exv10w2



 





Exhibit 10.2




FIRST AMENDMENT




     THIS FIRST AMENDMENT (this “Amendment”) dated as of July 31, 2007 to the Credit
Agreement referenced below is by and among BRIGHTPOINT, INC., an Indiana corporation (the
“Parent”), BRIGHTPOINT NORTH AMERICA L.P., a Delaware limited partnership (“Bright
North America”), BRIGHTPOINT PHILIPPINES LIMITED, a British Virgin Islands company (“Bright
BVI”), BRIGHTPOINT HOLDINGS B.V., a Netherlands company (“Bright Netherlands”),
BRIGHTPOINT AUSTRALIA PTY. LTD., an Australian company (“Bright Australia”), DANGAARD
TELECOM ADMINISTRATION A/S, a Danish company (“Bright Denmark Administration”), DANGAARD
TELECOM A/S, a Danish company (“Bright Denmark Telecom”, and together with the Parent,
Bright North America, Bright BVI, Bright Netherlands, Bright Australia and Bright Denmark
Administration, collectively, the “Borrowers”), the Guarantors identified on the signature
pages hereto, the Lenders identified on the signature pages hereto and BANK OF AMERICA, N.A., in
its capacity as Administrative Agent (in such capacity, the “Administrative Agent”).



WITNESSETH




     WHEREAS, revolving credit facilities have been extended to the Borrowers pursuant to the
Credit Agreement (as amended, modified, supplemented, increased and extended from time to time, the
“Credit Agreement”) dated as of February 16, 2007 among the Borrowers, the Guarantors
identified therein, the Lenders identified therein and the Administrative Agent;



     WHEREAS, the Borrowers have requested certain modifications to the Credit Agreement; and




     WHEREAS, the Required Lenders have approved the requested modifications on the terms and
conditions set forth herein.



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



     1. Defined Terms. Capitalized terms used herein but not otherwise defined herein
shall have the meanings provided to such terms in the Credit Agreement.



     2. Amendment. From and after the First Amendment Effective Date (as defined below),
(i) the Credit Agreement is amended in its entirety to read in the form of such Credit Agreement
attached hereto as Exhibit A to this Amendment; (ii) Exhibit 2.02 (Form of Loan
Notice) of the Credit Agreement is amended in its entirety to read in the form of such Exhibit
2.02 attached hereto as Exhibit B to this Amendment; (iii) Exhibit 2.04 (Form
of Domestic Swing Loan Notice) of the Credit Agreement is amended in its entirety to read in the
form of such Exhibit 2.04 attached hereto as Exhibit C to this Amendment; (iv)
Exhibit 2.05 (Form of Australian Swing Loan Notice) of the Credit Agreement is amended in
its entirety to read in the form of such Exhibit 2.05 attached hereto as Exhibit D
to this Amendment; (v) Exhibit 2.06 (Form of Danish Swing Line Loan Notice) of the Credit
Agreement is added to the Credit Agreement to read in the form of such Exhibit 2.06
attached hereto as Exhibit E to this Amendment; (vi) Exhibit 2.14-2 (Form of Note
[Foreign Borrowers]) of the Credit Agreement is amended in its entirety to read in the form of such
Exhibit 2.14-2 attached hereto as Exhibit F to this Amendment; (vii) a new
Exhibit 7.02(c) is added to the Credit Agreement in the form of such Exhibit
7.02(c) attached hereto as Exhibit G to this Amendment; (viii) Schedule 2.01
(Commitments and Commitment Percentages) of the Credit Agreement is
amended in its entirety to read in the form of such Schedule 2.01 attached hereto as
Exhibit H to this Amendment; (ix) a new Schedule 8.02-2 is added to



 









 




the Credit Agreement in the form of such Schedule 8.02-2 attached hereto as Exhibit
I to this Amendment; (x) a new Schedule 8.03-2 is added to the Credit Agreement in the
form of such Schedule 8.03-2 attached hereto as Exhibit J to this Amendment; and
(xi) Schedule 11.02 (Certain Addresses for Notices) of the Credit Agreement is amended in
its entirety to read in the form of such Schedule 11.02 attached hereto as Exhibit K to this Amendment




     3. New Lenders. From and after the First Amendment Effective Date (as defined below),
by execution of this Amendment, each Person identified on the signature pages hereto as a Lender
that is not a party to the Credit Agreement immediately prior to the First Amendment Effective Date
(each, a “New Lender”) shall be deemed to be a party to the Credit Agreement and a “Lender”
for all purposes of the Credit Agreement and the other Loan Documents, and shall have all of the
rights and obligations of a Lender under the Credit Agreement and the other Loan Documents as if it
had executed the Credit Agreement.



     4. Joinder of Bright Denmark Telecom and Bright Denmark Administration as Foreign
Borrowers. From and after the First Amendment Effective Date (as defined below), each of
Bright Denmark Administration and Bright Denmark Telecom (each a “New Borrower”) shall be
deemed a party to the Credit Agreement and a “Foreign Borrower” for all purposes of the Credit
Agreement and the other Loan Documents and shall have obligations, duties and liabilities toward
each of the other parties to the Credit Agreement and the other Loan Documents identical to those
which such New Borrower would have had if such New Borrower had been an original party to the
Credit Agreement as a Foreign Borrower. Each New Borrower hereby ratifies, as of the date hereof,
and agrees to be bound by, all of the terms, provisions and conditions applicable to the Foreign
Borrowers contained in the Credit Agreement. Without limiting the generality of the foregoing
terms of this paragraph 4, each New Borrower hereby (a) agrees that it is jointly and severally
liable with the other Foreign Borrowers for all of the Foreign Obligations as set forth in, and
subject to the limitation provided in, Section 2.17 of the Credit Agreement, and (b)
jointly and severally together with the other Foreign Guarantors, guarantees to the Administrative
Agent and each holder of the Foreign Obligations as provided in Article IV of the Credit
Agreement, as as primary obligor and not as surety, the prompt payment and performance of the
Foreign Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise) strictly in accordance with the terms thereof. The Required Lenders
hereby agree that each of Bright Denmark Administration and Bright Denmark Telecom may request
Credit Extensions on and after the date hereof.



     5. Conditions Precedent. This Amendment shall be effective as of the date hereof (the
“First Amendment Effective Date”) upon satisfaction of each of the following conditions:




     (a) Executed Amendment Documents. The Administrative Agent shall have received:




     (i) counterparts of this Amendment executed by the Borrowers, the Guarantors,
the Required Lenders, the New Lenders and the Administrative Agent; and




     (ii) Notes executed by each Foreign Borrower for each Lender and Notes executed
by each Domestic Borrower for each Lender.




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



2









 






     (i) copies of the Organization Documents of each of Bright Denmark Telecom and
Bright Denmark Administration certified by a secretary or assistant secretary of
such Loan Party to be true and correct as of the date hereof;




     (ii) resolutions of the board of directors (or its equivalent) of each Loan
Party approving this Amendment, certified by the secretary of each Loan Party as
being in full force and effect on the date hereof; and




     (iii) incumbency certificates and/or other certificates of Responsible Officers
of each Loan Party as the Administrative Agent may require evidencing the identity
and capacity of each Responsible Officer.




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




     (d) Columbo Acquisition.




     (i) Consents. All material governmental, shareholder and third party
consents (including Hart-Scott-Rodino clearance) and approvals necessary in
connection with the Columbo Acquisition shall have been obtained and shall be in
force and effect; all applicable waiting periods shall have expired without any
action being taken by any authority that could restrain, prevent or impose any
material adverse conditions on the Columbo Acquisition; and no Law shall be
applicable that could restrain, prevent or impose any material adverse conditions on
the Columbo Acquisition.




     (ii) Consummation. The Columbo Acquisition shall have been consummated
substantially in accordance with the terms of the Columbo Acquisition Documents and
in compliance in all material respects with applicable Law and regulatory approvals.




     (e) Security. The Administrative Agent shall have received such security
agreements or amendments to security agreements from each of Bright BVI, Bright Netherlands,
Bright Denmark Telecom and Bright Denmark Administration, together with all other
agreements, documents and instruments as the Administrative Agent may reasonably request in
connection with the foregoing, including, without limitation, any filings and deliveries
reasonably necessary in connection therewith to perfect the security interests therein, all
in form and substance reasonably satisfactory to the Administrative Agent.




     (f) Fees. Receipt by the Administrative Agent, BAS, ABN AMRO Bank N.V. and the
Lenders of any fees required to be paid on or before the First Amendment Effective Date.




     (g) Attorney Costs. Unless waived by the Administrative Agent, the Parent
shall have paid all reasonable and properly documented fees, charges and disbursements of
counsel to the Administrative Agent (directly to such counsel if requested by the
Administrative Agent) to the extent incurred and invoiced prior to or on the First Amendment
Effective Date.



     Without limiting the generality of the provisions of Section 10.04 of the Credit
Agreement, for purposes of determining compliance with the conditions specified in this Section 4,
each Lender that has



3









 




signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice
from such Lender prior to the date hereof specifying its objection thereto.




     6. Amendment is a “Loan Document”. This Amendment is a Loan Document.



     7. Reaffirmation of Representations and Warranties. Each Loan Party represents and
warrants that, after giving effect to this Amendment, (a) the representations and warranties set
forth in the Loan Documents are true and correct in all material respects as of the date hereof
(except those that expressly relate to an earlier period) and (b) no Default exists.



     8. Reaffirmation of Obligations. Each Borrower and Guarantor (a) acknowledges and
consents to all of the terms and conditions of this Amendment, (b) affirms all of its obligations
under the Loan Documents and (c) agrees that this Amendment and all documents executed in
connection herewith do not operate to reduce or discharge such Borrower’s or such Guarantor’s
obligations under the Loan Documents.



     9. Reaffirmation of Security Interests. Each Loan Party (a) affirms that each of the
Liens granted in or pursuant to the Loan Documents are valid and subsisting and (b) agrees that
this Amendment shall in no manner impair or otherwise adversely effect any of the Liens granted in
or pursuant to the Loan Documents.



     10. Reaffirmation of Section 11.16 of Credit Agreement. Each Loan Party reaffirms
Section 11.16 of the Credit Agreement, as amended by this Amendment.



     11. No Other Changes. Except as modified hereby, all of the terms and provisions of
the Loan Documents shall remain in full force and effect.



     12. Counterparts; Facsimile Delivery. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for more than one such
counterpart. Delivery of an executed counterpart of this Amendment by facsimile or electronic mail
shall be effective as an original.



     13. Governing Law. This Amendment shall be deemed to be a contract made under, and
for all purposes shall be construed in accordance with, the laws of the State of New York.



[SIGNATURE PAGES FOLLOW]




4









 








     IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this First
Amendment to be duly executed and delivered as of the date first above written.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	DOMESTIC

BORROWERS:	 	BRIGHTPOINT, INC., an Indiana corporation	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Anthony W. Boor 
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Anthony W. Boor	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Executive Vice President,

Chief Financial Officer & Treasurer	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	BRIGHTPOINT NORTH AMERICA L.P., a Delaware limited partnership	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	By:
	 	Brightpoint North America, Inc., its general partner	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Anthony W. Boor 
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Anthony W. Boor	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Executive Vice President,

Chief Financial Officer & Treasurer	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	FOREIGN

BORROWERS:	 	BRIGHTPOINT PHILIPPINES LIMITED, a British Virgin Islands company	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Steven E. Fivel 
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Steven E. Fivel	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Director	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	BRIGHTPOINT HOLDINGS B.V., a Netherlands company	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Steven E. Fivel 
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Steven E. Fivel	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ N.J.J.M. Wolthuis-Geeraedts 
	 	 	 	 	 	/s/ E.S. van Dalen 

	 	 	 	 	N.J.J.M. Wolthuis-Geeraedts	 	 	 	 	 	E.S. van Dalen
	 

	 	 	 	Name:
	 	Fortis Intertrust (Netherlands) B.V.
	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	SIGNED, SEALED AND	 	 	)	 	 	 
	 	 	 	 	DELIVERED by STEVEN E. FIVEL	 	 	)	 	 	 
	 	 	 	 	as attorney for BRIGHTPOINT	 	 	)	 	 	 
	 	 	 	 	AUSTRALIA PTY LTD under power	 	 	)	 	 	 
	 	 	 	 	of attorney dated February 16, 2007	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 	)	 	 	 
	 	 	 	 	in the presence of:	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 	)	 	 	 
	 	 	 	 	/s/ CRAIG M. CARPENTER 
	 	 	)	 	 	/s/ Steven E. Fivel 

	 	 	 	 	Signature of witness	 	 	)	 	 	By executing this deed the attorney
	 

	 	 	 	 	 	 	 	 	)	 	 	states that the attorney has received no
	 	 	 	 	CRAIG M. CARPENTER 
	 	 	)	 	 	notice of revocation of the power of
	 	 	 	 	Name of witness (block letters)	 	 	)	 	 	attorney
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	[SIGNATURE PAGES FOLLOW]
	 

	 	 	 	 	 	 	 	 	 	 	 	Brightpoint, Inc.
	 

	 	 	 	 	 	 	 	 	 	 	 	First Amendment






 









 









	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	DANGAARD TELECOM ADMINISTRATION A/S, a Danish company	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Michael Kaehn Milland 
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Michael Kaehn Milland	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	COO	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	DANGAARD TELECOM A/S, a Danish company	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Michael Kaehn Milland 
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Michael Kaehn Milland	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	COO	 	 	 	 	 	 






[SIGNATURE PAGES FOLLOW]





 









 





	 	 	 	 	 
	DOMESTIC 

GUARANTORS:	
2601 METROPOLIS CORP., an Indiana corporation

BRIGHTPOINT INTERNATIONAL LTD, a Delaware corporation

BRIGHTPOINT NORTH AMERICA, INC., an Indiana corporation

BRIGHTPOINT LATIN AMERICA, INC., an Indiana corporation

BRIGHTPOINT THAILAND, INC., an Indiana corporation

WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Anthony W. Boor
 	 
	 	 	Name:  	Anthony W. Boor 	 
	 	 	Title:  	Executive Vice President,
Chief Financial Officer & Treasurer of each
of the foregoing 	 
	 
	 	BRIGHTPOINT ACTIVATION SERVICES LLC,

an Indiana limited liability company 	 
	 
	 	By:  	Brightpoint North America L.P., its Manager
	 
	 
	 	By:  	
Brightpoint North America, Inc., its general partner 	 
	 
	 	By:  	/s/ Anthony W. Boor
 	 
	 	 	Name:  	Anthony W. Boor 	 
	 	 	Title:  	Executive Vice President, Chief Financial Officer &
Treasurer 	 
	 
	 	BRIGHTPOINT SERVICES, LLC, an Indiana limited liability company
 	 
	 
	 	By:  	Brightpoint, Inc., its Member
 	 
	 
	 	By:  	/s/ Anthony W. Boor
 	 
	 	 	Name:  	Anthony W. Boor 	 
	 	 	Title:  	Executive Vice President, Chief Financial Officer & Treasurer 	 
	 
	 	TRIO INDUSTRIES, INC., a Texas corporation

 	 
	 	By:  	/s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Executive Vice President, General Counsel & Secretary 	 
	 
	 	WIRELESS FULFILLMENT SERVICES
LLC, 
a California limited liability company	 
	 
	 	By:  	
Brightpoint, Inc., its Manager
 	 
	 
	 	By:  	/s/ Anthony W. Boor
 	 
	 	 	Name:  	Anthony W. Boor 	 
	 	 	Title:  	Executive Vice President, Chief Financial Officer & Treasurer 	 
	 



[SIGNATURE PAGES FOLLOW]



Brightpoint, Inc.

First Amendment





 









 







	 	 	 	 	 
	 	BRIGHTPOINT DISTRIBUTION LLC, an Indiana limited liability company 	 
	 
	 	By:  	
Brightpoint North America L.P., its sole Member
 	 
	 
	 	By:  	Brightpoint North America, Inc., its general partner
 	 
	 
	 	By:  	/s/ Anthony W. Boor
 	 
	 	 	Name:  	Anthony W. Boor 	 
	 	 	Title:  	Executive Vice President, Chief Financial Officer &
Treasurer 	 
	 



[SIGNATURE PAGES FOLLOW]



Brightpoint, Inc.

First Amendment





 









 





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

 	 
	 	By:  	/s/  William Faidell
 	 
	 	 	Name:  	William Faidell 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	DANISH SWING
LINE LENDER: 	 
BANC OF AMERICA SECURITIES LIMITED

 	 
	 	By:  	/s/ Keith Thomas
 	 
	 	 	Name:  	Keith Thomas  	 
	 	 	Title:  	Senior Vice President 	 
	 



[SIGNATURE PAGES FOLLOW]




Brightpoint, Inc.

First Amendment





 









 








BRIGHTPOINT USD 550.0 MILLION SENIOR CREDIT FACILITIES




	 	 	 	 	 
	LENDERS: 	BANK OF AMERICA, N.A., as a Lender,
L/C Issuer and US Swing Line Lender

 	 
	 	By:  	/s/ Debra E. DelVecchio
 	 
	 	 	Name:  	Debra E. DelVecchio 	 
	 	 	Title:  	Managing Director 	 
	 
	 	ABN AMRO BANK N.V.

 	 
	 	By:  	/s/ Bruce R. Hagne
 	 
	 	 	Name:  	Bruce R. Hagne 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	 	 
	 	By:  	                       /s/ Thomas J.  Bieke
 	 
	 	 	Name:  	Thomas J. Bieke 	 
	 	 	Title:  	Attorney-in-Fact 	 
	 



	 	 	 	 	 	 	 
	 	NORDEA BANK DANMARK A/S

 	 
	 	By:  	/s/ Gorm Bjørkmann
 	/s/ Stig Østrup-Møller
 	 
	 	 	Name:  	Gorm Bjørkmann	Stig Østrup-Møller 	 
	 	 	Title:  	Senior Relationship Manager	Senior Relationship Manager 	 
	 



	 	 	 	 	 
	 	CITIBANK, N.A.

 	 
	 	By:  	/s/ Steve T. Zuvich
 	 
	 	 	Name:  	Steve T. Zuvich  	 
	 	 	Title:  	Vice President 	 
	 
	 	THE ROYAL BANK OF SCOTLAND PLC

 	 
	 	By:  	/s/ Eddie Dec
 	 
	 	 	Name:  	Eddie Dec 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	BANK DNB NORD A/S

 	 
	 	By:  	/s/ Claus K. Palmelund/Flemming Lippert
 	 
	 	 	Name:  	Claus K. Palmelund/Flemming Lippert 	 
	 	 	Title:  	Head of Credit Department / Head of Trade and Export Finance
Department 	 
	 
	 	FIFTH THIRD BANK, INC.

 	 
	 	By:  	/s/ David O’Neal
 	 
	 	 	Name:  	David O’Neal 	 
	 	 	Title:  	Vice President 	 
	 



[SIGNATURE PAGES FOLLOW]




Brightpoint, Inc.

First Amendment to Credit Agreement





 









 







	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION 

 	 
	 	By:  	/s/ Dwayne L Coker
 	 
	 	 	Name:  	Dwayne L Coker 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 
	 	WELLS FARGO BANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH

 	 
	 	By:  	/s/ Paul O’Leary
 	 
	 	 	Name:  	Paul O’Leary 	 
	 	 	Title:  	Vice President 	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH

 	 
	 	By:  	/s/ Marous M. Tarkington
 	 
	 	 	Name:  	Marous M. Tarkington 	 
	 	 	Title:  	Director 	 
	 
	 	NATIONAL CITY BANK

 	 
	 	By:  	/s/
Micheal Callas 	 
	 	 	Name:  	Micheal Callas 	 
	 	 	Title:  	V. P. 	 
	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
CHICAGO BRANCH

 	 
	 	By:  	/s/ Masakazu Sato
 	 
	 	 	Name:  	Masakazu Sato 	 
	 	 	Title:  	Deputy General Manager 	 
	 
	 	NYKREDIT BANK A/S

 	 
	 	By:  	/s/ Jørn Christoansen 	/s/ Ricco Flade

	 	 	Name:  	Jørn Christoansen 	Ricco Flade 

	 	 	Title:  	Senior Vice President 	Associate 

	 
	 	HSH NORDBANK AG COPENHAGEN BRANCH

 	 
	 	By:  	/s/
Bo Stengaard 	/s/
Per Olhoff

	 	 	Name:  	Bo Stengaard 	Per Olhoff

	 	 	Title:  	Attorney at Law 	VP 

	 
	 	BMO CAPITAL MARKETS FINANCING, INC.

 	 
	 	By:  	/s/ William Thomson
 	 
	 	 	Name:  	William Thomson 	 
	 	 	Title:  	Vice President 	 
	 



Brightpoint, Inc.

First Amendment to Credit Agreement




 









 








Exhibit A




AMENDED CREDIT AGREEMENT




See attached.





 









 




 

 



EXHIBIT A




CREDIT AGREEMENT AS AMENDED BY THE

FIRST AMENDMENT TO THE CREDIT AGREEMENT




Published CUSIP Number: 10947FAA9




CREDIT AGREEMENT




Dated as of February 16, 2007




among




BRIGHTPOINT, INC.

and

CERTAIN OF ITS SUBSIDIARIES IDENTIFIED HEREIN,

as the Borrowers,




CERTAIN OF ITS SUBSIDIARIES IDENTIFIED HEREIN,

as the Guarantors,




NORDEA BANK DANMARK A/S,

CITIBANK, N.A.

and

THE ROYAL BANK OF SCOTLAND PLC,

as Co-Documentation Agents




ABN AMRO BANK N.V.,

as Syndication Agent,




BANK OF AMERICA, N.A.,

as Administrative Agent




and




THE OTHER LENDERS PARTY HERETO




Arranged By:




BANC OF AMERICA SECURITIES LLC

and

ABN AMRO BANK N.V.,

as Joint Lead Arrangers and Joint Book Managers




 

 


 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	
	 	 	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	1.01
	 	Defined Terms	 	 	1	 
	1.02
	 	Other Interpretive Provisions	 	 	35	 
	1.03
	 	Accounting Terms	 	 	36	 
	1.04
	 	Rounding	 	 	37	 
	1.05
	 	Exchange Rates; Currency Equivalents	 	 	37	 
	1.06
	 	Additional Alternative Currencies	 	 	37	 
	1.07
	 	Change of Currency	 	 	39	 
	1.08
	 	Times of Day	 	 	39	 
	1.09
	 	Letter of Credit Amounts	 	 	39	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	39	 
	2.01
	 	Revolving Loans and Term Loans	 	 	39	 
	2.02
	 	Borrowings, Conversions and
Continuations of Revolving Loans or Term Loans	 	 	40	 
	2.03
	 	Letters of Credit	 	 	42	 
	2.04
	 	Domestic Swing Line Facility	 	 	50	 
	2.05
	 	Australian Swing Line Facility	 	 	54	 
	2.06
	 	Danish Swing Line Facility	 	 	57	 
	2.07
	 	Additional Swing Line Facilities	 	 	60	 
	2.08
	 	Prepayments	 	 	63	 
	2.09
	 	Optional Termination or Reduction of Aggregate Revolving
Commitments; Reallocations of Swing Line Sublimits	 	 	67	 
	2.10
	 	Repayment of Loans	 	 	67	 
	2.11
	 	Interest	 	 	69	 
	2.12
	 	Fees	 	 	70	 
	2.13
	 	Computation of Interest and Fees; Retroactive Adjustments of	 	 	 	 
	 
	 	Applicable Rate	 	 	71	 
	2.14
	 	Evidence of Debt	 	 	71	 
	2.15
	 	Payments Generally; Administrative Agent's Clawback	 	 	72	 
	2.16
	 	Sharing of Payments by Lenders	 	 	73	 
	2.17
	 	Matters Relating to Borrowers	 	 	74	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	78	 
	3.01
	 	Taxes	 	 	78	 
	3.02
	 	Illegality	 	 	80	 
	3.03
	 	Inability to Determine Rates	 	 	80	 
	3.04
	 	Increased Costs	 	 	81	 
	3.05
	 	Compensation for Losses	 	 	82	 
	3.06
	 	Mitigation Obligations; Replacement of Lenders	 	 	83	 
	3.07
	 	Survival	 	 	83	 
	ARTICLE IV GUARANTY	 	 	83	 
	4.01
	 	The Guaranty	 	 	83	 
	4.02
	 	Limitations on Guaranty	 	 	84	 
	4.03
	 	Obligations Unconditional	 	 	87	 
	4.04
	 	Reinstatement	 	 	88	 
	4.05
	 	Certain Additional Waivers	 	 	89	 
	4.06
	 	Remedies	 	 	89	 






 









 






	 	 	 	 	 	 	 
	4.07
	 	Rights of Contribution	 	 	90	 
	4.08
	 	Guarantee of Payment; Continuing Guarantee	 	 	90	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	90	 
	5.01
	 	Conditions of Initial Credit Extension	 	 	90	 
	5.02
	 	Conditions to all Credit Extensions	 	 	93	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES	 	 	94	 
	6.01
	 	Existence, Qualification and Power	 	 	94	 
	6.02
	 	Authorization; No Contravention	 	 	94	 
	6.03
	 	Governmental Authorization; Other Consents	 	 	94	 
	6.04
	 	Binding Effect	 	 	94	 
	6.05
	 	Financial Statements; No Material Adverse Effect	 	 	95	 
	6.06
	 	Litigation	 	 	96	 
	6.07
	 	No Default	 	 	96	 
	6.08
	 	Ownership of Property, Liens	 	 	96	 
	6.09
	 	Environmental Compliance	 	 	96	 
	6.10
	 	Insurance	 	 	97	 
	6.11
	 	Taxes	 	 	97	 
	6.12
	 	ERISA Compliance	 	 	97	 
	6.13
	 	Subsidiaries	 	 	98	 
	6.14
	 	Margin Regulations; Investment Company Act	 	 	98	 
	6.15
	 	Disclosure	 	 	98	 
	6.16
	 	Compliance with Laws	 	 	98	 
	6.17
	 	Intellectual Property; Licenses,
Etc.	 	 	99	 
	6.18
	 	Solvency	 	 	99	 
	6.19
	 	Business Locations; Taxpayer Identification Number	 	 	99	 
	6.20
	 	Labor Matters	 	 	99	 
	6.21
	 	Works Council	 	 	100	 
	ARTICLE VII AFFIRMATIVE COVENANTS	 	 	100	 
	7.01
	 	Financial Statements	 	 	100	 
	7.02
	 	Certificates; Other Information	 	 	101	 
	7.03
	 	Notices	 	 	103	 
	7.04
	 	Payment of Obligations	 	 	103	 
	7.05
	 	Preservation of Existence, Etc.	 	 	103	 
	7.06
	 	Maintenance of Properties	 	 	104	 
	7.07
	 	Maintenance of Insurance	 	 	104	 
	7.08
	 	Compliance with Laws	 	 	104	 
	7.09
	 	Books and Records	 	 	104	 
	7.10
	 	Inspection Rights	 	 	104	 
	7.11
	 	Use of Proceeds	 	 	105	 
	7.12
	 	Additional Guarantors	 	 	105	 
	7.13
	 	ERISA Compliance	 	 	107	 
	7.14
	 	Pledged Assets	 	 	107	 
	7.15
	 	Post-Closing Matters	 	 	108	 
	ARTICLE VIII NEGATIVE COVENANTS	 	 	108	 
	8.01
	 	Liens	 	 	108	 
	8.02
	 	Investments	 	 	110	 






 









 






	 	 	 	 	 	 	 
	8.03
	 	Indebtedness	 	 	111	 
	8.04
	 	Fundamental Changes	 	 	113	 
	8.05
	 	Dispositions	 	 	114	 
	8.06
	 	Restricted Payments	 	 	114	 
	8.07
	 	Change in Nature of Business	 	 	115	 
	8.08
	 	Transactions with Affiliates and Insiders	 	 	115	 
	8.09
	 	Burdensome Agreements	 	 	115	 
	8.10
	 	Use of Proceeds	 	 	116	 
	8.11
	 	Financial Covenants	 	 	116	 
	8.12
	 	Subordinated Indebtedness; Bright India Loan Facility	 	 	116	 
	8.13
	 	Organization Documents; Fiscal
Year; Legal Name, State of Formation and Form of Entity	 	 	117	 
	8.14
	 	Ownership of Subsidiaries	 	 	117	 
	8.15
	 	Sale Leasebacks	 	 	117	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES	 	 	118	 
	9.01
	 	Events of Default	 	 	118	 
	9.02
	 	Remedies Upon Event of Default	 	 	120	 
	9.03
	 	Application of Funds	 	 	121	 
	9.04
	 	Application of Funds	 	 	123	 
	ARTICLE X ADMINISTRATIVE AGENT	 	 	124	 
	10.01
	 	Appointment and Authority	 	 	124	 
	10.02
	 	Rights as a Lender	 	 	124	 
	10.03
	 	Exculpatory Provisions	 	 	125	 
	10.04
	 	Reliance by Administrative Agent	 	 	125	 
	10.05
	 	Delegation of Duties	 	 	126	 
	10.06
	 	Resignation of Administrative Agent	 	 	126	 
	10.07
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	127	 
	10.08
	 	No Other Duties; Etc.	 	 	127	 
	10.09
	 	Administrative Agent May File Proofs of Claim	 	 	127	 
	10.10
	 	Collateral and Guaranty Matters	 	 	128	 
	ARTICLE XI MISCELLANEOUS	 	 	129	 
	11.01
	 	Amendments, Etc.	 	 	129	 
	11.02
	 	Notices; Effectiveness; Electronic Communications	 	 	130	 
	11.03
	 	No Waiver; Cumulative Remedies	 	 	132	 
	11.04
	 	Expenses; Indemnity; and Damage Waiver	 	 	132	 
	11.05
	 	Payments Set Aside	 	 	134	 
	11.06
	 	Successors and Assigns	 	 	134	 
	11.07
	 	Treatment of Certain Information; Confidentiality	 	 	138	 
	11.08
	 	Set-off	 	 	139	 
	11.09
	 	Interest Rate Limitation	 	 	139	 
	11.10
	 	Counterparts; Integration; Effectiveness	 	 	139	 
	11.11
	 	Survival of Representations and Warranties	 	 	140	 
	11.12
	 	Severability	 	 	140	 
	11.13
	 	Replacement of Lenders	 	 	140	 
	11.14
	 	Governing Law; Jurisdiction; Etc.	 	 	141	 
	11.15
	 	Waiver of Right to Trial by Jury	 	 	142	 






 









 






	 	 	 	 	 	 	 
	11.16
	 	No Advisory or Fiduciary
Responsibility; Disclosure to Accountants	 	 	142	 
	11.17
	 	USA PATRIOT Act Notice	 	 	143	 
	11.18
	 	Judgment Currency	 	 	143	 
	11.19
	 	Intercreditor Agreements	 	 	143	 
	11.20
	 	Subordination of Intercompany Debt	 	 	143	 






 









 






	 	 	 
	SCHEDULES
	 	 
	 
	 	 
	1.01
	 	Mandatory Cost Formulae
	2.01
	 	Commitments and Applicable Percentages
	2.03
	 	Existing Letters of Credit
	6.10
	 	Insurance
	6.13
	 	Subsidiaries
	6.17
	 	IP Rights
	6.19(a)
	 	Locations of Real Property
	6.19(b)
	 	Locations of Tangible Personal Property
	6.19(c)
	 	Location of Chief Executive Office
	6.19(d)
	 	Taxpayer Identification and Organizational Number of Domestic Loan Parties
	6.19(f)
	 	Changes in Legal Name, State of Formation and Structure
	8.01
	 	Liens Existing on the Closing Date
	8.02
	 	Investments Existing on the Closing Date
	8.02-2
	 	Investments of Brightpoint Demark Telecom and its Subsidiaries Existing on the
	 
	 	First Amendment Effective Date
	8.03
	 	Indebtedness of Brightpoint Demark Telecom and its Subsidiaries Existing on the
	 
	 	Closing Date
	8.03-2
	 	Indebtedness Existing on the First Amendment Effective Date
	8.08
	 	Affiliate Transactions Existing on the Closing Date
	11.02
	 	Certain Addresses for Notices
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	2.02
	 	Form of Loan Notice
	2.04
	 	Form of Domestic Swing Line Loan Notice
	2.05
	 	Form of Australian Swing Line Loan Notice
	2.06
	 	Form of Danish Swing Line Loan Notice
	2.07
	 	International Swing Line Facility Notice
	2.14-1
	 	Form of Note [Domestic Borrowers]
	2.14-2
	 	Form of Note [Foreign Borrowers]
	2.17(c)-1
	 	Form of Designated Borrower Agreement [Guarantor]
	2.17(c)-2
	 	Form of Designated Borrower Agreement [Non-Guarantor]
	2.17(c)-3
	 	Subordination Terms of Liens
Securing Foreign Subsidiary Debt
	7.02(b)
	 	Form of Compliance Certificate
	7.02(c)
	 	Disclosure of Certain Property Acquired by a Foreign Loan Party
	7.12
	 	Form of Domestic Guarantor Joinder Agreement
	8.02
	 	Subordination Terms of Intercompany Loans
	11.06
	 	Form of Assignment and Assumption







 









 





CREDIT AGREEMENT




     This CREDIT AGREEMENT is entered into as of February 16, 2007 among BRIGHTPOINT, INC., an
Indiana corporation (the “Parent”), BRIGHTPOINT NORTH AMERICA L.P., a Delaware limited
partnership (“Bright North America”), BRIGHTPOINT PHILIPPINES LIMITED, a British Virgin
Islands company (“Bright BVI”), BRIGHTPOINT HOLDINGS B.V., a Netherlands company
(“Bright Netherlands”), BRIGHTPOINT AUSTRALIA PTY. LTD., an Australian company (“Bright
Australia”), each other Subsidiary of the Parent that becomes a Borrower after the date hereof
pursuant to the terms hereof, the Guarantors (defined herein), the Lenders (defined herein) and
BANK OF AMERICA, N.A., as Administrative Agent.



     The Loan Parties have requested that the Lenders provide US$550 million in revolving credit
and term loan facilities for the purposes set forth herein, and the Lenders are willing to do so on
the terms and conditions set forth herein.



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



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




1.01 Defined Terms.




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



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



     “Acquisition Debt” means, with respect to any Danish Loan Party, any obligations
incurred or undertaken in relation to the financing of a direct acquisition of or subscription for
shares issued or to be issued by such Danish Loan Party or by a direct or indirect Qualifying
Parent Company of such Danish Loan Party.



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



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



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



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



 









 





     “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.
The initial amount of the Aggregate Revolving Commitments in effect on the First Amendment
Effective Date is THREE HUNDRED MILLION US DOLLARS (US$300,000,000).



     “Aggregate Swing Line Sublimit” means US$50 million.



     “Agreement” means this Credit Agreement, as the same may be amended, modified,
supplemented or restated from time to time, in accordance with the terms hereof, after the Closing
Date.



     “Alternative Currency” means each of Australian Dollars, Euros, Sterling, Canadian
Dollars, Danish Kroner, New Zealand Dollars, Swedish Krona, Norwegian Krone, Swiss Francs and each
other currency (other than US Dollars) that is approved in accordance with Section 1.06;
provided that each of Swiss Francs and Norwegian Krone shall be an Alternative Currency
solely for purposes of the Loans made on the Closing Date.



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



     “Applicable Percentage” means with respect to any Lender, (a) with respect to such
Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal place)
of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such
time; provided that if the commitment of each Lender to make Revolving Loans and the
obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 9.02 or if the Aggregate Revolving Commitments have expired, then the Applicable
Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender
most recently in effect, giving effect to any subsequent assignments, (b) with respect to
such Lender’s portion of the outstanding Domestic Term Loan at any time, the percentage (carried
out to the ninth decimal place) of the outstanding principal amount of the Domestic Term Loan held
by such Lender at such time and (c) with respect to such Lender’s portion of the outstanding
Foreign Term Loan at any time, the percentage (carried out to the ninth decimal place) of the
outstanding principal amount of the Foreign Term Loan held by such Lender at such time. The
initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.



     “Applicable Rate” means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 7.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pricing	 	Consolidated	 	Commitment	 	Letter of Credit	 	Eurocurrency Rate Loans	 	Base Rate
	Tier	 	Leverage Ratio	 	Fee	 	Fee	 	and BBR Rate Loans	 	Loans
	1

	 	< 1.00:1.0
	 	 	0.25	%	 	 	1.00	%	 	 	1.00	%	 	 	0.00	%
	2

	 	31.00:1.0 but < 1.50:1.0
	 	 	0.30	%	 	 	1.25	%	 	 	1.25	%	 	 	0.00	%
	3

	 	31.50:1.0 but < 2.00:1.0
	 	 	0.35	%	 	 	1.50	%	 	 	1.50	%	 	 	0.25	%
	4

	 	32.00:1.0 but < 2.50:1.0
	 	 	0.40	%	 	 	1.75	%	 	 	1.75	%	 	 	0.75	%
	5

	 	32.50:1.0
	 	 	0.50	%	 	 	2.00	%	 	 	2.00	%	 	 	1.00	%





Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance


2









 






Certificate is required to be delivered pursuant to Section 7.02(b) (each a “Rate
Determination Date”); provided however that if a Compliance Certificate is not
delivered when due in accordance with Section 7.02(b), then Pricing Tier 5 shall apply as
of the first Business Day after the date on which such Compliance Certificate was required to have
been delivered and shall continue to apply until the first Business Day immediately following the
date a Compliance Certificate is delivered in accordance with Section 7.02(b), whereupon
the Applicable Rate shall be adjusted based upon the calculation of the Consolidated Leverage Ratio
contained in such Compliance Certificate. The Applicable Rate in effect from the First Amendment
Effective Date through the first Business Day immediately following the date a Compliance
Certificate is required to be delivered pursuant to Section 7.02(b) for the fiscal quarter
ending September 30, 2007 shall be determined based upon Pricing Tier 5.




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



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     “Arrangers” means Banc of America Securities LLC and ABN AMRO Bank N.V., in their
capacities as joint lead arrangers and joint book managers.



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



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



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



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Parent and its Subsidiaries for the fiscal year ended December 31, 2006, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows of the Parent
and its Subsidiaries for such fiscal year, including the notes thereto.



     “Australian Dollars” and “AUS$” mean the lawful currency of Australia.



3









 





     “Australian Swing Line Lender” means Banc of America, N.A., Sydney Branch, in its
capacity as provider of Australian Swing Line Loans, or any successor in such capacity.



     “Australian Swing Line Loan” has the meaning specified in Section 2.05(a).



     “Australian Swing Line Loan Notice” means a notice of a Borrowing of Australian Swing
Line Loans pursuant to Section 2.05(b), which, if in writing, shall be substantially in the
form of Exhibit 2.05.



     “Australian Swing Line Sublimit” means an amount equal to the lesser of (a) US$10
million (as such amount may be increased or decreased from time to time by the Parent pursuant to
Section 2.09(b)), (b) the Aggregate Swing Line Sublimit and (c) the Aggregate Revolving
Commitments. The Australian Swing Line Sublimit is part of, and not in addition to, the Aggregate
Revolving Commitments.



     “Australian Tax Act” means the Income Tax Assessment Act 1936 (Commonwealth of
Australia) or the Income Tax Assessment Act 1997 (Commonwealth of Australia), as the context
requires.



     “Availability Period” means, with respect to the Revolving Commitments, the period
from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of
termination of the Aggregate Revolving Commitments pursuant to Section 2.09(a), and (c) the
date of termination of the commitment of each Lender to make Loans and of the obligation of each
L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02.



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



     “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 0.50% and (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set
by Bank of America based upon various factors including Bank of America’s costs and desired return,
general economic conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change in the “prime rate”
announced by Bank of America shall take effect at the opening of business on the day specified in
the public announcement of such change.



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



     “BBR Rate” means, for any day in any calendar month with respect to a BBR Rate Loan,
the rate equal to:




     (a) the average bid rate displayed at or about 10:30 a.m. (Sydney, Australia time) on
the first day of such calendar month on the Reuters screen BBSY page for a term equivalent
to three months; or




     (b) if:




     (i) for any reason that rate is not displayed for a term equivalent to three
months; or




     (ii) the basis on which that rate is displayed is changed or in the reasonable
opinion of the Australian Swing Line Lender it ceases to reflect the Australian
Swing Line Lender’s cost of funding to the same extent as of the date of this
Agreement; or



4









 






     (iii) the Australian Swing Line Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful, for
the Australian Swing Line Lender or its applicable Lending Office to make, maintain
or fund BBR Rate Loans, or to determine or charge interest rates based upon the BBR
Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Australian Swing Line Lender to purchase or sell, or to take
deposits of, Australian Dollars in the applicable interbank market;




then the BBR Rate will be the rate determined by the Australian Swing Line Lender to
be the buying rate quoted to the Swing Line Lender by Bank of America, N.A. at or
about that time on that date. Such buying rate must be for bills of exchange
accepted by a leading Australian bank and which have a term equivalent to three
months. If there is no such buying rate, the BBR Rate will be the rate per annum
determined by the Australian Swing Line Lender to be the cost of funding the
relevant Australian Swing Line Loan for three months.




Rates will be expressed as a yield percent per annum to maturity, and if necessary
will be rounded up to the nearest fourth decimal place.



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



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



     “Borrowers” means, collectively, the Domestic Borrowers and the Foreign Borrowers.



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



     “Bright Australia” has the meaning specified in the introductory paragraph of this
Agreement.



     “Bright BVI” has the meaning specified in the introductory paragraph of this
Agreement.



     “Bright Denmark Administration” means Dangaard Telecom Administration A/S, a Danish
company.



     “Bright Denmark Telecom” means Dangaard Telecom A/S, a Danish company.



     “Bright India” means Brightpoint India Private Limited, an Indian company.



     “Bright India Intercreditor Agreement” means the Intercreditor Agreement dated as of
the Closing Date between the Administrative Agent and the Bright India Lender, as amended, modified
and supplemented from time to time.



     “Bright India Lender” means ABN AMRO Bank N.V. or one of its Affiliates.



     “Bright India Loan Documents” means the documents, instruments and agreements
governing the line of credit provided by Bright India Lender to Bright India, as amended, modified
and supplemented from time to time in a manner permitted by this Agreement.



5









 





     “Bright India Loans” means the loans made by the Bright India Lender to Bright India
under the Bright India Loan Documents.



     “Bright Netherlands” has the meaning specified in the introductory paragraph of this
Agreement.



     “Bright North America” has the meaning specified in the introductory paragraph of this
Agreement.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office with respect to Credit Obligations denominated in US
Dollars is located (or (x) in the case of Australian Swing Line Loans, Sydney, Australia, (y) in
the case of Danish Swing Line Loans, London, and (z) in the case of International Swing Line Loans,
where the applicable lending office of the International Swing Line Lender is located) and: (a) if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in US
Dollars, any fundings, disbursements, settlements and payments in US Dollars in respect of any such
Eurocurrency Rate Loan, or any other dealings in US Dollars to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in
deposits in US Dollars are conducted by and between banks in the London interbank eurodollar
market; (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro or a Daily Euro Rate Loan, any fundings, disbursements, settlements and
payments in Euro in respect of any Eurocurrency Rate Loan denominated in Euro or any Daily Euro
Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of
any Eurocurrency Rate Loan denominated in Euro or any Daily Euro Rate Loan, means a TARGET Day; (c)
if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a
currency other than US Dollars or Euro or to a BBR Loan or to a Daily Sterling Rate Loan, means any
such day on which dealings in deposits in the relevant currency are conducted by and between banks
in the London or other applicable offshore interbank market for such currency; and (d) if such day
relates to any fundings, disbursements, settlements and payments in a currency other than US
Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other than US
Dollars or Euro, or any other dealings in any currency other than US Dollars or Euro to be carried
out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any
interest rate settings), means any such day on which banks are open for foreign exchange business
in the principal financial center of the country of such currency.



     “Businesses” has the meaning specified in Section 6.09(a).



     “CAM Exchange” means the exchange of the Lenders’ interests provided in Section
9.04.



     “CAM Exchange Date” means the date on which an Event of Default under Section
9.01(f) or (g)(ii) shall occur.



     “CAM Exchange Percentage” means, as to each Lender, a fraction, expressed as a decimal
(carried out to the ninth decimal place), of which (a) the numerator shall be the aggregate US
Dollar Equivalent of the sum of (i) the Specified Obligations owed to such Lender and (ii) such
Lender’s participations in undrawn amounts of Letters of Credit, in each case immediately prior to
the CAM Exchange Date and (b) the denominator shall be the aggregate US Dollar Equivalent of the
sum of (i) the Specified Obligations owed to all the Lenders and (ii) the aggregate undrawn amount
of all outstanding Letters of Credit, in each case immediately prior to the CAM Exchange Date.



     “Canadian Dollars” means the lawful currency of Canada.



6









 





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



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuers and the Lenders, as collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and the L/C Issuers (which documents are hereby consented
to by the Lenders). Derivatives of such term have corresponding meanings.



     “Cash Equivalents” means, as at any date, (1) with respect to the Parent or any of its
Subsidiaries: (a) securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than twelve months from
the date of acquisition, (b) US Dollar denominated time deposits and certificates of deposit of (i)
any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in
excess of US$500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any
such bank being an “Approved Domestic Bank”), in each case with maturities of not more than
270 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued
by any Approved Domestic Bank (or by the parent company thereof) or any variable rate notes issued
by, or guaranteed by, any domestic corporation rated A-2 (or the equivalent thereof) or better by
S&P or P-2 (or the equivalent thereof) or better by Moody’s and maturing within six months of the
date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust
company (including any of the Lenders) or recognized securities dealer having capital and surplus
in excess of US$500,000,000 for direct obligations issued by or fully guaranteed by the United
States in which such Person shall have a perfected first priority security interest (subject to no
other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of
the amount of the repurchase obligations and (e) Investments, classified in accordance with GAAP as
current assets, in money market investment programs registered under the Investment Company Act of
1940 which are administered by reputable financial institutions having capital of at least
US$500,000,000 and the portfolios of which are limited to Investments of the character described in
the foregoing subdivisions (a) through (d) and (2) with respect to any Foreign Subsidiary: (a)
obligations of the national government of the country in which such Foreign Subsidiary maintains
its chief executive office and principal place of business provided such country is a member of the
Organization for Economic Cooperation and Development, in each case maturing within one year after
the date of investment therein, (b) certificates of deposit of, bankers acceptances of, or time
deposits with, any commercial bank which is organized and existing under the laws of the country in
which such Foreign Subsidiary maintains its chief executive office and principal place of business
provided such country is a member of the Organization for Economic Cooperation and Development, and
whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from
Moody’s is at least P-1 or the equivalent thereof (any such bank being an “Approved Foreign
Bank”), and in each case with maturities of not more than 270 days from the date of acquisition
and (c) the equivalent of demand deposit accounts which are maintained with an Approved Foreign
Bank.



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



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



7









 






     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all Equity Interests that such
person or group has the right to acquire, whether such right is exercisable immediately or
only after the passage of time (such right, an “option right”)), directly or
indirectly, of forty-two percent (42%) of the Equity Interests of the Parent entitled to
vote for members of the board of directors or equivalent governing body of the Parent on a
fully diluted basis (and taking into account all such securities that such person or group
has the right to acquire pursuant to any option right);




     (b) during any period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Parent cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or group other
than a solicitation for the election of one or more directors by or on behalf of the board
of directors);




     (c) any Person or two or more Persons acting in concert shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the Parent, or
control over the Voting Stock of the Parent on a fully-diluted basis (and taking into
account all such Voting Stock that such Person or group has the right to acquire pursuant to
any option right) representing forty-two percent (42%) or more of the combined voting power
of such Voting Stock; or




     (d) the occurrence of a “Change of Control” (or any comparable term) under, and as
defined in, any Subordinated Indebtedness Document.



     “Closing Date” means the date hereof.



     “Collateral” means a collective reference to all real and personal property with
respect to which Liens in favor of the Administrative Agent, for the benefit of itself and the
Lenders, are purported to be granted pursuant to and in accordance with the terms of the Collateral
Documents.



     “Collateral Documents” means a collective reference to the Domestic Security
Agreement, the Intercreditor Agreements and all other security agreements, pledge agreements,
mortgages and other security documents as may be executed and delivered by the Loan Parties in
connection with this Agreement.



     “Columbo Acquisition” means the Acquisition by the Parent or one of its Subsidiaries
of all of the Equity Interests of Bright Denmark Telecom.



8









 





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



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



     “Consolidated Capital Expenditures” means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, all capital expenditures but excluding expenditures to the
extent made with the proceeds of any Involuntary Disposition used to purchase property that is
useful in the business of the Parent and its Subsidiaries.



     “Consolidated Current Ratio” means, as of any date of determination, the ratio of (a)
current assets of the Parent and its Subsidiaries on a consolidated basis as of such date to (b)
current liabilities of the Parent and its Subsidiaries on a consolidated basis as of such date
(other than current liabilities consisting of the obligation to repay the principal amount of the
Loans on the Maturity Date).



     “Consolidated EBITDA” means, for any period, for the Parent and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus the
following to the extent deducted in calculating such Consolidated Net Income: (a) Consolidated
Interest Charges for such period, (b) the provision for federal, state, and local income taxes (and
franchise taxes in the nature of income taxes), any state single business unitary or similar tax,
and foreign income taxes, in each case payable for such period, (c) the amount of depreciation and
amortization expenses for such period, (d) transaction expenses for such period associated with any
debt or equity offering, (e) non-cash impairment charges for such period, (f) non-cash compensation
relating to stock options and restricted stock grants issued during such period, (g) non-cash gains
or losses for such period attributable to the cancellation of debt, (h) non-cash pension-related
expenses for such period, and (i) gains or losses for such period, whether realized or unrealized,
relating to foreign exchange transactions and Swap Contracts.



     “Consolidated Funded Indebtedness” means Funded Indebtedness of the Parent and its
Subsidiaries on a consolidated basis determined in accordance with GAAP.



     “Consolidated Interest Charges” means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase price of assets, in
each case to the extent treated as interest in accordance with GAAP, plus (b) the portion
of rent expense with respect to such period under Capital Leases that is treated as interest in
accordance with GAAP plus (c) the implied interest component of Synthetic Leases and
Securitization Transactions with respect to such period.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four fiscal quarters most recently ended for
which the Loan Parties have delivered financial statements pursuant to Section 7.01(a) or
(b) to (b) the sum of (i) the cash portion of Consolidated Interest Charges for the period
of the four fiscal quarters most recently ended for which the Loan Parties have delivered financial
statements pursuant to Section 7.01(a) or (b) less (ii) interest income
paid in cash of the Parent and its Subsidiaries on a consolidated basis for the period of the four
fiscal quarters most recently ended for which the Loan Parties have delivered financial statements
pursuant to Section 7.01(a) or (b).



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four



9









 







fiscal quarters most recently ended for which the Loan Parties have delivered financial
statements pursuant to Section 7.01(a) or (b).



     “Consolidated Net Income” means, for any period, for the Parent and its Subsidiaries
on a consolidated basis, the net income from continuing operations for that period, and excluding
(a) net income from discontinued operations for such period, (b) any extraordinary, unusual or
non-recurring gain or loss and (c) any gain or loss from sales or other dispositions of property,
to the extent permitted under this Agreement (other than sales of inventory in the ordinary course
of business).



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



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto. Without limiting the generality of the foregoing, a Person
shall be deemed to be Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote ten percent (10%) or more of the securities having ordinary voting power
for the election of directors, managing general partners or the equivalent.



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



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



     “Daily Euro Rate” means, for any day, the offered quotation to first-class banks in
the London interbank market by the Danish Swing Line Lender for Euro overnight deposits of amounts
in immediately available funds comparable to the outstanding principal amount of the Danish Swing
Line Loans denominated in Euro as of 11:00 a.m. (London time) on such date, provided that in the
event the Administrative Agent has made any determination pursuant to Section 3.02 in
respect of Danish Swing Line Loans denominated in Euros, or in the circumstances described in
Section 3.03 in respect of Danish Swing Line Loans denominated in Euros, the Daily Euro
Rate determined pursuant to this definition shall instead be the rate determined by Danish Swing
Line Lender as the all-in-cost of funds for the Danish Swing Line Lender to fund Danish Swing Line
Loans denominated in Euro.



     “Daily Euro Rate Loan” means a Danish Swing Line Loan that bears interest based on the
Daily Euro Rate.



     “Daily Rate Loan” means a Danish Swing Line Loan that bears interest based on the
Daily Euro Rate or the Daily Sterling Rate.



     “Daily Sterling Rate” means, for any day, the offered quotation to first-class banks
in the London interbank market by the Danish Swing Line Lender for Sterling overnight deposits of
amounts in immediately available funds comparable to the outstanding principal amount of the Danish
Swing Line



10









 







Loans denominated in Sterling as of 11:00 a.m. (London time) on such date, provided that in
the event the Administrative Agent has made any determination pursuant to Section 3.02 in
respect of Danish Swing Line Loans denominated in Sterling, or in the circumstances described in
Section 3.03 in respect of Danish Swing Line Loans denominated in Sterling, the Daily
Sterling Rate determined pursuant to this definition shall instead be the rate determined by Danish
Swing Line Lender as the all-in-cost of funds for the Danish Swing Line Lender to fund Danish Swing
Line Loans denominated in Sterling.



     “Daily Sterling Rate Loan” means a Danish Swing Line Loan that bears interest based on
the Daily Sterling Rate.



     “Danish Borrower” means each Foreign Borrower incorporated under the laws of Denmark.



     “Danish Guarantor” means each Foreign Guarantor incorporated under the laws of
Denmark.



     “Danish Kroner” means the lawful currency of Denmark.



     “Danish Loan Party” means any of the Danish Borrowers and the Danish Guarantors.



     “Danish Statutory Limitations” means Danish statutory provisions on unlawful financial
assistance including, without limitation, Sections 115 and 115a of the Danish Act on Public Limited
Liability Companies (Da: aktieselskabsloven).



     “Danish Swing Line Lender” means Banc of America Securities Limited, in its capacity
as provider of Danish Swing Line Loans, or any successor in such capacity.



     “Danish Swing Line Loan” has the meaning specified in Section 2.06(a).



     “Danish Swing Line Loan Notice” means a notice of a Borrowing of Danish Swing Line
Loans pursuant to Section 2.06(b), which, if in writing, shall be substantially in the form
of Exhibit 2.06.



     “Danish Swing Line Sublimit” means an amount equal to the lesser of (a) US$38 million
(as such amount may be increased or decreased from time to time by the Parent pursuant to
Section 2.09(b)), (b) the Aggregate Swing Line Sublimit and (c) the Aggregate Revolving
Commitments. The Danish Swing Line Sublimit is part of, and not in addition to, the Aggregate
Revolving Commitments.



     “Debt Issuance” means the issuance by the Parent or any Subsidiary of any Indebtedness
other than Indebtedness permitted under Section 8.03.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, administration, insolvency, reorganization, or similar debtor relief
Laws of the United States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.



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



     “Default Rate” means (a) when used with respect to Credit Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable
Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurocurrency Rate Loan, Daily Rate Loan or a BBR Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate
and any Mandatory Cost) otherwise applicable to such Loan plus 2% per



11









 







annum, in each case to the fullest extent permitted by applicable Laws and (b) when used with
respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.



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



     “Designated Borrower Agreement” means (a) in the case of a Subsidiary that is a
Guarantor, an agreement in substantially the form of Exhibit 2.17(c)-1 and (b) in the case
of a Subsidiary that is not a Guarantor, an agreement in substantially the form of Exhibit
2.17(c)-2, in each case together with such changes thereto as the Administrative Agent and the
Parent may agree.



     “Discontinued Operations Property” means, with respect to the Parent or any
Subsidiary, any property that is used in the operations of a business line, unit or division of
such Person which (a) has been or is being discontinued and (b) is reflected under the heading
“discontinued operations” (or other similar heading) on the applicable financial statements of such
Person.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition of any property by the Parent or any Subsidiary (including the Equity Interests of any
Subsidiary), including any Sale and Leaseback Transaction and any sale, assignment, transfer or
other disposal, with or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith, but excluding (a) the disposition of inventory in the ordinary course
of business; (b) the disposition of machinery and equipment no longer used or useful in the conduct
of business of the Parent and its Subsidiaries in the ordinary course of business; (c) Permitted
Intercompany Transfers; (d) the disposition of accounts receivable in connection with the
collection or compromise thereof; (e) licenses, sublicenses, leases or subleases granted to others
not interfering in any material respect with the business of the Parent and its Subsidiaries; (f)
the sale or disposition of Cash Equivalents for fair market value; (g) any sale, transfer or other
disposition of Permitted Securitization Property by a Foreign Subsidiary to a SPV pursuant to any
Permitted Securitization Transaction; (h) any sale, transfer or other disposition of Permitted
Securitization Property by a SPV pursuant to any Permitted Securitization Transaction; and (i) any
Involuntary Disposition.



     “Domestic Borrowers” means, collectively, the Parent, Bright North America and each
other Domestic Subsidiary of the Parent that becomes a Domestic Borrower after the First Amendment
Effective Date pursuant to Section 2.17(c).



     “Domestic Collateral Proceeds” has the meaning set forth in Section 9.03(a).



     “Domestic Guarantor” means, collectively, (a) each Domestic Borrower (with respect to
Credit Extensions made to and other Obligations owing by the other Borrowers), (b) each Domestic
Subsidiary identified as a “Domestic Guarantor” on the signature pages hereto and (c) each other
Person that provides a guaranty of the Obligations after the Closing Date pursuant to Section
7.12, together with their successors and permitted assigns.



     “Domestic Guarantor Joinder Agreement” means a joinder agreement substantially in the
form of Exhibit 7.12 executed and delivered by a Domestic Subsidiary in accordance with the
provisions of Section 7.12.



12









 





     “Domestic Loan Parties” means, collectively, the Domestic Borrowers and the Domestic
Guarantors.



     “Domestic Revolving Sublimit” means an amount equal to the lesser of (a) US$115
million and (b) the Aggregate Revolving Commitments. The Domestic Revolving Sublimit is part of,
and not in addition to, the Aggregate Revolving Commitments



     “Domestic Security Agreement” means the Security and Pledge Agreement dated as of the
Closing Date executed in favor of the Administrative Agent by each of the Domestic Loan Parties, as
amended, modified and supplemented from time to time.



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



     “Domestic Swing Line Lender” means Bank of America in its capacity as provider of
Domestic Swing Line Loans, or any successor in such capacity.



     “Domestic Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Domestic Swing Line Loan Notice” means a notice of a Borrowing or continuation of
Domestic Swing Line Loans pursuant to Section 2.04(b), which, if in writing, shall be
substantially in the form of Exhibit 2.04.



     “Domestic Swing Line Sublimit” means an amount equal to the lesser of (a) $2 million
(as such amount may be increased or decreased from time to time by the Parent pursuant to
Section 2.09(b)), (b) the Aggregate Swing Line Sublimit and (c) the Aggregate Revolving
Commitments. The Domestic Swing Line Sublimit is part of, and not in addition to, the Aggregate
Revolving Commitments.



     “Domestic Term Loan” has the meaning specified in Section 2.01(b).



     “Domestic Term Loan Commitment” means, as to each Lender, its obligation to make its
portion of the Domestic Term Loan pursuant to Section 2.01(b) in the principal amount set
forth opposite such Lender’s name on Schedule 2.01. The aggregate principal amount of the
Domestic Term Loan Commitments of all of the Lenders as in effect on the First Amendment Effective
Date is ONE HUNDRED TWENTY FIVE MILLION DOLLARS (US$125,000,000).



     “Earn-Out Obligation” means the contingent obligation of a Person to make an
“earn-out” payment in connection with such Person’s purchase, redemption, retirement or defeasance
of an Equity Interest, or any similar payment obligation which is contingent upon the attainment of
a specified level of sales, earnings, profits, or other similar kind of metric.



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



     “Eligible Equity” means, with respect to any Danish Loan Party:




     (a) with respect to up-stream and cross-stream liability, the distributable equity of
such Danish Loan Party; and



13









 






     (b) with respect to down-stream liability, the equity of such Danish Loan Party;




     in each case calculated in accordance with the accounting principles as applied by such
Danish Loan Party.



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



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



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



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



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



     “Equity Issuance” means any issuance by the Parent or any Subsidiary to any Person of
its Equity Interests, other than (a) any issuance of its Equity Interests pursuant to the exercise
of options or warrants, (b) any issuance of its Equity Interests pursuant to the conversion of any
debt securities to equity or the conversion of any class equity securities to any other class of
equity securities, (c) any issuance of options or warrants relating to its Equity Interests, and
(d) any issuance by the Parent of its Equity Interests as consideration for an Acquisition. The
term “Equity Issuance” shall not be deemed to include any Disposition.



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



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



14









 





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



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



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



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



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



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



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




15









 





     “Excluded First Tier Foreign Subsidiary” means any First Tier Foreign Subsidiary
that either (a) does not carry on any business activity or (b) does not have property with an
aggregate fair market value in excess of US$100,000. As of the Closing Date, each of Brightpoint
de Mexico S.A. de C.V., a Mexican company, Brightpoint Solutions de Mexico S.A. de C.V., a Mexican
company and Brightpoint de Venezuela C.A., a Venezuelan company, constitutes an Excluded First Tier
Foreign Subsidiary because it does not meet either of the tests in (a) or (b).



     “Excluded Property” means:




     (a) with respect to any Domestic Loan Party, (i) any owned or leased real property
(other than, in the case of leased real property, warehouse space and office space) to the
extent the fair market value thereof that does not constitute Collateral does not exceed
US$1 million, (ii) any owned or leased personal property which is located outside of the
United States unless requested by the Administrative Agent in its commercially reasonable
judgment, (iii) any personal property that either (A) the attachment or perfection of a Lien
thereon is not governed by the Uniform Commercial Code or (B) a Lien thereon is not effected
by appropriate evidence of such Lien being filed in either the United States Copyright
Office or the United States Patent and Trademark Office, unless requested by the
Administrative Agent in its commercially reasonable judgment, (iv) the Equity Interests of
any direct Foreign Subsidiary to the extent not required to be pledged to secure the
Obligations pursuant to Section 7.14(a), (v) any property which, subject to the
terms of Section 8.09, is subject to a Lien of the type described in Section
8.01(i) pursuant to documents which prohibit such Domestic Loan Party from granting any
other Liens in such property; (vi) any lease, license, contract or other agreement if the
grant of a security interest in such lease, license, contract or other agreement is
prohibited under the terms of such lease, license, contract or other agreement or under
applicable Law and would result in default thereunder, the termination thereof or give the
other parties thereto the right to terminate, accelerate or otherwise alter (in a material
adverse manner) such Domestic Loan Party’s rights, titles and interests thereunder;
provided that such prohibition would not be reasonably likely to be rendered
ineffective pursuant to the Uniform Commercial Code or any other applicable Law (and in the
event of the termination, elimination or waiver of any such prohibition, such lease,
license, contract or other agreement shall no longer be deemed Excluded Property); and (vii)
any other property for which, in the reasonable judgment of the Administrative Agent, the
expense of granting and perfecting a security interest therein under applicable Law is
excessive given the value of such property; and




     (b) with respect to any Foreign Loan Party, (i) any owned or leased real property
(other than, in the case of leased real property, warehouse space and office space) to the
extent the fair market value thereof that does not constitute Collateral does not exceed
US$1 million; (ii) personal property located at any individual location if the aggregate
fair market value of such personal property does not exceed US$100,000, (iii) the Equity
Interests of any Foreign Subsidiary to the extent not required to be pledged to secure the
Foreign Obligations pursuant to Section 7.14(a); (iv) any property which, subject to
the terms of Section 8.09, is subject to a Lien of the type described in Section
8.01(i) pursuant to documents which prohibit such Foreign Loan Party from granting any
other Liens in such property; (v) any lease, license, contract or other agreement if the
grant of a security interest in such lease, license, contract or other agreement is
prohibited under the terms of such lease, license, contract or other agreement or under
applicable Law and would result in default thereunder, the termination thereof or give the
other parties thereto the right to terminate, accelerate or otherwise alter (in a material
adverse manner) such Foreign Loan Party’s rights, titles and interests thereunder;
provided that such prohibition would not be reasonably likely to be rendered
ineffective pursuant to any applicable Law (and in the event of the termination, elimination
or waiver of any such prohibition, such lease, license, contract or other agreement shall no
longer be deemed Excluded Property); (vi) any promissory note evidencing an Investment in a
SPV and any



16









 






Equity Interests of any SPV; (vii) any right to payment arising from the sale of goods or
provision of services and any other contract rights, goods, security deposits or other
rights specifically related to such right to payment which have been transferred or
otherwise assigned to any SPV pursuant to a Permitted Securitization Transaction; (viii) any
other property for which, in the reasonable judgment of the Administrative Agent, the
expense of granting and perfecting a security interest therein under applicable Law is
excessive given the value of such property; and (ix) in the case of any Danish Loan Party,
any personal property owned by such Danish Loan Party other than IP Rights.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of any
Loan Party hereunder or under any other Loan Document, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such
recipient is organized or in which its principal office is located or, in the case of any Lender,
in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the
United States or any similar tax imposed by any other jurisdiction in which such Loan Party is
located and (c) except as provided in the following sentence, in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Parent under Section 11.13), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such
Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Loan Parties with respect to such withholding tax pursuant to
Section 3.01(a). Notwithstanding anything to the contrary contained in this definition,
“Excluded Taxes” shall not include any withholding tax imposed at any time on payments made by or
on behalf of a Foreign Subsidiary to any Lender hereunder or under any other Loan Document,
provided that such Lender shall have complied with the last paragraph of Section
3.01(e). 



     “Existing Letters of Credit” means, collectively, those letters of credit outstanding
on the Closing Date and identified on Schedule 2.03.



     “Exposure” means, with respect to any Lender, the sum at such time, without
duplication, of (a) such Lender’s Revolving Commitment Percentage of the Outstanding Amount of the
Total Revolving Outstandings (including any participation interests in Letters of Credit)
plus (b) the Outstanding Amount of such Lender’s Domestic Term Loan plus (c) the
Outstanding Amount of such Lender’s Foreign Term Loan.



     “Facilities” has the meaning specified in Section 6.09(a).



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



     “Fee Letters” means, collectively, (a) the letter agreement dated as of June 11, 2007
among the Parent, the Administrative Agent and Banc of America Securities LLC and (b) the letter
agreement dated as of June 8, 2007 among the Parent and ABN AMRO Bank N.V.



17









 





     “First Amendment Effective Date” means July 31, 2007 (being the effective date of the
First Amendment to this Agreement).



     “First Tier Foreign Subsidiary” means each Foreign Subsidiary that is owned directly
by a Domestic Loan Party.



     “Foreign Borrowers” means, collectively, Bright BVI, Bright Netherlands, Bright
Australia, Bright Denmark Telecom, Bright Denmark Administration and each other Foreign Subsidiary
of the Parent that becomes a Foreign Borrower after the First Amendment Effective Date pursuant to
Section 2.17(c).



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



     “Foreign Guarantors” means, collectively, (a) each Foreign Borrower (with respect to
Credit Extensions made to and other Foreign Obligations owing by the other Foreign Borrowers) and
(b) each Foreign Subsidiary that provides a guaranty of all or any portion of the Foreign
Obligations after the Closing Date pursuant to Section 7.12, in each case together with its
successors and permitted assigns.



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



     “Foreign Loan Parties” means, collectively, the Foreign Borrowers and the Foreign
Guarantors.



     “Foreign Swing Line Facility Reserve” means, at any time, the sum of (a) the amount of
the Australian Swing Line Sublimit then in effect plus (b) the amount of the Danish Swing
Line Sublimit then in effect plus (c) the aggregate of the International Swing Line
Sublimit then in effect for all International Swing Line Facilities.



     “Foreign Obligations” means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Foreign Loan Party arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any Foreign Loan Party
or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding. The foregoing shall also include (a) all obligations under any Swap Contract between
any Foreign Subsidiary and any Secured Swap Provider that is permitted to be incurred pursuant to
Section 8.03(d) and (b) all obligations under any Treasury Management Agreement between any
Foreign Subsidiary and any Lender or Affiliate of a Lender.



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



18









 





     “Foreign Subsidiary Debt” means Indebtedness permitted under Section 8.03(f).



     “Foreign Term Loan” has the meaning specified in Section 2.01(c).



     “Foreign Term Loan Commitment” means, as to each Lender, its obligation to make its
portion of the Foreign Term Loan pursuant to Section 2.01(c) in the principal amount set
forth opposite such Lender’s name on Schedule 2.01. The aggregate principal amount of the
Foreign Term Loan Commitments of all of the Lenders as in effect on the First Amendment Effective
Date is ONE HUNDRED TWENTY FIVE MILLION US DOLLARS (US$125,000,000).



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



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



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




     (a) all obligations for borrowed money, whether current or long-term (including the
Credit Obligations) and all obligations of such Person evidenced by bonds, debentures,
notes, loan agreements or other similar instruments;




     (b) all purchase money Indebtedness;




     (c) the principal portion of all obligations under conditional sale or other title
retention agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into in the
ordinary course of business);




     (d) the maximum amount available to be drawn under letters of credit (including standby
and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments;




     (e) all obligations in respect of the deferred purchase price of property or services
(except any trade account payable incurred in the ordinary course of business unless (i)
such trade account payable remains outstanding beyond the date which is fixed for payment
(whether such date is stated, fixed by course of dealing or otherwise) by more than 60 days
or (ii) such Person is not in good faith disputing the payment thereof);




     (f) the Attributable Indebtedness of Capital Leases, Sale and Leaseback Transactions,
Synthetic Leases and Securitization Transactions;




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




     (h) all Funded Indebtedness of others secured by (or for which the holder of such
Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any
Lien



19









 






on, or payable out of the proceeds of production from, property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed;




     (i) all Guarantees with respect to Funded Indebtedness of the types specified in
clauses (a) through (h) above of another Person; and




     (j) all Funded Indebtedness of the types referred to in clauses (a) through (i) above
of any partnership or joint venture (other than a joint venture that is itself a corporation
or limited liability company) in which such Person is a general partner or joint venturer,
except to the extent that Funded Indebtedness is expressly made non-recourse to such Person.



     Notwithstanding the foregoing, the term “Funded Indebtedness” shall not include any Earn-Out
Obligation unless such Earn-Out Obligation is required to be reflected as indebtedness or a
liability in accordance with GAAP.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board, consistently applied and as in effect from time to time.



     “German Guarantor” means each Foreign Guarantor incorporated in Germany as a limited
liability company (GmbH).



     “German Parallel Debt Agreement” means the parallel debt agreement governed by German
law entered into on or about the First Amendment Effective Date between Dangaard Telecom Germany
GmbH and the Administrative Agent in its capacity as Security Agent.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



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



20









 






reasonably anticipated liability in respect thereof as determined by the guaranteeing Person
in good faith. The term “Guarantee” as a verb has a corresponding meaning.



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



     “Guarantors” means, collectively, the Domestic Guarantors and the Foreign Guarantors.



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



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



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




     (a) all Funded Indebtedness;




     (b) the Swap Termination Value of any Swap Contract;




     (c) all Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) and (b) above of any other Person; and




     (d) all Indebtedness of the types referred to in clauses (a) through (d) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to such Person.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



     “Information” has the meaning specified in Section 11.07.



     “Intercreditor Agreements” means, collectively, the Bright India Intercreditor
Agreement and each other intercreditor agreement entered into by the Administrative Agent and a
creditor of any Loan Party in accordance with the terms of this Agreement.



     “Interest Payment Date” means (a) as to any Eurocurrency Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; (b) as to any Base Rate Loan, the last Business Day of each March,
June, September and December and the Maturity Date; (c) as to any BBR Loan, the last Business Day
of each calendar month and the Maturity Date; and (d) as to any Daily Rate Loans, the last Business
Day of each March, June, September and December and the Maturity Date.



     “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending
on the date



21









 






one, two, three or six months thereafter, as selected by the applicable Borrower in its
Request for Credit Extension; provided that:




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




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




     (c) no Interest Period shall extend beyond the Maturity Date.



     “Interim Financial Statements” means the unaudited consolidated balance sheet of the
Parent and its Subsidiaries for the fiscal quarter ended March 31, 2007, and the related
consolidated statements of income or operations and cash flows of the Parent and its Subsidiaries
for such fiscal quarter, including the notes thereto.



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



     “International Swing Line Facility” has the meaning specified in Section
2.07(a).



     “International Swing Line Facility Notice” has the meaning specified in Section
2.07(a).



     “International Swing Line Sublimit” has the meaning specified in Section
2.07(a).



     “International Swing Line Lender” has the meaning specified in Section
2.07(a).



     “International Swing Line Loan” has the meaning specified in Section 2.07(a).



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or interest in, another
Person, or (c) an Acquisition. For purposes of covenant compliance, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent increases or decreases in
the value of such Investment, provided that any Investment shall be deemed reduced by the
amount of distributions of cash or other property received by such Person on account of such
Investment (including principal repayments on loans, advances and other debt, but excluding
interest payments on loans, advances and other debt).



     “Involuntary Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any property of the Parent or any Subsidiary.



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



     “IRS” means the United States Internal Revenue Service.



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



22









 





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



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



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



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



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



     “L/C Issuer” means (a) with respect to each Existing Letter of Credit, National City
Bank, (b) with respect to each Letter of Credit issued after the Closing Date, Bank of America and
ABN AMRO Bank N.V., as selected by the applicable Borrower, and (c) any successor issuer of Letters
of Credit hereunder, in each case in its capacity as the issuer of the applicable Letter of Credit.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including, but without duplication, all L/C Borrowings. For purposes of
computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.09. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such
Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be
drawn.



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



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



     “Letter of Credit” means any letter of credit or bank guaranty issued hereunder and
shall include the Existing Letters of Credit. A letter of credit issued hereunder may be a
commercial letter of credit or a standby letter of credit. Letters of Credit may be denominated in
US Dollars or in an Alternative Currency.



23









 





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



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



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



     “Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate
Revolving Commitments and (b) US$75 million. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Loan” means an extension of credit by a Lender to a Borrower under Article II
in the form of a Revolving Loan, a Swing Line Loan or a Term Loan.



     “Loan Documents” means this Agreement, each Note, each Issuer Document, each
Designated Borrower Agreement, each Joinder Agreement, the Collateral Documents and the Fee
Letters. For purposes of clarification, the Bright India Loan Documents are not Loan Documents.



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



     “Loan Parties” means, collectively, the Domestic Loan Parties and the Foreign Loan
Parties.



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



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



     “Material Domestic Subsidiary” means any Domestic Subsidiary that either (a) carries
on any business activity or (b) has property with an aggregate fair market value in excess of
US$100,000.



     “Material Foreign Subsidiary” means any Foreign Subsidiary (other than a Foreign
Guarantor) that has (a) gross profits that exceed fifteen percent (15%) of total gross profits of
the Parent and its Subsidiaries on a consolidated basis for the immediately preceding fiscal
quarter (provided that the first test date for this clause (a) shall be December 31, 2007) or (b)
assets with a book value that exceeds fifteen percent (15%) of the book value of the total assets
of the Parent and its Subsidiaries on a



24









 






consolidated basis at any time; provided that if at any time all Foreign Subsidiaries
that are not Foreign Loan Parties have (a) aggregate gross profits that exceed thirty-five percent
(35%) of total gross profits of the Parent and its Subsidiaries on a consolidated basis for the
period of the two immediately preceeding fiscal quarters (provided that the first test date for
this clause (a) shall be December 31, 2007) or (b) aggregate assets with a book value that exceeds
forty percent (40%) of the book value of the total assets of the Parent and its Subsidiaries on a
consolidated basis as of the last day of the two immediately preceeding fiscal quarters, then the
Parent shall designate one or more of such Foreign Subsidiaries as Material Foreign Subsidiaries
such that immediately after such designation the remaining Foreign Subsidiaries that are not
Foreign Loan Parties will not exceed either of the thresholds in clauses (a) and (b) of this
proviso.



     “Material Indebtedness” means, collectively, (a) Indebtedness under the Bright India
Loan Documents and (b) any other Indebtedness (other than Indebtedness hereunder, Indebtedness
under Swap Contracts and intercompany Indebtedness permitted under Section 8.03) having an
aggregate principal amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of more than the
Threshold Amount.



     “Maturity Date” means February 16, 2012; provided, however, that if
such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.



     “Maximum Pro Forma Consolidated Leverage Ratio” means, with respect to any fiscal
quarter end, the maximum Consolidated Leverage Ratio permitted under Section 8.11(a) as of
the end of such fiscal quarter, adjusted by reducing the numerator of the fraction pursuant to
which such Consolidated Leverage Ratio was derived by 0.50. By way of illustration, if the maximum
Consolidated Leverage Ratio permitted under Section 8.11(a) as of the end of such fiscal
quarter is 3.00:1.0, then the Maximum Pro Forma Total Leverage Ratio as of the end of such fiscal
quarter is 2.50:1.0.



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



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



     “Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by
the Parent or any Subsidiary in respect of any Disposition, Equity Issuance, Debt Issuance or
Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including,
without limitation, legal, accounting and investment banking fees, and sales commissions), (b)
taxes paid or payable as a result thereof and (c) in the case of any Disposition or Involuntary
Disposition, the amount necessary to retire any Indebtedness secured by a Permitted Lien (ranking
senior to any Lien of the Administrative Agent) on the related property; it being understood that
“Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon
the sale or other disposition of any non-cash consideration received by the Parent or any
Subsidiary in any Disposition, Equity Issuance, Debt Issuance or Involuntary Disposition.



     “New Zealand Dollar” means the lawful currency of New Zealand.



     “Non Qualifying Parent Company” means any parent company other than a Qualifying
Parent.



     “Note” has the meaning specified in Section 2.14(a).



25









 





     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding. The term
“Obligations” shall also include (a) all obligations under any Swap Contract between the Parent or
any Subsidiary and any Secured Swap Provider that is permitted to be incurred pursuant to
Section 8.03(d), (b) all obligations under any Treasury Management Agreement between the
Parent or any Subsidiary and any Lender or Affiliate of a Lender and (c) all obligations of Bright
India under the Bright India Loan Documents up to the maximum principal amount permitted by
Section 8.03(f)(ii).



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



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



     “Outstanding Amount” means (i) with respect to any Loans on any date, the US Dollar
Equivalent of the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of any Loans occurring on such date; and (ii) with respect
to any L/C Obligations on any date, the US Dollar Equivalent of the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date, including as a result of
any reimbursements by the Borrowers of Unreimbursed Amounts.



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



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



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



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



26









 





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



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



     “Permitted Acquisitions” means Investments consisting of an Acquisition by the Parent
or any Subsidiary, provided that (a) the property acquired (or the property of the Person
acquired) in such Acquisition is ancillary to, reasonably related to, or used or useful in, the
same or a similar line of business as the Parent and its Subsidiaries were engaged in on the
Closing Date (or any reasonable extensions or expansions thereof) or constitutes
Discontinued Operations Property, (b) in the case of an Acquisition of the Equity Interests of
another Person, the board of directors (or other comparable governing body) of such other Person
shall have duly approved such Acquisition, (c) the representations and warranties made by the Loan
Parties in each Loan Document shall be true and correct in all material respects at and as if made
as of the date of such Acquisition (after giving effect thereto), (d) if such transaction involves
the purchase of an interest in a partnership between a Loan Party as a general partner and entities
unaffiliated with the Parent as the other partners, such transaction shall be effected by having
such equity interest acquired by a corporate holding company directly or indirectly wholly-owned by
such Loan Party newly formed for the sole purpose of effecting such transaction, and (e) the Parent
shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating
that, upon giving effect to such Acquisition on a Pro Forma Basis, (i) the Loan Parties would be in
compliance with the financial covenants set forth in Section 8.11 as of the most recent
fiscal quarter end for which the Loan Parties were required to deliver financial statements
pursuant to Section 7.01(a) or (b) and (ii) the Consolidated Leverage Ratio as of
the most recent fiscal quarter end for which the Loan Parties were required to deliver financial
statements pursuant to Section 7.01(a) or (b) would not exceed the Maximum Pro
Forma Consolidated Leverage Ratio as of such fiscal quarter end.



     “Permitted Factoring Property” means accounts receivable owing to any Foreign
Subsidiary (other than a Foreign Borrower) and any other assets of any Foreign Subsidiary (other
than a Foreign Borrower) that are customarily transferred or in respect of which security interests
are customarily granted in connection with factoring transactions involving accounts receivable.



     “Permitted Factoring Transactions” means Permitted Non-Recourse Factoring Transactions
and Permitted Recourse Factoring Transactions.



     “Permitted Intercompany Investments” means any of the following: (a) Investments by
any Domestic Loan Party in any other Domestic Loan Party; (b) Investments by any Foreign Subsidiary
in any other Foreign Subsidiary, provided that any Indebtedness loaned or advanced by any
Foreign Subsidiary that is not a Foreign Loan Party to any Foreign Loan Party pursuant to this
clause (b) shall be subordinated in right of payment to the prior payment of the Foreign
Obligations on terms and conditions set forth in Exhibit 8.02; (c) Investments by the
Parent or any Domestic Subsidiary in any Foreign Borrower, provided that the proceeds of
such Investment are used solely to repay Foreign Credit Obligations; (d) Investments by the Parent
or any Domestic Subsidiary in any Foreign Subsidiary, provided that (i) any such Investment
consists solely of proceeds of the Domestic Term Loan and such Investment is used solely to repay
Indebtedness outstanding on the Closing Date, (ii) such Investment consists solely of proceeds of
the repayment of principal on the intercompany loan made by the Parent to Bright BVI on the First
Amendment Effective Date and such Investment is made within thirty (30) days after receipt of such
repayment or (iii) any such Investment consists solely of the net cash proceeds of the issuance of
Equity Interests by the Parent or



27









 






Subordinated Indebtedness; (e) other Investments by the Parent or any Domestic Subsidiary in any
Foreign Subsidiary, provided that the aggregate principal amount of such Investments shall
not at any time exceed (i) US$35 million plus (ii) up to US$15 million consisting solely of
payment by the Parent of corporate overhead expenses on behalf of Foreign Subsidiaries; and (f)
Investments by any Foreign Subsidiary in any Domestic Loan Party, provided that any
Indebtedness issued by any Domestic Loan Party to any Foreign Subsidiary that is not a Foreign
Borrower pursuant to this clause (f) shall be subordinated in right of payment to the prior payment
of the Obligations on terms and conditions set forth in Exhibit 8.02. Notwithstanding the
foregoing, (x) any Investment in a Foreign Subsidiary or a SPV pursuant to, in connection with or
in contemplation of a Permitted Securitization Transaction or a Permitted Factoring Transaction
shall not be a Permitted Intercompany Investment and (y) an Investment by way of a loan or advance
to a German Guarantor shall be a Permitted Intercompany Investment only if, in addition to such
Investment meeting the requirements of one of clauses (a) through (f) of the foregoing sentence,
such Investment is subordinated within the meaning of § 39 para. 2 German Insolvency Code.



     “Permitted Intercompany Transfers” means (a) dispositions of property by any Domestic
Loan Party to any other Domestic Loan Party; (b) dispositions of Equity Interests in Bright Denmark
Telecom and/or Bright Denmark Administration to the Parent or any other Subsidiary; (c)
dispositions of property by any Foreign Subsidiary to any other Foreign Subsidiary,
provided that that any Indebtedness loaned or advanced by any Foreign Subsidiary that is
not a Foreign Loan Party to any Foreign Loan Party as consideration for any disposition pursuant to
this clause (c) shall be subordinated in right of payment to the prior payment of the Foreign
Obligations on terms and conditions set forth in Exhibit 8.02; (d) dispositions of property
by the Parent or any Domestic Subsidiary to any Foreign Subsidiary (it being understood that if the
consideration paid in connection therewith is (i) not cash or Cash Equivalents paid contemporaneous
with consummation of such disposition, such consideration shall be deemed an Investment in such
Foreign Subsidiary and (ii) less than the fair market value of the property subject thereto, then
such difference shall be deemed an Investment in such Foreign Subsidiary), (e) dispositions of
property by any Foreign Subsidiary to the Parent or any Domestic Subsidiary, provided that
that any Indebtedness issued by the Parent or any Domestic Subsidiary to any Foreign Subsidiary
that is not a Foreign Borrower as consideration for any disposition pursuant to this clause (e)
shall be subordinated in right of payment to the prior payment of the Obligations on terms and
conditions set forth in Exhibit 8.02 (it being understood that if the consideration paid in
connection therewith exceeds the fair market value of the property subject thereto, then such
excess shall be deemed an Investment in such Foreign Subsidiary) and (f) the cancellation or
forgiveness in the ordinary course of business of intercompany Indebtedness permitted under
Section 8.03 (other than Indebtedness loaned or advanced by the Parent or any Domestic
Subsidiary to any Foreign Subsidiary). Notwithstanding the foregoing, the sale, transfer
or other disposition of any property to a Foreign Subsidiary or a SPV pursuant to, in connection
with or in contemplation of a Permitted Securitization Transaction or a Permitted Factoring
Transaction shall not be a Permitted Intercompany Transfer.



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



     “Permitted Non-Recourse Factoring Transactions” means any sale of Permitted Factoring
Property by any Foreign Subsidiary (other than a Foreign Borrower) pursuant to a factoring
arrangement, provided that such sale is non-recourse to the Parent or any Subsidiary.



     “Permitted Recourse Factoring Transactions” means any sale of Permitted Factoring
Property by any Foreign Subsidiary (other than a Foreign Borrower) pursuant to a factoring
arrangement that is recourse to such Foreign Subsidiary.



28









 





     “Permitted Securitization Property” means accounts receivable owing to any Foreign
Subsidiary and any other assets of any Foreign Subsidiary (other than a Foreign Borrower) that are
customarily transferred or in respect of which security interests are customarily granted in
connection with asset securitization transactions involving accounts receivable.



     “Permitted Securitization Transaction” means any Securitization Transaction provided
that (a) neither the Parent nor any Domestic Subsidiary shall have any obligation or liability with
respect thereto, (b) no Foreign Subsidiary shall have any obligation or liability with respect
thereto except for Standard Securitization Obligations and (c) neither the Parent nor any
Subsidiary shall have any obligation to maintain or preserve the SPV’s financial condition or to
cause the SPV to achieve certain levels of operating results.



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



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



     “Platform” has the meaning specified in Section 7.02.



     “Pro Forma Basis” means, with respect to any transaction, that such transaction shall
be deemed to have occurred as of the first day of the most recent four fiscal quarter period
preceding the date of such transaction for which the Parent was required to deliver financial
statements pursuant to Section 7.01(a) or (b). In connection with the foregoing,
(a) with respect to any Acquisition, income statement items attributable to the Person or property
acquired shall be included to the extent relating to any period applicable in such calculations to
the extent (A) such items are not otherwise included in such income statement items for the Parent
and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in
Section 1.01 and (B) such items are supported by financial statements or other information
reasonably satisfactory to the Administrative Agent, and (b) with respect to any Disposition or
Involuntary Disposition, income statement and cash flow statement items (whether positive or
negative) attributable to the property disposed of shall be excluded to the extent relating to any
period occurring prior to the date of such transaction.



     “Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the
Parent containing reasonably detailed calculations of the financial covenants set forth in
Section 8.11 as of the most recent fiscal quarter end for which the Loan Parties were
required to deliver financial statements pursuant to Section 7.01(a) or (b) after
giving effect to the applicable transaction on a Pro Forma Basis.



     “Qualifying Parent Company” means a parent company which is incorporated under the
laws of any member state of the European Union (EU) or the European Economic Area (EEA) and which
is an entity to which the First Council Directive 68/151/EEC of 9 March 1968 applies.



     “Receivables Financing Amount” means the sum of (a) the Attributable Indebtedness of
Permitted Securitization Transactions plus (b) the Attributable Indebtedness of Permitted
Recourse Factoring Transactions plus (c) the aggregate net book value of all of the
accounts receivable subject to Permitted Non-Recourse Factoring Transactions.



     “Receivables Financings” means Permitted Securitization Transactions and Permitted
Factoring Transactions.



29









 





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



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



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



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



     “Required Domestic Term Loan Lenders” means, at any time, Lenders holding in the
aggregate more than 50% of the Outstanding Amount of the Domestic Term Loan. The portion of the
Domestic Term Loan held or deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Domestic Term Loan Lenders.



     “Required Foreign Term Loan Lenders” means, at any time, Lenders holding in the
aggregate more than 50% of the Outstanding Amount of the Foreign Term Loan. The portion of the
Foreign Term Loan held or deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Foreign Term Loan Lenders.



     “Required Lenders” means, at any time, Lenders holding in the aggregate more than 50%
of (a) the unfunded Commitments and the outstanding Loans, L/C Obligations and participations
therein or (b) if the Commitments have been terminated, the outstanding Loans, L/C Obligations and
participations therein. The unfunded Commitments of, and the outstanding Loans held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a determination of Required
Lenders.



     “Required Revolving Lenders” means, at any time, Lenders holding in the aggregate more
than 50% of (a) the unfunded Revolving Commitments and the outstanding Revolving Loans, Swing Line
Loans, L/C Obligations and participations therein or (b) if the Revolving Commitments have been
terminated, the outstanding Revolving Loans, Swing Line Loans, L/C Obligations and participations
therein. The unfunded Revolving Commitments of, and the outstanding Revolving Loans, Swing Line
Loans, L/C Obligations and participations therein held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Revolving Lenders.



     “Responsible Officer” means the chief or principal executive officer, president, chief
financial officer, treasurer, assistant treasurer or controller of a Loan Party (and, in the case
of Bright Australia, the directors and company secretaries) and any other officer of the applicable
Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent.
Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.



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



30









 






equivalent Person thereof), or any option, warrant or other right to acquire any such dividend
or other distribution or payment.



     “Restricted Subsidiary” means, collectively, (a) each Domestic Subsidiary, (b) each
Foreign Borrower, (c) each Foreign Guarantor and (d) any Foreign Subsidiary that is not a Foreign
Loan Party and that has either (i) gross profits that exceed ten percent (10%) of total gross
profits of the Parent and its Subsidiaries on a consolidated basis for any period of four
consecutive fiscal quarters (provided that the first test date for this clause (i) shall be
December 31, 2007) or (ii) assets that exceed ten percent (10%) of total assets of the Parent and
its Subsidiaries on a consolidated basis as of the last day of any fiscal quarter. If any
Subsidiary becomes a Restricted Subsidiary under clause (d) above and as of the end of any fiscal
quarter thereafter would not constitute a Restricted Subsidiary under any of clauses (a) through
(d) of this definition, then such Subsidiary shall no longer be deemed a Restricted Subsidiary
(provided that such Subsidiary shall be deemed a Restricted Subsidiary if at any time thereafter it
meets any of the criteria in clauses (a) through (d) of this definition).



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



     “Revolving Lender” means each Lender that holds a Revolving Commitment.



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



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



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



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



     “Same Day Funds” means (a) with respect to disbursements and payments in US Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Administrative Agent, the applicable
Swing Line Lender or the applicable L/C Issuer, as the case may be, to be customary in the place of



31









 






disbursement or payment for the settlement of international banking transactions in the
relevant Alternative Currency.



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



     “Secured Swap Provider” means (a) any Person that is a Lender or Affiliate of a Lender
on the date such Person enters into a Swap Contract with the Parent or any Subsidiary or (b) any
other Person counterparty to a Swap Contract with the Parent or any Subsidiary provided or arranged
by a Lender or Affiliate of a Lender and any assignee of such Person.



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



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



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



     “Specified Obligations” means Credit Obligations consisting of principal of and
interest on the Loans, reimbursement obligations in respect of Letters of Credit and fees payable
to the Lenders or the Administrative Agent pursuant to the Loan Documents.



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




32










 





     “SPV” has the meaning specified in the definition of “Securitization
Transaction” set forth in Section 1.01.



     “Standard Securitization Obligations” means representations, warranties, covenants,
indemnities and other obligations of any Foreign Subsidiary (other than a Foreign Borrower) that
are customary in asset securitization transactions involving accounts receivable.



     “Sterling” means the lawful currency of the United Kingdom.



     “Subordinated Indebtedness” means any Indebtedness of the Parent or any Subsidiary
which by its terms is expressly subordinated to the Obligations in a manner and to an extent
reasonably satisfactory to the Administrative Agent.



     “Subordinated Indebtedness Documents” means all documents, agreements and instruments
governing or otherwise relating to any Subordinated Indebtedness, as amended, modified and
supplemented in accordance with the terms of this Agreement.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of Voting Stock is at
the time beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Parent.



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



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s) and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more readily available quotations
provided by any recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).



     “Swedish Krona” means the lawful currency of Sweden.



     “Swing Line Lenders” means, collectively, the Domestic Swing Line Lender, the
Australian Swing Line Lender, the Danish Swing Line Lender and each International Swing Line
Lender.



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     “Swing Line Loan Notice” means a Domestic Swing Line Loan Notice, an Australian Swing
Line Loan Notice, a Danish Swing Line Notice and any notice of borrowing delivered by a Borrower
under an International Swing Line Facility, as applicable.



     “Swing Line Loans” means, collectively, the Domestic Swing Line Loans, the Australian
Swing Line Loans, the Danish Swing Line Loans and the International Swing Line Loans.



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



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



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



     “Term Loan Commitment” means, collectively, the Domestic Term Loan Commitment and the
Foreign Term Loan Commitment.



     “Term Loans” means, collectively, the Domestic Term Loan and the Foreign Term Loan.



     “Threshold Amount” means US$10 million.



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



     “Tranche” means a category of Commitments and Credit Extensions thereunder. For
purposes hereof, each of the following comprises a separate Tranche: (a) the Revolving Commitments
and the Revolving Loans (b) the Domestic Term Loan Commitment and the Domestic Term Loan and (c)
the Foreign Term Loan Commitment and the Foreign Term Loan.



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



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



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding that Pension Plan pursuant to
Section 412 of the Internal Revenue Code for the applicable plan year.



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



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



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



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



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



     “Wholly Owned Subsidiary” means any Person 100% of whose Equity Interests are at the
time owned by the Parent directly or indirectly through other Persons 100% of whose Equity
Interests are at the time owned, directly or indirectly, by the Parent.




	1.02	 	Other Interpretive Provisions.





     With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein or in any
other Loan Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions consolidating, amending, replacing
or interpreting such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented from time to
time, and (vi) the words “asset” and “property” shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.




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



35









 






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




     (d) In this Agreement, where it relates to a Dutch entity, a reference to:




	 	(i)	 	a winding-up, administration or dissolution
includes a Dutch entity being:






	 	(A)	 	declared bankrupt (failliet verklaard); or
	 
	 	(B)	 	dissolved (ontbonden);






	 	(ii)	 	a moratorium or rearrangement includes surseance van betaling;
	 
	 	(iii)	 	insolvency includes a bankruptcy, a moratorium
and the issue of a notice under section 36(2) of the Dutch 1990 Tax
Collection Act (Invorderingswet 1990);
	 
	 	(iv)	 	a trustee in bankruptcy includes a curator;
	 
	 	(v)	 	an administrator includes a bewindvoerder;
	 
	 	(vi)	 	“security” includes any mortgage (hypotheek),
pledge (pandrecht), retention of title arrangement
(eigendomsvoorbehoud), right of retention (recht van retentie), right
to reclaim goods (recht van reclame), and, in general, any right in rem
(beperkt recht), created for the purpose of granting security
(goederenrechtelijk zekerheidsrecht);
	 
	 	(vii)	 	an attachment includes a beslag; and
	 
	 	(viii)	 	a subsidiary includes a dochtermaatschappij as defined in Article
2:24a of the Dutch Civil Code.






	1.03	 	Accounting Terms.





     (a) Generally. Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time.



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



36









 






reconciliation between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.



     (c) Calculations. Notwithstanding the above, the parties hereto acknowledge and agree
that (i) all calculations of the financial covenants in Section 8.11 (including for
purposes of determining the Applicable Rate) shall be made on a Pro Forma Basis for all
Acquisitions, Dispositions and Involuntary Dispositions that occurred during the applicable period
and (ii) for purposes of all calculations of the financial covenants in Section 8.11
(including for purposes of determining the Applicable Rate) and all calculations of the Maximum Pro
Forma Consolidated Leverage Ratio, the calculation of Consolidated EBITDA for the applicable period
shall be adjusted to reflect the pro forma effect of credible synergies between the
operations of the Parent and its Subsidiaries, on the one hand, and the Person or property acquired
in an Acquisition during the applicable period, on the other hand, to the extent set forth in
reasonable detail in a certificate signed by the chief or principle executive officer, chief
financial officer, treasurer or controller of the Parent submitted to the Administrative Agent
and/or the Lenders and approved in writing by the Administrative Agent or the Required Lenders.



     (d) Clarification Regarding Consolidation. For purposes of clarification, in each
instance in this Agreement and the other Loan Documents where the term “consolidated” or
“consolidating” is used, such term refers the Parent and its Subsidiaries on a consolidated or
consolidating basis, as applicable.




	1.04	 	Rounding.





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




	1.05	 	Exchange Rates; Currency Equivalents.





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



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




	1.06	 	Additional Alternative Currencies.




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     (a) The Parent may from time to time request that Revolving Loans and/or Domestic Swing Line
Loans be made, and/or Letters of Credit be issued, in a currency other than those specifically
listed in the definition of “Alternative Currency;” provided that such requested currency
is a lawful currency (other than US Dollars) that is readily available and freely transferable and
convertible into US Dollars. In the case of any such request with respect to the making of
Revolving Loans, such request shall be subject to the approval of the Administrative Agent and the
Revolving Lenders; in the case of any such request with respect to the making of Domestic Swing
Line Loans, such request shall be subject to the approval of the Administrative Agent and the
Domestic Swing Line Lender; and in the case of any such request with respect to the issuance of
Letters of Credit, such request shall be subject to the approval of the Administrative Agent and
the L/C Issuers.



     (b) Any such request pertaining to Revolving Loans shall be made to the Administrative Agent
not later than 11:00 a.m., twenty (20) Business Days prior to the date of the desired Credit
Extension (or such other time or date as may be agreed by the Administrative Agent). Any such
request pertaining to Domestic Swing Line Loans and Letters of Credit shall be made to the
Administrative Agent not later than 11:00 a.m., ten (10) Business Days prior to the date of the
desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent).
In the case of any such request pertaining to Revolving Loans, the Administrative Agent shall
promptly notify each Revolving Lender thereof; in the case of any such request pertaining to
Domestic Swing Line Loans, the Administrative Agent shall promptly notify the Domestic Swing Line
Lender thereof; and in the case of any such request pertaining to Letters of Credit, the
Administrative Agent shall promptly notify the L/C Issuers thereof. Each Revolving Lender (in the
case of any such request pertaining to Revolving Loans), the Domestic Swing Line Lender (in the
case of any such request pertaining to Domestic Swing Line Loans) or the L/C Issuers (in the case
of a request pertaining to Letters of Credit) shall notify the Administrative Agent not later than
11:00 a.m., ten (10) Business Days after receipt of such request whether it consents, in its sole
discretion, to the making of Revolving Loans, the making of Domestic Swing Line Loans or the
issuance of Letters of Credit, as the case may be, in such requested currency.



     (c) Any failure by a Lender, the Domestic Swing Line Lender or a L/C Issuer, as the case may
be, to respond to such request within the time period specified in the preceding Section shall be
deemed to be a refusal by such Lender, the Domestic Swing Line Lender or such L/C Issuer, as the
case may be, to permit Revolving Loans or Domestic Swing Line Loans to be made, or Letters of
Credit to be issued by such L/C Issuer, as the case may be, in such requested currency. If the
Administrative Agent and each Revolving Lender consent to making Revolving Loans in such requested
currency, the Administrative Agent shall so notify the Parent and such currency shall thereupon be
deemed for all purposes to be an Alternative Currency hereunder for purposes of any Borrowings of
Revolving Loans; if the Administrative Agent and the Domestic Swing Line Lender consent to the
making of Domestic Swing Line Loans in such requested currency, the Administrative Agent shall so
notify the Parent and such currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder for purposes of any Borrowings of Domestic Swing Line Loans; and if the
Administrative Agent and any L/C Issuer consent to the issuance of Letters of Credit in such
requested currency, the Administrative Agent shall so notify the Parent and such currency shall
thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any
Letter of Credit issuances by the L/C Issuer that consented to such currency (but shall not be an
Alternative Currency for purposes of any Letter of Credit issued by any L/C Issuer that did not
consent to such currency). If the Administrative Agent shall fail to obtain consent to any request
for an additional currency under this Section 1.06, the Administrative Agent shall promptly
so notify the Parent. Any specified currency of an Existing Letter of Credit that is neither US
Dollars nor one of the Alternative Currencies specifically listed in the definition of “Alternative
Currency” shall be deemed an Alternative Currency with respect to such Existing Letter of Credit
only.



38









 






	1.07	 	Change of Currency.





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



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



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




	1.08	 	Times of Day.





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




	1.09	 	Letter of Credit Amounts.





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



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS





	2.01	 	Revolving Loans and Term Loans.





     (a) Revolving Loans. Subject to the terms and conditions set forth herein, each
Revolving Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the
Borrowers in US Dollars or in one or more Alternative Currencies from time to time on any Business
Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the
amount of such Lender’s Revolving Commitment; provided, however, that after giving
effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed
the Aggregate Revolving Commitments; (ii) the aggregate Outstanding Amount of the Revolving Loans
of any Lender, plus such



39









 






Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Revolving Commitment; and (iii) the Total Revolving Outstandings of the
Domestic Borrowers shall not exceed the Domestic Revolving Sublimit; and provided
further that the availability of the Aggregate Revolving Commitments at any time shall be
reduced by the amount of the Foreign Swing Line Facility Reserve. Within the limits of each
Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrowers
may borrow under this Section 2.01, prepay under Section 2.08, and reborrow under
this Section 2.01. Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans, as
further provided herein.



     (b) Domestic Term Loan. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make its portion of a term loan (the “Domestic Term Loan”) to
the Domestic Borrowers in US Dollars or in one or more Alternative Currencies on the First
Amendment Effective Date in an amount not to exceed the US Dollar Equivalent of such Lender’s
Domestic Term Loan Commitment. Amounts repaid on the Domestic Term Loan may not be reborrowed.
The Domestic Term Loan may consist of Base Rate Loans or Eurocurrency Rate Loans, as further
provided herein.



     (c) Foreign Term Loan. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make its portion of a term loan (the “Foreign Term Loan”) to the
Foreign Borrowers in US Dollars or in one or more Alternative Currencies on the First Amendment
Effective Date in an amount not to exceed the US Dollar Equivalent of such Lender’s Foreign Term
Loan Commitment. Amounts repaid on the Foreign Term Loan may not be reborrowed. The Foreign Term
Loan may consist of Base Rate Loans (to the extent denominated in US Dollars) or Eurodollar Rate
Loans, as further provided herein.




	2.02	 	Borrowings, Conversions and Continuations of Revolving Loans or Term Loans.





     (a) Each Borrowing of a Revolving Loan or a Term Loan, each conversion of a Revolving Loan or
a Term Loan from one Type to the other, and each continuation of a Revolving Loan or a Term Loan
that are Eurocurrency Rate Loans shall be made upon the applicable Borrower’s irrevocable notice to
the Administrative Agent, which may be given by telephone. Each such notice must be received by
the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of, Eurocurrency Rate Loans denominated in
US Dollars or of any conversion of Eurocurrency Rate Loans denominated in US Dollars to Base Rate
Loans, (ii) four Business Days (or five Business Days in the case of a Special Notice
Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency
Rate Loans denominated in Alternative Currencies and (iii) on the requested date of any Borrowing
of Base Rate Loans. Each telephonic notice by the applicable Borrower pursuant to this Section
2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan
Notice, appropriately completed and signed by a Responsible Officer of such Borrower. Each
Borrowing of, conversion to or continuation of a Revolving Loan or a Term Loan that is a
Eurocurrency Rate Loan shall be in a principal amount of US$2,500,000 or a whole multiple of
US$500,000 in excess thereof. Except as provided in Sections 2.03(c), 2.04(c),
2.05(c), 2.06(c) and 2.07(c), each Borrowing of Base Rate Loans or
conversion of a Revolving Loan or a Term Loan that is a Eurocurrency Rate Loan to a Base Rate Loan
shall be in a principal amount of US$250,000 or a whole multiple of US$250,000 in excess thereof.
Each Loan Notice (whether telephonic or written) shall specify (i) whether the applicable Borrower
is requesting a Borrowing of a Revolving Loan or a Term Loan, a conversion of a Revolving Loan or a
Term Loan from one Type to the other, or a continuation of a Revolving Loan or a Term Loan that is
a Eurocurrency Rate Loan, (ii) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the principal amount to be borrowed,
converted or continued, (iv) the Type of the Revolving Loan or Term Loan to be borrowed or to which
existing Loans are to be converted, (v) if applicable, the duration



40









 






of the Interest Period with respect thereto, and (vi) the currency of the Revolving Loan or Term
Loan to be borrowed. If the applicable Borrower fails to specify a currency in a Loan Notice
requesting a Borrowing, then the Loan so requested shall be made in US Dollars. If the applicable
Borrower fails to specify a Type of a Loan in a Loan Notice, then the applicable Loans shall be
made as Base Rate Loans in the case of a request for a Loan denominated in US Dollars or as a
Eurocurrency Rate Loan with an Interest Period of one month in the case of a request for a Loan
denominated in an Alternative Currency. If the applicable Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made as, or converted
to, Base Rate Loans; provided, however, that in the case of a failure to timely
request a continuation of Loans denominated in an Alternative Currency, such Loans shall be
continued as Eurocurrency Rate Loans in their original currency with an Interest Period of one
month. Any such automatic conversion to Base Rate Loans or continuation as Eurocurrency Rate Loans
shall be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurocurrency Rate Loans. If the applicable Borrower requests a Borrowing of, conversion
to, or continuation of Eurocurrency Rate Loans in any Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month. No Loan may be
converted into or continued as a Loan denominated in a different currency, but instead must be
prepaid in the original currency of such Loan and reborrowed in the other currency.



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



     (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of the Interest Period for such Eurocurrency Rate Loan. During the
existence of a Default, the Required Lenders may demand that any or all of the then outstanding
Eurocurrency Rate Loans denominated in an Alternative Currency be prepaid, or redenominated into US
Dollars in the amount of the US Dollar Equivalent thereof, on the last day of the then current
Interest Period with respect thereto.



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



41









 





     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than fifteen (15)
Interest Periods in effect with respect to Revolving Loans, three (3) Interest Periods in effect
with respect to the Domestic Term Loans and three (3) Interest Periods in effect with respect to
the Foreign Term Loans.




	2.03	 	Letters of Credit.





     (a) The Letter of Credit Commitment.




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




     (ii) No L/C Issuer shall issue any Letter of Credit if:




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



42









 






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




     (iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such
Letter of Credit, or any Law applicable to such L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C
Issuer refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon such L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which such L/C
Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which such L/C Issuer in good faith deems
material to it;




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




     (C) except as otherwise agreed by the Administrative Agent and such L/C Issuer,
such Letter of Credit is in an initial stated amount less than US$100,000;




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




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




     (F) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




     (G) a default of any Revolving Lender’s obligations to fund under Section
2.03(c) exists or any Revolving Lender is at such time a Defaulting Lender
hereunder, unless such L/C Issuer has entered into satisfactory arrangements with
the other Revolving Lenders, the Loan Parties or such Lender to eliminate such L/C
Issuer’s risk with respect to such Lender.




     (iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




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




     (vi) Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and each L/C Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article
X with respect to



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any acts taken or omissions suffered by such L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term “Administrative Agent” as used in Article
X included such L/C Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to such L/C Issuer.




     (vii) Subject to the discretion permitted to the L/C Issuers under Section 7.02 of the
ISP, or under the analogous rules, if any, of the Uniform Customs and Practice for
Documentary Credits, each L/C Issuer shall cancel any Letter of Credit issued by it promptly
following its receipt from the beneficiary thereof of its consent to such cancellation, and
shall promptly notify the applicable Borrower of such receipt and such cancellation.



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




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




     (ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
applicable Borrower and, if not, the applicable L/C Issuer will provide the Administrative
Agent with a copy thereof. Unless the applicable L/C Issuer has received written notice
from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior
to the requested date of issuance or amendment of the applicable Letter of Credit, that one
or more applicable conditions contained in Article V shall not be satisfied, then,
subject to the terms and conditions hereof, the applicable L/C Issuer shall, on the
requested date, issue a Letter of Credit



44









 






for the account of the applicable Borrower or the applicable Subsidiary or enter into the
applicable amendment, as the case may be, in each case in accordance with the applicable L/C
Issuer’s usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in
such Letter of Credit in an amount equal to the product of such Lender’s Applicable
Percentage times the amount of such Letter of Credit.




     (iii) If the applicable Borrower so requests in any applicable Letter of Credit
Application, the applicable L/C Issuer may, in its sole and absolute discretion, agree to
issue a Letter of Credit that has automatic extension provisions (each, an
“Auto-Extension Letter of Credit”); provided that any such Auto-Extension
Letter of Credit must permit the applicable L/C Issuer to prevent any such extension at
least once in each twelve-month period (commencing with the date of issuance of such Letter
of Credit) by giving prior notice to the beneficiary thereof not later than a day (the
“Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at
the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C
Issuer, the applicable Borrower shall not be required to make a specific request to the
applicable L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not require) the
applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the applicable L/C Issuer shall not permit any such extension if (A)
the applicable L/C Issuer has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised form (as extended)
under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section
2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the Non-Extension Notice
Date (1) from the Administrative Agent that the Required Revolving Lenders have elected not
to permit such extension or (2) from the Administrative Agent, any Lender or the Parent that
one or more of the applicable conditions specified in Section 5.02 is not then
satisfied, and in each case directing the applicable L/C Issuer not to permit such
extension.




     (iv) If the applicable Borrower so requests in any applicable Letter of Credit
Application, the applicable L/C Issuer will state in the applicable Letter of Credit that if
on the last day for presentation the place for presentation stated in such Letter of Credit
is for any reason closed and presentation is not timely made because of the closure, then
the last day for presentation shall automatically be extended to the next calendar day (or
such other day as the applicable Borrower may request) after the place for presentation
re-opens for business.




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



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the applicable L/C Issuer shall notify the applicable Borrower
and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an
Alternative Currency, the applicable Borrower shall reimburse the applicable L/C Issuer in
such Alternative Currency, unless (A) the applicable L/C Issuer (at its option) shall have
specified in such notice that it will require reimbursement in US Dollars, or (B) in the
absence of any such



45









 






requirement for reimbursement in US Dollars, the applicable Borrower shall have notified the
applicable L/C Issuer promptly following receipt of the notice of drawing that the
applicable Borrower will reimburse the applicable L/C Issuer in US Dollars. In the case of
any such reimbursement in US Dollars of a drawing under a Letter of Credit denominated in an
Alternative Currency, the applicable L/C Issuer shall notify the applicable Borrower of the
US Dollar Equivalent of the amount of the drawing promptly following the determination
thereof. Not later than 11:00 a.m. on the date of any payment by the applicable L/C Issuer
under a Letter of Credit to be reimbursed in US Dollars, or the Applicable Time on the date
of any payment by the applicable L/C Issuer under a Letter of Credit to be reimbursed in an
Alternative Currency (each such date, an “Honor Date”), the applicable Borrower
shall reimburse the applicable L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing and in the applicable currency. If the applicable
Borrower fails to so reimburse the applicable L/C Issuer by such time, the Administrative
Agent shall promptly notify each Revolving Lender of the Honor Date, the amount of the
unreimbursed drawing (expressed in US Dollars in the amount of the US Dollar Equivalent
thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the
“Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage
thereof. In such event, the applicable Borrower shall be deemed to have requested a
Borrowing of Revolving Loans in US Dollars that are Base Rate Loans to be disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but
subject to the conditions set forth in Section 5.02 (other than the delivery of a
Loan Notice) and provided that, after giving effect to such Borrowing, the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments. Any notice given by the
applicable L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.




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




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




     (iv) Until each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to
this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn
under any



46









 






Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount
shall be solely for the account of the applicable L/C Issuer.




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




     (vi) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the applicable L/C Issuer any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.03(c) by the time specified
in Section 2.03(c)(ii), the applicable L/C Issuer shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such
payment is immediately available to the applicable L/C Issuer at a rate per annum equal to
the applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the applicable L/C Issuer in connection
with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid),
the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant
Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A
certificate of the applicable L/C Issuer submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent
manifest error.



     (d) Repayment of Participations.




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




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



47









 






from time to time in effect. The obligations of the Revolving Lenders under this clause
shall survive the payment in full of the Obligations and the termination of this Agreement.



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




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




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




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




     (iv) any payment by the applicable L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by the applicable L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;




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




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



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



     (f) Role of L/C Issuer. Each Lender and the Loan Parties agree that, in paying any
drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly required by
such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of the
applicable L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or



48









 






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



     (g) Cash Collateral. (i) Upon the request of the Administrative Agent, if, as of the
Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (A) each
Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations relating to Letters of Credit issued for the account of such Borrower (or a Subsidiary
of such Borrower). The Administrative Agent may, at any time and from time to time after the
initial deposit of Cash Collateral, request that additional Cash Collateral be provided in order to
protect against the results of exchange rate fluctuations. Sections 2.08 and
9.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.
Cash Collateral shall be maintained in blocked, interest bearing deposit accounts at Bank of
America, and any such accrued interest shall be paid to the applicable Borrower with such frequency
as the Administrative Agent and such Borrower may agree between one another, but in any event not
less than once each calendar quarter.



     (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable
L/C Issuer and the applicable Borrower when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each
standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.



     (i) Letter of Credit Fees. Each Borrower shall pay to the Administrative Agent for
the account of each Revolving Lender in accordance with its Applicable Percentage, in US Dollars, a
Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit issued for the
account of such Borrower (or a Subsidiary of such Borrower) equal to the Applicable Rate
times the daily amount available to be drawn under such Letter of Credit. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.09. Letter of Credit
Fees shall be (i) due and payable on the first Business Day after the end of



49









 






each March, June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit and on the Maturity Date and (ii) computed on a quarterly
basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily
amount available to be drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, all Letter of Credit Fees shall
accrue at the Default Rate (i) upon the request of the Required Revolving Lenders while any Event
of Default exists and (ii) at any time that the interest on the Loans is based on the Default Rate.



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



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



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




	2.04	 	Domestic Swing Line Facility.





     (a) Domestic Swing Line Loans. Subject to the terms and conditions set forth
herein, the Domestic Swing Line Lender agrees, in reliance upon the agreements of the Revolving
Lenders set forth in this Section 2.04, to make loans (each such loan, a “Domestic
Swing Line Loan”) to the Borrowers in US Dollars or, if an Alternative Currency is not
available for Borrowings of Revolving Loans but is available for Borrowings of Domestic Swing Line
Loans, such Alternative Currency, from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount of the Domestic Swing
Line Sublimit, notwithstanding the fact that such




50










 




Domestic Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding
Amount of Revolving Loans, Swing Line Loans and L/C Obligations of the Lender acting as Domestic
Swing Line Lender, may exceed the amount of such Lender’s Revolving Commitment; provided,
however, that after giving effect to any Domestic Swing Line Loan, (i) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the aggregate Outstanding
Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of
the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment,
and (iii) the Total Revolving Outstandings of the Domestic Borrowers shall not exceed the Domestic
Revolving Sublimit; and provided, further, that (i) the Borrowers shall not use the
proceeds of any Domestic Swing Line Loan to refinance any outstanding Domestic Swing Line Loan; and
(ii) the availability of the Aggregate Revolving Commitments at any time shall be reduced by the
amount of the Foreign Swing Line Facility Reserve. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay
under Section 2.08, and reborrow under this Section 2.04. Domestic Swing Line
Loans denominated in US Dollars shall be Base Rate Loans. Domestic Swing Line Loans denominated in
Alternative Currencies shall be Eurocurrency Rate Loans. Immediately upon the making of a Domestic
Swing Line Loan by the Domestic Swing Line Lender, each Revolving Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Domestic Swing Line Lender a
risk participation in such Domestic Swing Line Loan in an amount equal to the product of such
Lender’s Applicable Percentage times the amount of such Domestic Swing Line Loan.




     (b) Borrowing Procedures.




     (i) Each Borrowing of Domestic Swing Line Loans and each continuation of Domestic Swing
Line Loans that are Eurocurrency Rate Loans shall be made upon the applicable Borrower’s
irrevocable notice to the Domestic Swing Line Lender and the Administrative Agent, which may
be given by telephone. Each such notice must be received by the Domestic Swing Line Lender
and the Administrative Agent not later than (A) 11:00 a.m. four Business Days (or five
Business Days in the case of a Special Notice Currency) prior to the requested
date of any Borrowing or continuation of Domestic Swing Line Loans denominated in
Alternative Currencies (which shall be Eurocurrency Rate Loans), and (B) 3:00 p.m. on the
requested date of any Borrowing of Domestic Swing Line Loans denominated in US Dollars
(which shall be Base Rate Loans). Each telephonic notice by the applicable Borrower
pursuant to this Section 2.04(b) must be confirmed promptly by delivery to the
Domestic Swing Line Lender and Administrative Agent of a written Domestic Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of such Borrower. Each
Borrowing of or continuation of Domestic Swing Line Loans that are Eurocurrency Rate Loans
shall be in a principal amount of US$200,000 or a whole multiple of US$50,000 in excess
thereof. Each Borrowing of Domestic Swing Line Loans that are Base Rate Loans shall be in a
principal amount of US$200,000 or a whole multiple of US$50,000 in excess thereof. Each
such notice (whether telephonic or written) shall specify (A) whether the applicable
Borrower is requesting a Borrowing of Domestic Swing Line Loans or a continuation of
Domestic Swing Line Loans that are Eurocurrency Rate Loans, (B) the requested date of the
Borrowing or continuation, as the case may be (which shall be a Business Day), (C) the
principal amount of Domestic Swing Line Loans to be borrowed or continued, (D) the Type of
Domestic Swing Line Loans to be borrowed or to which existing Domestic Swing Line Loans are
to be converted, (E) if applicable, the duration of the Interest Period with respect
thereto, and (F) the currency of the Domestic Swing Line Loans to be borrowed. If the
applicable Borrower fails to specify a currency in a Domestic Swing Line Loan Notice
requesting a Borrowing of Domestic Swing Line Loans, then the Domestic Swing Line Loans so
requested shall be made in US Dollars. If the applicable Borrower fails to specify an
Interest Period in a Domestic Swing Line Loan Notice for a Domestic Swing Line Loan to be
denominated in Alternative Currency,



51









 







then the applicable Domestic Swing Line Loans shall be made as a Eurocurrency Rate Loan
with an Interest Period of one month. If the applicable Borrower fails to give a timely
notice requesting a continuation of a Domestic Swing Line Loan, then at the end of the
Interest Period for the applicable Domestic Swing Line Loan such Domestic Swing Line Loan
shall be continued as a Eurocurrency Rate Loan in its original currency with an Interest
Period of one month. No Domestic Swing Line Loan may be converted into or continued as a
Domestic Swing Line Loan denominated in a different currency, but instead must be prepaid in
the original currency of such Domestic Swing Line Loan and reborrowed in the other currency.




     (ii) Promptly after receipt by the Domestic Swing Line Lender of any telephonic
Domestic Swing Line Loan Notice, the Domestic Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also
received such Domestic Swing Line Loan Notice and, if not, the Domestic Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Domestic Swing Line Lender has received notice (by telephone or in writing) from
the Administrative Agent (including at the request of any Lender) prior to 3:00 p.m. on the
date of the proposed Borrowing of Domestic Swing Line Loans (A) directing the Domestic Swing
Line Lender not to make such Domestic Swing Line Loan as a result of the limitations set
forth in the proviso to the first sentence of Section 2.04(a), or (B) that one or
more of the applicable conditions specified in Article V is not then satisfied,
then, subject to the terms and conditions hereof, the Domestic Swing Line Lender will, not
later than 4:00 p.m. on the borrowing date specified in such Domestic Swing Line Loan
Notice, make the amount of its Domestic Swing Line Loan available to the applicable Borrower
either by (i) crediting the account of such Borrower on the books of Bank of America with
the amount of such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Domestic Swing Line Lender
by the applicable Borrower.




     (iii) Except as otherwise provided herein, a Domestic Swing Line Loan that is
Eurocurrency Rate Loan may be continued only on the last day of the Interest Period with
respect thereto. During the existence of a Default, the Required Revolving Lenders may
demand that any or all of the then outstanding Domestic Swing Line Loans denominated in an
Alternative Currency be prepaid.



     (c) Refinancing of Domestic Swing Line Loans.




     (i) The Domestic Swing Line Lender at any time in its sole and absolute discretion may
request, on behalf of the applicable Borrower (which hereby irrevocably authorizes the
Domestic Swing Line Lender to so request on its behalf), that each Revolving Lender make a
Revolving Loan that is Base Rate Loan in an amount equal to such Lender’s Applicable
Percentage of the US Dollar Equivalent of the amount of any Domestic Swing Line Loan then
outstanding. Such request shall be made in writing (which written request shall be deemed
to be a Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the conditions set forth in Section
5.02 (other than the delivery of a Loan Notice) and provided that, after giving effect
to such Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments. The Domestic Swing Line Lender shall furnish the applicable Borrower with a
copy of the applicable Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Revolving Lender shall make an amount in US Dollars equal to its
Applicable Percentage of the amount specified in such Loan Notice available to the
Administrative Agent in Same Day Funds for the account of the Domestic Swing Line Lender at
the Administrative Agent’s Office for US Dollar-denominated



52









 







deposits not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon,
subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available
shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the applicable
Borrower in such amount. The Administrative Agent shall remit the funds so received to the
Domestic Swing Line Lender in US Dollars.




     (ii) If for any reason any Domestic Swing Line Loan cannot be refinanced by such a
Borrowing of Revolving Loans in accordance with Section 2.04(c)(i), the request for
Base Rate Loans submitted by the Domestic Swing Line Lender as set forth herein shall be
deemed to be a request by the Domestic Swing Line Lender that each of the Revolving Lenders
fund its risk participation in the relevant Domestic Swing Line Loan and each Revolving
Lender’s payment to the Administrative Agent for the account of the Domestic Swing Line
Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such
participation.




     (iii) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the Domestic Swing Line Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.04(c) by the time specified
in Section 2.04(c)(i), the Domestic Swing Line Lender shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to the Domestic Swing Line Lender at a rate per annum
equal to the applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the Domestic Swing Line Lender in
connection with the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the
relevant Borrowing or funded participation in the relevant Domestic Swing Line Loan, as the
case may be. A certificate of the Domestic Swing Line Lender submitted to any Revolving
Lender (through the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.




     (iv) Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund
risk participations in Domestic Swing Line Loans pursuant to this Section 2.04(c)
shall be absolute and unconditional and shall not be affected by any circumstance, including
(A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have
against the Domestic Swing Line Lender, any Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided,
however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to
this Section 2.04(c) is subject to the conditions set forth in Section 5.02.
No such funding of risk participations shall relieve or otherwise impair the obligation of
each Borrower to repay Domestic Swing Line Loans made to it, together with interest as
provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Revolving Lender has purchased and funded a risk
participation in a Domestic Swing Line Loan, if the Domestic Swing Line Lender receives any
payment on account of such Domestic Swing Line Loan, the Domestic Swing Line Lender will
distribute to such Lender its Applicable Percentage thereof in the same funds as those
received by the Domestic Swing Line Lender.



53









 






     (ii) If any payment received by the Domestic Swing Line Lender in respect of principal
or interest on any Domestic Swing Line Loan is required to be returned by the Domestic Swing
Line Lender under any of the circumstances described in Section 11.05 (including
pursuant to any settlement entered into by the Domestic Swing Line Lender in its
discretion), each Revolving Lender shall pay to the Domestic Swing Line Lender its
Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at a rate per annum equal
to the applicable Overnight Rate. The Administrative Agent will make such demand upon the
request of the Domestic Swing Line Lender. The obligations of the Revolving Lenders under
this clause shall survive the payment in full of the Obligations and the termination of this
Agreement.



     (e) Interest for Account of Domestic Swing Line Lender. The Domestic Swing Line
Lender shall be responsible for invoicing the applicable Borrower for interest on the Domestic
Swing Line Loans. Until each Revolving Lender funds its Revolving Loans that are Base Rate Loans
or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable
Percentage of any Domestic Swing Line Loan, interest in respect of such Applicable Percentage shall
be solely for the account of the Domestic Swing Line Lender.



     (f) Payments Directly to Domestic Swing Line Lender. The Borrowers shall make all
payments of principal and interest in respect of the Domestic Swing Line Loans directly to the
Domestic Swing Line Lender.



2.05 Australian Swing Line Facility.




     (a) Australian Swing Line Loans. Subject to the terms and conditions set forth
herein, the Australian Swing Line Lender agrees, in reliance upon the agreements of the Revolving
Lenders set forth in this Section 2.05, to make loans (each such loan, an “Australian
Swing Line Loan”) to Bright Australia in Australian Dollars from time to time on any Business
Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the
amount of the Australian Swing Line Sublimit; provided, however, that after giving
effect to any Australian Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the
Aggregate Revolving Commitments and (ii) the aggregate Outstanding Amount of the Revolving Loans of
any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender’s Revolving Commitment; and (ii) the availability of
the Aggregate Revolving Commitments at any time shall be reduced by the amount of the Foreign Swing
Line Facility Reserve. Within the foregoing limits, and subject to the other terms and conditions
hereof, Bright Australia may borrow under this Section 2.05, prepay under Section
2.08, and reborrow under this Section 2.05. Australian Swing Line Loans shall be BBR
Rate Loans. Immediately upon the making of an Australian Swing Line Loan by the Australian Swing
Line Lender, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Australian Swing Line Lender a risk participation in such Australian
Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage
times the amount of such Australian Swing Line Loan.



     (b) Borrowing Procedures.




     (i) Each Borrowing of Australian Swing Line Loans and each continuation of Australian
Swing Line Loans shall be made upon Bright Australia’s irrevocable notice to the Australian
Swing Line Lender, which may be given by telephone. Each such notice must be received by
the Australian Swing Line Lender not later than 11:00 a.m. (Sydney, Australia time) on the
Business Day of the requested date of any Borrowing or continuation of Australian Swing



54









 







Line Loans. Each telephonic notice by Bright Australia pursuant to this Section
2.05(b) must be confirmed promptly by delivery to the Australian Swing Line Lender of a
written Australian Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of Bright Australia. Each Borrowing of or continuation of Australian
Swing Line Loans shall be in a principal amount of AUS$200,000 or a whole multiple of
AUS$50,000 in excess thereof (or such lesser amounts as the Australian Swing Line Lender may
agree). Each such notice (whether telephonic or written) shall specify (A) whether Bright
Australia is requesting a Borrowing of Australian Swing Line Loans or a continuation of
Australian Swing Line Loans, (B) the requested date of the Borrowing or continuation, as the
case may be (which shall be a Business Day), and (C) the principal amount of Australian
Swing Line Loans to be borrowed or continued.




     (ii) Unless the Australian Swing Line Lender has received notice (by telephone or in
writing) from the Administrative Agent (including at the request of any Lender) prior to
3:00 p.m. (Sydney, Australia time) on the date of the proposed Borrowing of Australian Swing
Line Loans (A) directing the Australian Swing Line Lender not to make such Australian Swing
Line Loan as a result of the limitations set forth in the proviso to the first sentence of
Section 2.05(a), or (B) that one or more of the applicable conditions specified in
Article V is not then satisfied, then, subject to the terms and conditions hereof,
the Australian Swing Line Lender will, not later than 4:00 p.m. (Sydney, Australia time) on
the borrowing date specified in such Australian Swing Line Loan Notice, make the amount of
its Australian Swing Line Loan available to Bright Australia either by (i) crediting the
account of Bright Australia on the books of Bank of America with the amount of such funds or
(ii) wire transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Australian Swing Line Lender by Bright Australia.



     (c) Refinancing of Australian Swing Line Loans.




     (i) The Australian Swing Line Lender at any time in its sole and absolute discretion
may request, on behalf of Bright Australia (which hereby irrevocably authorizes the
Australian Swing Line Lender to so request on its behalf), that each Revolving Lender make a
Revolving Loan that is Base Rate Loan in an amount equal to such Lender’s Applicable
Percentage of the US Dollar Equivalent of the amount of any Australian Swing Line Loan then
outstanding. Such request shall be made in writing (which written request shall be deemed
to be a Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the conditions set forth in Section
5.02 (other than the delivery of a Loan Notice) and provided that, after giving effect
to such Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments. The Australian Swing Line Lender shall furnish Bright Australia with a copy of
the applicable Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Revolving Lender shall make an amount in US Dollars equal to its Applicable
Percentage of the amount specified in such Loan Notice available to the Administrative Agent
in Same Day Funds for the account of the Australian Swing Line Lender at the Administrative
Agent’s Office for US Dollar-denominated deposits not later than 1:00 p.m. on the day
specified in such Loan Notice, whereupon, subject to Section 2.05(c)(ii), each
Revolving Lender that so makes funds available shall be deemed to have made a Revolving Loan
that is a Base Rate Loan to Bright Australia in such amount. The Administrative Agent shall
remit the funds so received to the Australian Swing Line Lender in US Dollars.




     (ii) If for any reason any Australian Swing Line Loan cannot be refinanced by such a
Borrowing of Revolving Loans in accordance with Section 2.05(c)(i), the request for
Base Rate Loans submitted by the Australian Swing Line Lender as set forth herein shall be
deemed to be a



55









 







request by the Australian Swing Line Lender that each of the Revolving Lenders fund its risk
participation in the relevant Australian Swing Line Loan and each Revolving Lender’s payment
to the Administrative Agent for the account of the Australian Swing Line Lender pursuant to
Section 2.05(c)(i) shall be deemed payment in respect of such participation.




     (iii) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the Australian Swing Line Lender any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.05(c) by the time
specified in Section 2.05(c)(i), the Australian Swing Line Lender shall be entitled
to recover from such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the Australian Swing Line Lender at a
rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any
administrative, processing or similar fees customarily charged by the Australian Swing Line
Lender in connection with the foregoing. If such Lender pays such amount (with interest and
fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan
included in the relevant Borrowing or funded participation in the relevant Australian Swing
Line Loan, as the case may be. A certificate of the Australian Swing Line Lender submitted
to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.




     (iv) Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund
risk participations in Australian Swing Line Loans pursuant to this Section 2.05(c)
shall be absolute and unconditional and shall not be affected by any circumstance, including
(A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have
against the Australian Swing Line Lender, Bright Australia or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Lender’s obligation to make Revolving
Loans pursuant to this Section 2.05(c) is subject to the conditions set forth in
Section 5.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of Bright Australia to repay Australian Swing Line Loans, together
with interest as provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Revolving Lender has purchased and funded a risk
participation in an Australian Swing Line Loan, if the Australian Swing Line Lender receives
any payment on account of such Australian Swing Line Loan, the Australian Swing Line Lender
will distribute to such Lender its Applicable Percentage thereof in the same funds as those
received by the Australian Swing Line Lender.




     (ii) If any payment received by the Australian Swing Line Lender in respect of
principal or interest on any Australian Swing Line Loan is required to be returned by the
Australian Swing Line Lender under any of the circumstances described in Section
11.05 (including pursuant to any settlement entered into by the Australian Swing Line
Lender in its discretion), each Revolving Lender shall pay to the Australian Swing Line
Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is returned, at a rate
per annum equal to the applicable Overnight Rate. The Administrative Agent will make such
demand upon the request of the Australian Swing Line Lender. The obligations of the
Revolving Lenders under this clause shall survive the payment in full of the Obligations and
the termination of this Agreement.



56









 





     (e) Interest for Account of Australian Swing Line Lender. The Australian Swing Line
Lender shall be responsible for invoicing Bright Australia for interest on the Australian Swing
Line Loans. Until each Revolving Lender funds its Revolving Loans that are Base Rate Loans or risk
participation pursuant to this Section 2.05 to refinance such Lender’s Applicable
Percentage of any Australian Swing Line Loan, interest in respect of such Applicable Percentage
shall be solely for the account of the Australian Swing Line Lender.



     (f) Payments Directly to Australian Swing Line Lender. Bright Australia shall make
all payments of principal and interest in respect of the Australian Swing Line Loans directly to
the Australian Swing Line Lender.



2.06 Danish Swing Line Facility.




     (a) Danish Swing Line Loans. Subject to the terms and conditions set forth herein,
the Danish Swing Line Lender agrees, in reliance upon the agreements of the Revolving Lenders set
forth in this Section 2.06, to make loans (each such loan, a “Danish Swing Line
Loan”) to any Danish Borrower in Euros or Sterling from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of
the Danish Swing Line Sublimit; provided, however, that after giving effect to any
Danish Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the Aggregate
Revolving Commitments and (ii) the aggregate Outstanding Amount of the Revolving Loans of any
Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender’s Revolving Commitment; and (ii) the availability of
the Aggregate Revolving Commitments at any time shall be reduced by the amount of the Foreign Swing
Line Facility Reserve. Within the foregoing limits, and subject to the other terms and conditions
hereof, the Danish Borrowers may borrow under this Section 2.06, prepay under Section
2.08, and reborrow under this Section 2.06. Danish Swing Line Loans denominated in
Euro shall be Daily Euro Rate Loans. Danish Swing Line Loans denominated in Sterling shall be
Daily Sterling Rate Loans. Immediately upon the making of a Danish Swing Line Loan by the Danish
Swing Line Lender, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Danish Swing Line Lender a risk participation in such
Danish Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage
times the amount of such Danish Swing Line Loan.



     (b) Borrowing Procedures.




     (i) Each Borrowing of Danish Swing Line Loans and each continuation of Danish Swing
Line Loans shall be made upon the applicable Danish Borrower’s irrevocable notice to the
Danish Swing Line Lender. Each such notice must be in writing and received by the Danish
Swing Line Lender not later than 11:00 a.m. (London time) on the Business Day of the
requested date of any Borrowing or continuation of Danish Swing Line Loans. Each notice by
a Danish Borrower pursuant to this Section 2.06(b) that is delivered by facsimile
must be confirmed promptly by delivery to the Danish Swing Line Lender of a written Danish
Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of such
Danish Borrower. Each Borrowing of or continuation of Danish Swing Line Loans shall be in a
principal amount of (x) in the case of Borrowings or continuations of Danish Swing Line
Loans denominated in Euro €200,000 or a whole multiple of €50,000 in excess thereof (or such
lesser amounts as the Danish Swing Line Lender may agree), and (y) in the case of Borrowings
or continuations of Danish Swing Line Loans denominated in Sterling £200,000 or a whole
multiple of £50,000 in excess thereof (or such lesser amounts as the Danish Swing Line
Lender may agree). Each such notice shall specify (A) whether such Danish Borrower is
requesting a Borrowing of Danish Swing Line



57









 







Loans or a continuation of Danish Swing Line Loans, (B) the requested date of the
Borrowing or continuation, as the case may be (which shall be a Business Day), and (C) the
principal amount of Danish Swing Line Loans to be borrowed or continued.




     (ii) Unless the Danish Swing Line Lender has received notice (by telephone or in
writing) from the Administrative Agent (including at the request of any Lender) prior to
3:00 p.m. (London time) on the date of the proposed Borrowing of Danish Swing Line Loans (A)
directing the Danish Swing Line Lender not to make such Danish Swing Line Loan as a result
of the limitations set forth in the proviso to the first sentence of Section
2.06(a), or (B) that one or more of the applicable conditions specified in Article
V is not then satisfied, then, subject to the terms and conditions hereof, the Danish
Swing Line Lender will, not later than 4:00 p.m. (London time) on the borrowing date
specified in such Danish Swing Line Loan Notice, make the amount of its Danish Swing Line
Loan available to the applicable Danish Borrower either by (i) crediting the account of such
Danish Borrower on the books of Bank of America with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Danish Swing Line Lender by such Danish Borrower.



     (c) Refinancing of Danish Swing Line Loans.




     (i) The Danish Swing Line Lender at any time in its sole and absolute discretion may
request, on behalf of the Danish Borrowers (each of which hereby irrevocably authorizes the
Danish Swing Line Lender to so request on its behalf), that each Revolving Lender make a
Revolving Loan in an amount equal to such Lender’s Applicable Percentage of the amount of
any Danish Swing Line Loan then outstanding. The Danish Swing Line Lender may request that
such Revolving Loan be (x) a Base Rate Loan denominated in US Dollars (based on the US
Dollar Equivalent of the amount of such Danish Swing Line Loan) or (y) a Eurocurrency Loan
denominated in the currency of such Danish Swing Line Loan. Such request shall be made in
writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and
in accordance with the requirements of Section 2.02, without regard to the minimum
and multiples specified therein for the principal amount of Revolving Loans, but subject to
the conditions set forth in Section 5.02 (other than the delivery of a Loan Notice)
and provided that, after giving effect to such Borrowing, the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Commitments. The Danish Swing Line Lender shall
furnish the Danish Borrowers with a copy of the applicable Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Revolving Lender shall make an
amount in US Dollars or the relevant currency, as applicable, equal to its Applicable
Percentage of the amount specified in such Loan Notice available to the Administrative Agent
in Same Day Funds for the account of the Danish Swing Line Lender at the Administrative
Agent’s Office not later than 1:00 p.m. on the day specified in such Loan Notice (which day
shall, in the case of any request for a Eurocurrency Rate Loan, be at least four Business
Days after the date such request is made by the Danish Swing Line Lender), whereupon,
subject to Section 2.06(c)(ii), each Revolving Lender that so makes funds available
shall be deemed to have made a Revolving Loan to the applicable Borrower in such amount.
The Administrative Agent shall remit the funds so received to the Danish Swing Line Lender.




     (ii) If for any reason any Danish Swing Line Loan cannot be refinanced by such a
Borrowing of Revolving Loans in accordance with Section 2.06(c)(i), the request for
Revolving Loans submitted by the Danish Swing Line Lender as set forth herein shall be
deemed to be a request by the Danish Swing Line Lender that each of the Revolving Lenders
fund its risk participation in the relevant Danish Swing Line Loan and each Revolving
Lender’s payment to the Administrative Agent for the account of the Danish Swing Line Lender pursuant to
Section 2.06(c)(i) shall be deemed payment in respect of such participation.




     (iii) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the Danish Swing Line Lender any amount required to be paid by such Lender



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pursuant to the foregoing provisions of this Section 2.06(c) by the time specified
in Section 2.06(c)(i), the Danish Swing Line Lender shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to the Danish Swing Line Lender at a rate per annum
equal to the applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the Danish Swing Line Lender in connection
with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid),
the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant
Borrowing or funded participation in the relevant Danish Swing Line Loan, as the case may
be. A certificate of the Danish Swing Line Lender submitted to any Revolving Lender
(through the Administrative Agent) with respect to any amounts owing under this clause (iii)
shall be conclusive absent manifest error.




     (iv) Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund
risk participations in Danish Swing Line Loans pursuant to this Section 2.06(c)
shall be absolute and unconditional and shall not be affected by any circumstance, including
(A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have
against the Danish Swing Line Lender, any Danish Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided,
however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to
this Section 2.06(c) is subject to the conditions set forth in Section 5.02.
No such funding of risk participations shall relieve or otherwise impair the obligation of
each Danish Borrower to repay Danish Swing Line Loans made to it, together with interest as
provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Revolving Lender has purchased and funded a risk
participation in a Danish Swing Line Loan, if the Danish Swing Line Lender receives any
payment on account of such Danish Swing Line Loan, the Danish Swing Line Lender will
distribute to such Lender its Applicable Percentage thereof in the same funds as those
received by the Danish Swing Line Lender.




     (ii) If any payment received by the Danish Swing Line Lender in respect of principal or
interest on any Danish Swing Line Loan is required to be returned by the Danish Swing Line
Lender under any of the circumstances described in Section 11.05 (including pursuant
to any settlement entered into by the Danish Swing Line Lender in its discretion), each
Revolving Lender shall pay to the Danish Swing Line Lender its Applicable Percentage thereof
on demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned, at a rate per annum equal to the applicable Overnight
Rate. The Administrative Agent will make such demand upon the request of the Danish Swing
Line Lender. The obligations of the Revolving Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.



     (e) Interest for Account of Danish Swing Line Lender. The Danish Swing Line Lender
shall be responsible for invoicing the Danish Borrowers for interest on the Danish Swing Line
Loans. Until each Revolving Lender funds its Revolving Loans or risk participation pursuant to this
Section 2.06 to refinance such Lender’s Applicable Percentage of any Danish Swing Line
Loan, interest in respect of such Applicable Percentage shall be solely for the account of the
Danish Swing Line Lender.



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     (f) Payments Directly to Danish Swing Line Lender. Each Danish Borrower shall make
all payments of principal and interest in respect of the Danish Swing Line Loans made to it
directly to the Danish Swing Line Lender.



2.07 Additional Swing Line Facilities.




     (a) Additional Swing Line Facility Notice. The Parent may at any time and from time
to time establish one or more additional swing line facilities (each an “International Swing
Line Facility”) with a Revolving Lender (or a branch or affiliate of a Revolving Lender) by
delivering, with the consent of such Revolving Lender (or such branch of affiliate) to the
Administrative Agent a notice in substantially the form of Exhibit 2.07 (each such notice
an “International Swing Line Facility Notice”), provided that immediately after
giving effect to such International Swing Line Facility, the aggregate amount of the Domestic Swing
Line Sublimit, the Australian Swing Line Sublimit, the Danish Swing Line Sublimit and all
International Swing Line Sublimits shall not exceed the lesser of (A) the Aggregate Swing Line
Sublimit and (B) the Aggregate Revolving Commitments. Each International Swing Line Facility
Notice shall set forth (i) the name and contact information (including address, telecopier number,
electronic mail address and telephone number) of the Revolving Lender (or a branch or affiliate of
a Revolving Lender) that will act as the swing line lender for such additional swing line facility
(the “International Swing Line Lender”), (ii) the name(s) of the Borrower(s) that will be
permitted to borrow thereunder, (iii) the applicable currency(ies) available for borrowing
thereunder and (iv) the maximum principal amount (expressed in US Dollars) of borrowings that may
at any time be outstanding thereunder (the “International Swing Line Sublimit”). Each
International Swing Line Facility Notice shall be executed by the Parent, the International Swing
Line Lender and the Borrower(s) that will be permitted to borrow thereunder. On the date five (5)
Business Days (or such shorter period as may be agreed to by the Administrative Agent) after
receipt by the Administrative Agent of the International Swing Line Facility Notice, such
International Swing Line Facility shall become effective for purposes of this Agreement and the
other Loan Documents and all borrowings thereunder on and after such date shall be deemed
International Swing Line Loans. Notwithstanding the foregoing, to the extent the outstanding
principal amount of International Swing Line Loans under any International Swing Line Facility
exceeds International Swing Line Sublimit (other than a result solely of foreign currency
fluctuations), such excess (and any accrued interest or fees on such excess) shall not constitute
“Obligations” for purposes of the Loan Documents.



     (b) International Swing Line Loans. Subject to the terms and conditions set forth
herein, each International Swing Line Lender agrees, in reliance upon the agreements of the
Revolving Lenders set forth in this Section 2.07, to make loans (each such loan, an
“International Swing Line Loan”) to the Borrower(s) and in the currency(ies) set forth in
the applicable International Swing Line Facility Notice from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time outstanding the
amount of the applicable International Swing Line Sublimit, notwithstanding the fact that such
International Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding
Amount of Revolving Loans, Swing Line Loans and L/C Obligations of the Lender acting as such
International Swing Line Lender, may exceed the amount of such Lender’s Revolving Commitment;
provided, however, that after giving effect to any International Swing Line Loan,
(i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments and (ii)
the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Revolving Commitment. Within the foregoing limits, and subject to the other terms and conditions
hereof, the applicable Borrower may borrow under this Section 2.07, prepay under
Section 2.08, and reborrow under this Section 2.07. Immediately upon the making of
an International Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the



60









 







International Swing Line Lender that made such International Swing Line Loan a risk participation in such International Swing Line Loan in an
amount equal to the product of such Lender’s Applicable Percentage times the amount of such
International Swing Line Loan.



     (c) Borrowing Procedures.




     (i) The borrowing procedures for each International Swing Line Facility shall be as
agreed to by the applicable Borrower(s) and the applicable International Swing Line Lender.




     (ii) The applicable International Swing Line Lender shall not make any International
Swing Line Loan if it has has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to the date of any
proposed Borrowing of International Swing Line Loans (A) directing such International Swing
Line Lender not to make such International Swing Line Loan as a result of the limitations
set forth in the proviso to the first sentence of Section 2.07(b), or (B) that one
or more of the applicable conditions specified in Article V is not then satisfied.



     (d) Refinancing of International Swing Line Loans.




     (i) Each International Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the applicable Borrower (which hereby irrevocably
authorizes such International Swing Line Lender to so request on its behalf), that each
Revolving Lender make a Revolving Loan that is Base Rate Loan in an amount equal to such
Lender’s Applicable Percentage of the US Dollar Equivalent of the amount of any
International Swing Line Loan made by such International Swing Line Lender then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a Loan
Notice for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal amount of
Base Rate Loans, but subject to the conditions set forth in Section 5.02 (other than
the delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, the
Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments. The
applicable International Swing Line Lender shall furnish the applicable Borrower with a copy
of the applicable Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Revolving Lender shall make an amount in US Dollars equal to its Applicable
Percentage of the amount specified in such Loan Notice available to the Administrative Agent
in Same Day Funds for the account of the applicable International Swing Line Lender at the
Administrative Agent’s Office for US Dollar-denominated deposits not later than 1:00 p.m. on
the day specified in such Loan Notice, whereupon, subject to Section 2.07(c)(ii),
each Revolving Lender that so makes funds available shall be deemed to have made a Revolving
Loan that is a Base Rate Loan to the applicable Borrower in such amount. The Administrative
Agent shall remit the funds so received to the applicable International Swing Line Lender in
US Dollars.




     (ii) If for any reason any International Swing Line Loan cannot be refinanced by such a
Borrowing of Revolving Loans in accordance with Section 2.07(c)(i), the request for
Base Rate Loans submitted by the applicable International Swing Line Lender as set forth
herein shall be deemed to be a request by such International Swing Line Lender that each of
the Revolving Lenders fund its risk participation in such International Swing Line Loan and
each Revolving Lender’s payment to the Administrative Agent for the account of such International Swing
Line Lender pursuant to Section 2.07(c)(i) shall be deemed payment in respect of
such participation.



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     (iii) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the applicable International Swing Line Lender any amount required to be paid
by such Lender pursuant to the foregoing provisions of this Section 2.07(c) by the
time specified in Section 2.07(c)(i), the applicable International Swing Line Lender
shall be entitled to recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to such International
Swing Line Lender at a rate per annum equal to the applicable Overnight Rate from time to
time in effect, plus any administrative, processing or similar fees customarily charged by
such International Swing Line Lender in connection with the foregoing. If such Lender pays
such amount (with interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Revolving Loan included in the relevant Borrowing or funded participation in the
applicable International Swing Line Loan, as the case may be. A certificate of the
applicable International Swing Line Lender submitted to any Revolving Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.




     (iv) Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund
risk participations in International Swing Line Loans pursuant to this Section
2.07(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
that such Lender may have against the applicable International Swing Line Lender, the
applicable Borrower or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Revolving
Lender’s obligation to make Revolving Loans pursuant to this Section 2.07(c) is
subject to the conditions set forth in Section 5.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of each Borrower to repay
International Swing Line Loans made to it, together with interest as provided herein.



     (e) Repayment of Participations.




     (i) At any time after any Revolving Lender has purchased and funded a risk
participation in an International Swing Line Loan, if the applicable International Swing
Line Lender receives any payment on account of such International Swing Line Loan, such
International Swing Line Lender will distribute to such Lender its Applicable Percentage
thereof in the same funds as those received by such International Swing Line Lender.




     (ii) If any payment received by an International Swing Line Lender in respect of
principal or interest on any International Swing Line Loan is required to be returned by
such International Swing Line Lender under any of the circumstances described in Section
11.05 (including pursuant to any settlement entered into by such International Swing
Line Lender in its discretion), each Revolving Lender shall pay to such International Swing
Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is returned, at a rate
per annum equal to the applicable Overnight Rate. The Administrative Agent will make such
demand upon the request of the applicable International Swing Line Lender. The obligations
of the Revolving Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.



     (f) Interest for Account of International Swing Line Lender. Each International Swing
Line Lender shall be responsible for invoicing the applicable Borrower(s) for interest on the
International Swing Line Loans made by such International Swing Line Lender. Until each Revolving
Lender funds its



62









 







Revolving Loans that are Base Rate Loans or risk participation pursuant to this
Section 2.07 to refinance such Lender’s Applicable Percentage of any International Swing
Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the
International Swing Line Lender that made such International Swing Line Loan.



     (g) Payments Directly to International Swing Line Lender. The applicable Borrower(s)
shall make all payments of principal and interest in respect of International Swing Line Loans
directly to the applicable International Swing Line Lender.



2.08 Prepayments.




     (a) Voluntary Prepayments of Loans.




     (i) Revolving Loans and Term Loans. Each Borrower may, upon notice from such
Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay
Revolving Loans and Term Loans in whole or in part without premium or penalty;
provided that (A) such notice must be received by the Administrative Agent not later
than 11:00 a.m. (1) three Business Days prior to any date of prepayment of Eurocurrency Rate
Loans denominated in US Dollars, (2) four Business Days (or five, in the case of prepayment
of Loans denominated in Special Notice Currencies) prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Alternative Currencies and (3) on the date of
prepayment of Base Rate Loans; (B) any such prepayment of Eurocurrency Rate Loans shall be
in a principal amount of US$2,500,000 or a whole multiple of US$500,000 in excess thereof
(or, if less, the entire principal amount thereof then outstanding); (C) any prepayment of
Base Rate Loans shall be in a principal amount of US$250,000 or a whole multiple of
US$250,000 in excess thereof (or, if less, the entire principal amount thereof then
outstanding); and (D) any prepayment of the Term Loans shall be applied (1) if such payment
is made by a Domestic Borrower, to the Domestic Term Loan until paid in full and then to the
Foreign Term Loan (in each case to the remaining principal amortization payments in direct
order of maturity) and (2) if such payment is made by a Foreign Borrower, to the Foreign
Term Loan until paid in full and then to the Domestic Term Loan (in each case to the
remaining principal amortization payments in direct order of maturity). Each such notice
shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid
and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans.
The Administrative Agent will promptly notify each applicable Lender of its receipt of each
such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.
If such notice is given by a Borrower, such Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued
interest on the amount prepaid, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Revolving Loans of the
Lenders in accordance with their respective Applicable Percentages.




     (ii) Domestic Swing Line Loans. Each Borrower may, upon notice by such
Borrower to the Domestic Swing Line Lender (with a copy to the Administrative Agent), at any
time or from time to time, voluntarily prepay Domestic Swing Line Loans in whole or in part
without premium or penalty; provided that (A) such notice must be received by the
Domestic Swing Line Lender and Administrative Agent not later than 11:00 a.m. (1) four
Business Days (or five, in the case of prepayment of Domestic Swing Line Loans denominated
in Special Notice Currencies) prior to any date of prepayment of Domestic Swing Line Loans denominated in
Alternative Currencies and (2) on the date of prepayment of any Domestic Swing Line Loans
denominated in US Dollars; (B) any prepayment of Eurocurrency Rate Loans shall be in a



63









 







principal amount of US$200,000 or a whole multiple of US$50,000 in excess thereof (or, if
less, the entire principal amount thereof then outstanding); and (C) any prepayment of Base
Rate Loans shall be in a principal amount of US$200,000 or a whole multiple of US$50,000 in
excess thereof (or, if less, the entire principal amount thereof then outstanding). Each
such notice shall specify the date and amount of such prepayment and the Type(s) of Domestic
Swing Line Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the
Interest Period(s) of such Loans. If such notice is given by a Borrower, such Borrower
shall make such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be
accompanied by all accrued interest on the amount prepaid, together with any additional
amounts required pursuant to Section 3.05.




     (iii) Australian Swing Line Loans. Bright Australia may, upon notice to the
Australian Swing Line Lender, at any time or from time to time, voluntarily prepay
Australian Swing Line Loans in whole or in part without premium or penalty; provided
that (A) such notice must be received by the Australian Swing Line Lender not later than
12:00 noon (Sydney, Australia time) on the date of prepayment; and (B) any prepayment shall
be in a principal amount of AUS$200,000 or a whole multiple of AUS$50,000 in excess thereof
(or, if less, the entire principal amount thereof then outstanding). Each such notice shall
specify the date and amount of such prepayment of Australian Swing Line Loans to be prepaid.
If such notice is given by Bright Australia, Bright Australia shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of an Australian Swing Line Loan shall be accompanied by
all accrued interest on the amount prepaid, together with any additional amounts required
pursuant to Section 3.05.




     (iv) Danish Swing Line Loans. Each Danish Borrower may, upon notice to the
Danish Swing Line Lender, at any time or from time to time, voluntarily prepay Danish Swing
Line Loans in whole or in part without premium or penalty; provided that (A) such
notice must be received by the Danish Swing Line Lender not later than 11:00 A.M. (London
time) on the date of prepayment; and (B) any prepayment shall be in a principal amount of
(x) in the case of Danish Swing Line Loans denominated in Euro, €200,000 or a whole multiple
of €50,000 in excess thereof (or, if less, the entire principal amount thereof then
outstanding or such lesser amounts as the Danish Swing Line Lender may agree) and (y) in the
case of Danish Swing Line Loans denominated in Sterling, £200,000 or a whole multiple of
£50,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding
or such lesser amounts as the Danish Swing Line Lender may agree). Each such notice shall
specify the date and amount of such prepayment of Danish Swing Line Loans to be prepaid. If
such notice is given by a Danish Borrower, such Danish Borrower shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Danish Swing Line Loan shall be accompanied by all
accrued interest on the amount prepaid.




     (v) International Swing Line Loans. The Borrowers may prepay International
Swing Line Loans in accordance with terms agreed to by the applicable Borrower and the
applicable International Swing Line Lender. Any prepayment of an International Swing Line
Loan shall be accompanied by any additional amounts required pursuant to Section
3.05.



(b) Mandatory Prepayments of Loans.




     (i) Revolving Commitments.




     (A) If the Administrative Agent notifies the Parent at any time that the Total
Revolving Outstandings at such time exceed the Aggregate Revolving Commitments then



64









 







in effect (and, in the case of any such excess resulting from exchange rate
fluctuations, such excess continues for a period of three (3) consecutive Business
Days), then, within two Business Days after receipt of such notice, the Borrowers
shall prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount sufficient to reduce such Outstanding Amount as of such date of payment to an
amount not to exceed 100% of the Aggregate Revolving Commitments then in effect;
provided, however, that, subject to the provisions of Section
2.03(g), the Borrowers shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.08(b)(i) unless after the prepayment
in full of the Loans the Total Revolving Outstandings exceed the Aggregate Revolving
Commitments then in effect.




     (B) If the Administrative Agent notifies the Parent at any time that the Total
Revolving Outstandings of the Domestic Borrowers at such time exceed the Domestic
Revolving Sublimit then in effect (and, in the case of any such excess resulting
from exchange rate fluctuations, such excess continues for a period of three (3)
consecutive Business Days), then, within two Business Days after receipt of such
notice, the Domestic Borrowers shall prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount sufficient to reduce the Total Revolving
Outstandings of the Domestic Borrowers as of such date of payment to an amount not
to exceed the Domestic Revolving Sublimit then in effect; provided,
however, that, subject to the provisions of Section 2.03(g), the
Domestic Borrowers shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.08(b)(i) unless after the prepayment in full of
the Loans to the Domestic Borrowers the Total Revolving Outstandings of the Domestic
Borrowers exceed the Domestic Revolving Sublimit then in effect.




     (ii) Dispositions and Involuntary Dispositions. The Borrowers shall prepay the
Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an aggregate
amount equal to 100% of the Net Cash Proceeds of all Dispositions and Involuntary
Dispositions to the extent (A) such Net Cash Proceeds are not reinvested in property used or
useful in the business of the Parent and its Subsidiaries within 180 days of the date of
such Disposition or Involuntary Disposition and (B) the aggregate amount of such Net Cash
Proceeds not reinvested in accordance with clause (A) exceeds US$1,000,000 in any fiscal
year of the Borrower. Any prepayment pursuant to this clause (ii) shall be applied as set
forth in clause (v) below.




     (iii) Debt Issuances; Receivables Financings.




     (A) Immediately upon receipt by the Parent or any Subsidiary of the Net Cash
Proceeds of any Debt Issuance, the Borrowers shall prepay the Loans and/or Cash
Collateralize the L/C Obligations as hereafter provided in an aggregate amount equal
to 50% of such Net Cash Proceeds. Any prepayment pursuant to this clause (iii)(A)
shall be applied as set forth in clause (v) below.




     (B) If at any time the Receivables Financing Amount exceeds US$200 million, the
Foreign Borrowers shall immediately prepay the Foreign Term Loan by an amount equal
to the sum of (x) the amount of such excess less (y) the amount of all prior
prepayments on the Foreign Term Loan made pursuant to this Section
2.08(b)(iiii)(B). Any prepayment pursuant to this clause (iii)(B) shall be
applied as set forth in clause (v) below.




     (iv) Equity Issuances. Immediately upon the receipt by the Parent or any
Subsidiary of the Net Cash Proceeds of any Equity Issuance, the Borrowers shall prepay the
Loans and/or



65









 







Cash Collateralize the L/C Obligations as hereafter provided in an aggregate
amount equal to the lesser of (A) 50% of such Net Cash Proceeds and (B) after giving effect
to such Equity Issuance and the application of the proceeds thereof on a Pro Forma Basis,
the amount (if any) necessary to reduce the Consolidated Leverage Ratio as of the most
recent fiscal quarter end for which the Borrower was required to deliver financial
statements pursuant to Section 7.01(a) or (b) to 2.25:1.0. Any prepayment
pursuant to this clause (iv) shall be applied as set forth in clause (v) below.




     (v) Application of Mandatory Prepayments. All amounts required to be paid
pursuant to this Section 2.08(b) shall be applied as follows:




     (A) (x) with respect to all amounts prepaid pursuant to Section
2.08(b)(i), first, ratably to the L/C Borrowings and the Swing
Line Loans, second, to the outstanding Revolving Loans, and,
third, to Cash Collateralize the remaining L/C Obligations;




     (y) with respect to all amounts prepaid pursuant to Section
2.08(b)(ii), first, ratably to the L/C Borrowings relating to
Letters of Credit issued for the account of the Parent or any Domestic
Subsidiary and the Swing Line Loans made to any Domestic Borrower,
second, to the outstanding Revolving Loans made to any Domestic
Borrower, and, third, to Cash Collateralize the remaining L/C
Obligations relating to Letters of Credit issued for the account of the
Parent or any Domestic Subsidiary;




     (B) with respect to all amounts prepaid pursuant to Section
2.08(b)(ii), (1) if the property subject to such Disposition or Involuntary
Disposition was owned by the Parent or a Domestic Subsidiary, first, to the Domestic
Term Loan (ratably to the remaining principal amortization payments), second,
ratably to the L/C Borrowings relating to Letters of Credit issued for the account
of the Parent or any Domestic Subsidiary and the Swing Line Loans made to any
Domestic Borrower, third, to the outstanding Revolving Loans made to any Domestic
Borrower, fourth, to Cash Collateralize the remaining L/C Obligations relating to
Letters of Credit issued for the account of the Parent or any Domestic Subsidiary,
and fifth, to the Foreign Obligations in the order set forth in the following clause
(2); and (2) if the property subject to such Disposition or Involuntary Disposition
was owned by a Foreign Subsidiary, first to the Foreign Term Loan (ratably to the
remaining principal amortization payments), second, ratably to the L/C Borrowings
relating to Letters of Credit issued for the account of any Foreign Subsidiary and
the Swing Line Loans made to any Foreign Borrower, third, to the outstanding
Revolving Loans made to any Foreign Borrower, and fourth, to Cash Collateralize the
remaining L/C Obligations relating to Letters of Credit issued for the account of
any Foreign Subsidiary;




     (C) with respect to all amounts prepaid pursuant to Section
2.08(b)(iii)(A) or (iv), first pro rata to the Term Loans (ratably to
the remaining principal amortization payments), second, ratably to the L/C
Borrowings and the Swing Line Loans, third, to the outstanding Revolving Loans, and,
fourth, to Cash Collateralize the remaining L/C Obligations; and




     (D) with respect to all amounts prepaid pursuant to Section
2.08(b)(iii)(B), to the Foreign Term Loan (ratably to the remaining principal
amortization payments).



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     Within the parameters of the applications set forth above, prepayments shall be applied
first to Base Rate Loans and then to Eurocurrency Rate Loans in direct order of Interest
Period maturities. All prepayments under this Section 2.08(b) shall be subject to
Section 3.05, but otherwise without premium or penalty, and shall be accompanied by
interest on the principal amount prepaid through the date of prepayment.




     The Lenders holding the Term Loans agree that Sections 2.08(b)(v)(B) and
(C) may not be amended or waived so as to alter the manner of application of
proceeds of any mandatory prepayment required by Section 2.08(b)(ii), (iii)
or (iv), in each case without the consent of the Required Domestic Term Loan Lenders
and the Required Foreign Term Loan Lenders.


2.09 Optional Termination or Reduction of Aggregate Revolving Commitments; Reallocations of
Swing Line Sublimits.




     (a) The Parent may, upon notice to the Administrative Agent, terminate the Aggregate Revolving
Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments;
provided that (i) any such notice shall be received by the Administrative Agent not later
than 12:00 noon three (3) Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of US$5,000,000 or any whole multiple of
US$1,000,000 in excess thereof, (iii) the Parent shall not terminate or reduce the Aggregate
Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total Revolving Outstandings plus the Foreign Swing Line Facility Reserve would exceed the
Aggregate Revolving Commitments and (iv) if, after giving effect to any reduction of the Aggregate
Revolving Commitments, the Letter of Credit Sublimit or the Aggregate Swing Line Sublimit exceeds
the amount of the Aggregate Revolving Commitments, such sublimit shall be automatically reduced by
the amount of such excess. The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Revolving Commitments. The amount of any such
Aggregate Revolving Commitment reduction shall not be applied to the Letter of Credit Sublimit
unless otherwise specified by the Parent.  Any reduction of the Aggregate Revolving
Commitments shall be applied to the Revolving Commitment of each Lender according to its Applicable
Percentage. All fees accrued with respect thereto until the effective date of any termination of
the Aggregate Revolving Commitments shall be paid on the effective date of such termination.



     (b) Increase or Decrease in Swing Line Sublimits. The Parent may, at its option,
elect to increase or decrease the Domestic Swing Line Sublimit, the Australian Swing Line Sublimit,
the Danish Swing Line Sublimit and any International Swing Line Sublimit; provided that (i)
the Parent shall give three (3) Business Days prior written notice to the Administrative Agent of
such election; and (ii) after giving effect thereto, the aggregate amount of the Domestic Swing
Line Sublimit, the Australian Swing Line Sublimit, the Danish Swing Line Sublimit and all
International Swing Line Sublimits shall not exceed the lesser of (A) the Aggregate Swing Line
Sublimit and (B) the Aggregate Revolving Commitments.



2.10 Repayment of Loans.




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



     (b) Swing Line Loans. Each Borrower shall repay each Swing Line Loan made to such
Borrower on (i) in the case of any Domestic Swing Line Loan denominated in US Dollars, the earlier
to occur of (A) the date ten Business Days after such Domestic Swing Line Loan is made and (B) the
Maturity Date, (ii) in the case of any Domestic Swing Line Loan denominated in an Alternative
Currency,



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the Maturity Date, (iii) in the case of any Australian Swing Line Loan, the Maturity
Date, (iv) in the case of any Danish Swing Line Loan, the Maturity Date and (v) in the case of any
International Swing Line Loan, the Maturity Date or such earlier date as may be agreed to by the
applicable Borrower(s) and the applicable International Swing Line Lender.



     (c) Domestic Term Loan. The Domestic Borrowers shall repay the outstanding principal
amount of the Domestic Term Loan in installments on the dates and in the amounts equal to the
percentage of the initial principal amount of the Domestic Term Loan set forth in the table below
(as such installments may hereafter be adjusted as a result of prepayments made pursuant to
Section 2.08), unless accelerated sooner pursuant to Section 9.02:



	 	 	 	 	 
	Payment Dates	 	Principal Amortization Payment
	 
	 	 	 	 
	September 30, 2007	 	 	1.25	%
	December 31, 2007	 	 	1.25	%
	March 31, 2008	 	 	1.25	%
	June 30, 2008	 	 	1.25	%
	September 30, 2008	 	 	2.50	%
	December 31, 2008	 	 	2.50	%
	March 31, 2009	 	 	2.50	%
	June 30, 2009	 	 	2.50	%
	September 30, 2009	 	 	3.75	%
	December 31, 2009	 	 	3.75	%
	March 31, 2010	 	 	3.75	%
	June 30, 2010	 	 	3.75	%
	September 30, 2010	 	 	5.00	%
	December 31, 2010	 	 	5.00	%
	March 31, 2011	 	 	5.00	%
	June 30, 2011	 	 	5.00	%
	September 30, 2011	 	 	12.50	%
	December 31, 2011	 	 	12.50	%
	Maturity Date	 	Outstanding Principal Amount of Domestic Term Loan






     (d) Foreign Term Loan. The Foreign Borrowers shall repay the outstanding principal
amount of the Foreign Term Loan in installments on the dates and in the amounts equal to the
percentage of the initial principal amount of the Foreign Term Loan set forth in the table below
(as such installments may hereafter be adjusted as a result of prepayments made pursuant to
Section 2.08), unless accelerated sooner pursuant to Section 9.02:



	 	 	 	 	 
	Payment Dates	 	Principal Amortization Payment
	 
	 	 	 	 
	September 30, 2007	 	 	1.25	%
	December 31, 2007	 	 	1.25	%
	March 31, 2008	 	 	1.25	%
	June 30, 2008	 	 	1.25	%






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	Payment Dates	 	Principal Amortization Payment
	September 30, 2008	 	 	2.50	%
	December 31, 2008	 	 	2.50	%
	March 31, 2009	 	 	2.50	%
	June 30, 2009	 	 	2.50	%
	September 30, 2009	 	 	3.75	%
	December 31, 2009	 	 	3.75	%
	March 31, 2010	 	 	3.75	%
	June 30, 2010	 	 	3.75	%
	September 30, 2010	 	 	5.00	%
	December 31, 2010	 	 	5.00	%
	March 31, 2011	 	 	5.00	%
	June 30, 2011	 	 	5.00	%
	September 30, 2011	 	 	12.50	%
	December 31, 2011	 	 	12.50	%
	Maturity Date	 	Outstanding Principal Amount of Foreign Term Loan






2.11 Interest.




     (a) Subject to the provisions of subsection (b) below, (i) each Revolving Loan or Term Loan
that is a Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof
for each Interest Period at a rate per annum equal to the sum of the Eurocurrency Rate for such
Interest Period plus the Applicable Rate plus (in the case of a Eurocurrency Rate
Loan of any Lender which is lent from a Lending Office in the United Kingdom or a Participating
Member State) the Mandatory Cost; (ii) each Revolving Loan or Term Loan that is a Base Rate Loan
shall bear interest on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the Applicable Rate; (iii) each Domestic
Swing Line Loan denominated in US Dollars shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate less five (5) basis points; (iv) each Domestic Swing Line Loan
denominated in an Alternative Currency shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the sum of the Eurocurrency Rate for
such Interest Period plus the Applicable Rate less five (5) basis points
plus (in the case of a Eurocurrency Rate Loan which is lent from a Lending Office in
the United Kingdom or a Participating Member State) the Mandatory Cost; (v) each Australian Swing
Line Loan shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the sum of the BBR Rate plus the Applicable
Rate less five (5) basis points; (vi) each Danish Swing Line Loan denominated in Euro shall
bear interest on the outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the sum of the Daily Euro Rate plus the Applicable Rate for
Eurocurrency Rate Loans less five (5) basis points; (vii) each Danish Swing Line Loan
denominated in Sterling shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the sum of the Daily Sterling Rate
plus the Applicable Rate for Eurocurrency Rate Loans less five (5) basis points;
and (vi) each International Swing Line Loan shall bear interest on the outstanding principal amount
thereof at a rate per annum agreed to by the applicable Borrower(s) and the applicable
International Swing Line Lender.




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




69









 






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




     (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
principal amount of all outstanding Credit Obligations shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.




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



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



     (d) For the purposes of the Interest Act (Canada), (i) whenever a rate of interest or fee rate
hereunder is calculated on the basis of a year (the “deemed year”) that contains fewer days than
the actual number of days in the calendar year of calculation, such rate of interest or fee rate
shall be expressed as a yearly rate by multiplying such rate of interest or fee rate by the actual
number of days in the calendar year of calculation and dividing it by the number of days in the
deemed year, (ii) the principle of deemed reinvestment of interest shall not apply to any interest
calculation hereunder and (iii) the rates of interest stipulated herein are intended to be nominal
rates and not effective rates or yields.



2.12 Fees.




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




     (a) Commitment Fee. The Borrowers shall pay to the Administrative Agent, for
the account of each Revolving Lender in accordance with its Applicable Percentage, a
commitment fee in US Dollars equal to the product of (i) the Applicable Rate times
(ii) the actual daily amount by which the Aggregate Revolving Commitments (without reduction
for the Foreign Swing Line Facility Reserve) exceed the sum of (y) the Outstanding Amount of
Revolving Loans and (z) the Outstanding Amount of L/C Obligations. The commitment fee shall
accrue at all times during the Availability Period, including at any time during which one
or more of the conditions in Article V is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the last day of
the Availability Period. The commitment fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. For purposes of clarification, Swing Line
Loans shall not be considered outstanding for purposes of determining the unused portion of
the Aggregate Revolving Commitments.




     (b) Fee Letters. The Parent shall pay to the Arrangers and the Administrative
Agent for their own respective accounts, in US Dollars, fees in the amounts and at the times
specified in



70









 






the Fee Letters. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.



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




     (a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank
of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall be made on the basis
of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year), or, in the case of interest in respect
of Loans denominated in Alternative Currencies as to which market practice differs from the
foregoing, in accordance with such market practice. Interest shall accrue on each Loan for the day
on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on the same
day on which it is made shall, subject to Section 2.15(a), bear interest for one day. Each
determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.



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



2.14 Evidence of Debt.




     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts and
records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender to the Borrowers made through the
Administrative Agent, the Borrowers shall execute and deliver to such Lender (through the
Administrative Agent) a promissory note, which shall evidence such Lender’s Loans in addition to
such accounts or records. Each such promissory note shall be in the form of Exhibit 2.14-1,
in the case of the Domestic Borrowers, and Exhibit 2.14-2, in the case of the Foreign
Borrowers (each a “Note”). Each Lender may attach schedules to its Note and endorse thereon
the date, Type (if applicable), amount, currency and maturity of its Loans and payments with
respect thereto.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In



71









 




the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.




2.15 Payments Generally; Administrative Agent’s Clawback.




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




(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate
Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date
in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans,
that such Lender has made such share available in accordance with and at the time required
by Section 2.02) and may, in reliance upon such assumption, make available to the
applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the applicable Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon,
for each day from and including the date such amount is made available to such Borrower to
but excluding the date of payment to the Administrative Agent, at (A) in the case of a
payment to be made by such Lender, the Overnight Rate, plus any administrative, processing
or similar fees customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by such Borrower, the
interest rate applicable to Base Rate Loans. If such Borrower and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to such Borrower the amount of such interest paid
by such Borrower



72









 






for such period. If such Lender pays its share of the applicable Borrowing
to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan
included in such Borrowing. Any payment by such Borrower shall be without prejudice to any
claim such Borrower may have against a Lender that shall have failed to make such payment to
the Administrative Agent.




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




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



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



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make
any Loan, to fund any such participation or to make any payment under Section 11.04(c) on
any date required hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any other Lender to so
make its Loan, to purchase its participation or to make its payment under Section 11.04(c).



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



2.16 Sharing of Payments by Lenders.




     If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Loans or participations and
accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent
of such fact, and (b) purchase (for cash at face value) participations in
the Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the



73









 




Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them, provided that:





     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by a Borrower pursuant to and in accordance with the express terms of this Agreement or
(B) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to the Parent or any Subsidiary (as to
which the provisions of this Section shall apply).



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



2.17 Matters Relating to Borrowers.




     (a) Joint
and Several Liability of Domestic Borrowers.




     (i) Each Domestic Borrower shall be jointly and severally liable with the other
Borrowers for all Obligations, regardless of which Borrower actually receives Credit
Extensions or the amount of such Credit Extensions received or the manner in which the
Administrative Agent or any Lender accounts for such Credit Extensions on its books and
records. Each Domestic Borrower’s obligations with respect to Credit Extensions made to it,
and each Domestic Borrower’s obligations arising as a result of the joint and several
liability of such Borrower with the other Borrowers with respect to Credit Extensions made
to and other Obligations owing by the other Borrowers, shall be separate and distinct
obligations, but all such obligations shall be primary obligations of each Borrower.




     (ii) Notwithstanding any provision to the contrary contained herein or in any other of
the Loan Documents, the obligations of each Domestic Borrower in its capacity as a joint and
several obligor under this Agreement and the other Loan Documents shall be limited to an
aggregate amount equal to the largest amount that would not render such obligations subject
to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable
Law.




     (iii) Each Domestic Borrower’s obligations arising as a result of the joint and several
liability of such Domestic Borrower with the other Borrowers with respect to Credit
Extensions made to and other Obligations owing by the other Borrowers shall, to the fullest
extent permitted by law, be unconditional irrespective of (A) the validity or
enforceability, avoidance or subordination of the obligations of any other Borrower or any
other Loan Party or of any promissory note or other document evidencing all or any part of
the Obligations of any other Borrower or any other Loan Party, (B) the absence of any
attempt to collect the Obligations from any other Borrower or any other Loan Party or any
other security therefor, or the absence of any other action to enforce the same, (C) the
waiver, consent, extension, forbearance or granting of
any indulgence by the Administrative Agent or any Lender with respect to any provision
of any instrument evidencing the obligations of any other Borrower or any other Loan Party,
or any part



74









 






thereof, or any other agreement now or hereafter executed by any other Borrower
or any other Loan Party and delivered to the Administrative Agent or any Lender, (D) the
failure by the Administrative Agent or any Lender to take any steps to perfect and maintain
its security interest in, or to preserve its rights to, any security or collateral for the
obligations of any other Borrower or any other Loan Party, or (E) any other circumstances
which might constitute a legal or equitable discharge or defense of a guarantor or of any
other Borrower or any other Loan Party. With respect to each Domestic Borrower’s obligations
arising as a result of the joint and several liability of such Domestic Borrower with the
other Borrowers with respect to Credit Extensions made to the other Borrowers hereunder,
such Borrower subordinates, and agrees not to exercise, until the Obligations shall have
been paid in full, the Commitments shall have terminated and this Agreement and the other
Loan Documents shall have been terminated, any right to enforce any right of subrogation or
any remedy which the Administrative Agent or any Lender now has or may hereafter have
against such Borrower, any endorser or any guarantor of all or any part of the Obligations,
and any benefit of, and any right to participate in, any security or collateral given to the
Administrative Agent or any Lender to secure payment of the Obligations or any other
liability of any Borrower to the Administrative Agent or any Lender.




     (iv) At any time the Administrative Agent may take any of the actions described in
Section 9.02 in accordance with the terms thereof, the Administrative Agent and the Lenders
may proceed directly and at once, without notice, against any Domestic Borrower to collect
and recover the full amount, or any portion of, the Obligations, without first proceeding
against any other Borrower or any other Person, or against any security or collateral for
the Obligations. Each Domestic Borrower consents and agrees that the Administrative Agent
and the Lenders shall be under no obligation to marshal any assets in favor of any Borrower
or against or in payment of any or all of the Obligations.



     (b) Joint and Several Liability of Foreign Borrowers.




     (i) Each Foreign Borrower shall be jointly and severally liable with the other Foreign
Borrowers for all Foreign Obligations, regardless of which Foreign Borrower actually
receives Credit Extensions or the amount of such Credit Extensions received or the manner in
which the Administrative Agent or any Lender accounts for such Credit Extensions on its
books and records. Each Foreign Borrower’s obligations with respect to Credit Extensions
made to it, and each Foreign Borrower’s obligations arising as a result of the joint and
several liability of such Foreign Borrower with the other Foreign Borrowers with respect to
Credit Extensions made to and other Foreign Obligations owing by the other Foreign
Borrowers, shall be separate and distinct obligations, but all such obligations shall be
primary obligations of each Foreign Borrower.




     (ii) Notwithstanding any provision to the contrary contained herein or in any other of
the Loan Documents:




     (A) the obligations of each Foreign Borrower in its capacity as a joint and
several obligor under this Agreement and the other Loan Documents shall be limited
to an aggregate amount equal to the largest amount that would not render such
obligations subject to avoidance under the Debtor Relief Laws or any comparable
provisions of any applicable Law;




     (B) the obligations of each Danish Borrower in its capacity as a joint and
several obligor under this Agreement and the other Loan Documents and arising as a
result of the joint and several liability of such Danish Borrower with the other
Foreign



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Borrowers with respect to Credit Extensions made to and other Foreign
Obligations owing by the other Foreign Borrowers shall be limited to the extent
required to comply with Danish Statutory Limitations and, accordingly, shall not
include, and shall not be or be construed as, any liability, in respect of:




     (x) any Acquisition Debt; or




     (y) any obligations other than Acquisition Debt of a Non Qualifying
Parent Company.




     The Limitations shall apply to any liability including security by joint
liability, indemnity, guarantee, collateral or otherwise and to subordination of
rights and claims, subordination or turn over of rights of recourse, application of
proceeds and any other means of direct and indirect financial assistance; and




     (C) the obligations of each Danish Borrower in its capacity as a joint and
several obligor under this Agreement and the other Loan Documents and arising as a
result of the joint and several liability of such Danish Borrower with the other
Foreign Borrowers with respect to Credit Extensions made to and other Foreign
Obligations owing by the other Foreign Borrowers shall at any time be limited to a
maximum amount equivalent to an amount equal to the higher of:




     (x) the Eligible Equity of such Danish Borrower on the First Amendment
Effective Date; and




     (y) the Eligible Equity of such Danish Borrower on the date on which a
demand is made against such Danish Borrower for payment under the joint
liability.




     (iii) Each Foreign Borrower’s obligations arising as a result of the joint and several
liability of such Foreign Borrower with the other Foreign Borrowers with respect to Credit
Extensions made to and other Foreign Obligations owing by the other Foreign Borrowers shall,
to the fullest extent permitted by law, be unconditional irrespective of (A) the validity or
enforceability, avoidance or subordination of the obligations of any other Foreign Borrower
or any other Foreign Loan Party or of any promissory note or other document evidencing all
or any part of the Foreign Obligations of any other Foreign Borrower or any other Foreign
Loan Party, (B) the absence of any attempt to collect the Foreign Obligations from any other
Foreign Borrower or any other Foreign Loan Party or any other security therefor, or the
absence of any other action to enforce the same, (C) the waiver, consent, extension,
forbearance or granting of any indulgence by the Administrative Agent or any Lender with
respect to any provision of any instrument evidencing the obligations of any other Foreign
Borrower or any other Foreign Loan Party, or any part thereof, or any other agreement now or
hereafter executed by any other Foreign Borrower or any other Foreign Loan Party and
delivered to the Administrative Agent or any Lender, (D) the failure by the Administrative
Agent or any Lender to take any steps to perfect and maintain its security interest in, or
to preserve its rights to, any security or collateral for the obligations of any other
Foreign Borrower or any other Foreign Loan Party, or (E) any other circumstances which might
constitute a legal or equitable discharge or defense of a guarantor or of any other Foreign
Borrower or any other Foreign Loan Party. With respect to each Foreign
Borrower’s obligations arising as a result of the joint and several liability of such
Foreign Borrower with the other Foreign Borrowers with respect to Credit Extensions made to
the other Foreign Borrowers hereunder, such Foreign Borrower subordinates, and agrees not to
exercise,



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until the Foreign Obligations shall have been paid in full, the Commitments shall
have terminated and this Agreement and the other Loan Documents shall have been terminated,
any right to enforce any right of subrogation or any remedy which the Administrative Agent
or any Lender now has or may hereafter have against such Foreign Borrower, any endorser or
any guarantor of all or any part of the Foreign Obligations, and any benefit of, and any
right to participate in, any security or collateral given to the Administrative Agent or any
Lender to secure payment of the Foreign Obligations or any other liability of any Foreign
Borrower to the Administrative Agent or any Lender.




     (iv) At any time the Administrative Agent may take any of the actions described in
Section 9.02 in accordance with the terms thereof, the Administrative Agent and the Lenders
may proceed directly and at once, without notice, against any Foreign Borrower to collect
and recover the full amount, or any portion of, the Foreign Obligations, without first
proceeding against any other Foreign Borrower or any other Person, or against any security
or collateral for the Foreign Obligations. Each Foreign Borrower consents and agrees that
the Administrative Agent and the Lenders shall be under no obligation to marshal any assets
in favor of any Foreign Borrower or against or in payment of any or all of the Foreign
Obligations.




     (v) For purposes of clarification, each Foreign Borrower (A) shall be jointly and
severally liable with the other Foreign Borrowers for only the Foreign Obligations and (B)
shall not be liable for Credit Extensions made to the Domestic Borrowers.



     (c) The Parent may at any time, upon not less than fifteen (15) Business Days’ notice from the
Parent to the Administrative Agent and the Lenders, designate any Domestic Subsidiary as a Domestic
Borrower or any Foreign Subsidiary as a Foreign Borrower, provided that:




     (i) in the case of any Foreign Subsidiary:




     (A) such Foreign Subsidiary is reasonably acceptable to the Administrative
Agent;




     (B) no Lender that will make Credit Extensions to such Foreign Subsidiary has
notified the Administrative Agent in writing at least two (2) Business Days prior to
the effective date of such designation that such Lender has determined in its
reasonable discretion that (1) such Lender is unable to extend credit to such
Foreign Subsidiary without violating any applicable Law, any request or directive
(whether or not having the force of law) from any Governmental Authority, any order,
judgment or decree of any Governmental Authority or arbitrator or any policies of
such Lender and (2) extending credit to such Foreign Subsidiary will impose upon
such Lender any restriction, reserve or capital requirement or any loss, cost or
expense (for which the Lender is not otherwise compensated hereunder); and




     (C) if such Foreign Subsidiary has any outstanding Foreign Subsidiary Debt,
(including any Guarantee with respect to any Foreign Subsidiary Debt) and has
granted a Lien in any of its property to secure such Foreign Subsidiary Debt or
Guarantee (or in either case any effective but unused commitments for Foreign
Subsidiary Debt), then each lender holding such Foreign Subsidiary Debt (or
commitments) (other than any lender holding Indebtedness under the Bright India Loan
Documents) shall have entered
into an intercreditor agreement with the Administrative Agent subordinating
such lender’s Liens to the Liens arising under the Loan Documents on terms and
conditions set



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forth
in Exhibit 2.17(c)-3 (with such changes thereto as the Administrative Agent may agree);




     (ii) in the case of any Subsidiary, such Subsidiary shall have (A) delivered to the
Administrative Agent (1) a Designated Borrower Agreement duly executed by such Subsidiary
and the Parent, (2) documents of the type described in Section 5.01(e) and
(f) for such Subsidiary, (3) an opinion of counsel to such Subsidiary in form and
substance reasonably satisfactory to the Administrative Agent, (4) such other documents,
agreements and instruments as the Administrative Agent may reasonably request in order for
such Subsidiary to comply with Section 7.14, all in form and substance reasonably
acceptable to the Administrative Agent, and (5) such other documents, agreements and
instruments as the Administrative Agent may reasonably request, all in form and substance
reasonably acceptable to the Administrative Agent, and (B) upon request of any Lender,
delivered to such Lender such know your customer (KYC) information that such Lender is
required to obtain under applicable Laws.



     Upon satisfaction of each of the foregoing requirements, the Administrative Agent shall send a
notice to the Parent and the Lenders specifying the effective date upon which such Subsidiary shall
constitute a Borrower for purposes hereof, whereupon each of the Loan Parties and the Lenders
agrees that such Subsidiary shall be a Borrower for all purposes of this Agreement;
provided that no Loan Notice or Letter of Credit Application may be submitted by such
Subsidiary until the date five Business Days after such effective date.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.




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



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



     (c) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent, each Lender and the L/C Issuers, within 10 days after demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) for which the
Administrative Agent, such Lender or such L/C Issuer, as the case may be, is liable 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 a Borrower by a Lender or the applicable L/C Issuer



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(with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender or a L/C Issuer, shall be conclusive absent manifest error.




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



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



     Without limiting the generality of the foregoing, if a Borrower is resident for tax purposes
in the United States, any Foreign Lender shall deliver to the Parent 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 Parent 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 is a party,




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




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to
the effect that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the applicable
Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a
“controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue
Code and (y) 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 Parent to
determine the withholding or deduction required to be made.



     Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each
Lender agrees promptly to deliver to the Administrative Agent or the Parent, as the Administrative
Agent or the Parent shall reasonably request, on or prior to the Closing Date, and in a timely
fashion thereafter, such
other documents and forms required by any relevant taxing authorities under the Laws of any
other



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jurisdiction, duly executed and completed by such Lender, as are required under such Laws to
confirm such Lender’s entitlement to any available exemption from, or reduction of, applicable
withholding taxes in respect of all payments to be made to such Lender outside of the United States
by the Borrowers pursuant to this Agreement or otherwise to establish such Lender’s status for
withholding tax purposes in such other jurisdiction. Each Lender shall promptly (i) notify the
Administrative Agent of any change in circumstances which would modify or render invalid any such
claimed exemption or reduction, and (ii) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any such
jurisdiction that any Borrower make any deduction or withholding for taxes from amounts payable to
such Lender. Additionally, each of the Borrowers shall promptly deliver to the Administrative Agent
or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to
the Closing Date, and in a timely fashion thereafter, such documents and forms required by any
relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by such
Borrower, as are required to be furnished by such Lender or the Administrative Agent under such
Laws in connection with any payment by the Administrative Agent or any Lender of Taxes or Other
Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction.




3.02 Illegality.




     If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurocurrency Rate Loans (whether denominated in US Dollars or an Alternative Currency), or
to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, US Dollars or any Alternative Currency in the applicable interbank market,
then, on notice thereof by such Lender to the Parent through the Administrative Agent, any
obligation of such Lender to make or continue Eurocurrency Rate Loans in the affected currency or
currencies or, in the case of Eurocurrency Rate Loans in US Dollars, to convert Base Rate Loans to
Eurocurrency Rate Loans, shall be suspended until such Lender notifies the Administrative Agent and
the Parent that the circumstances giving rise to such determination no longer exist. Upon receipt
of such notice, each Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable and such Loans are denominated in US Dollars,
convert to Base Rate Loans, all such Eurocurrency Rate Loans of such Lender to such Borrower,
either on the last day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the
applicable Borrower shall also pay accrued interest on the amount so prepaid or converted.



3.03 Inability to Determine Rates.




     If the Required Lenders determine that for any reason in connection with any request for a
Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) deposits (whether in US
Dollars or an Alternative Currency) are not being offered to banks in the applicable offshore
interbank market for such currency for the applicable amount and Interest Period of such
Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for determining the
Eurocurrency Base Rate for any requested Interest Period with respect to a proposed Eurocurrency
Rate Loan (whether denominated in US Dollars or an Alternative Currency), or (c) the Eurocurrency
Base Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does
not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan,
the Administrative Agent will promptly so notify the
Parent and each Lender. Thereafter, the obligation of the Lenders to make or maintain
Eurocurrency Rate



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Loans in the affected currency or currencies shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, each Borrower may revoke any pending request by such Borrower for a
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the affected currency or
currencies or, failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.




3.04 Increased Costs.




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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except (A) any reserve requirement
reflected in the Eurocurrency Rate and (B) the requirements of the Bank of England and the
Financial Services Authority or the European Central Bank reflected in the Mandatory Cost,
other than as set forth below) or any L/C Issuer;




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




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




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




and the result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Eurocurrency Rate Loan, BBR Rate Loan or Daily Rate Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost to such Lender or
such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce
the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder
(whether of principal, interest or any other amount) then, upon request of such Lender or
such L/C Issuer, the applicable Borrower will pay to such Lender or such L/C Issuer, as the
case may be, such additional amount or amounts as will compensate such Lender or such L/C
Issuer, as the case may be, for such additional costs incurred or reduction suffered.



     (b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change
in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such
Lender’s or such L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on
the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the
Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such
L/C Issuer or



81









 




such Lender’s or such L/C Issuer’s holding company could have achieved but for such
Change in Law (taking into consideration such Lender’s or such L/C Issuer’s policies and the
policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy),
then from time to time the applicable Borrower will pay to such Lender or such L/C Issuer, as the
case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or
such Lender’s or such L/C Issuer’s holding company for any such reduction suffered.




     (c) Certificates for Reimbursement. A certificate of a Lender or a L/C Issuer setting
forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding
company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to
the Parent shall be conclusive absent manifest error. The applicable Borrower will pay such Lender
or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10
days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to
demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided
that no Borrower shall be required to compensate a Lender or such L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or such L/C Issuer, as the case may be,
notifies the Parent of the Change in Law giving rise to such increased costs or reductions and of
such Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month
period referred to above shall be extended to include the period of retroactive effect thereof).



3.05 Compensation for Losses.




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




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




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




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


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




     For purposes of calculating amounts payable by any Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made
by it at the
Eurocurrency Base Rate used in determining the Eurocurrency Rate for such Loan by a matching
deposit



82









 




or other borrowing in the offshore interbank eurodollar market for such currency for a
comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in
fact so funded.




3.06 Mitigation Obligations; Replacement of Lenders.




     (a) Designation of a Different Lending Office. If any Borrower is required to pay the
Mandatory Cost to any Lender, any Lender requests compensation under Section 3.04, any
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 3.01, or any Lender gives a notice pursuant
to Section 3.02, then such Lender shall use reasonable efforts to designate a different
Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender,
such designation or assignment (i) would eliminate or reduce the Mandatory Cost or amounts payable
pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate
the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case,
would not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The applicable Borrower hereby agrees to pay all reasonable costs
and expenses incurred by any Lender in connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Parent
may replace such Lender in accordance with Section 11.13.



3.07 Survival.



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



ARTICLE IV




GUARANTY




4.01 The Guaranty.




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



     (b) Each of the Foreign Guarantors hereby jointly and severally guarantees to the
Administrative Agent and each of the holders of the Foreign Obligations as hereinafter provided, as
primary obligor and not as surety, the prompt payment of the Foreign Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise)
strictly in accordance with the terms thereof. The Foreign Guarantors hereby further agree
that if any of the



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Foreign Obligations are not paid in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise),
the Foreign Guarantors will, jointly and severally, promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or renewal of any of
the Foreign Obligations, the same will be promptly paid in full when due (whether at extended
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.




4.02 Limitations on Guaranty.




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



     (b) Danish Guarantors. Notwithstanding any provision to the contrary contained herein
or in any other of the Loan Documents, Swap Contracts or Treasury Management Agreements:




     (i) the obligations of each Danish Guarantor (in its capacity as such) under this
Agreement and the other Loan Documents shall be limited to the extent required to comply
with the Danish Statutory Limitations and, accordingly, shall not include, and shall not be
or be construed as, any obligations or liability in respect of:




     (A) any Acquisition Debt; or




     (B) any obligations other than Acquisition Debt of a Non Qualifying Parent
Company.




     The Danish Statutory Limitations shall apply to any obligations or liability including
security by indemnity, guarantee, collateral or otherwise and to subordination of rights and
claims, subordination or turn over of rights of recourse, application of proceeds and any
other means of direct and indirect financial assistance;




     (ii) the obligations of each Danish Guarantor (in its capacity as such) shall at any
time be limited to a maximum amount equivalent to an amount equal to the higher of:




     (A) the Eligible Equity of such Danish Guarantor on the First Amendment
Effective Date; and




     (B) the Eligible Equity of such Danish Guarantor on the date on which a demand
is made against the Danish Guarantor for payment under this Guaranty.



     (c) German Guarantors. Notwithstanding any provision to the contrary contained herein
or in any other of the Loan Documents, Swap Contracts or Treasury Management Agreements:




     (i) to the extent that the Guaranty and/or any other joint and several liability or
indemnity under this Agreement or any other Loan Document is granted by a German Guarantor
(the “German Guaranty”) and the German Guaranty of such German Guarantor guarantees
amounts:



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     (A) which are owed by direct or indirect shareholders of such German Guarantor
or Subsidiaries of such shareholders (with the exception of Subsidiaries which are
wholly owned subsidiaries of such German Guarantor); and




     (B) such amounts do not correspond to funds that have been borrowed under this
Agreement and have been on-lent to, or otherwise been passed on to, such German
Guarantor or any of its Subsidiaries,




     then the German Guaranty of such German Guarantor shall be subject to certain
limitations as set out in clause (ii) below. In relation to any other amounts guaranteed,
the German Guaranty of such German Guarantor remains unlimited.




     (ii) to the extent that the demand under the German Guaranty against such German
Guarantor is made in respect of amounts in relation to which the conditions pursuant to
paragraph (i) are fulfilled, such German Guarantor’s liability shall be limited as follows:




     (A) Subject to clauses (B) and (C) below, the Administrative Agent shall not be
entitled to enforce the German Guaranty of such German Guarantor to the extent that
such German Guarantor is able to demonstrate that such enforcement has the effect
of:




          (x) reducing such German Guarantor’s net assets (Nettovermögen) (the “Net
Assets”) to an amount less than its stated share capital (Stammkapital); or




          (y) (if its Net Assets are already lower than its stated share capital) causing
such amount to be further reduced;




     and thereby affects its assets which are required for the obligatory
preservation of its stated share capital according to §§ 30, 31 German GmbH-Act
(GmbH-Gesetz) (the “GmbH-Act”).




     (B) The value of the Net Assets shall be determined in accordance with
(generally accepted accounting principles (Grundsätze ordnungsgemäßer Buchführung)
under the German Commercial Code (Handelsgesetzbuch)) consistently applied by such
German Guarantor in preparing its unconsolidated balance sheets (Jahresabschluss
according to § 42 GmbH-Act, §§ 242, 264 HGB) in the previous years, save that:




          (x) the amount of any increase of the stated share capital
(Stammkapital) of such German Guarantor registered after the date of this
Agreement without the prior written consent of the Administrative Agent
shall be deducted from the relevant stated share capital;



          (y) loans provided to such German Guarantor by the Parent or any
Subsidiary shall be disregarded if such loans are subordinated in the
meaning of § 39 para. 2 German Insolvency Code; and



          (z) loans and other liabilities incurred in violation of the provisions
of this Agreement shall be disregarded.




     (iii) The limitations set out in clause (i) above shall only apply if and to the extent
that the managing director(s) (Geschäftsführer) on behalf of such German Guarantor have
confirmed in writing to the Administrative Agent within 10 Business Days following the
Administrative



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Agent’s demand under the German Guaranty of such German Guarantor, to what extent the
demanded payment fulfils the conditions pursuant to paragraph (a) and would cause its Net
Assets to fall below its stated share capital (Stammkapital) or, if the Net Assets are
already less than the stated share capital (Stammkapital), would cause such amount to be
further reduced (the “Management Determination”).




     (iv) If the Administrative Agent disagrees with the Management Determination, the
Administrative Agent shall nevertheless be entitled to enforce the German Guaranty of such
German Guarantor up to such amount, which is undisputed between itself and such German
Guarantor in accordance with the provisions of clause (iii) above. In relation to the amount
which is disputed, the Administrative Agent and such German Guarantor shall instruct a firm
of auditors of international standing and reputation to determine within 30 calendar days
(or such longer period as has been agreed between such German Guarantor and the
Administrative Agent) from the date the Administrative Agent has contested the Management
Determination the value of available Net Assets (the “Auditor’s Determination”). If
the Administrative Agent and such German Guarantor do not agree on the appointment of a
joint auditor within 5 Business Days from the date the Administrative Agent has disputed the
Management Determination, the Administrative Agent shall be entitled to appoint auditors of
international standing and reputation in its sole discretion. The amount determined as
available in the Auditor’s Determination shall be (except for manifest error) binding for
all the parties hereto. The costs of the Auditor’s Determination shall be borne by the
Parent.




     (v) If, and to the extent that, the German Guaranty of such German Guarantor has been
enforced without regard to the limitation set forth in clause (i) because (A) the Management
Determination was not delivered within the relevant time frame or (B) the amount of the
available Net Assets pursuant to the Auditor’s Determination is lower than the amount stated
in the Management Determination, the Lenders shall upon written demand of such German
Guarantor to the Administrative Agent (on behalf of the Lenders) repay any amount (if and to
the extent already paid to the Lenders) in the case of (A) above, which is necessary to
maintain such German Guarantor’s stated share capital (Stammkapital), and in the case of (B)
above up to and including the amount calculated in the Auditor’s Determination calculated as
of the date the demand under such German Guaranty was made and in accordance with clauses
(i) and (ii) above, provided such demand for repayment is made to the Administrative Agent
within 6 months (Ausschlussfrist) from the date such German Guaranty has been enforced.




     If pursuant to the Auditor’s Determination the amount of the available Net Assets is
higher than set out in the Management Determination such German Guarantor shall pay such
amount to the Administrative Agent, for the benefit of the holders of the Obligations,
within 5 Business Days after receipt of the Auditor’s Determination.




     (vi) The limitation set out in clause (i) does not affect the right of the
Administrative Agent or any holder of the Obligations to claim again any outstanding amount
at a later point in time if and to the extent that clause (i) would allow this at that later
point.




     (vii) If such German Guarantor demonstrates that an enforcement of the German Guaranty
of such German Guarantor has, despite the fact that its liability is limited pursuant to
clause (i) above, the effect of such German Guarantor not being able to pay its debts as
they fall due (Verlust der Zahlungsfähigkeit), then the payment obligation of such German
Guarantor under such German Guaranty shall be limited in such way that the Administrative
Agent may only enforce such German Guaranty up to such amount(s) and at such times (for
instance in



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payment instalments) that such German Guarantor is at all times left with the liquidity
necessary to remain able to pay its debts as they fall due (zahlungsfähig).




     (viii) If such German Guarantor intends to demonstrate that the enforcement of the
German Guaranty of such German Guarantor has led to one of the effects referred to in
clauses (i) or (vii) above, then such German Guarantor shall realise at market value any and
all of its assets that are shown in its balance sheet with a book value (Buchwert) which are
(in the opinion of the Administrative Agent) significantly lower than their market value and
to the extent that such assets are not necessary for such German Guarantor’s business (nicht
betriebsnotwendig), to the extent necessary to satisfy the amounts demanded under such
German Guaranty.




This Section 4.02(c) shall apply mutatis mutandis if the German Guaranty is granted
by a German Guarantor organized as a limited liability partnership (GmbH & Co. KG) in
relation to the limited liability company as general partner (Komplementär) of such German
Guarantor.



4.03 Obligations Unconditional.




     (a) The obligations of the Domestic Guarantors under Section 4.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity
or enforceability of any of the Loan Documents or other documents relating to the Obligations, or
any substitution, compromise, release, impairment or exchange of any other guarantee of or security
for any of the Obligations, and, to the fullest extent permitted by applicable Law, irrespective of
any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, it being the intent of this Section 4.03 that the
obligations of the Domestic Guarantors hereunder shall be absolute and unconditional under any and
all circumstances. Each Domestic Guarantor subordinates, and agrees that such Domestic Guarantor
shall not exercise any, right of subrogation, indemnity, reimbursement or contribution against any
Borrower or any other Guarantor for amounts paid under this Article IV or any other
guaranty of the Obligations until such time as the Obligations have been paid in full and the
Commitments have expired or terminated.



     (b) The obligations of the Foreign Guarantors under Section 4.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity
or enforceability of any of the Loan Documents or other documents relating to the Foreign
Obligations, or any substitution, compromise, release, impairment or exchange of any other
guarantee of or security for any of the Foreign Obligations, and, to the fullest extent permitted
by applicable Law, irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent
of this Section 4.03 that the obligations of the Foreign Guarantors hereunder shall be
absolute and unconditional under any and all circumstances. Each Foreign Guarantor subordinates,
and agrees that such Foreign Guarantor shall not exercise any, right of subrogation, indemnity,
reimbursement or contribution against any Borrower or any other Guarantor for amounts paid under
this Article IV or any other guaranty of the Foreign Obligations until such time as the
Foreign Obligations have been paid in full and the Commitments have expired or terminated.



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




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



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     (ii) any of the acts mentioned in any of the provisions of any of the Loan Documents,
or other documents relating to the Obligations or any other agreement or instrument referred
to therein shall be done or omitted;




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




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




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




     (vi) the change in any law, regulation, decree or order of any jurisdiction, or any
other event affecting any term of any Obligation or any Lender’s rights with respect
thereto.



     (d) With respect to its obligations hereunder, each Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement
that the Administrative Agent or any holder of the Obligations exhaust any right, power or remedy
or proceed against any Person under any of the Loan Documents or any other documents relating to
the Obligations, or any other agreement or instrument referred to therein, or against any other
Person under any other guarantee of, or security for, any of the Obligations.



4.04 Reinstatement.




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



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



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4.05 Certain Additional Waivers.




     (a) Each Domestic Guarantor acknowledges and agrees that (a) the guaranty given hereby may be
enforced without the necessity of resorting to or otherwise exhausting remedies in respect of any
other security or collateral interests, and without the necessity at any time of having to take
recourse against any Borrower or any other Person (including any co-guarantor) or against any
collateral securing the Obligations or otherwise, and (b) it will not assert any right to require
that action first be taken against any Borrower or any other Person (including any co-guarantor) or
pursuit of any other remedy or enforcement any other right, and (c) nothing contained herein shall
prevent or limit action being taken against any Borrower hereunder, under the other Loan Documents
or the other documents and agreements relating to the Obligations or, foreclosure on any security
or collateral interests relating hereto or thereto, or the exercise of any other rights or remedies
available in respect thereof, if neither the Borrowers nor the Guarantors shall timely perform
their obligations, and the exercise of any such rights and completion of any such foreclosure
proceedings shall not constitute a discharge of the Domestic Guarantors’ obligations hereunder
unless as a result thereof, the Obligations shall have been paid in full and the commitments
relating thereto shall have expired or terminated, it being the purpose and intent that the
Domestic Guarantors’ obligations hereunder be absolute, irrevocable, independent and unconditional
under all circumstances. Each Domestic Guarantor agrees that such Domestic Guarantor shall have no
right of recourse to security for the Obligations, except through the exercise of rights of
subrogation in accordance with to Section 4.03 and through the exercise of rights of
contribution pursuant to Section 4.07.



     (b) Each Foreign Guarantor acknowledges and agrees that (a) the guaranty given hereby may be
enforced without the necessity of resorting to or otherwise exhausting remedies in respect of any
other security or collateral interests, and without the necessity at any time of having to take
recourse against any Borrower or any other Person (including any co-guarantor) or against any
collateral securing the Foreign Obligations or otherwise, and (b) it will not assert any right to
require that action first be taken against any Borrower or any other Person (including any
co-guarantor) or pursuit of any other remedy or enforcement any other right, and (c) nothing
contained herein shall prevent or limit action being taken against any Borrower hereunder, under
the other Loan Documents or the other documents and agreements relating to the Foreign Obligations
or, foreclosure on any security or collateral interests relating hereto or thereto, or the exercise
of any other rights or remedies available in respect thereof, if neither the Borrowers nor the
Guarantors shall timely perform their obligations, and the exercise of any such rights and
completion of any such foreclosure proceedings shall not constitute a discharge of the Foreign
Guarantors’ obligations hereunder unless as a result thereof, the Foreign Obligations shall have
been paid in full and the commitments relating thereto shall have expired or terminated, it being
the purpose and intent that the Foreign Guarantors’ obligations hereunder be absolute, irrevocable,
independent and unconditional under all circumstances. Each Foreign Guarantor agrees that such
Foreign Guarantor shall have no right of recourse to security for the Foreign Obligations, except
through the exercise of rights of subrogation in accordance with to Section 4.03 and
through the exercise of rights of contribution pursuant to Section 4.07.



4.06 Remedies.




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




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acknowledge and agree that their obligations hereunder are secured in accordance with the
terms of the Collateral Documents and that the holders of the Obligations may exercise their
remedies thereunder in accordance with the terms thereof.




     (b) The Foreign Guarantors agree that, to the fullest extent permitted by Law, as between the
Foreign Guarantors, on the one hand, and holders of the Foreign Obligations, on the other hand, the
Foreign Obligations may be declared to be forthwith due and payable as provided in Section
9.02 (and shall be deemed to have become automatically due and payable in the circumstances
specified in Section 9.02) for purposes of Section 4.01 notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing the Foreign Obligations
from becoming automatically due and payable) as against any other Person and that, in the event of
such declaration (or the Foreign Obligations being deemed to have become automatically due and
payable), the Foreign Obligations (whether or not due and payable by any other Person) shall
forthwith become due and payable by the Foreign Guarantors for purposes of Section 4.01.
The Foreign Guarantors acknowledge and agree that their obligations hereunder are secured in
accordance with the terms of the Collateral Documents and that the holders of the Foreign
Obligations may exercise their remedies thereunder in accordance with the terms thereof.



4.07 Rights of Contribution.




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



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



4.08 Guarantee of Payment; Continuing Guarantee.




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



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



ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




5.01 Conditions of Initial Credit Extension.




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



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     (a) Loan Documents. Receipt by the Administrative Agent of executed
counterparts of this Agreement and the other Loan Documents, each properly executed by a
Responsible Officer of the signing Loan Party and, in the case of this Agreement, by each
Lender, and either each is properly stamped and/or registered (if applicable) or funds
sufficient to pay stamp duty is received by the Administrative Agent or all forms necessary
to register the relevant document is received by the Administrative Agent.



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



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




     (i) the Audited Financial Statements; and




     (ii) the Interim Financial Statements.



     (d) No Material Adverse Change. There shall not have occurred a material
adverse change since December 31, 2005 in the business, assets, liabilities (actual or
contingent), operations or condition (financial or otherwise) of the Parent and its
Subsidiaries, taken as a whole.



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




     (i) copies of the Organization Documents of each Loan Party certified by a
secretary or assistant secretary of such Loan Party to be true and correct as of the
Closing Date;




     (ii) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may require evidencing the identity, authority and capacity of
each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such Loan Party
is a party, and in relation to Bright Netherlands, (A) an extract from the Dutch
trade register relating to it, (B) a concurring advice of any works council which
has advisory rights in respect of the transactions contemplated by the Loan
Documents, (C) a written resolution by (x) all the holders of Equity Interests in
Bright Netherlands and (y) all the managing directors of Bright Netherlands and/or
(z) its board of supervisory directors (if any) approving execution and the terms
of, and the transactions contemplated by, the Loan Documents to which it is a party;




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




     (iv) each power of attorney under which a Loan Party signs a Loan Document
showing evidence of stamping and/or registration (if applicable).



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     (f) Perfection of Liens. Receipt by the Administrative Agent of the following:




     (i) searches of Uniform Commercial Code filings (or its equivalent) in the
jurisdiction of formation of each Loan Party and each other jurisdiction deemed
appropriate by the Administrative Agent;




     (ii) UCC financing statements (or its equivalent) for each appropriate
jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to
perfect the Administrative Agent’s security interest in the Collateral;




     (iii) all certificates evidencing any certificated Equity Interests pledged to
the Administrative Agent pursuant to the Security Agreement, together with duly
executed in blank, undated stock powers attached thereto (unless, with respect to
the pledged Equity Interests of any Foreign Subsidiary, such stock powers are deemed
unnecessary by the Administrative Agent in its reasonable discretion under the law
of the jurisdiction of organization of such Person) (or such certificates shall be
in the possession of the holder of any Indebtedness that is being repaid on the
Closing Date and such holder shall have agreed to deliver such certificates to the
Administrative Agent); and




     (iv) duly executed notices of grant of security interest in the form required
by the Security Agreement or other appropriate filings as are necessary, in the
Administrative Agent’s sole discretion, to perfect the Administrative Agent’s
security interest in the intellectual property of the Loan Parties.




     (g) Evidence of Insurance. Receipt by the Administrative Agent of copies of
insurance policies or certificates of insurance of the Loan Parties evidencing liability and
casualty insurance meeting the requirements set forth in the Loan Documents, including, but
not limited to, naming the Administrative Agent as additional insured in the case of
liability insurance or loss payee in the case of property insurance on behalf of the
Lenders.




     (h) Closing Certificate. Receipt by the Administrative Agent of a certificate
signed by a Responsible Officer of the Parent certifying that the conditions specified in
Section 5.01(d) and Sections 5.02(a) and (b) have been satisfied.




     (i) Payoff of Existing Indebtedness. After giving effect to the Credit
Extensions on the Closing Date, the Parent and its Subsidiaries shall have repaid in full,
and terminated all commitments with respect to, any Indebtedness (other than Indebtedness
permitted under Section 8.03) and all Liens securing such Indebtedness shall have been
released.




     (j) Fees. Receipt by the Administrative Agent, Banc of America Securities LLC
and the Lenders of any fees required to be paid on or before the Closing Date.




     (k) Attorney Costs. Unless waived by the Administrative Agent, the Parent
shall have paid all reasonable and properly documented fees, charges and disbursements of
counsel to the Administrative Agent (directly to such counsel if requested by the
Administrative Agent) to the extent incurred and invoiced prior to or on the Closing Date.



     Without limiting the generality of the provisions of Section 10.04, for purposes of
determining compliance with the conditions specified in this Section 5.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or



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other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.




5.02 Conditions to all Credit Extensions.




     The obligation of each Lender to honor any Request for Credit Extension (other than a request
to (i) convert a Eurocurrency Rate Loan denominated in US Dollars to a Base Rate Loan or (ii)
continue a Eurocurrency Rate Loan denominated in Alternative Currency for an Interest Period of one
month) is subject to the following conditions precedent:




     (a) The representations and warranties of each Loan Party contained in Article
VI or any other Loan Document, or which are contained in any document furnished at any
time under or in connection herewith or therewith, shall be true and correct on and as of
the date of such Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date.




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




     (c) The Administrative Agent and, if applicable, the applicable L/C Issuer or the
applicable Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof (or, in the case of International Swing Loans, a
borrowing request in accordance with the borrowing procedures agreed to by the applicable
Borrower and the applicable International Swing Line Lender).




     (d) In the case of a Credit Extension to be denominated in an Alternative Currency,
there shall not have occurred any change in national or international financial, political
or economic conditions or currency exchange rates or exchange controls which would make it
impracticable for such Credit Extension to be denominated in the relevant Alternative
Currency as determined in its reasonable discretion by (i) the Administrative Agent, (ii)
the Required Revolving Lenders (in the case of any Revolving Loans to be denominated in an
Alternative Currency), (iii) Lenders (other than Defaulting Lenders) holding in the
aggregate at least a majority of the Outstanding Amount of the Domestic Term Loan (in the
case of any portion of the Domestic Term Loan to be denominated in an Alternative Currency),
(iv) Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of
the Outstanding Amount of the Foreign Term Loan (in the case of any portion of the Foreign
Term Loan to be denominated in an Alternative Currency), (v) the Domestic Swing Line Lender
(in the case of any Domestic Swing Line Loans to be denominated in an Alternative Currency),
(vi) the Australian Swing Line Lender (in the case of any Australian Swing Line Loan), (vii)
the Danish Swing Line Lender (in the case of any Danish Swing Line Loan), (viii) the
applicable International Swing Line Lender (in the case of any International Swing Line
Loan) or (ix) the applicable L/C Issuer (in the case of any Letter of Credit to be
denominated in an Alternative Currency).



     Each Request for Credit Extension (other than a request to (i) convert a Eurocurrency Rate
Loan denominated in US Dollars to a Base Rate Loan or (ii) continue a Eurocurrency Rate Loan
denominated in Alternative Currency for an Interest Period of one month) submitted by a Borrower
shall be deemed to be a representation and warranty that the conditions specified in Sections
5.02(a) and (b) have been satisfied on and as of the date of the applicable Credit
Extension.



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     The Lenders holding the Term Loans agree that (i) no waiver or amendment of any condition set
forth in Section 5.02 as to any Revolving Loan, Swing Line Loan or L/C Credit Extension
shall be effective without the written consent of the Required Revolving Lenders and (ii) no waiver
of any Default and no amendment of Section 9.01 shall be effective for purposes of
Section 5.02 as to any Revolving Loan, Swing Line Loan or L/C Credit Extension without the
written consent of the Required Revolving Lenders.



ARTICLE VI




REPRESENTATIONS AND WARRANTIES




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



6.01 Existence, Qualification and Power.




     (a) Each Loan Party (i) is duly organized, formed or incorporated, validly existing and, as
applicable, in good standing under the Laws of the jurisdiction of its incorporation or
organization, and (ii) has all requisite power and authority and all requisite governmental
licenses, authorizations, consents and approvals to execute, deliver and perform its obligations
under the Loan Documents to which it is a party.



     (b) The Parent and each Subsidiary (i) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to own or lease its assets and carry
on its business and (ii) is duly qualified and is licensed and, as applicable, in good standing
under the Laws of each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each case referred to in
clause (i) or (ii), to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.



6.02 Authorization; No Contravention.




     The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party have been duly authorized by all necessary corporate or other organizational
action, and do not (a) contravene the terms of any of such Person’s Organization Documents; (b)
conflict in any material respect with or result in any breach or contravention of, or the creation
of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which
such Person is a party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Person or its property is subject; or (c) violate any Law applicable
to any Loan Party.



6.03 Governmental Authorization; Other Consents.




     No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document other than (i) those that have already been obtained and are in full force
and effect and (ii) filings to perfect the Liens created by the Collateral Documents.



6.04 Binding Effect.




     Each Loan Document has been duly executed and delivered by each Loan Party that is party
thereto. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party
that is



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party thereto, enforceable against each such Loan Party in accordance with its terms,
except to the extent that such enforceability may be limited under Debtor Relief Laws or by general
principles of equity. Each Loan Party benefits by entering into the Loan Documents to
which it is a party.



6.05 Financial Statements; No Material Adverse Effect.




     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present the financial condition of the Parent and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or contingent, of the Parent and
its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and
Indebtedness.



     (b) The Interim Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present the financial condition of the Parent and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the Parent and its
Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and
Indebtedness.



     (c) To the knowledge of the Loan Parties, the audited consolidated balance sheet of Bright
Denmark Telecom and its Subsidiaries for the fiscal year ended September 30, 2006, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows of Bright
Denmark Telecom and its Subsidiaries for such fiscal year, including the notes thereto, (i) were
prepared in accordance with international financial reporting standards as adopted by the European
Union consistently consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (ii) fairly present the financial condition of Dangaard and its
Subsidiaries as of the date thereof and their results of operations for the period covered thereby
in accordance with international financial reporting standards as adopted by the European Union
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein.



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



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



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



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6.06 Litigation.




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



6.07 No Default.




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



     (b) No Default has occurred and is continuing.



6.08 Ownership of Property, Liens.




     Each of the Parent and its Subsidiaries has good record and marketable title in fee simple to,
or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not reasonably be expected to have a Material
Adverse Effect. The property of the Parent and its Restricted Subsidiaries is not subject to any
Liens other than Permitted Liens.



6.09 Environmental Compliance.



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




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



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



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



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



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



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



6.10 Insurance.




     The properties of the Parent and its Restricted Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Parent, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Parent or the applicable
Subsidiary operates. The insurance coverage of the Loan Parties as in effect on the Closing Date
is outlined as to carrier, policy number, expiration date, type, amount and deductibles on
Schedule 6.10.



6.11 Taxes.




     The Parent and its Restricted Subsidiaries have filed all federal, state and other material
tax returns and reports required to be filed, and have paid all federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate reserves have
been provided in accordance with GAAP. There is no written proposed tax assessment against the
Parent or any Subsidiary that would, if made, have a Material Adverse Effect. Neither the Parent
nor any Subsidiary is party to any tax sharing agreement.



6.12 ERISA Compliance.




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



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



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     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) no Loan Party or any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party or any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) no
Loan Party or any ERISA Affiliate has engaged in a transaction that could be subject to Section
4069 or 4212(c) of ERISA.



6.13 Subsidiaries.




     Set forth on Schedule 6.13 is a complete and accurate list as of the Closing Date of
each Subsidiary, together with (i) jurisdiction of organization, (ii) number of shares of each
class of Equity Interests outstanding, (iii) number and percentage of outstanding shares of each
class owned (directly or indirectly) by the Parent or any Subsidiary and (iv) a designation of
whether such Subsidiary is a Restricted Subsidiary. The outstanding Equity Interests of each
Subsidiary that are pledged as Collateral under the Collateral Documents are validly issued, fully
paid and non-assessable.



6.14 Margin Regulations; Investment Company Act.




     (a) No Borrower is engaged or will engage, principally or as one of its important activities,
in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued
by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following
the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more
than 25% of the value of the assets (either of the applicable Borrower only or of the Parent and
its Subsidiaries on a consolidated basis) subject to the provisions of Section 8.01 or
Section 8.05 or subject to any restriction contained in any agreement or instrument between
any Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the
scope of Section 9.01(e) will be margin stock.



     (b) None of the Parent or any Subsidiary is or is required to be registered as an “investment
company” under the Investment Company Act of 1940 and no Request for Credit Extension shall be made
by any Borrower if the making by the applicable Lenders or the applicable L/C Issuer of the
requested Credit Extension would be in contravention of the Investment Company Act of 1940.



6.15 Disclosure.




     No report, financial statement, certificate or other written information furnished by or on
behalf of any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or
under any other Loan Document (in each case, as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with
respect to projected financial information, the Loan Parties represent only that such
information was prepared in good faith based upon assumptions believed by the Loan Parties to be
reasonable at the time such projected financial information was prepared, it being understood that
projections are only estimates of future performance and actual results may vary from projections.



6.16 Compliance with Laws.




     The Parent and each Subsidiary is in compliance with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties, except in such
instances in which (a)



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such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or (b) the failure to
comply therewith could not reasonably be expected to have a Material Adverse Effect. No
Loan Party has any immunity from the jurisdiction of a court or from legal process.



6.17 Intellectual Property; Licenses, Etc.




     The Parent and its Restricted Subsidiaries own, or possess the legal right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses
and other intellectual property rights (collectively, “IP Rights”) that are reasonably
necessary for the operation of their respective businesses. Set forth on Schedule 6.17 is
a list of all IP Rights that are owned by any Loan Party, or that any Loan Party has the legal
right to use, as of the Closing Date. Except for such claims and infringements that could not
reasonably be expected to have a Material Adverse Effect, no claim has been asserted in writing and
is pending by any Person challenging or questioning the use of any such IP Rights or the validity
or effectiveness of any such IP Rights, and, to the knowledge of the Responsible Officers of the
Loan Parties, the use of any such IP Rights by the Parent or any Subsidiary or the granting of a
right or a license in respect of any IP Rights from the Parent or any Subsidiary does not infringe
on the rights of any Person.



6.18
Solvency.




     The Loan Parties are Solvent on a consolidated basis.



6.19
Business Locations; Taxpayer Identification Number.




     (a) Set forth on Schedule 6.19(a) is a list of all real property that is owned or
leased by any Loan Party as of the Closing Date together with an identification of which Loan Party
owns or leases such real property and whether such real property is owned or leased.



     (b) Set forth on Schedule 6.19(b) is a list of all locations (other than those
locations identified on Schedule 6.19(a)) where any tangible personal property of any Loan
Party is located as of the Closing Date together with an identification of which Loan Party
maintains tangible personal property at such location.



     (c) Set forth on Schedule 6.19(c) is the chief executive office location of each Loan
Party as of the Closing Date.



     (d) Set forth on Schedule 6.19(d) is the U.S. tax payer identification number and
organizational identification number of each Domestic Loan Party as of the Closing Date.



     (e) The exact legal name and jurisdiction of formation of each Loan Party is as of the Closing
Date as set forth on the signature pages hereto.



     (f) Except as set forth on Schedule 6.19(f), no Loan Party has during the five years
preceding the Closing Date (i) changed its legal name, (ii) changed its jurisdiction of formation
or (iii) been party to a merger, consolidation or other change in structure.



6.20 Labor Matters.




     (a) As of the Closing Date, there are no collective bargaining agreements or Multiemployer
Plans covering the employees of the Parent or any Restricted Subsidiary.



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     (b) Neither the Parent nor any Restricted Subsidiary has suffered any strikes, walkouts, work
stoppages or other material labor difficulty within the five years preceding the Closing Date.



6.21 Works Council.




     Bright Netherlands has given any works council (ondernemingsraad) that under the Works Council
Act (Wet op de ondernemingsraden) has the right to give advice in relation to the entry into and
performance of this Agreement, the opportunity to give such advice and has obtained unconditional
positive advice from such works council.



ARTICLE VII




AFFIRMATIVE COVENANTS




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



7.01 Financial Statements.




     Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative
Agent:




     (a) as soon as available, but in any event within ninety days after the end of each
fiscal year of the Parent (or such earlier date the Parent may be required to file its
annual financial statements on Form 10-K with the SEC), a consolidated balance sheet of the
Parent and its Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied
by a report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Administrative Agent, which report and
opinion shall be prepared in accordance with generally accepted auditing standards and
applicable Securities Laws and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit
(other than any qualification as to scope resulting solely from a new accounting
pronouncement) or with respect to the absence of any material misstatement;




     (b) as soon as available, but in any event within forty-five days after the end of each
of the first three fiscal quarters of each fiscal year of the Parent (or such earlier date
the Parent may be required to file its quarterly financial statements on Form 10-Q with the
SEC), a consolidated and consolidating balance sheet of the Parent and its Subsidiaries as
at the end of such fiscal quarter, and the related consolidated and consolidating statements
of income or operations and cash flows for such fiscal quarter and for the portion of the
Parent’s fiscal year
then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, all in reasonable detail and certified by the chief or principle
executive officer, chief financial officer, treasurer or controller of the Parent as fairly
presenting the financial condition, results of operations and cash flows of the Parent and
its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments
and the absence of footnotes; and




     (c) as soon as available, but in any event within ninety days after the end of each
fiscal year of the Parent, an unaudited consolidating balance sheet of the Parent and its



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Subsidiaries as at the end of such fiscal year, and the related unaudited consolidating
statement of profit and loss for such fiscal year, all in reasonable detail and certified by
the chief or principle executive officer, chief financial officer, treasurer or controller
of the Parent as fairly presenting the financial condition and results of operations of the
Parent and its Subsidiaries in accordance with GAAP, subject only to the absence of
footnotes.




As to any information contained in materials furnished pursuant to Section 7.02(e),
the Parent shall not be separately required to furnish such information under clause (a) or
(b) above, but the foregoing shall not be in derogation of the obligation of the Parent to
furnish the information and materials described in clauses (a) and (b) above at the times
specified therein.



7.02 Certificates; Other Information.





     Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative
Agent:




     (a) concurrently with the delivery of the financial statements referred to in
Section 7.01(a), a certificate of the accounting firm certifying such financial
statements and stating that in making the examination necessary therefor no knowledge was
obtained of any Default under the financial covenants set forth herein or, if any such
Default shall exist, stating the nature and status of such event;




     (b) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by
the chief or principle executive officer, chief financial officer, treasurer or controller
of the Parent;




     (c) concurrently with the delivery of the financial statements referred to in
Section 7.01(b) and within forty-five days after the end of the fourth
fiscal quarter of each fiscal year of the Parent, a certificate from a Responsible Officer
of the Parent containing the information set forth on Exhibit 7.02(c) with respect
to certain types of property acquired by any Foreign Loan Party since the date of the prior
certificate (or, in the case of the first certificate, since the Closing Date), as such
Exhibit may be updated from time to time by the Administrative Agent by notice to the
Parent;




     (d) no later than 60 days after the commencement of each fiscal year of the Parent, an
annual business plan and budget of the Parent and its Subsidiaries containing, among other
things, forecasted financial statements for each quarter of such fiscal year;




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




     (f) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a report signed by a Responsible Officer of the Parent
that supplements Schedule 6.17, such that, as supplemented, such Schedule
would be to be accurate and complete as of such date;




     (g) if requested by the Administrative Agent, copies of the Parent’s written response
to any management letters or recommendations submitted to the board of directors (or the
audit



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committee of the board of directors) of the Parent by independent accountants in
connection with the accounts or books of the Parent or any Subsidiary, or any audit of any
of them;




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




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



     Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(e) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Parent posts such documents, or provides a link thereto on
the Parent’s website on the Internet at the website address listed on Schedule 11.02; or
(ii) on which such documents are posted on the Parent’s behalf on an Internet or intranet website,
if any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided that: (i)
the Parent shall deliver paper copies of such documents to the Administrative Agent or any Lender
that requests the Parent to deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender and (ii) the Parent shall notify
the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any
such documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every
instance the Parent shall be required to provide paper copies of the Compliance Certificates
required by Section 7.02(b) to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Parent with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of such documents.



     The Parent hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders and the L/C Issuers materials and/or information provided by or on
behalf of the Parent hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b)
certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to any Borrower or its securities) (each, a
“Public Lender”). The Parent hereby agrees that (w) all Borrower Materials that are to be
made available to Public Lenders shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Parent shall
be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the
Lenders to treat such Borrower Materials as not containing any material non-public information with
respect to the Parent or its securities for purposes of United States federal and state securities
laws (provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 11.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated as “Public Investor;” and (z) the Administrative Agent and the Arrangers shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for
posting



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on a portion of the Platform not marked as “Public Investor.” Notwithstanding the
foregoing, the Parent shall not be under any obligation to mark any Borrower Materials “PUBLIC.”



7.03
Notices.




     Promptly following its knowledge thereof, notify the Administrative Agent of the following:




     (a) the occurrence of any Default;




     (b) any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect;




     (c) the occurrence of any ERISA Event; and




     (d) any material change in accounting policies or financial reporting practices by the
Parent or any Subsidiary.



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



7.04 Payment of Obligations.




     Pay and discharge, as the same shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon
it or its properties or assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by the Parent or such Restricted Subsidiary; and (b) all lawful claims which, if unpaid, would by
law become a Lien (other than a Permitted Lien) upon its property.



7.05 Preservation of Existence, Etc.




     (a) Preserve, renew and maintain in full force and effect its legal existence except in a
transaction permitted by Section 8.04 or 8.05.



     (b) Preserve, renew and maintain in full force and effect its good standing (to the extent
applicable) under the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 8.04 or 8.05.



     (c) Take all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except to the extent that
the failure to do so could not reasonably be expected to have a Material Adverse Effect.



     (d) Preserve or renew all of its material registered patents, copyrights, trademarks, trade
names and service marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.



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7.06 Maintenance of Properties.




     (a) Maintain, preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear and tear excepted.



     (b) Make all necessary repairs thereto and renewals and replacements thereof, except where the
failure to do so could not reasonably be expected to have a Material Adverse Effect.



     (c) Use the standard of care typical in the industry in the operation and maintenance of its
facilities.



7.07 Maintenance of Insurance.




     (a) Maintain in full force and effect insurance with financially sound and reputable insurance
companies not Affiliates of the Parent, in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and owning similar
properties in localities where the Parent or the applicable Restricted Subsidiary operates.



     (b) Cause the Administrative Agent to be named as loss payee or mortgagee, as its interest may
appear, and/or additional insured with respect to any such insurance providing coverage in respect
of any Collateral, and cause each provider of any such insurance to agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished to the Administrative
Agent, that it will endeavour to give the Administrative Agent thirty (30) days prior written
notice before any such policy or policies shall be altered or canceled.



7.08 Compliance with Laws.




     Comply with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.



7.09 Books and Records.




     (a) Maintain proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Parent or such Restricted Subsidiary, as the case may be.



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



7.10 Inspection Rights.




     (a) Permit representatives of the Administrative Agent to visit and inspect any of the
properties of the Parent or any Subsidiary, to examine (and make copies thereof or abstracts
therefrom) any of the corporate, financial and operating records of the Parent or any Subsidiary,
and to discuss the affairs, finances and accounts of the Parent or any Subsidiary with such
Person’s chief executive officer and chief financial officer and, in the presence of either such
officer, its independent public accountants, at such reasonable times during normal business hours
(other than at any time during the ten (10) day



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period which precedes and follows the end of each
fiscal quarter of the Parent) and as often as may be reasonably desired, upon reasonable advance
notice to the Parent; provided, however, that when an Event of Default exists the
Administrative Agent (or any of its representatives) may do any of the foregoing at any time during
normal business hours and without advance notice. The Loan Parties shall reimburse the
Administrative Agent for the reasonable out-of-pocket and documented expenses (including the per
diem fees of its representatives) for up to two (2) such visits and inspections in any fiscal year,
provided that if when an Event of Default exists the Loan Parties shall reimburse the
Administrative Agent and the Lenders for the expenses of all such visits and inspections. If any
Lender so requests, such Lender and its representatives shall be permitted, at the expense of such
Lender, to accompany the Administrative Agent on any such visits and inspections.




     (b) If requested by the Administrative Agent in its sole discretion, (i) permit the
Administrative Agent, and its representatives, upon reasonable advance notice to the Parent, to
conduct an audit of the Collateral at the expense of the Parent, and (ii) promptly deliver to the
Administrative Agent (A) asset appraisal reports with respect to all of the property of the Parent
and its Subsidiaries and (B) a written audit of the accounts receivable, inventory, payables,
controls and systems of the Parent and its Subsidiaries; provided that the Administrative
Agent shall not be permitted to request any of the foregoing items more than once per calendar year
and three times during the term of this Agreement.



     (c) Following the occurrence and during the existence of any Event of Default, upon the
reasonable written request of the Administrative Agent if any event or the discovery of any
condition which the Administrative Agent or the Required Lenders reasonably believe has caused (or
could be reasonably expected to cause) the representations and warranties set forth in Section
6.09 to be untrue in any material respect, furnish or cause to be furnished to the
Administrative Agent, at the Loan Parties’ expense, a report of an environmental assessment of
reasonable scope, form and depth, (including, where appropriate, invasive soil or groundwater
sampling) by a consultant reasonably acceptable to the Administrative Agent as to the nature and
extent of the presence of any Hazardous Materials on any Facilities and as to the compliance by the
Loan Parties with Environmental Laws at any Facilities. If the Loan Parties fail to deliver such
an environmental report within seventy-five (75) days after receipt of such written request then
the Administrative Agent may arrange for the same, and the Loan Parties hereby grant to the
Administrative Agent and its representatives access to the Real Properties to reasonably undertake
such an assessment (including, where appropriate, invasive soil or groundwater sampling). The
reasonable and documented cost of any assessment arranged for by the Administrative Agent pursuant
to this provision will be payable by the Loan Parties on demand and added to the obligations
secured by the Collateral Documents.



7.11 Use of Proceeds.




     Use the proceeds of the Credit Extensions solely to (a) refinance certain existing
Indebtedness and (b) finance working capital, capital expenditures and other lawful corporate
purposes (including, without limitation, the financing of any Permitted Acquisition) of the Parent
and its Subsidiaries, provided that in no event shall the proceeds of the Credit Extensions
be used in contravention of any Law or of any Loan Document.



7.12 Additional Guarantors.




     (a) Concurrent with the acquisition of any Material Domestic Subsidiary and within thirty (30)
days after any Domestic Subsidiary that is not a Domestic Loan Party becomes a Material Domestic
Subsidiary:




     (i) notify the Administrative Agent thereof in writing, together with the (A)
jurisdiction of organization, (B) number of shares of each class of Equity Interests
outstanding, and



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(C) number and percentage of outstanding shares of each class owned
(directly or indirectly) by the Parent or any Subsidiary; and




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



     (b) Concurrent with the acquisition of any Material Foreign Subsidiary and within thirty (30)
days (or such later date as the Administrative Agent may agree in writing) after any Foreign
Subsidiary that is not a Foreign Loan Party becomes a Material Foreign Subsidiary:




     (i) notify the Administrative Agent thereof in writing, together with the (A)
jurisdiction of organization, (B) number of shares of each class of Equity Interests
outstanding, and (C) number and percentage of outstanding shares of each class owned
(directly or indirectly) by the Parent or any Subsidiary; and




     (ii) cause such Foreign Subsidiary (other than any SPV) to (A) guaranty the Foreign
Obligations by executing and delivering to the Administrative Agent a guaranty agreement or
such other documents as the Administrative Agent shall deem appropriate for such purpose,
and (B) upon the request of the Administrative Agent in its sole discretion, deliver to the
Administrative Agent such Organization Documents, resolutions and favorable opinions of
counsel, all in form, content and scope reasonably satisfactory to the Administrative Agent.



     Notwithstanding the foregoing, if it is unlawful for a Material Foreign Subsidiary to become a
Foreign Guarantor or if becoming a Foreign Guarantor would result in personal liability to the
directors or other management of the Parent or any Subsidiary, such Material Foreign Subsidiary
shall not be required to become a Foreign Guarantor. However, as soon as practicable, the Parent
and its Subsidiaries shall take any reasonable steps available to them to avoid any such
unlawfulness or personal liability (including by complying with any procedure under any law such as
under section 208(1)(a) or section 260B of the Corporations Act (Commonwealth of Australia) or by
agreeing to a limit on the amount guaranteed). Before taking any steps, the Loan Parties must
obtain the consent of the Administrative Agent.



     If any Foreign Subsidiary becomes a Foreign Guarantor pursuant to this Section 7.12(b)
but at any time thereafter is no longer a Material Foreign Subsidiary, such Foreign Subsidiary may,
upon written notice to the Administrative Agent, elect to terminate its guarantee; provided
that if such Foreign Subsidiary at any time thereafter becomes a Material Foreign Subsidiary it
shall be required to comply with Section 7.12(b).



     (c) If any Subsidiary that is not a Guarantor provides a Guarantee in respect of any
Subordinated Indebtedness issued by, or Guaranteed by, any Loan Party, such Subsidiary shall,
concurrent
with providing the Guarantee in respect of such Subordinated Indebtedness, (i) provide a Guarantee
of such Loan Party’s obligations under the Loan Documents by executing and delivering to the
Administrative Agent a guaranty agreement or such other documents as the Administrative Agent shall
deem appropriate for such purpose, and (ii) upon the request of the Administrative Agent in its
sole discretion, deliver to the Administrative Agent such Organization Documents, resolutions and
favorable opinions of counsel, all in form, content and scope reasonably satisfactory to the
Administrative Agent.



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     (d) Any Subsidiary that becomes a Guarantor pursuant to this Section 7.12 shall, upon
request of any Lender, deliver to such Lender such know your customer (KYC) information that such
Lender is required to obtain under applicable Laws.



7.13 ERISA Compliance.




     Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each
Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal
Revenue Code and other federal or state law; (b) cause each Plan that is qualified under Section
401(a) of the Internal Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Internal Revenue Code.



7.14 Pledged Assets.




     Subject to Section 7.15:



     (a) Equity Interests.




     (i) Cause (A) 100% of the issued and outstanding Equity Interests of each Material
Domestic Subsidiary and (B) 66% (or such greater percentage that, due to a change in an
applicable Law after the date hereof, (1) could not reasonably be expected to cause the
undistributed earnings of such Foreign Subsidiary as determined for United States federal
income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s United
States parent and (2) could not reasonably be expected to cause any material adverse tax
consequences) of the issued and outstanding Equity Interests entitled to vote (within the
meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity
Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in
each First Tier Foreign Subsidiary (other than any SPV and any Excluded First Tier Foreign
Subsidiary) to be subject at all times to a first priority, perfected Lien in favor of the
Administrative Agent pursuant to the Collateral Documents or such other additional security
documents as the Administrative Agent shall reasonably request to secure the Obligations
(including the Foreign Obligations);




     (ii) If requested by the Administrative Agent, cause 100% of the issued and outstanding
Equity Interests of each Foreign Loan Party to be subject at all times to a first priority,
perfected Lien in favor of the Administrative Agent pursuant to the Collateral Documents or
such other additional security documents as the Administrative Agent shall reasonably
request to secure the Foreign Obligations; and




     (iii) In connection with the foregoing clauses (i) and (ii), deliver such other
documentation as the Administrative Agent may reasonably request in connection with the
foregoing, including, without limitation, opinions of counsel and any filings and deliveries
reasonably necessary in connection therewith to perfect the security interests therein, all
in form, content and scope reasonably satisfactory to the Administrative Agent.



     (b) Other Property.




     (i) Cause all of the owned and leased real and personal property (other than Excluded
Property) of the Loan Parties to be subject at all times to first priority, perfected and,
in the case of real property (whether leased or owned), title insured Liens in favor of the
Administrative Agent to secure, in the case of each Domestic Loan Party, the Obligations
(including the Foreign Obligations), and in the case of each Foreign Loan Party, the Foreign



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Obligations, in each case pursuant to the Collateral Documents or, with respect to any such
property acquired subsequent to the Closing Date, such other additional security documents
as the Administrative Agent shall reasonably request, subject in any case to Permitted
Liens; provided that with respect to any personal property (other than Excluded
Property) acquired by any Foreign Loan Party after the date such Foreign Loan Party becomes
a party hereto, the Loan Parties shall be required to cause such personal property to be
subject at all times to such first priority, perfected Liens within thirty (30) days (or
such later date as the Administrative Agent may agree in writing) after delivery of the
information with respect to such personal property pursuant to Section 7.02(c); and




     (ii) Deliver such other documentation as the Administrative Agent may reasonably
request in connection with the foregoing, including, without limitation, appropriate UCC-1
financing statements, real estate title insurance policies, surveys, environmental reports,
landlord’s waivers, certified resolutions and other organizational and authorizing documents
of such Person and opinions of counsel to such Person, all in form, content and scope
reasonably satisfactory to the Administrative Agent.



     7.15 Post-Closing Matters.



     Within ninety (90) days (or such later date as the Administrative Agent may agree in writing)
after the First Amendment Effective Date, (i) cause 66% of the issued and outstanding Equity
Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of
the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) in Brightpoint Denmark Telecom to be subject at all times to a first
priority, perfected Lien in favor of the Administrative Agent pursuant to the Collateral Documents
or such other additional security documents as the Administrative Agent shall reasonably request to
secure the Obligations (including the Foreign Obligations); (ii) cause the remaining 34% of the
issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)(2)) in Brightpoint Denmark Telecom to be subject at
all times to a first priority, perfected Lien in favor of the Administrative Agent pursuant to the
Collateral Documents or such other additional security documents as the Administrative Agent shall
reasonably request to secure the Foreign Obligations; and (iii) deliver such other documentation as
the Administrative Agent may reasonably request in connection with the foregoing, including,
without limitation, opinions of counsel and any filings and deliveries reasonably necessary in
connection therewith to perfect the security interests therein, all in form, content and scope
reasonably satisfactory to the Administrative Agent.



ARTICLE VIII




NEGATIVE COVENANTS




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



8.01 Liens.




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




     (a) Liens pursuant to any Loan Document;



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     (b) Liens existing on the Closing Date and listed on Schedule 8.01 and any
renewals or extensions thereof, provided that (A) the property covered thereby is
not changed, (B) the amount secured or benefited thereby is not increased except as
contemplated by Section 8.03(b), (C) the direct or any contingent obligor with
respect thereto is not changed, and (D) any renewal or extension of the obligations secured
or benefited thereby is permitted by Section 8.03(b);




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




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




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




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




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




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




     (i) Liens securing Indebtedness permitted under Section 8.03(e);
provided that (i) such Liens do not at any time encumber any property other than the
property financed by such
Indebtedness and (ii) such Liens attach to such property concurrently with or within
ninety days after the acquisition thereof;




     (j) leases or subleases granted to others not interfering in any material respect with
the business of the Parent or any of its Subsidiaries;




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




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




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     (m) normal and customary rights of setoff upon deposits of cash in favor of banks
or other depository institutions;




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




     (o) Liens created or deemed to exist in connection with any Permitted Securitization
Transaction, but only to the extent that any such Lien relates to the Permitted
Securitization Property actually sold, contributed or otherwise conveyed pursuant to such
Permitted Securitization Transaction;




     (p) Liens created or deemed to exist in connection with any Permitted Factoring
Transaction, but only to the extent that any such Lien relates to the Permitted Factoring
Property actually sold, contributed or otherwise conveyed pursuant to such Permitted
Factoring Transaction; and




     (q) Liens on the property of Foreign Subsidiaries securing Foreign Subsidiary Debt (or
any effective but unused commitments for Foreign Subsidiary Debt), provided that if
such Foreign Subsidiary is a Foreign Borrower then each lender holding such Foreign
Subsidiary Debt (or commitments) (other than any lender holding Indebtedness under the
Bright India Loan Documents) shall have entered into an intercreditor agreement with the
Administrative Agent subordinating such lender’s Liens to the Liens arising under the Loan
Documents on terms and conditions
set forth in Exhibit 2.17(c)-3
(with such changes thereto as the Administrative Agent may agree).




	8.02	 	Investments.





     Make any Investments, except:




     (a) Investments in the form of cash or Cash Equivalents;




(b) (i) Investments existing as of the Closing Date and, with respect to all
Investments existing on January 31, 2007, set forth in Schedule 8.02;




     (ii) Investments of Brightpoint Denmark Telecom existing as of the First
Amendment Effective Date and set forth in Schedule 8.02-2;




     (c) Permitted Intercompany Investments;




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




     (e) Guarantees permitted by Section 8.03, provided that any payment on
such Guarantee shall be deemed an Investment in the other Person that is the primary obligor
on the Indebtedness which is the subject of such Guarantee and such Investment shall not be
permitted by this clause (e);




     (f) the Columbo Acquisition;



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     (g) Permitted Acquisitions;




     (h) loans and advances to employees in the ordinary course of business and consistent
with past practices;




     (i) Investments received as consideration for a Disposition permitted under Section
8.05;




     (j) Investments by a Foreign Subsidiary in a SPV in connection with a Permitted
Securitization Transaction consisting of (i) deemed capital contributions made in connection
with the sale of Permitted Securitization Property to a SPV and (ii) to the extent required
as a condition precedent to such Permitted Securitization Transaction, Investments in an
aggregate amount not to exceed US$7.5 million;




     (k) the book entry of an Investment made prior to the Closing Date (which shall not be
accompanied by the transfer of any property);




     (l) Guarantees of (i) operating leases of the Parent or any Subsidiary, (ii) trade
accounts payable of a Subsidiary incurred in the ordinary course of business, (iii) the
payment and/or performance by a Subsidiary of obligations under logistics services
contracts, and (iv) the purchase by a Subsidiary of non-stock product or service;




     (m) the book transfer (from a Foreign Subsidiary to another Foreign Subsidiary) of a
receivable arising from an intercompany transaction; and




     (n) Investments not permitted by the foregoing clauses in an amount not to exceed US$15
million in the aggregate at any time outstanding, provided that this clause (n)
shall not be available for (i) Acquisitions and (ii) Investments by the Parent or any
Domestic Subsidiary in any Foreign Subsidiary.




	8.03	 	Indebtedness.





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




     (a) Credit Obligations arising under the Loan Documents;




(b) (i) Indebtedness of the Parent and its Subsidiaries existing on the Closing Date
and set forth in Schedule 8.03 and renewals, refinancings and extensions
thereof; provided that (A) the amount of such Indebtedness is not increased
at the time of such renewal, refinancing or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection therewith such refinancing and by an amount equal to any
existing commitments unutilized thereunder and (B) the terms of any such renewal,
refinancing or extension are no less favorable in any material respect to the Parent
and its Subsidiaries than the terms of the Indebtedness being renewed, refinanced or
extended;




     (ii) Indebtedness of Brightpoint Denmark Telecom and its Subsidiaries existing
on the First Amendment Effective Date and set forth in Schedule 8.03-2 and
renewals, refinancings and extensions thereof; provided that (A) the amount
of such Indebtedness is not increased at the time of such renewal, refinancing or
extension except by an amount



111









 







equal to a reasonable premium or other reasonable
amount paid, and fees and expenses
reasonably incurred, in connection therewith such refinancing and by an amount equal
to any existing commitments unutilized thereunder and (B) the terms of any such
renewal, refinancing or extension are no less favorable in any material respect to
the Parent and its Subsidiaries than the terms of the Indebtedness being renewed,
refinanced or extended;




     (c) intercompany Indebtedness permitted under Section 8.02;




     (d) obligations (contingent or otherwise) of the Parent or any Subsidiary existing or
arising under any Swap Contract, provided that such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments, investments, assets, or property
held or reasonably anticipated by such Person, or changes in the value of securities issued
by such Person, and not for purposes of speculation or taking a “market view”;




(e) (i) purchase money Indebtedness hereafter incurred by the Parent or any of its
Subsidiaries to finance the purchase of inventory entered into in the ordinary
course of business and consistent with past practices and renewals of the Loan
Parties, refinancings and extensions thereof, provided that such
Indebtedness when incurred shall not exceed the purchase price of the property
financed;




     (ii) purchase money Indebtedness (including obligations in respect of Capital
Leases and Synthetic Leases) hereafter incurred by the Parent or any of its
Subsidiaries to finance the purchase of fixed assets (other than real property), and
renewals, refinancings and extensions thereof, provided that (A) the
aggregate amount of payments of principal and interest made in connection therewith
in any fiscal year shall not exceed US$5 million and (B) such Indebtedness when
incurred shall not exceed the purchase price of the property financed;




     (iii) purchase money Indebtedness (including obligations in respect of Capital
Leases and Synthetic Leases) hereafter incurred by the Parent or any of its
Subsidiaries to finance the purchase of real property, and renewals, refinancings
and extensions thereof, provided that (A) the aggregate amount of payments
of principal and interest made in connection therewith in any fiscal year shall not
exceed US$7 million and (B) such Indebtedness when incurred shall not exceed the
purchase price of the property financed;




     (iv) purchase money Indebtedness (including obligations in respect of Capital
Leases and Synthetic Leases) hereafter incurred by the Parent or any of its
Subsidiaries in respect of Sale and Leaseback Transactions, provided that
such Sale and Leaseback Transactions are permitted by Section 8.15;




(f) (i) Indebtedness owing by Foreign Subsidiaries, provided that the
aggregate outstanding principal amount of all such Indebtedness shall not at any
time exceed the sum of (A) US$50 million plus (B) at any time prior to
October 15, 2007, €32.5 million outstanding under the credit facilities provided to
Bright Denmark Telecom and certain of its Subsidiaries by Fortis minus (C)
at any time after the date six months following the Closing Date, the Dollar
Equivalent of the amount by which the Attributable Indebtedness of Permitted
Recourse Factoring Transactions at such time exceeds €20 million;



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     (ii) Indebtedness owing by Foreign Subsidiaries formed under the Laws of, or
carrying on business in, India (including Indebtedness under the Bright India Loan Documents provided that such Indebtedness is subject to the Bright India
Intercreditor Agreement), provided that the aggregate outstanding principal
amount of all such Indebtedness shall not at any time exceed US$20 million;




     (g) Subordinated Indebtedness incurred by the Parent and/or any Subsidiary,
provided that the Parent shall have delivered to the Administrative Agent a Pro
Forma Compliance Certificate demonstrating that, upon giving effect to the incurrence of
such Subordinated Indebtedness on a Pro Forma Basis, the Loan Parties would be in compliance
with the financial covenants set forth in Section 8.11 as of the most recent fiscal
quarter end for which the Loan Parties were required to deliver financial statements
pursuant to Section 7.01(a) or (b);




     (h) customary indemnity and similar obligations arising under purchase agreements
entered into connection with Acquisitions;




     (i) Indebtedness owing with respect to money judgments which do not violate the terms
of Section 9.01(h);




     (j) Indebtedness of Foreign Subsidiaries (other than Foreign Borrowers) arising under
Receivables Financings, provided that (i) the Receivables Financing Amount shall not exceed
US$250 million at any time and (ii) the Attributed Indebtedness of all Permitted Recourse
Factoring Transactions shall not exceed €55 million in the aggregate at any time;




     (k) Indebtedness of the Parent and its Domestic Subsidiaries not permitted by the
foregoing clauses in an amount not to exceed US$5 million in the aggregate at any time
outstanding; and




     (l) Guarantees with respect to Indebtedness permitted under this Section 8.03,
provided that (i) if any Domestic Loan Party provides a Guarantee with respect to
Foreign Subsidiary Debt (other than any Indebtedness under the Bright India Loan Documents
and any Indebtedness outstanding on the Closing Date), such Guarantee shall be expressly
subordinated to the Obligations in a manner and to an extent reasonably satisfactory to the
Administrative Agent and (ii) neither the Parent nor any Domestic Subsidiary shall be
permitted to provide Guarantees with respect to any Indebtedness arising under Permitted
Securitization Transactions or Permitted Factoring Transactions.



     Notwithstanding anything to the contrary in this Section 8.03 or otherwise, no SPV
shall contract, create, incur, assume or permit to exist any Indebtedness other than Indebtedness
existing from time to time under a Permitted Securitization Transaction.




	8.04	 	Fundamental Changes.





     Merge, dissolve, liquidate or consolidate, with or into another Person, except that so long as
no Default exists or would result therefrom: (a) the Parent may merge or consolidate with any
Subsidiary provided that the Parent is the continuing or surviving Person; (b) any
Domestic Subsidiary may merge or consolidate with any other Subsidiary provided that (i) if
a Domestic Borrower is a party thereto, a Domestic Borrower shall be the continuing or surviving
Person, (ii) if a Domestic Borrower is not a party thereto and a Domestic Guarantor is a party
thereto, then a Domestic Guarantor shall be the continuing or surviving Person and (iii) if a
Domestic Loan Party is not a party thereto, then a Domestic Subsidiary shall be the continuing or
surviving Person; (c) any Foreign Subsidiary may merge or consolidate with any other Foreign
Subsidiary



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provided that (i) if a Foreign Borrower is a party thereto, such Foreign
Borrower shall be the continuing or surviving Person and (ii) if a Foreign Borrower is not a party
thereto and a Foreign Guarantor is a party thereto, then a Foreign Guarantor shall be the continuing or surviving Person; (d) Bright
Netherlands may merge or consolidate with a Subsidiary established by the Parent to carry on the
business and operations of Bright Netherlands provided that (i) the Parent provides the
Administrative Agent with not less than twenty (20) days prior written notice thereof and (ii) such
Subsidiary is a Foreign Borrower; (e) subject to clause (a) above, the Parent or any Subsidiary may
merge with any other Person in connection with an Acquisition; and (f) any Subsidiary (other than
any Borrower) may dissolve, liquidate or wind up its affairs at any time provided that such
dissolution, liquidation or winding up, as applicable, could not have a Material Adverse Effect.




	8.05	 	Dispositions.





     Make, or permit any Subsidiary to make, any Disposition other than:



     (a) any Disposition of Discontinued Operations Property, provided that (i) at least
fifty percent (50%) of the aggregate consideration paid in connection with all such Dispositions in
any fiscal year shall be cash or Cash Equivalents paid contemporaneous with consummation of the
transaction and (ii) the aggregate value of all consideration shall be in an amount not less than
the fair and adequate value of the property disposed of;



     (b) Permitted Factoring Transactions, provided (i) one hundred percent (100%) of the
consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneous
with consummation of the transaction (other than any portion of the consideration that is held back
by the purchaser) and (ii) the Receivables Financing Amount shall not exceed US$250 million at any
time;



     (c) any other Disposition so long as (i) if such Disposition is made by the Parent, any
Domestic Subsidiary or any Foreign Loan Party, at least seventy-five percent (75%) of the aggregate
consideration paid in connection with all such Dispositions in any fiscal year shall be cash or
Cash Equivalents paid contemporaneous with consummation of the transaction and the aggregate value
of all consideration shall be in an amount not less than the fair and adequate value of the
property disposed of, (ii) such transaction does not involve the sale or other disposition of a
minority equity interest in any Subsidiary, (iii) such transaction does not involve a sale or other
disposition of receivables other than receivables owned by or attributable to other property
concurrently being disposed of in a transaction otherwise permitted under this Section 8.05
and (iv) the aggregate net book value of all of the property sold or otherwise disposed of in all
such transactions in any fiscal year of the Parent shall not exceed US$10 million.




	8.06	 	Restricted Payments.





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




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




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




     (iii) the Parent may declare and make Restricted Payments so long as (A) no Default
then exists or would exist after giving effect to such Restricted Payment and (B) the Parent
shall



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have delivered to the Administrative Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such Restricted Payment (and the incurrence of any
Funded Indebtedness in connection therewith) on a Pro Forma Basis, (1) the Loan Parties would be in
compliance with the financial covenants set forth in Section 8.11 as of the most
recent fiscal quarter end for which the Loan Parties were required to deliver financial
statements pursuant to Section 7.01(a) or (b) and (2) the Consolidated
Leverage Ratio as of the most recent fiscal quarter end for which the Loan Parties were
required to deliver financial statements pursuant to Section 7.01(a) or (b)
would not exceed the Maximum Pro Forma Consolidated Leverage Ratio as of such fiscal quarter
end.



     (b) With regard to Bright Australia, reduce its capital or pass any resolution referred to in
section 254N(1) of the Corporations Act (Commonwealth of Australia).




	8.07	 	Change in Nature of Business.





     Engage in any material line of business substantially different from those lines of business
conducted by the Parent and its Subsidiaries on the Closing Date or any business reasonably
related, ancillary or incidental thereto (in each case without regard to geographical location),
other than such portion of a line of business acquired pursuant to an Acquisition, the property in
respect of which constitutes Discontinued Operations Property.




	8.08	 	Transactions with Affiliates and Insiders.





     Enter into or permit to exist any transaction or series of transactions with any officer,
director or Affiliate of such Person other than (a) transactions existing on the Closing Date and
described on Schedule 8.08, (b) intercompany transactions expressly permitted by
Section 8.02, Section 8.03, Section 8.04, Section 8.05 or
Section 8.06, (c) normal and reasonable compensation and reimbursement of expenses of
officers and directors and (d) except as otherwise specifically limited in this Agreement, other
transactions which are entered into in the ordinary course of such Person’s business on terms and
conditions substantially as favorable to such Person as would be obtainable by it in a comparable
arms-length transaction with a Person other than an officer, director or Affiliate.




	8.09	 	Burdensome Agreements.





     Enter into or permit to exist any Contractual Obligation that (a) encumbers or restricts the
ability of any such Person to (i) make Restricted Payments to any Loan Party, (ii) pay any
Indebtedness or other obligation owed to any Loan Party, (iii) make loans or advances to any Loan
Party, (iv) transfer any of its property to any Loan Party, (v) pledge its property pursuant to the
Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof or (vi)
act as a Loan Party pursuant to the Loan Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters referred to in clauses
(i)-(v) above) for (1) this Agreement and the other Loan Documents, (2) any document or instrument
governing Indebtedness incurred pursuant to Section 8.03(e), provided that any such
restriction contained therein relates only to the asset or assets constructed or acquired in
connection therewith, (3) any Permitted Lien or any document or instrument governing any Permitted
Lien, provided that any such restriction contained therein relates only to the asset or
assets subject to such Permitted Lien, (4) customary restrictions and conditions contained in any
agreement relating to the sale of any property permitted under Section 8.05 pending the
consummation of such sale, (5) the Subordinated Indebtedness Documents, (6) the documents,
agreements and instruments governing the Foreign Subsidiary Debt, provided that any such
restriction contained therein relates only to the Foreign Subsidiaries liable for such Foreign
Subsidiary Debt, (7) the Bright Indian Loan Facility Documents provided that any such restriction
contained therein relates only to Bright India and its Subsidiaries and (8) any document or
instrument governing any Permitted Securitization Transaction or



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Permitted Factoring Transaction,
provided that any such restriction relates only to the applicable accounts receivable
actually sold, conveyed or otherwise contributed pursuant to such Permitted Securitization Transaction or such Permitted Factoring Transaction, or (b) requires the grant of any security
for any obligation if such property is given as security for the Obligations.




	8.10	 	Use of Proceeds.





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




	8.11	 	Financial Covenants.





     (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end
of any fiscal quarter of the Parent to be greater than (a) 3.50:1.0 as of the end of the fiscal
quarters ending March 31, 2007, June 30, 2007, September 30, 2007, December 31, 2007, March 31,
2008 and June 30, 2008 and (iii) 3.0:1.0 for the fiscal quarter ending September 30, 2008 and each
fiscal quarter ending thereafter.



     (b) Consolidated Current Ratio. Permit the Consolidated Current Ratio as of the end
of any fiscal quarter of the Parent to be less than 1.1:1.0.



     (c) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Parent to be less than 4.0:1.0.




	8.12	 	Subordinated Indebtedness; Bright India Loan Facility.





     (a) Subordinated Indebtedness.




     (i) Amend or modify any of the terms of any Subordinated Indebtedness issued by, or
Guaranteed by, any Loan Party if such amendment or modification would add or change any
terms in a manner materially adverse to such Loan Party (including, without limitation, any
amendment or modification that would shorten the final maturity or average life to maturity
or require any payment to be made sooner than originally scheduled or increase the interest
rate applicable thereto).




     (ii) Make (or give any notice with respect thereto) any voluntary or optional payment
or prepayment or redemption or acquisition for value of (including without limitation, by
way of depositing money or securities with the trustee with respect thereto before due for
the purpose of paying when due), or refund, refinance or exchange of, any Subordinated
Indebtedness issued by, or Guaranteed by, any Loan Party.




     (iii) Make any payment in contravention of the subordination provisions of any
Subordinated Indebtedness.




     (iv) Amend or modify the subordination provisions of any Subordinated Indebtedness.



     (b) Bright India Loan Facility.




     (i) Amend or modify any of the terms of any Indebtedness under the Bright India Loan
Documents in a manner not permitted by the Bright India Intercreditor Agreement.



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     (ii) Permit any Domestic Loan Party to make any payment on its Guarantee of any
Indebtedness under the Bright India Loan Documents unless (A) no Event of Default then
exists or would exist after giving effect to such payment (it being understood that such
payment shall be an Investment in Bright India by the Domestic Loan Party making such
payment and such Investment must be permitted under Section 8.02) and (B) the Parent
shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such payment (and the incurrence of any Funded
Indebtedness in connection therewith) on a Pro Forma Basis, the Loan Parties would be in
compliance with the financial covenants set forth in Section 8.11 as of the most
recent fiscal quarter end for which the Loan Parties were required to deliver financial
statements pursuant to Section 7.01(a) or (b).




     (iii) If any Domestic Loan Party is permitted to make any payment on its Guarantee of
any Indebtedness under the Bright India Loan Documents pursuant to clause (ii) above, and
the Bright India Lender makes a demand on such Guarantee, then such Domestic Loan Party
shall make payment on such Guarantee solely to the extent it is permitted to do so under
clause (ii) above.




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





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



     (b) Change its fiscal year (provided that each of Bright Denmark Telecom and its Subsidiaries
may change its fiscal year to December 31).



     (c) Without providing prior written notice to the Administrative Agent, change its name, state
of formation or form of organization.




	8.14	 	Ownership of Subsidiaries.





     Notwithstanding any other provisions of this Agreement to the contrary, (a) permit any Person
(other than the Parent or any Wholly Owned Subsidiary of the Parent) to own any Equity Interests of
any Subsidiary, except (i) to qualify directors where required by applicable law or to satisfy
other requirements of applicable law with respect to the ownership of Equity Interests of Foreign
Subsidiaries and (ii) as set forth on Schedule 6.13 with respect to Brightpoint Zimbabwe
(Private) Limited or (b) permit any Subsidiary that is directly owned by a Domestic Loan Party to
issue or have outstanding any shares of preferred Equity Interests.




	8.15	 	Sale Leasebacks.





     Permit the aggregate amount of payments made by the Parent and its Subsidiaries in respect of
Sale and Leaseback Transactions to exceed US$3 million in any fiscal year.



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ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES





	9.01	 	Events of Default.





     Any of the following shall constitute an Event of Default:




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




     (b) Specific Covenants.




     (i) Any Loan Party fails to perform or observe any term, covenant or agreement
contained in any of Section 7.01, 7.02, 7.03(b) or
7.03(c) and such failure continues for five days or




     (ii) Any Loan Party fails to perform or observe any term, covenant or agreement
contained in any of Section 7.03(a), 7.10, 7.11 or
Article VIII; or




     (c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for thirty days;
or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of any Loan Party
herein, in any other Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect when made or deemed made;
or




     (e) Cross-Default. (i) The Parent or any Restricted Subsidiary fails to make
any payment when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) in respect of any Material Indebtedness or any Subordinated
Indebtedness that does not constitute Material Indebtedness; (ii) the Parent or any
Restricted Subsidiary fails to observe or perform any other agreement or condition relating
to any Material Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Material Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, with the giving of
notice if required, such Material Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity; (iii) the Parent or any Restricted Subsidiary fails to observe or perform any
other agreement or condition relating to any Subordinated Indebtedness that does not
constitute Material Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default or
other event is to cause such Subordinated Indebtedness to be demanded or to become due or to
be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Subordinated Indebtedness to be made, prior to
its stated maturity; or (iv) there occurs under any Swap Contract an Early Termination Date
(as defined in such Swap Contract)



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resulting from (A) any event of default under such Swap
Contract as to which the Parent or any Restricted Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap
Contract as to which the Parent or any Restricted Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by the Parent or such
Restricted Subsidiary as a result thereof is greater than the Threshold Amount; or




     (f) Insolvency Proceedings, Etc. The Parent or any Restricted Subsidiary
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, provisional
liquidator, administrator, administrative receiver, compulsory manager, controller or
similar officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of such Person and the appointment continues undischarged
or unstayed for sixty calendar days; or any proceeding under any Debtor Relief Law relating
to any such Person or to all or any material part of its property is instituted without the
consent of such Person and continues undismissed or unstayed for sixty calendar days, or an
order for relief is entered in any such proceeding; or any corporate action, legal
proceedings or other procedure or step is taken in relation to the suspension of payments, a
moratorium of any indebtedness, winding up, dissolution, administration or reorganisation
(by way of voluntary arrangement, scheme of arrangement or otherwise); or




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




     (h) Judgments. There is entered against the Parent or any Restricted
Subsidiary (i) one or more final judgments or orders for the payment of money in an
aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the
extent not covered by independent third-party insurance as to which the insurer has been
notified of the claim and does not dispute coverage), or (ii) any one or more non-monetary
final judgments that have, or could reasonably be expected to have a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor upon such
judgment or order, or (B) there is a period of ten consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
or




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




     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason (other than (i) as expressly permitted hereunder
or thereunder, (ii) as may be expressly agreed after the Closing Date by the Required
Lenders or (iii) upon satisfaction in full of all the Credit Obligations), ceases to be in
full force and effect; or any



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Loan Party or any other Person Controlled by the Parent
contests in any manner the validity or enforceability of any Loan Document; or any Loan
Party denies that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or




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




     (l) Subordinated Indebtedness. The subordination provisions in the
documentation for any Subordinated Indebtedness shall, in whole or in part, terminate, cease
to be effective or cease to be legally valid, binding and enforceable against any holder of such
Subordinated Indebtedness; or




     (m) Intercreditor Agreements. Any Intercreditor Agreement, at any time after
its execution and delivery and for any reason other than as expressly permitted hereunder or
the satisfaction in full of all Obligations, ceases to be in full force and effect or is
determined by any Governmental Authority or arbitral entity having jurisdiction to be void,
unenforceable or otherwise not in full force and effect, in whole or in part, for any
reason.




	9.02	 	Remedies Upon Event of Default.





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




     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C
Issuers to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;




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




     (c) require that each Borrower Cash Collateralize the L/C Obligations relating to each
Letter of Credit issued for the account of such Borrower (or a Subsidiary of such Borrower)
in an amount equal to the then Outstanding Amount thereof; and




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


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Domestic Borrower under the Bankruptcy Code of the United
States or any Foreign Borrower under applicable Debtor Relief Laws, the obligation of each Lender
to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of each
Borrower to Cash Collateralize the L/C Obligations relating to each Letter of Credit issued for the
account of such Borrower (or a Subsidiary of such Borrower) as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any Lender.




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	9.03	 	Application of Funds.





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



     (a) any amounts received from the Domestic Loan Parties or in respect of proceeds of any
Collateral belonging to the Domestic Loan Parties on account of the Obligations (collectively, the
“Domestic Collateral Proceeds”) shall be applied in the following order:




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




     Second, to payment of that portion of the Obligations constituting (a) fees,
indemnities and other amounts (other than principal, interest and Letter of Credit Fees)
payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of
counsel to the respective Lenders and the respective L/C Issuers and amounts payable under
Article III) and (b) fees, indemnities and other amounts (other than principal,
interest and fees) payable to the Bright India Lender, ratably among them in proportion to
the respective amounts described in this clause Second payable to them;




     Third, to payment of that portion of the Obligations constituting (a) accrued
and unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings, (b) fees,
premiums and scheduled periodic payments, and any interest accrued thereon, due under any
Swap Contract between the Parent or any Subsidiary and any Secured Swap Provider to the
extent such Swap Contract is permitted by Section 8.03(d), and (c) accrued and
unpaid interest on the Bright India Loans, ratably among the Lenders (and, in the case of
such Swap Contracts, Secured Swap Providers), the applicable L/C Issuer(s) and the Bright
India Lender in proportion to the respective amounts described in this clause Third
held by them;




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




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



     provided that the Administrative Agent shall have the right, with the consent of the
Required Lenders, to allocate any portion of the Domestic Collateral Proceeds to the payment of the
Obligations or



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to the payment of the Foreign Obligations (and any such allocation shall be applied
consistent with the waterfall set forth in Clauses FIRST through LAST above);



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



     (b) any amounts received from any Foreign Loan Party or in respect of proceeds of any
Collateral belonging to any Foreign Loan Party on account of the Foreign Obligations shall be
applied in the following order:




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




     Second, to payment of that portion of the Foreign Obligations constituting
fees, indemnities and other amounts (other than principal, interest and Letter of Credit
Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements
of counsel to the respective Lenders and the respective L/C Issuers and amounts payable
under Article III), ratably among them in proportion to the respective amounts
described in this clause Second payable to them;




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




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




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



     provided that subject to Section 2.03(c), amounts used to Cash Collateralize
the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all



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Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Foreign Obligations, if any, in the order set
forth above.




	9.04	 	CAM Exchange.





     (a) On the CAM Exchange Date, the Lenders shall automatically and without further action be
deemed to have exchanged interests in the Specified Obligations under the Tranches (and
participation interests in Letters of Credit and Swing Line Loans) such that, in lieu of the
interest of each Lender in the Specified Obligations under each Tranche in which it shall
participate as of such date (including the principal, reimbursement, interest and fee obligations of each Loan Party in respect of each
such Tranche) and, if such Lender holds a Revolving Commitment as of such date, such Lender’s
participation interests in Letters of Credit and Swing Line Loans, such Lender shall own an
interest equal to such Lender’s CAM Exchange Percentage in the Specified Obligations under each of
the Tranches (including the principal, reimbursement, interest and fee obligations of each Loan
Party in respect of each such Tranche) and hold a participation interest in each Letter of Credit
and Swing Line Loan equal to its CAM Exchange Percentage thereof. Each Lender, each Participant,
each Loan Party and the Administrative Agent hereby consents and agrees to the CAM Exchange. Each
Lender and each Loan Party hereby agrees from time to time to execute and deliver to the
Administrative Agent all such instruments and documents as the Administrative Agent shall
reasonably request to evidence and confirm the respective interests and obligations of the Lenders
after giving effect to the CAM Exchange; provided, however, that the failure of any
Loan Party to execute and deliver or of any Lender to accept any such instrument or document shall
not affect the validity or effectiveness of the CAM Exchange. On the CAM Exchange Date, each
Lender whose funded Exposures after giving effect to the CAM Exchange shall exceed its funded
Exposures before giving effect thereto shall pay to the Administrative Agent the amount of such
excess in the applicable currency or currencies (or, if requested by the Administrative Agent, in
US Dollars), and the Administrative Agent shall pay to each of the Lenders, out of the amount so
received by it, the amount by which such Lender’s funded Exposures before giving effect to the CAM
Exchange exceeds such funded Exposures after giving effect to the CAM Exchange.



     (b) Each Lender’s obligation to exchange its interests pursuant to the CAM Exchange shall be
absolute and unconditional and shall not be affected by any circumstance including, without
limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may
have against any other Lender, any Loan Party or any other Person for any reason whatsoever, (ii)
the occurrence or continuance of a Default, (iii) any adverse change in the condition (financial or
otherwise) of the Parent or any Subsidiary or any other Person, (iv) any breach of this Agreement
by any Loan Party, any Lender or any other Person, or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.



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ARTICLE X




ADMINISTRATIVE AGENT





	10.01	 	Appointment and Authority.





     Each of the Lenders and the L/C Issuers hereby irrevocably appoints Bank of America to act on
its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the L/C Issuers, and no Loan Party shall have
rights as a third party beneficiary of any of such provisions.



     The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if
applicable) and a L/C Issuer (if applicable)) hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of (and to hold any security interest created by the
Collateral Documents which is expressed to be governed by any law other than German law for and on
behalf of or on trust for and to enter into any “Parallel Debt” as defined in the Collateral
Documents governed by Dutch law or as defined in the German Parallel Debt Agreement) such Lender
and such L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on
Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. Except as expressly
provided in the previous sentence, and without limiting or affecting the German Parallel Debt
Agreement, each of the Lenders (in its capacities as a Lender, Swing Line Lender (if applicable)
and a L/C Issuer (if applicable)) hereby irrevocably appoints and authorizes the Administrative
Agent to act as security agent (“Security Agent”) under and in connection with the
Collateral Documents governed by German law and this Agreement. With respect to any Collateral
Document governed by German law, each of the Lenders (in its capacities as a Lender, Swing Line
Lender (if applicable) and a L/C Issuer (if applicable)) hereby irrevocably authorises the Security
Agent to exercise the rights, powers, authorities and discretions specifically given to it under or
in connection with such Collateral Documents and this Agreement together with any other incidental
rights, powers, authorities and discretions.



     In this connection, the Administrative Agent, as “collateral agent” or “security agent” and
any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to
Section 10.05 for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies
thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all
provisions of this Article X and Article XI (including Section 11.04(c), as
though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan
Documents) as if set forth in full herein with respect thereto.




	10.02	 	Rights as a Lender.





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



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	10.03	 	Exculpatory Provisions.





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




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




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




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



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Parent, a Lender or a L/C Issuer.



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




	10.04	 	Reliance by Administrative Agent.





     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In



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




	10.05	 	Delegation of Duties.





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




	10.06	 	Resignation of Administrative Agent.





     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuers and the Parent. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Parent, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C
Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Parent and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (a) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on behalf of the
Lenders or the L/C Issuers under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such collateral security until such time as a successor Administrative Agent is
appointed) and (b) all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer
directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Parent to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Parent and such successor.
After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents,
the provisions of this Article and Section 11.04 shall continue in effect for the benefit
of such retiring Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.



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




	10.07	 	Non-Reliance on Administrative Agent and Other Lenders.





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




	10.08	 	No Other Duties; Etc.





     Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers,
syndication agents, documentation agents or co-agents shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent, a Lender or a L/C Issuer hereunder.



10.09 Administrative Agent May File Proofs of Claim.



     In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the
principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on any Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise:




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations arising under
the Loan Documents that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the
Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders, the applicable
L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j),
2.12 and 11.04) allowed in such judicial proceeding; and



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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make
such payments to the Administrative Agent and, if the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.12 and 11.04.




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




	10.10	 	Collateral and Guaranty Matters.





     The Lenders and the L/C Issuers irrevocably authorize the Administrative Agent, at its option
and in its discretion,




     (a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Revolving Commitments,
payment in full of all Credit Obligations (other than contingent indemnification
obligations) and all other Obligations that the Administrative Agent has been notified in
writing by the holder of such Obligation that such Obligation is then due and payable and
the expiration or termination of all Letters of Credit, (ii) that is transferred or to be
transferred as part of or in connection with any Disposition permitted hereunder or under
any other Loan Document or any Involuntary Disposition, or (iii) as approved in accordance
with Section 11.01;




     (b) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by Section 8.01(i);




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




     (d) to enter into and perform its obligations under the Intercreditor Agreements.




Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in
particular types or items of property, or to release any Guarantor from its obligations
under the Guaranty, pursuant to this Section 10.10.




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ARTICLE XI




MISCELLANEOUS




11.01 Amendments, Etc.




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



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




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




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




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




     (iv) change Section 2.16 or Section 9.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of each Lender
directly affected thereby;




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




     (vi) release all or substantially all of the Collateral without the written consent of
each Lender the Credit Obligations owing to which are secured by such Collateral;




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



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     (viii) release any Borrower or, except in connection with a transaction permitted under
Section 8.04 or Section 8.05, all or substantially all of the value of the
Guaranty without the written consent of each Lender the Credit Obligations owing to which
are guarantied thereby; or



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



     (c) unless also signed by the Domestic Swing Line Lender, no amendment, waiver or consent
shall affect the rights or duties of the Domestic Swing Line Lender under this Agreement;



     (d) unless also signed by the Australian Swing Line Lender, no amendment, waiver or consent
shall affect the rights or duties of the Australian Swing Line Lender under this Agreement;



     (e) unless also signed by the Danish Swing Line Lender, no amendment, waiver or consent shall
affect the rights or duties of the Danish Swing Line Lender under this Agreement;



     (f) unless also signed by any International Swing Line Lender, no amendment, waiver or consent
shall affect the rights or duties of such International Swing Line Lender under this Agreement;



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


provided, however, that notwithstanding anything to the contrary herein, (i) each
Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by
the parties thereto, (ii) no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be
increased or extended without the consent of such Lender, (iii) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender
acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States
supersedes the unanimous consent provisions set forth herein and (iv) the Required Lenders shall
determine whether or not to allow a Loan Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders.




11.02 Notices; Effectiveness; Electronic Communications.




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




     (i) if to a Loan Party, the Administrative Agent, a L/C Issuer, the Domestic Swing Line
Lender, the Australian Swing Line Lender or the Danish Swing Line Lender, to the address,
telecopier number, electronic mail address or telephone number specified for such Person on
Schedule 11.02; and



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     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire (or, in the case of an
International Swing Line Lender, specified in the applicable International Swing Line
Facility Notice).



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



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



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



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



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     (d) Change of Address, Etc. Each of the Loan Parties, the Administrative Agent, the
L/C Issuers and the Swing Line Lenders may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the Parent, the Administrative Agent, the L/C Issuers and the Swing Line
Lenders. In addition, each Lender agrees to notify the Administrative Agent from time to time to
ensure that the Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.



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



11.03 No Waiver; Cumulative Remedies.




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



11.04 Expenses; Indemnity; and Damage Waiver.




     (a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent),
in connection with the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the other Loan Documents
or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and
documented out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent,
any Lender or any L/C Issuer (including the reasonable and documented fees, charges and
disbursements of any outside counsel for the Administrative Agent, any Lender or any L/C Issuer) in
connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in connection with
the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.



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     (b) Indemnification by the Loan Parties. The Domestic Loan Parties and, subject to
clause (e) below, the Foreign Borrowers, shall indemnify the Administrative Agent (and any
sub-agent thereof), each Lender and each L/C Issuer, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses (including the
fees, charges and disbursements of any counsel for any Indemnitee) (collectively, the
“Indemnified Liabilities”) incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by any Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or
Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any
L/C Issuer to honor a demand for payment under a Letter of Credit issued by it if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Parent or any Subsidiary, or any Environmental Liability related
in any way to the Parent or any Subsidiary, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by any Loan Party, and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by any Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.



     (c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
them to the Administrative Agent (or any sub-agent thereof), any L/C Issuer or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or such L/C Issuer in its capacity as
such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.15(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through telecommunications, electronic
or other information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than



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for direct or actual damages resulting from the gross negligence or willful misconduct of such
Indemnitee as determined by a final and nonappealable judgment of a court of competent
jurisdiction.



     (e) Limitation On Indemnity by Foreign Borrowers. No Foreign Borrower shall be liable
for the Indemnified Liabilities incurred by the Parent or any Domestic Subsidiary.



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



     (g) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, a L/C Issuer, a Swing Line Lender, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of all the other
Obligations.



11.05 Payments Set Aside.




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



11.06 Successors and Assigns.




     (a) Successors and Assigns Generally. The provisions of this Agreement and the other
Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and
their respective successors and assigns permitted hereby, except that no Borrower may assign or
otherwise transfer any of its rights or obligations hereunder or thereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with
the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the L/C Issuers and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement and the other Loan
Documents (including all or a portion of its Commitment and the Loans (including for purposes of
this subsection (b),



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participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




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




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than US$5,000,000 in the case of an assignment of a Revolving Commitment (and the
related Revolving Loans thereunder) and US$1,000,000 in the case of an assignment of
either of the Term Loans unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Parent otherwise consents (each
such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single assignee (or to
an assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been met; and




     (C) the value of the rights assigned or transferred must at least be EUR 50,000
(or its equivalent in other currencies) or, if the value is lower, the assignee or
transferee qualifies as a professional market party under the terms of the Dutch
Financial Supervision Act (Wet op het Financieel Toezicht).




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s Loans and Commitments, and
rights and obligations with respect thereto, assigned, except that this clause (ii) shall
not (A) apply to any Swing Line Lender’s rights and obligations in respect of Swing Line
Loans or (B) prohibit any Lender from assigning all or a portion of its rights and
obligations in respect of its Revolving Commitment (and the related Revolving Loans
thereunder) and its outstanding Term Loans on a non-pro rata basis;




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




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




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(i) any Term Loan Commitment or Revolving Commitment if such assignment is to a
Person



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that is not a Lender with a Commitment in respect of the Commitment subject to such
assignment, an Affiliate of such Lender or an Approved Fund with respect to such
Lender or (ii) any Term Loan to a Person that is not a Lender, an Affiliate of a
Lender or an Approved Fund; and




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




     (D) the consent of the Domestic Swing Line Lender (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment in respect of
Revolving Loans and Revolving Commitments.




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




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




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




     (vii) No Assignment Resulting in Additional Indemnified Taxes. No such
assignment shall be made to any Person that, through its Lending Offices, is not capable of
lending the applicable Alternative Currencies to the relevant Borrowers without the
imposition of any additional Indemnified Taxes.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment).
Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (d) of
this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be



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



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Parent or any of the Parent’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrowers, the Administrative Agent, the other Lenders and the L/C Issuers shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other modification described in
clauses (i) through (viii) of the Section 11.01(a) that affects such Participant. Subject
to subsection (e) of this Section, each Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 11.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.16 as though it were a Lender.



     (e) Limitation on Participant Rights. A Participant shall not be entitled to receive
any greater payment under Section 3.01 or 3.04 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Parent’s prior written consent.
A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 unless the Parent is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 3.01(e) as though it were a Lender.



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



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



     (h) Resignation as L/C Issuer and Swing Line Lenders after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns
all of its Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon
thirty days’ notice to the



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Parent and the Lenders, resign as L/C Issuer and/or (ii) upon thirty days’ notice to the
Parent, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or a Swing
Line Lender, the Parent shall be entitled to appoint from among the Lenders a successor L/C Issuer
or Swing Line Lender, as the case may be; provided, however, that no failure by the
Parent to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer
or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall
retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to
all Letters of Credit issued by it and outstanding as of the effective date of its resignation as
L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of
the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right to require the
Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.04(c), 2.05(c), 2.06(c) or 2.07(c), as
applicable. Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (1) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (2) the successor L/C
Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such Letters of Credit.



11.07 Treatment of Certain Information; Confidentiality.




     Each of the Administrative Agent, the Lenders and the L/C Issuers agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, advisors and representatives and to any direct or indirect contractual
counterparty (or such contractual counterparty’s professional advisor) under any Swap Contract
relating to Loans outstanding under this Agreement (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory authority, such as
the National Association of Insurance Commissioners), (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to a Loan Party and its obligations, (g) with the consent of the Parent or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than the Parent.



     For purposes of this Section, “Information” means all information received from a Loan
Party or any Subsidiary relating to the Loan Parties or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by such Loan Party or any
Subsidiary, provided that, in the case of information received from a Loan Party or any
Subsidiary after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its



138









 







obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



     Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the
Information may include material non-public information concerning the Parent or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including Federal and state securities Laws.



11.08 Set-off.




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



11.09 Interest Rate Limitation.




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



11.10 Counterparts; Integration; Effectiveness.




     This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of



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this Agreement by telecopy shall be effective as delivery of a manually executed counterpart
of this Agreement.



11.11 Survival of Representations and Warranties.




     All representations and warranties made hereunder and in any other Loan Document or other
document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery hereof and thereof. Such representations and warranties have been or
will be relied upon by the Administrative Agent and each Lender, regardless of any investigation
made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of
any Credit Extension, and shall continue in full force and effect as long as any Loan or any other
Credit Obligation shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.



11.12 Severability.




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



11.13 Replacement of Lenders.




     If (i) any Lender requests compensation under Section 3.04, (ii) any Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 3.01, (iii) a Lender (a “Non-Consenting Lender”)
does not consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document that has been approved by the Required Lenders as provided in Section 11.01 but
requires unanimous consent of all Lenders or all Lenders directly affected thereby (as applicable)
and, or (iv) any Lender is a Defaulting Lender, then the Parent may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 11.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that:




     (a) the Parent shall have paid to the Administrative Agent the assignment fee specified
in Section 11.06(b);




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the applicable Borrower(s) (in the case of all
other amounts);




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



140









 






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




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



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



11.14 Governing Law; Jurisdiction; Etc.




     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



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



     (c) WAIVER OF VENUE. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



141









 





     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



11.15 Waiver of Right to Trial by Jury.




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



11.16 No Advisory or Fiduciary Responsibility; Disclosure to Accountants.




     (a) In connection with all aspects of each transaction contemplated hereby, the Loan Parties
each acknowledge and agree that: (i) the credit facilities provided for hereunder and any related
arranging or other services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial
transaction between the Loan Parties and their respective Affiliates, on the one hand, and the
Administrative Agent and the Arrangers, on the other hand, and each of the Loan Parties is capable
of evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver
or other modification hereof or thereof); (ii) in connection with the process leading to such
transaction, the Administrative Agent and the Arrangers each is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for the Loan Parties or any of
their respective Affiliates, stockholders, creditors or employees or any other Person; (iii)
neither the Administrative Agent nor the Arrangers has assumed or will assume an advisory, agency
or fiduciary responsibility in favor of any Loan Party with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect to any amendment, waiver
or other modification hereof or of any other Loan Document (irrespective of whether the
Administrative Agent or either of the Arrangers has advised or is currently advising any of the
Loan Parties or any of their respective Affiliates on other matters) and neither the Administrative
Agent nor either of the Arrangers has any obligation to any of the Loan Parties or any of their
respective Affiliates with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; (iv) the Administrative Agent and the
Arrangers and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Loan Parties and their respective Affiliates, and
neither the Administrative Agent nor either of the Arrangers has any obligation to disclose any of
such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the
Administrative Agent and the Arrangers have not provided and will not provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby
(including any amendment, waiver or other modification hereof or of any other Loan Document) and
each Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate. Each Loan Party hereby waives and releases, to the fullest extent



142









 







permitted by law, any claims that it may have against the Administrative Agent and the
Arrangers with respect to any breach or alleged breach of agency or fiduciary duty.



     (b) Each Loan Party represents that this Agreement and the transactions contemplated thereby
have been and shall be fully disclosed to its independent certified public accountants, and that
this Agreement and such transactions have been and will be properly accounted for and disclosed by
each Loan Party as required under GAAP and applicable disclosure laws.



11.17 USA PATRIOT Act Notice.




     Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of each Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower
in accordance with the Act.



11.18 Judgment Currency.




     If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due
hereunder or any other Loan Document in one currency into another currency, the rate of exchange
used shall be that at which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency on the Business Day preceding that on
which final judgment is given. The obligation of each Borrower in respect of any such sum due from
it to the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in
which such sum is denominated in accordance with the applicable provisions of this Agreement (the
“Agreement Currency”), be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less
than the sum originally due to the Administrative Agent from any Borrower in the Agreement
Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or the Person to whom such obligation was owing against such
loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due
to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount
of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable
law).



11.19 Intercreditor Agreements.




     Each Lender (including each Person that becomes a Lender after the date hereof pursuant to
Section 2.01(b) or Section 11.07) hereby authorizes and directs the Administrative
Agent to enter into each Intercreditor Agreement and each Lender agrees to be bound by the terms of
each Intercreditor Agreement.



11.20 Subordination of Intercompany Debt.




     With respect to any Indebtedness owing by any Domestic Loan Party (the “Maker”) to any
Foreign Loan Party (the “Holder”):



143









 





     (a) The Holder agrees that all obligations of the Maker in respect of the principal, interest,
fees and charges on any such Indebtedness (the “Subordinated Obligations”) shall be
subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth,
to all Obligations.



     (b) In the event that the Maker makes a general assignment for the benefit of creditors; or an
order, judgment or decree is entered adjudicating the Maker bankrupt or insolvent; or any order for
relief with respect to the Maker is entered under the Federal Bankruptcy Code; or the Maker
petitions or applies to any tribunal for the appointment of a custodian, trustee, receiver or
liquidator of the Maker or of any substantial part of the assets of the Maker, or commences any
proceeding relating to the Maker under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction; or any such petition or
application is filed, or any such proceeding is commenced, against the Maker (collectively referred
to as an “Insolvency Event”), or upon any acceleration of the Credit Obligations, then:




     (i) the holders of the Obligations shall be entitled to receive payment in full in cash
of all principal, premium, interest, fees, charges and other amounts then due on all
Obligations (including interest, fees, charges and other amounts accruing thereon after the
commencement of any such Insolvency Event at the rate provided in the documents relating to
such Obligations (irrespective of whether such interest, fees, charges or other amounts are
allowed as a claim in such proceedings)) before the Holder is entitled to receive any
payment of any kind or character on account of principal, interest or other amounts due (or
past due) upon the Subordinated Obligations, and the holders of the Obligations shall be
entitled to receive for application in payment thereof any payment or distribution of any
kind or character, whether in cash, property or securities or by set-off or otherwise, which
may be payable or deliverable in any such proceedings in respect of the Subordinated
Obligations; and




     (ii) any payment or distribution of assets of the Maker of any kind or character,
whether in cash, property or securities, to which the Holder would be entitled except for
the provisions of this Section 11.19 shall be paid or delivered by the Maker (or any
receiver or trustee in such proceedings) directly to the holders of the Obligations or their
duly appointed agents for application of payment to the Obligations until all Obligations
(including interest, fees, charges and other amounts accrued thereon after the date of
commencement of such proceedings at the rate provided in the documentation for such
Obligations (irrespective of whether such interest, fees, charges or other amounts are
allowed as a claim in such proceedings)) shall have been paid in full in cash.



     (c) In any proceedings with respect to any Insolvency Event, or the application of the assets
of the Maker to the payment or liquidation thereof; or upon the dissolution or other winding up of
the business of the Maker or upon the sale of all or substantially all of the assets of the Maker,
then, and in any such event, (i) each holder of the Obligations shall be entitled to receive full
and indefeasible payment and satisfaction in cash of the Obligations prior to the payment of all or
any part of the Subordinated Obligations by the Maker and (ii) any payment or distribution of any
kind or character from the Maker of its assets, whether in cash, securities or other property,
which shall be payable or deliverable upon or with respect to any or all of the Obligations, shall
be paid or delivered directly to holders of the Obligations for application to the Obligations, due
or not due, until the Obligations shall have first been fully and indefeasibly paid in cash and all
commitments to make extensions of credit under any documents related to the Obligations have
terminated. The Holder irrevocably authorizes, empowers and directs all receivers, trustees,
liquidators, custodians, conservators and others having authority in the premises to effect all
such payments and distributions. The Holder agrees not to initiate or prosecute or encourage any
other person to initiate or prosecute any claim, action or other proceeding challenging the
enforceability of the Obligations or any liens and security interests securing the Obligations.
The Holder



144









 







agrees to execute, verify, deliver and file any proofs of claim in respect of the Subordinated
Obligations in connection with any such proceeding, it being understood that the Holder retains its
right to vote such claims in any such proceeding. The Obligations shall continue to be treated as
Obligations and the provisions of this Section 11.19 shall continue to cover the relative
rights and priorities of the holders of the Obligations and the Holder even if all or part of the
Obligations or the security interests securing the Obligations are subordinated, set aside, avoided
or disallowed in connection with any such proceeding and this Section 11.19 shall be
reinstated if at any time any payment of any of the Obligations is rescinded or must otherwise be
returned by any holder of Obligations or any representative of such holder.



     (d) The Maker may make payments of the Subordinated Obligations so long as no Event of Default
has occurred and is continuing. During the existence of an Event of Default, no payment or
prepayment of the Subordinated Obligations (whether principal, interest or other amounts) shall be
made by or on behalf of the Maker.



     (e) If, notwithstanding the provisions of this Section 11.19, any payment or
distribution of any kind or character (whether in cash, securities or other property) or any
security shall be received by the Holder in contravention of this Section 11.19 and before
all the Obligations shall have been paid in full in cash and all commitments to make extensions of
credit under all documents relating to the Obligations have been terminated, such payment,
distribution or security shall be held in trust for the benefit of, and shall be immediately paid
over or delivered or transferred to, the Administrative Agent to be applied to the Obligations in
accordance with Section 9.03 until the Obligations has been paid in full in cash. Any such
payments received by the Holder and delivered to the holders of the Obligations shall be deemed not
to be a payment on the Subordinated Obligations for any reason whatsoever and the Subordinated
Obligations shall remain as if such erroneous payment had never been paid by the Maker or received
by the Holder. In the event of the failure of any Holder to endorse or assign any such payment,
distribution or security, each holder of any Obligations is hereby irrevocably authorized to
endorse or assign the same.



     (f) If any payment or distribution to which any Holder would otherwise have been entitled but
for the provisions of this Section 11.19 shall have been applied pursuant to the provisions
of this Section 11.19 to the payment of Obligations, then and in such case and to such
extent, the Holder (A) following payment in full of the Obligations in cash and termination of all
commitments to make extensions of credit under all documents relating to the Obligations, shall be
entitled to receive any and all further payments or distributions applicable to Obligations, and
(B) following payment in full of the Obligations in cash and termination of all commitments to make
extensions of credit under all documents relating to the Obligations, shall be subrogated to the
rights of the holders of the Obligations to receive distributions applicable to the Obligations, in
each case until the Subordinated Obligations shall have been paid in full in cash or such other
consideration acceptable to the Holder in its sole discretion.




145









 





Exhibit B




Exhibit 2.02




FORM OF LOAN NOTICE




Date:                     , 20     




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



Ladies and Gentlemen:



Reference is made to the Credit Agreement (as amended, modified and supplemented from time to time,
the “Credit Agreement”) dated as of February 16, 2007 among Brightpoint, Inc., an Indiana
corporation (the “Parent”), Brightpoint North America L.P., a Delaware limited partnership,
Brightpoint Philippines Limited, a British Virgin Islands company, Brightpoint Holdings B.V., a
Netherlands company, Brightpoint Australia Pty. Ltd., an Australian company, each other Subsidiary
of the Parent that becomes a Borrower thereunder, the Guarantors identified therein, the Lenders
identified therein and Bank of America, N.A., as Administrative Agent. Capitalized terms used but
not otherwise defined herein have the meanings provided in the Credit Agreement.



The undersigned hereby requests (select one):




o A Borrowing of Revolving Loans

o A Borrowing of Domestic Term Loan

o A Borrowing of Foreign Term Loan

o A conversion or continuation of o Revolving Loans o Domestic Term Loan o Foreign Term Loan



1.     On                      (a Business Day).

2.     In the amount of $                    .

3.     Applicable Currency:                                         .

4.     Comprised of                . [Type of Loan requested]

5.     For Eurocurrency Rate Loans: with an Interest Period of                 months.



With respect to any Borrowing or any conversion or continuation requested herein, the undersigned
Borrower hereby represents and warrants that (i) in the case of a Borrowing of Revolving Loans,
such request complies with the requirements of the proviso to the first sentence of Section
2.01(a) of the Credit Agreement and (ii) in the case of a Borrowing or any conversion or
continuation (other than a request to (A) convert a Eurocurrency Rate Loan denominated in US
Dollars to a Base Rate Loan or (B) continue a Eurocurrency Rate Loan denominated in Alternative
Currency for an Interest Period of one month), each of the conditions set forth in Section
5.02 of the Credit Agreement has been satisfied on and as of the date of such Borrowing or such
conversion or continuation.




	 	 	 	 	 
	 	[APPLICABLE BORROWER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 














 





Exhibit C




Exhibit 2.04




FORM OF DOMESTIC SWING LINE LOAN NOTICE




Date: __________, 20__





			
	To:	 	Bank of America, N.A., as Domestic Swing Line Lender






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






			
	Re:	 	Reference is made to the Credit Agreement (as amended, modified and
supplemented from time to time, the “Credit Agreement”) dated as of
February 16, 2007 among Brightpoint, Inc., an Indiana corporation (the
“Parent”), Brightpoint North America L.P., a Delaware limited
partnership, Brightpoint Philippines Limited, a British Virgin Islands
company, Brightpoint Holdings B.V., a Netherlands company, Brightpoint
Australia Pty. Ltd., an Australian company, each other Subsidiary of
the Parent that becomes a Borrower thereunder, the Guarantors
identified therein, the Lenders identified therein and Bank of
America, N.A., as Administrative Agent. Capitalized terms used but not
otherwise defined herein have the meanings provided in the Credit
Agreement.





Ladies and Gentlemen:




The undersigned hereby requests:





	 	o 	 	 A Borrowing of a Domestic Swing Line Loan
	 
	 	o 	 	 A continuation of a Domestic Swing Line Loan






	 	1.	 	On                                          (a Business Day).
	 
	 	2.	 	In the amount of $                                         .
	 
	 	3.	 	Applicable Currency:                                                             . [Must be US Dollars
unless Alternate Foreign Currency requested is not available for Revolving
Loans and is available for Domestic Swing Line Loans]
	 
	 	4.	 	Comprised of                     . [Type of Loan requested] [must be Base Rate
Loan if US Dollars and Eurocurrency Rate Loan if Alternative Currency]
	 
	 	5.	 	For Eurocurrency Rate Loans: with an Interest Period of                      months.




With respect to such Borrowing of Domestic Swing Line Loans, the undersigned Borrower hereby
represents and warrants that (i) such request complies with the requirements of the first proviso
to the first sentence of Section 2.04(a) of the Credit Agreement and (ii) each of the
conditions set forth in Section 5.02 of the Credit Agreement have been satisfied on and as
of the date of such Borrowing of Domestic Swing Line Loans.




[APPLICABLE BORROWER]




 









 








	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





Exhibit D




Exhibit 2.05




FORM OF AUSTRALIAN SWING LINE LOAN NOTICE



Date:                     , 200     





	To: 	 	Banc of America, N.A., Sydney Branch, as Australian Swing Line Lender
	 
	Cc: 	 	Bank of America, N.A., as Administrative Agent
	 
	Re: 	 	Reference is made to the Credit Agreement (as amended, modified and
supplemented from time to time, the “Credit Agreement”) dated as of
February 16, 2007 among Brightpoint, Inc., an Indiana corporation (the
“Parent”), Brightpoint North America L.P., a Delaware limited
partnership, Brightpoint Philippines Limited, a British Virgin Islands
company, Brightpoint Holdings B.V., a Netherlands company, Brightpoint
Australia Pty. Ltd., an Australian company (“Bright Australia”), each
other Subsidiary of the Parent that becomes a Borrower thereunder, the
Guarantors identified therein, the Lenders identified therein and Bank
of America, N.A., as Administrative Agent. Capitalized terms used but
not otherwise defined herein have the meanings provided in the Credit
Agreement.





Ladies and Gentlemen:




Bright Australia hereby requests a Borrowing of an Australian Swing Line Loan:





	 	1.	 	On                      (a Business Day).
	 
	 	2.	 	In the amount of AUS$                     (Australian Dollars).




With respect to such Borrowing of Australian Swing Line Loans, Bright Australia hereby represents
and warrants that (i) such request complies with the requirements of the first proviso to the first
sentence of Section 2.05(a) of the Credit Agreement and (ii) each of the conditions set
forth in Section 5.02 of the Credit Agreement have been satisfied on and as of the date of
such Borrowing of Australian Swing Line Loans.




	 	 	 	 	 
	 	BRIGHTPOINT AUSTRALIA PTY. LTD.,

an Australian company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 








Exhibit E




Exhibit 2.06




FORM OF DANISH SWING LINE LOAN NOTICE




Date:                     , 200     





	To: 	 	Banc of America Securities Limited, as Danish Swing Line Lender
	 
	Cc: 	 	Bank of America, N.A., as Administrative Agent
	 
	Re: 	 	Reference is made to the Credit Agreement (as amended, modified and
supplemented from time to time, the “Credit Agreement”) dated as of
February 16, 2007 among Brightpoint, Inc., an Indiana corporation (the
“Parent”), Brightpoint North America L.P., a Delaware limited
partnership, Brightpoint Philippines Limited, a British Virgin Islands
company, Brightpoint Holdings B.V., a Netherlands company, Brightpoint
Australia Pty. Ltd., an Australian company (“Bright Australia”), each
other Subsidiary of the Parent that becomes a Borrower thereunder, the
Guarantors identified therein, the Lenders identified therein and Bank
of America, N.A., as Administrative Agent. Capitalized terms used but
not otherwise defined herein have the meanings provided in the Credit
Agreement.





Ladies and Gentlemen:



The undersigned hereby requests a Borrowing of a Danish Swing Line Loan:





	 	1.	 	On                      (a Business Day).
	 
	 	2.	 	In the amount of [€][£]                    .
	 
	 	3.	 	Applicable Currency:                                         . [Must be Euros or
Sterling]




With respect to such Borrowing of Danish Swing Line Loans, the undersigned hereby represents and
warrants that (i) such request complies with the requirements of the first proviso to the first
sentence of Section 2.05(a) of the Credit Agreement and (ii) each of the conditions set
forth in Section 5.02 of the Credit Agreement have been satisfied on and as of the date of
such Borrowing of Danish Swing Line Loans.




	 	 	 	 	 
	 	[APPLICABLE DANISH BORROWER],

a Danish company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 








Exhibit F




Exhibit 2.12-2




FORM OF NOTE

[FOREIGN BORROWER]




                    , 20     





     FOR VALUE RECEIVED, BRIGHTPOINT PHILIPPINES LIMITED, a British Virgin Islands company,
BRIGHTPOINT HOLDINGS B.V., a Netherlands company, BRIGHTPOINT AUSTRALIA PTY LTD, an Australian
company, DANGAARD TELECOM ADMINISTRATION A/S, a Danish company, and DANGAARD TELECOM A/S, a Danish
company (collectively, the “Foreign Borrowers”), hereby jointly and severally promise to
pay to                                          or its registered assigns (the “Lender”), in accordance with
the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Loan
from time to time made by the Lender to any Foreign Borrower under the Credit Agreement (as
amended, modified, supplemented, increased and restated from time to time, the “Credit
Agreement”) dated as of February 16, 2007 among Brightpoint, Inc., an Indiana corporation,
Brightpoint North America L.P., a Delaware limited partnership, the Foreign Borrowers, each other
Subsidiary of the Parent that becomes a Borrower thereunder, the Guarantors party thereto, the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent.
Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit
Agreement.



     The Foreign Borrowers are jointly and severally liable for all Foreign Obligations as set
forth, and subject to the limitations, in Section 2.17 of the Credit Agreement.



     The Foreign Borrowers jointly and severally promise to pay interest on the unpaid principal
amount of each Loan made to any Foreign Borrower from the date of such Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in the Credit
Agreement. All payments of principal and interest shall be made to the Administrative Agent for
the account of the Lender (i) for Loans made in US Dollars, in US Dollars, and (ii) for Loans made
in an Alternative Currency, in such Alternative Currency, in each case in immediately available
funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder,
such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the
date of actual payment (and before as well as after judgment) computed at the per annum rate set
forth in the Credit Agreement.



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



     Each Foreign Borrower, for itself and its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this
Note.



 









 





     [This Note is given in amendment and restatement of, and substitution for, the Notes dated as
of February 16, 2007 given by each of BRIGHTPOINT PHILIPPINES LIMITED, a British Virgin Islands
company, BRIGHTPOINT HOLDINGS B.V., a Netherlands company, BRIGHTPOINT AUSTRALIA PTY LTD, an
Australian company, in favor of the Lender.]



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



[SIGNATURE PAGE FOLLOWS]





 









 





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




	 	 	 	 	 	 	 	 	 	 	 	 	 
	FOREIGN

BORROWERS:	 	BRIGHTPOINT PHILIPPINES LIMITED, a British Virgin Islands company	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	  
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Steven E. Fivel	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Director	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	BRIGHTPOINT HOLDINGS B.V., a Netherlands company	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	  
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Steven E. Fivel	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	  
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Fortis Intrust (Netherlands) B.V.
	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	DANGAARD TELECOM ADMINISTRATION A/S, a Danish company	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	  
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	DANGAARD TELECOM A/S, a Danish company	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	  
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
 
	 	 	 	 	 	 	 	 
	 	 	 	 	SIGNED by STEVEN E. FIVEL as	 	 	)	 	 	 
	 	 	 	 	attorney for BRIGHTPOINT	 	 	)	 	 	 
	 	 	 	 	AUSTRALIA PTY LTD under power	 	 	)	 	 	 
	 	 	 	 	of attorney dated February 16, 2007	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 	)	 	 	 
	 	 	 	 	in the presence of:	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 	)	 	 	 
	 	 	 	 	  
	 	 	)	 	 	  

	 	 	 	 	Signature of witness	 	 	)	 	 	By executing this agreement the attorney
	 

	 	 	 	 	 	 	 	 	)	 	 	states that the attorney has received no
	 	 	 	 	  
	 	 	)	 	 	notice of revocation of the power of
	 	 	 	 	Name of witness (block letters)	 	 	)	 	 	attorney
	 
	 	 	 	 	 	 	 	 	 	 	 	 
















 





Exhibit G




Exhibit 7.02(c)




DISCLOSURE OF CERTAIN PROPERTY ACQUIRED BY A FOREIGN LOAN PARTY





	1.	 	With respect to any Foreign Loan Party formed under the Laws of The Netherlands:





     (a) each account opened with any bank or financial institution in The Netherlands since the
date of the prior certificate delivered pursuant to Section 7.02(c) (or in the case of the
first such certificate, since the First Amendment Effective Date);



     (b) each counterparty to any outstanding account receivable (other than an intercompany
receivable) that was not a counterparty to an outstanding account receivable on the date of the
prior certificate delivered pursuant to Section 7.02(c) (or in the case of the first such
certificate, on the First Amendment Effective Date);



     (c) each counterparty to any outstanding intercompany receivable (including any intercompany
loan) that was not a counterparty to an outstanding intercompany receivable (including any
intercompany loan) on the date of the prior certificate delivered pursuant to Section
7.02(c) (or in the case of the first such certificate, on the First Amendment Effective Date);
and



     (d) each location where any tangible personal property (including equipment and inventory) is
maintained that was not a location where any tangible personal property was maintained on the date
of the prior certificate delivered pursuant to Section 7.02(c) (or in the case of the first
such certificate, on the First Amendment Effective Date).




	2.	 	With respect to any Foreign Loan Party formed under the Laws of Germany:





     (a) each account opened with any bank or financial institution in Germany since the date of
the prior certificate delivered pursuant to Section 7.02(c) (or in the case of the first
such certificate, since the First Amendment Effective Date);



     (b) prior to the termination of all Receivables Financings of such Foreign Loan Party, each
counterparty to any outstanding account receivable (other than an intercompany receivable) that was
not a counterparty to an outstanding account receivable on the date of the prior certificate
delivered pursuant to Section 7.02(c) (or in the case of the first such certificate, on the
First Amendment Effective Date);



     (c) each location where any tangible personal property (including equipment and inventory) is
maintained that was not a location where any tangible personal property was maintained on the date
of the prior certificate delivered pursuant to Section 7.02(c) (or in the case of the first
such certificate, on the First Amendment Effective Date); and



     (d) whether such Foreign Loan Party has any Receivables Financings.



 









 





Exhibit H




Schedule 2.01




COMMITMENTS




Revolving Commitments




	 	 	 	 	 	 	 	 	 
	Lender	 	Revolving Commitment	 	Applicable Percentage
	Bank of America, N.A.
	 	$	19,090,909.08	 	 	 	6.36363635	%
	ABN AMRO Bank N.V.
	 	$	32,727,272.73	 	 	 	10.90909090	%
	Nordea Bank Danmark A/S
	 	$	38,181,818.18	 	 	 	12.72727273	%
	Citibank, N.A.
	 	$	23,181,818.18	 	 	 	7.72727273	%
	The Royal Bank of Scotland PLC
	 	$	23,181,818.18	 	 	 	7.72727273	%
	Bank DnB NORD A/S
	 	$	21,818,181.82	 	 	 	7.27272727	%
	Fifth Third Bank
	 	$	21,818,181.82	 	 	 	7.27272727	%
	General Electric Capital Corporation
	 	$	16,363,636.36	 	 	 	5.45454545	%
	Wells Fargo Bank, N.A.
	 	$	30,000,000.00	 	 	 	10.00000000	%
	Deutsche Bank AG New York Branch
	 	$	13,636,363.64	 	 	 	4.54545455	%
	National City Bank
	 	$	13,636,363.64	 	 	 	4.54545455	%
	The Bank of Tokyo-Mitsubishi UFJ,
Ltd., Chicago Branch
	 	$	13,636,363.64	 	 	 	4.54545455	%
	Nykredit Bank A/S
	 	$	13,636,363.64	 	 	 	4.54545455	%
	HSH Nordbank AG Copenhagen Branch
	 	$	13,636,363.64	 	 	 	4.54545455	%
	BMO Capital Markets Financing, Inc.
	 	$	5,454,545.45	 	 	 	1.81818182	%
	Total
	 	$	300,000,000.00	 	 	 	100.00000000	%






[Schedule 2.01 continued on next page]




 









 







Domestic Term Loan Commitments




	 	 	 	 	 	 	 	 	 
	 	 	Domestic Term	 	Domestic Term Loan
	Lender	 	Loan Commitment	 	Applicable Percentage
	Bank of America, N.A.
	 	$	20,454,545.43	 	 	 	16.36363635	%
	ABN AMRO Bank N.V.
	 	$	13,636,363.62	 	 	 	10.90909090	%
	Nordea Bank Danmark A/S
	 	$	15,909,090.91	 	 	 	12.72727273	%
	Citibank, N.A.
	 	$	9,659,090.91	 	 	 	7.72727273	%
	The Royal Bank of Scotland PLC
	 	$	9,659,090.91	 	 	 	7.72727273	%
	Bank DnB NORD A/S
	 	$	9,090,909.09	 	 	 	7.27272727	%
	Fifth Third Bank
	 	$	9,090,909.09	 	 	 	7.27272727	%
	General Electric Capital Corporation
	 	$	6,818,181.81	 	 	 	5.45454545	%
	Wells Fargo Bank, N.A.
	 	$	0.00	 	 	 	0.00000000	%
	Deutsche Bank AG New York Branch
	 	$	5,681,818.19	 	 	 	4.54545455	%
	National City Bank
	 	$	5,681,818.19	 	 	 	4.54545455	%
	The Bank of Tokyo-Mitsubishi UFJ,
Ltd., Chicago Branch
	 	$	5,681,818.19	 	 	 	4.54545455	%
	Nykredit Bank A/S
	 	$	5,681,818.19	 	 	 	4.54545455	%
	HSH Nordbank AG New York Branch
	 	$	5,681,818.19	 	 	 	4.54545455	%
	BMO Capital Markets Financing, Inc.
	 	$	2,272,727.28	 	 	 	1.81818182	%
	Total
	 	$	125,000,000.00	 	 	 	100.00000000	%






[Schedule 2.01 continued on next page]




 









 







Foreign Term Loan Commitments




	 	 	 	 	 	 	 	 	 
	 	 	Foreign Term	 	Foreign Term Loan
	Lender	 	Loan Commitment	 	Applicable Percentage
	Bank of America, N.A.
	 	$	20,454,545.43	 	 	 	16.36363635	%
	ABN AMRO Bank N.V.
	 	$	13,636,363.62	 	 	 	10.90909090	%
	Nordea Bank Danmark A/S
	 	$	15,909,090.91	 	 	 	12.72727273	%
	Citibank, N.A.
	 	$	9,659,090.91	 	 	 	7.72727273	%
	The Royal Bank of Scotland PLC
	 	$	9,659,090.91	 	 	 	7.72727273	%
	Bank DnB NORD A/S
	 	$	9,090,909.09	 	 	 	7.27272727	%
	Fifth Third Bank
	 	$	9,090,909.09	 	 	 	7.27272727	%
	General Electric Capital Corporation
	 	$	6,818,181.81	 	 	 	5.45454545	%
	Wells Fargo Bank, N.A.
	 	$	0.00	 	 	 	0.00000000	%
	Deutsche Bank AG New York Branch
	 	$	5,681,818.19	 	 	 	4.54545455	%
	National City Bank
	 	$	5,681,818.19	 	 	 	4.54545455	%
	The Bank of Tokyo-Mitsubishi UFJ,
Ltd., Chicago Branch
	 	$	5,681,818.19	 	 	 	4.54545455	%
	Nykredit Bank A/S
	 	$	5,681,818.19	 	 	 	4.54545455	%
	HSH Nordbank AG New York Branch
	 	$	5,681,818.19	 	 	 	4.54545455	%
	BMO Capital Markets Financing, Inc.
	 	$	2,272,727.28	 	 	 	1.81818182	%
	Total
	 	$	125,000,000.00	 	 	 	100.00000000	%






 









 





Exhibit I




Schedule 8.02-2




INVESTMENTS OF BRIGHTPOINT DENMARK TELECOM AND ITS SUBSIDIARIES

EXISTING ON THE FIRST AMENDMENT EFFECTIVE DATE




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Equivalent USD
	Investment by:	 	Investment in:	 	Amount of investment
	Dangaard Telecom A/S
	 	Sønderjysk UdviklingsSamarbejde A/S	 	$	9,940	 
	Dangaard Telecom Austria GmbH
	 	Capital Invest A3	 	$	2,968	 
	Dangaard Telecom Norway A/S
	 	Losby Golfpark	 	$	9,689	 
	 
	 	Eurobate ASA	 	$	169,105	 
	 
	 	You Communication AS	 	$	93,133	 
	IT Integrator AS
	 	Favorites Systems AS	 	$	211,382	 
	 
	 	The Mobile Media Company AS	 	$	43,376	 
	 
	 	Smartphones Telecom AS	 	$	338,212	 
	Mobitel Norway AS
	 	Eurobate ASA	 	$	11,837	 






Minority Interest in the following entities




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Equivalent USD
	Shareholder:	 	Shareholder in:	 	Share of Equity value
	Dangaard Telecom Norway AS
	 	Moobi Norway AS	 	$	210,017	 
	 
	 	Organizer AS	 	$	407	 







 









 





Exhibit J




Schedule 8.03-2




INDEBTEDNESS OF BRIGHTPOINT DENMARK TELECOM AND ITS SUBSIDIARIES

EXISTING ON THE FIRST AMENDMENT EFFECTIVE DATE




	 	 	 	 	 	 	 	 	 	 	 
	 	 	Lender, Lessor,	 	 	 	 	 	Equivalent USD
	Debtor, Lessee:	 	Issuer:	 	Beneficiary:	 	Facility:	 	Amount:
	Dangaard Telecom A/S
	 	Atradius	 	DK Hostmaster A/S	 	Guarantee	 	$	923	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dangaard Telecom
Norway AS
	 	Atradius	 	Oslo Kemnerkontor	 	Guarantee	 	$	223,084	 
	 
	 	 	 	 	 	 	 	 	 	 
	Moobi Norway AS
	 	Atradius	 	Oslo Kemnerkontor	 	Guarantee	 	$	68,642	 
	 
	 	 	 	 	 	 	 	 	 	 
	IT Integrator AS
	 	Atradius	 	Oslo Kemnerkontor	 	Guarantee	 	$	3,089	 
	 
	 	 	 	 	 	 	 	 	 	 
	Organizer AS
	 	Atradius	 	Oslo Kemnerkontor	 	Guarantee	 	$	7,722	 
	 
	 	 	 	 	 	 	 	 	 	 
	Teleservice Sweden AB
	 	Atradius	 	Tullverket	 	Guarantee	 	$	1,489	 
	 
	 	 	 	Västsvenska
	 	 	 	 	 	 
	 
	 	 	 	Regionen	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dangaard Telecom
	 	NF Fleet	 	 	 	Operational Leasing
	 	$	446,608	 
	Sweden AB
	 	 	 	 	 	Credit Line for
	 	 		 
	 
	 	 	 	 	 	Company Cars	 	 	 	 

















 





Exhibit K




Schedule 11.02




CERTAIN ADDRESSES FOR NOTICES




	 	 	 	 	 
	1.	 	LOAN PARTIES:
	 
	 	 	 	 
	 	 	c/o Brightpoint, Inc.
	 	 	2601 Metropolis Parkway, Suite 210
	 	 	Plainfield, Indiana 46168
	 
	 	Attention:	 	General Counsel
	 
	 	Telephone:	 	317-707-2520
	 
	 	Facsimile:	 	317-707-2514
	 
	 	 	 	 
	2.	 	ADMINISTRATIVE AGENT:
	 
	 	 	 	 
	 	 	For payments and Requests for Credit Extensions:
	 	 	Bank of America, N.A., as Administrative Agent
	 	 	100 Federal Street
	 	 	Mail Code: MA5-100-08-04
	 	 	Boston, MA 02110
	 
	 	Attention:	 	Vani Rattan
	 
	 	Telephone:	 	617-434-9622
	 
	 	Facsimile:	 	617-310-2373
	 
	 	Electronic Mail:	 	vani.rattan@bankofamerica.com
	 
	 	 	 	 
	 	 	Account Information (for U.S. Dollars):
	 	 	Bank of America, N.A.
	 	 	ABA: 026009593
	 	 	Account. Name: MA Wire Clearing Account
	 	 	Acct. #: 1366180011281
	 	 	Ref: Brightpoint, Inc.
	 
	 	 	 	 
	 	 	Account Information (for Australian Dollars):
	 	 	Credit Account: 520190661017
	 	 	Swift Address: BOFAAUSX
	 	 	Attn: Credit Services
	 	 	Ref: Brightpoint, Inc
	 
	 	 	 	 
	 	 	For all other Notices (Financial Statements, Compliance Certificates):
	 	 	Bank of America, N.A., as Administrative Agent
	 	 	100 Federal Street
	 	 	Mail Code: MA5-100-11-02
	 	 	Boston, MA 02110
	 
	 	Attention:	 	William Faidell, Agency Management
	 
	 	Telephone:	 	617-434-2456
	 
	 	Facsimile:	 	617-790-1358
	 
	 	Electronic Mail:	 	william.j.faidell@bankofamerica.com






 









 






	 	 	 	 	 
	3.	 	BANK OF AMERICA, N.A. AS L/C ISSUER:
	 	 	Bank of America, N.A., as L/C Issuer
	 	 	Trade Operations
	 	 	One Fleet Way
	 	 	Mail Code: PA6-580-02-30
	 	 	Scranton, PA 18507
	 
	 	Attention:	 	Alfonso (Al) Malave
	 
	 	Telephone:	 	570-330-4212
	 
	 	Facsimile:	 	570-330-4186
	 
	 	Electronic Mail:	 	alfonso.malave@bankofamerica.com
	 
	 	 	 	 
	4.	 	ABN AMRO BANK N.V. AS L/C ISSUER:
	 
	 	 	 	 
	 	 	ABN AMRO Bank N.V.
	 	 	ABN AMRO Plaza
	 	 	540 West Madison, Suite 2600
	 	 	Chicago, IL 60661
	 
	 	Attention:	 	Trade Services
	 
	 	Telephone:	 	(312) 904-8462
	 
	 	Facsimile:	 	(312) 780-0828
	 
	 	 	 	 
	5.	 	DOMESTIC SWING LINE LENDER
	 	 	Bank of America, N.A., as Domestic Swing Line Lender
	 	 	100 Federal Street
	 	 	Mail Code: MA5-100-08-04
	 	 	Boston, MA 02110
	 
	 	Attention:	 	Vani Rattan
	 
	 	Telephone:	 	617-434-9622
	 
	 	Facsimile:	 	617-310-2373
	 
	 	Electronic Mail:	 	vani.rattan@bankofamerica.com
	 
	 	 	 	 
	6.	 	AUSTRALIAN SWING LINE LENDER
	 	 	Credit Matter Details:
	 	 	Bank of America NA Sydney
	 	 	ACN: 51 064 874 531
	 	 	Level 63 MLC Centre 19-29 Martin Place
	 	 	Sydney, NSW 2000
	 
	 	Attention:	 	Paul Chiu
	 
	 	Telephone:	 	02 99314 237
	 
	 	Facsimile:	 	02 9221 1023
	 
	 	Email:	 	Paul.chiu@bankofamerica.com
	 
	 	 	 	 
	 	 	Credit Matter Details / Back up:
	 	 	Bank of America NA Sydney
	 	 	ACN: 51 064 874 531
	 	 	Level 63 MLC Centre 19-29 Martin Place
	 	 	Sydney, NSW 2000
	 
	 	Attention:	 	Wasim Khan
	 
	 	Telephone:	 	02 99314 547






 









 






	 	 	 	 	 
	 
	 	Facsimile:	 	02 9221 1023
	 
	 	Email:	 	Wasim.khan@bankofamerica.com
	 
	 	 	 	 
	 	 	Administrative Matter Details:
	 	 	Bank of America NA Sydney
	 	 	ACN: ABN 51 064 874 531
	 	 	Level 63 MLC Centre 19-29 Martin Place
	 	 	Sydney, NSW 2000
	 
	 	Attention:	 	Phil  Katipunan
	 
	 	Telephone:	 	02 99314 344
	 
	 	Facsimile:	 	02 9221 5781
	 
	 	Email:	 	Phil.katipunan@bankofamerica.com
	 
	 	 	 	 
	 	 	Administrative Matter Details / Back up:
	 	 	Bank of America NA Sydney
	 	 	CAN: ABN 51 064 874 531
	 	 	Level 63 MLC Centre 19-29 Martin Place
	 	 	Sydney, NSW 2000
	 
	 	Attention:	 	Tessa Alberto
	 
	 	Telephone:	 	02 99314 338
	 
	 	Facsimile:	 	02 9221 5781
	 
	 	Email:	 	Tessa.alberto@bankofamerica.com
	 
	 	 	 	 
	 	 	Account Details: The name and address of the correspondent bank and the AUD account
number or overseas SWIFT code to which payments of all principal, interest and fees are to
be made, plus RTGS details:
	 
	 	 	 	 
	 	 	Account Name: Bank of America NA Sydney
	 
	 	Bank Name:	 	Bank of America NA Sydney
	 
	 	Address:	 	Level 63 MLC Centre  19-29 Martin Place
	 
	 	Sydney, NSW  2000	 	 
	 
	 	SWIFT Details:	 	BOFAAUSX
	 
	 	BSB Number:	 	232 001
	 
	 	Account Number:	 	11191019
	 
	 	Reference:	 	Re: Phil Katipunan / Brightpoint
	 
	 	 	 	 
	 	 	Account Details: The name and address of the correspondent bank and the USD account
number or overseas SWIFT code to which payments of all principal, interest and fees are to
be made.
	 
	 	 	 	 
	 
	 	Account Name:	 	Bank of America NA Sydney
	 
	 	Bank Name:	 	Bank of America NA NY
	 
	 	SWIFT Details:	 	BOFAUS3N
	 
	 	Account Number:	 	65509-99998
	 
	 	Reference:	 	Re: Phil Katipunan / Brightpoint
	 
	 	 	 	 
	7.	 	DANISH SWING LINE LENDER:
	 
	 	 	 	 
	 	 	Payment Instructions:
	 
	 	EURO:	 	 
	 
	 	Name of Correspondent






 









 






	 	 	 	 	 
	 
	 	Bank and Location:	 	Bank of America, N.A., London
	 
	 	SWIFT Bic:	 	BOFAGB22
	 
	 	Account Name:	 	Banc of America Securities Limited
	 
	 	SWIFT Bic:	 	BOFAGB2U
	 
	 	Account No:	 	10985292
	 
	 	IBAN:	 	GB07 BOFA 1650 5010 9852 92
	 
	 	Ref:	 	Loan Service/047/Brightpoint
	 
	 	 	 	 
	 
	 	GBP:	 	 
	 
	 	Name of Correspondent	 	 
	 
	 	Bank and Location:	 	Bank of America, N.A., London
	 
	 	SWIFT Code:	 	BOFAGB22
	 
	 	Account Name:	 	Banc of America Securities Limited
	 
	 	SWIFT Code:	 	BOFAGB2U
	 
	 	Account No:	 	10985010
	 
	 	Ref:	 	Loan Service/047/Brightpoint
	 
	 	 	 	 
	 	 	Contact for Administration Matters:
	 	 	Name of Officer
	 
	 	handling Administration:	 	Gary Durrrell / Pat Chambers
	 
	 	Address:	 	Bank of America, N.A.
	 
	 	 	 	26 Elmfield Road, Bromley, BR1 1WA, United Kingdom
	 
	 	Telephone No.:	 	+44 208 695 3090 /+44 208 313 2503
	 
	 	Fax No.:	 	+44 208 313 2140
	 
	 	E-mail:	 	emea.6647loanservice@bankofamerica.com
	 
	 	 	 	 
	 	 	Contact for Credit Matters:
	 
	 	 	 	 
	 
	 	Name:	 	Debra Delvecchio
	 
	 	 	 	 
	 
	 	Address:	 	Bank of America, N.A.
	 
	 	 	 	MA5-100-09-04, 100 Federal Street, Boston, MA 02110
	 
	 	Telephone No.:	 	+ 617-434-2815
	 
	 	Fax No.:	 	+ 617-434-0819
	 
	 	E-mail:	 	debra.e.delvecchio@bankofamerica.com
	 
	 	 	 	 
	 	 	With a copy to:
	 
	 	Name:	 	Fiona Gee/Geraldine Simmons
	 
	 	Address	 	Bank of America, N.A., 5 Canada Square, London, E14 5AQ
	 
	 	Telephone No.:	 	0207 144 5837/5835
	 
	 	Fax No:	 	0207 174 6436
	 
	 	Email:	 	Fiona.gee@bankofamerica.com
	 
	 	 	 	Geraldine.simmons@bankofamerica.com