 among
Symantec Corporation, a Delaware corporation (the “Borrower”), the Lender Parties
party to the Credit Agreement,
and JPMorgan Chase Bank, as Administrative Agent
Symantec Corporation, a Delaware corporation (the “Borrower”), the Lender Parties
party to the Credit Agreement,
and JPMorgan Chase Bank, as Administrative Agent
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the Subsidiary Guaranty
referred to therein (such Subsidiary Guaranty, as in effect on the date hereof and as it may
hereafter be amended, supplemented or otherwise modified from time to time, together with this
Guaranty Supplement, being the “Subsidiary Guaranty”). The capitalized terms defined in the
Subsidiary Guaranty or in the Credit Agreement and not otherwise defined herein are used herein as
therein defined.
Section 1. Guaranty; Limitation of Liability. (a) The undersigned hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or
by acceleration, demand or otherwise, of all obligations of each other Loan Party now or hereafter
existing under or in respect of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the foregoing obligations),
whether direct or indirect, absolute or contingent, and whether for principal, interest, premium,
fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being
the “Guaranteed Obligations”), and agrees to pay any and all expenses (including, without
limitation, fees and expenses of counsel) incurred by the Administrative Agent or any other Lender
Party in enforcing any rights under this Guaranty Supplement, the Subsidiary Guaranty or any other
Loan Document. Without limiting the generality of the foregoing, the undersigned’s liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any
other Loan Party to any Lender Party under or in respect of the Loan Documents but for the fact
that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization
or similar proceeding involving such other Loan Party.
(b) The undersigned, and by its acceptance of this Guaranty Supplement, the Administrative
Agent and each other Lender Party, hereby confirms that it is the intention of all such Persons
that this Guaranty Supplement, the Subsidiary Guaranty and the obligations of the undersigned
hereunder and thereunder not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar foreign, federal or state law to the extent applicable to this Guaranty Supplement, the
Subsidiary Guaranty and the obligations of the undersigned hereunder and thereunder. To effectuate
the foregoing intention, the Administrative Agent, the other Lender Parties and the undersigned
hereby irrevocably agree that the obligations of the undersigned under this Guaranty Supplement and
the Subsidiary Guaranty at any time shall be limited to the maximum amount as will result in the
obligations of the undersigned under this Guaranty Supplement and the Subsidiary Guaranty not
constituting a fraudulent transfer or conveyance.
(c) The undersigned hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to any Lender Party under this Guaranty Supplement, the
Subsidiary Guaranty or any other guaranty, the undersigned will contribute, to the maximum extent
permitted by applicable law, such amounts to each other Guarantor and each other guarantor so as to
maximize the aggregate amount paid to the Lender Parties under or in respect of the Loan Documents.
Section 2. Obligations Under the Guaranty. The undersigned hereby agrees, as of the date first above written, to be bound as a
Guarantor by all of the terms and conditions of the Subsidiary Guaranty to the same extent as each
of the other Guarantors thereunder. The undersigned further agrees, as of the date first above
written, that each reference in the Subsidiary Guaranty to an “Additional Guarantor” or a
"Guarantor” shall also mean and be a reference to the undersigned, and each reference in any other
Loan Document to a “Subsidiary Guarantor” or a “Loan Party” shall also mean and be a reference to
the undersigned.
Section 3. Representations and Warranties. The undersigned hereby makes each representation and warranty set forth in Section 6 of the
Subsidiary Guaranty to the same extent as each other Guarantor.
Section 4. Delivery by Telecopier. Delivery of an executed counterpart of a signature page to this Guaranty Supplement by
telecopier shall be effective as delivery of an original executed counterpart of this Guaranty
Supplement.
Section 5. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a) This Guaranty Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.
(b) The undersigned hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or any federal
court of the United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this Guaranty Supplement,
the Subsidiary Guaranty or any of the other Loan Documents to which it is or is to be a party, or
for recognition or enforcement of any judgment, and the undersigned hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard
15
and
determined in any such New York State court or, to the extent permitted by law, in such federal
court. The undersigned agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Guaranty Supplement or the Subsidiary Guaranty or any
other Loan Document shall affect any right that any party may otherwise have to bring any action or
proceeding relating to this Guaranty Supplement, the Subsidiary Guaranty or any of the other Loan
Documents to which it is or is to be a party in the courts of any other jurisdiction.
(c) The undersigned irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Guaranty Supplement, the
Subsidiary Guaranty or any of the other Loan Documents to which it is or is to be a party in any
New York State or federal court. The undersigned hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or
proceeding in any such court.
(d) THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY LENDER PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
| Very truly yours, [NAME OF ADDITIONAL GUARANTOR] |
||||
| By | ||||
| Title: | ||||
16