Exhibit 10.2





Exhibit 10.2




EXECUTION COPY




 










SECOND AMENDED AND RESTATED

CREDIT AGREEMENT




dated as of April 1, 2008




among




INSIGHT ENTERPRISES, INC.,




the EUROPEAN BORROWERS

from time to time party hereto,




The LENDERS party hereto,




J.P. MORGAN EUROPE LIMITED,

as European Agent,




WELLS FARGO BANK, NATIONAL ASSOCIATION

and

U.S. BANK NATIONAL ASSOCIATION,

as Co-Syndication Agents,



and




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent




 






J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger




 






 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I Definitions
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	33	 
	SECTION 1.03. Terms Generally
	 	 	34	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	34	 
	SECTION 1.05. Foreign Currency Calculations
	 	 	34	 
	 
	 	 	 	 
	ARTICLE II The Credits
	 	 	35	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	35	 
	SECTION 2.02. Loans and Borrowings
	 	 	35	 
	SECTION 2.03. Requests for Revolving Borrowings
	 	 	36	 
	SECTION 2.04. Swingline Loans
	 	 	37	 
	SECTION 2.05. Letters of Credit
	 	 	39	 
	SECTION 2.06. Funding of Borrowings
	 	 	43	 
	SECTION 2.07. Interest Elections
	 	 	43	 
	SECTION 2.08. Termination and Reduction of Commitments
	 	 	45	 
	SECTION 2.09. Increase in Commitments
	 	 	45	 
	SECTION 2.10. Repayment of Loans; Evidence of Debt
	 	 	46	 
	SECTION 2.11. Prepayment of Loans
	 	 	47	 
	SECTION 2.12. Fees
	 	 	48	 
	SECTION 2.13. Interest
	 	 	49	 
	SECTION 2.14. Alternate Rate of Interest
	 	 	51	 
	SECTION 2.15. Increased Costs
	 	 	51	 
	SECTION 2.16. Break Funding Payments
	 	 	52	 
	SECTION 2.17. Taxes
	 	 	53	 
	SECTION 2.18. UK Tax
	 	 	55	 
	SECTION 2.19. EU Banking Passport; Local Branch Availability
	 	 	59	 
	SECTION 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	59	 
	SECTION 2.21. Mitigation Obligations; Replacement of Lenders
	 	 	62	 
	 
	ARTICLE III Representations and Warranties
	 	 	63	 
	 
	SECTION 3.01. Organization; Powers
	 	 	63	 
	SECTION 3.02. Authorization; Enforceability
	 	 	63	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	63	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	64	 
	SECTION 3.05. Properties; Insurance
	 	 	65	 
	SECTION 3.06. Litigation, Environmental and Labor Matters
	 	 	65	 
	SECTION 3.07. Compliance with Laws and Agreements
	 	 	65	 
	SECTION 3.08. Investment Company Status
	 	 	66	 
	SECTION 3.09. Taxes
	 	 	66	 






 


i









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 3.10. ERISA
	 	 	66	 
	SECTION 3.11. Subsidiaries; Ownership of Capital Stock
	 	 	66	 
	SECTION 3.12. Solvency
	 	 	66	 
	SECTION 3.13. Disclosure
	 	 	66	 
	SECTION 3.14. Regulation U
	 	 	66	 
	SECTION 3.15. Security Interest in Collateral
	 	 	67	 
	SECTION 3.16. Material Subsidiaries
	 	 	67	 
	SECTION 3.17. United Kingdom Companies Act
	 	 	67	 
	 
	 	 	 	 
	ARTICLE IV Conditions
	 	 	67	 
	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	67	 
	SECTION 4.02. Each Credit Event
	 	 	70	 
	 
	 	 	 	 
	ARTICLE V Affirmative Covenants
	 	 	70	 
	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	70	 
	SECTION 5.02. Notices of Material Events
	 	 	73	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	73	 
	SECTION 5.04. Payment of Obligations
	 	 	73	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	73	 
	SECTION 5.06. Books and Records; Inspection Rights
	 	 	74	 
	SECTION 5.07. Compliance with Laws
	 	 	74	 
	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	74	 
	SECTION 5.09. Subsidiary Collateral Documents; Subsidiary Guarantors
	 	 	74	 
	SECTION 5.10. United Kingdom Companies Act
	 	 	77	 
	 
	 	 	 	 
	ARTICLE VI Negative Covenants
	 	 	77	 
	 
	 	 	 	 
	SECTION 6.01. Indebtedness
	 	 	77	 
	SECTION 6.02. Liens
	 	 	79	 
	SECTION 6.03. Fundamental Changes
	 	 	80	 
	SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	82	 
	SECTION 6.05. Swap Agreements
	 	 	84	 
	SECTION 6.06. Restricted Payments
	 	 	84	 
	SECTION 6.07. Transactions with Affiliates
	 	 	84	 
	SECTION 6.08. Restrictive Agreements; Receivables Entities
	 	 	85	 
	SECTION 6.09. Sale and Leaseback Transactions
	 	 	85	 
	SECTION 6.10. Financial Covenants
	 	 	85	 






 


ii









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VII Events of Default
	 	 	86	 
	 
	 	 	 	 
	ARTICLE VIII The Agents
	 	 	90	 
	 
	 	 	 	 
	ARTICLE IX Collection Allocation Mechanism
	 	 	95	 
	 
	 	 	 	 
	SECTION 9.01. Implementation of CAM
	 	 	95	 
	SECTION 9.02. Letters of Credit
	 	 	96	 
	 
	 	 	 	 
	ARTICLE X Guarantee
	 	 	98	 
	 
	 	 	 	 
	SECTION 10.01. Company Guaranty
	 	 	98	 
	SECTION 10.02. European Borrowers’ Guaranty
	 	 	99	 
	 
	 	 	 	 
	ARTICLE XI Miscellaneous
	 	 	101	 
	 
	 	 	 	 
	SECTION 11.01. Notices
	 	 	101	 
	SECTION 11.02. Waivers; Amendments
	 	 	103	 
	SECTION 11.03. Expenses; Indemnity; Damage Waiver
	 	 	106	 
	SECTION 11.04. Successors and Assigns
	 	 	107	 
	SECTION 11.05. Survival
	 	 	110	 
	SECTION 11.06. Counterparts; Integration; Effectiveness
	 	 	111	 
	SECTION 11.07. Severability
	 	 	111	 
	SECTION 11.08. Right of Setoff
	 	 	111	 
	SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	112	 
	SECTION 11.10. WAIVER OF JURY TRIAL
	 	 	112	 
	SECTION 11.11. Headings
	 	 	113	 
	SECTION 11.12. Confidentiality
	 	 	113	 
	SECTION 11.13. Conversion of Currencies
	 	 	114	 
	SECTION 11.14. USA Patriot Act; European “Know Your Customer” Checks
	 	 	114	 
	SECTION 11.15. English Language
	 	 	115	 
	SECTION 11.16. Appointment for Perfection
	 	 	115	 
	SECTION 11.17. Borrower Limitations
	 	 	115	 
	 
	 	 	 	 
	ARTICLE XII No Novation; References to this Agreement in Loan Documents
	 	 	115	 
	 
	 	 	 	 
	SECTION 12.01. No Novation
	 	 	115	 
	SECTION 12.02. References to This Agreement In Loan Documents
	 	 	116	 







 


iii









 







SCHEDULES:



Schedule 1.01(a) —  Mandatory Cost Formulae

Schedule 1.01(b) —  Initial Subsidiary Guarantors

Schedule 2.01 —  Lenders and Commitments

Schedule 2.05 —  Existing Letters of Credit

Schedule 2.20 —  Payment Instructions

Schedule 3.06 —  Litigation

Schedule 3.11 —  Subsidiaries

Schedule 3.16 —  Initial Material Subsidiaries

Schedule 6.01 —  Existing Indebtedness

Schedule 6.02 —  Existing Liens

Schedule 6.04 —  Existing Investments

Schedule 6.08 —  Restrictive Agreements

Schedule 6.09 — Sale and Leaseback Transactions




EXHIBITS:




Exhibit A —  Form of Assignment and Assumption

Exhibit B —  List of Closing Documents

Exhibit C —  Form of Compliance Certificate



 


iv









 





SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 1, 2008 among INSIGHT
ENTERPRISES, INC., a Delaware corporation (the “Company”), the EUROPEAN BORROWERS (as
defined below), the LENDERS party hereto, J.P. MORGAN EUROPE LIMITED, as European Agent, WELLS
FARGO BANK, NATIONAL ASSOCIATION and U.S. BANK NATIONAL ASSOCIATION, as Co-Syndication Agents, and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent.



PRELIMINARY STATEMENTS




WHEREAS, the Company, the UK Borrower, the European Agent, certain Lenders and the
Administrative Agent are parties to that certain Amended and Restated Credit Agreement, dated as of
September 7, 2006 (as amended, restated, supplemented or otherwise modified prior to the date
hereof, the “Existing Credit Agreement”); and



WHEREAS, the Borrowers, the Lenders and the Agents have agreed to amend and restate the
Existing Credit Agreement in its entirety.



NOW, THEREFORE, in consideration of the mutual covenants herein, as well as other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree that the Existing Credit Agreement is hereby amended and restated in its entirety as
of the date hereof as follows:



ARTICLE I




Definitions




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



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



“Acquired Entity” means the assets or Person acquired in connection with a Permitted
Acquisition or other investment permitted under Section 6.04.



“Acquired Entity EBITDA” means, with respect to any Acquired Entity subject to a
Permitted Acquisition, for any period, the net income (or loss) of such Person and its Subsidiaries
calculated on a consolidated basis for such period plus, to the extent deducted from revenues in
determining the net income (or loss) of such Person and its Subsidiaries as described above, (i)
for any period, the interest expense of such Person and its Subsidiaries calculated on a
consolidated basis for such period, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization and (v) any extraordinary non-cash or nonrecurring non-cash charges or losses
incurred other than in the ordinary course of business minus, to the extent added to revenues in
determining the net income (or loss) of such Person and its Subsidiaries as described above, any
extraordinary non-cash or nonrecurring non-cash gains realized other than in the ordinary course of
business. Such amounts shall be derived by the Company from financial statements of the Acquired
Entity delivered to the Administrative Agent prior to the consummation of such


 


 









 




Permitted Acquisition (which financial statements shall be audited through the end of the most
recently ended fiscal year and, for each subsequent fiscal quarter, shall be prepared by the
Acquired Entity on a basis consistent with such audited financial statements) and shall be subject
to the consent of the Administrative Agent acting in good faith; provided, that when
calculating Acquired Entity EBITDA with respect to the Calence Acquisition through the period
ending March 31, 2009, the Company may use amounts related to historical Calence EBITDA as set
forth in pro-forma consolidated financial statements contained in the Information Memorandum.




“Adjusted Consolidated EBITDA” means, as of any date of determination and without
duplication: (i) Consolidated EBITDA for the Company and its consolidated Subsidiaries for the four
fiscal quarter period then most recently ended, plus (ii) Acquired Entity EBITDA for such period
for each Permitted Acquisition consummated on or after the Effective Date. Effective upon the
consummation of a Permitted Acquisition (including the Calence Acquisition), Adjusted Consolidated
EBITDA shall be adjusted to include Acquired Entity EBITDA for the applicable Acquired Entity.



“Adjusted LIBO Rate” means an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate; provided that, with respect to Eurocurrency Borrowings denominated
in an Alternative Currency, the Adjusted LIBO Rate shall mean the LIBO Rate.



“Administrative Agent” means JPMorgan Chase Bank, National Association, in its
capacity as administrative agent for the Lenders hereunder; provided, that for purposes of
the Dutch Parallel Debt JPMorgan Chase Bank, National Association will be acting in its individual
capacity.



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



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



“Agents” means, collectively, the Administrative Agent and the European Agent, and
“Agent” means either one of them.



“Alternate Base Rate” means, for any day for any Loan, Letter of Credit or other
financial accommodation under the US Tranche that is made to the Company and that specifies or that
requires that the interest rate applicable thereto be the “Alternate Base Rate”, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day, and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%, with the understanding that any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate.



“Alternative Currency” means (i) Euro, (ii) Sterling and (iii) any other currency
other than US Dollars that is freely available, freely transferable and freely convertible into US
Dollars, in which dealings in deposits are carried on in the Applicable Interbank Market, and
that


 


2









 





is (in the case of this clause (iii)) approved by the European Tranche Lenders (such approval
not to be unreasonably withheld).



“Alternative Currency Equivalent” means, on any date of determination with respect to
any amount denominated in US Dollars, the equivalent amount thereof in the applicable Alternative
Currency as determined by the Administrative Agent at such time pursuant to Section 1.05 using the
Exchange Rate with respect to such Alternative Currency at the time in effect under the provisions
of such Section.



“Applicable Acquisition Ratio” means the following Total Leverage Ratios for following
periods:



	 	 	 	 	 
	Period	 	Total Leverage Ratio	 
	 
	Effective Date through September 30, 2009
	 	 	2.50 to 1.00	 
	 
	October 1, 2009 through September 30, 2010
	 	 	2.25 to 1.00	 
	 
	October 1, 2010 and thereafter
	 	 	2.00 to 1.00	 






“Applicable Agent” means (a) the Administrative Agent with respect to a Loan, Letter
of Credit or other financial accommodation extended to the Company under the US Tranche, with
respect to any payment hereunder that does not relate to a particular Loan or Borrowing and is not
covered by clause (b) hereof, and with respect to the administration of the transactions
evidenced hereby generally, and (b) the European Agent with respect to a Loan or other financial
accommodation extended to any European Borrower or, solely with respect to the European Tranche,
the Company, and with respect to the administration of the European portion of the transactions
evidenced hereby.



“Applicable Interbank Market” means for any Loan or other financial accommodation
denominated in (x) Euro, the European interbank market, and (y) US Dollars or any Alternative
Currency other than Euro, the London interbank market.



“Applicable Interbank Rate” means (x) for any Loan, Letter of Credit or other
financial accommodation made to the Company under the US Tranche or any other Borrower under any
Tranche in a currency other than Euro, the Adjusted LIBO Rate and (y) for any Loan or other
financial accommodation made to any Borrower in Euro, the EURIBO Rate.



“Applicable Rate” means, for any day, with respect to any ABR Loan, any Eurocurrency
Loan or any Letter of Credit participation fee under Section 2.12(b), or the commitment
fees payable pursuant to Section 2.12(a), as the case may be, the applicable rate per annum
set forth below under the caption “ABR Loan Spread”, “Eurocurrency Loan Spread and Letter of Credit
Participation Fee Percentage,” or “Commitment Fee Percentage,” as the case


 


3









 





may be, based upon the
Total Leverage Ratio as reflected in the then most recently delivered quarterly or annual
financials as required under Section 5.01:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Eurocurrency Loan	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Spread and Letter of	 	 	Commitment	 
	Pricing	 	 	Total Leverage	 	ABR Loan	 	 	Credit Participation	 	 	Fee	 
	Level:	 	 	Ratio:	 	Spread:	 	 	Fee Percentage:	 	 	Percentage:	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level I	 	Less than 1.00 to 1.00
	 	 	0.00	%	 	 	0.75	%	 	 	0.175	%
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level II	 	Equal to or greater than 1.00 to 1.00 but less than 1.50 to 1.00
	 	 	0.00	%	 	 	1.00	%	 	 	0.20	%
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level III	 	Equal to or greater than 1.50 to 1.00 but less than 2.00 to 1.00
	 	 	0.00	%	 	 	1.25	%	 	 	0.25	%
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level IV	 	Equal to or greater than 2.00 to 1.00 but less than 2.50 to 1.00
	 	 	0.00	%	 	 	1.50	%	 	 	0.30	%
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level V	 	Equal to or greater than 2.50 to 1.00
	 	 	0.25	%	 	 	1.75	%	 	 	0.35	%







For purposes of the foregoing,




(i) if at any time the Company fails to deliver any financials required under
Section 5.01 on or before the date any financials are due, then Pricing
Level V shall be deemed applicable until five (5) Business Days after such
financials, together with all corresponding compliance certificates required by
Section 5.01(c), are actually delivered, after which the Pricing Level shall
be determined in accordance with the table above as applicable;




(ii) adjustments, if any, to the Pricing Level then in effect shall be
effective five (5) Business Days after the Administrative Agent has received the



 


4









 






applicable financials and corresponding compliance certificates required by
Section 5.01(c) (it being understood and agreed that each change in Pricing
Level shall apply during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date of the next such
change); and




(iii) each determination of the Applicable Rate made by the Administrative
Agent in accordance with the foregoing shall, if reasonably determined, be
conclusive and binding on the Company, all of its Subsidiaries and each Lender.




Notwithstanding the foregoing, during the period beginning on the Effective Date and
ending on the date of delivery of the applicable financials for the fiscal quarter of the
Company ending March 31, 2008, the Applicable Rate shall be based on Pricing Level III, and
thereafter, the Applicable Rate shall be determined in accordance with the preceding table
and provisions.



“Applicable Share Repurchase Ratio” means the following Total Leverage Ratios for the
following periods:



	 	 	 	 	 
	Period	 	Total Leverage Ratio	 
	 
	Effective Date through September 30, 2009
	 	 	2.25 to 1.00	 
	 
	October 1, 2009 through September 30, 2010
	 	 	2.00 to 1.00	 
	 
	October 1, 2010 and thereafter
	 	 	1.75 to 1.00	 







“Approved Fund” has the meaning assigned to such term in Section 11.04.



“Asset Coverage Ratio” means, as of the last day of any fiscal quarter of the Company,
the ratio of (i) the aggregate total book value of the Company’s and its Subsidiaries’ Receivables
and inventory (including, without limitation, Receivables subject to Permitted Receivables
Facilities and inventory subject to Vendor Trade Programs) as of such date to (ii) the aggregate
principal amount of Indebtedness outstanding under the Loan Documents, all Permitted Receivables
Facilities and all Vendor Trade Programs (other than any Vendor Trade Program that is unsecured) as
of such date.



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


 


5









 





“Attributable Debt” in respect of a Sale and Leaseback Transaction that is a
Capitalized Lease Obligation means, at any date of determination, the amount of Indebtedness
represented thereby according to the definition of “Capitalized Lease Obligation.”



“Attributable Receivables Indebtedness” at any time means the principal amount of
Indebtedness which (a) if a Permitted Receivables Facility is structured as a secured lending
agreement, constitutes the principal amount of such Indebtedness or (b) if a Permitted Receivables
Facility is structured as a purchase agreement, would be outstanding at such time under the
Permitted Receivables Facility if the same were structured as a secured lending agreement rather
than a purchase agreement.



“Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.



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



“Borrower” means the Company or any European Borrower, as applicable, and
“Borrowers” means all of the foregoing.



“Borrowing” means Loans (including one or more Swingline Loans) of the same Class,
Type and currency, made on the same date and, in the case of Eurocurrency Loans, as to which a
single Interest Period is in effect.



“Borrowing Minimum” means (a) in the case of a Borrowing (other than Swingline Loans)
denominated in US Dollars, $500,000, (b) in the case of a Borrowing (other than Swingline Loans)
denominated in Euro € 500,000, (c) in the case of a Borrowing (other than Swingline Loans)
denominated in Sterling, £500,000, (d) in the case of a Borrowing (other than Swingline Loans)
denominated in an Alternative Currency (other than Euro or Sterling), the
Alternative Currency Equivalent of $500,000, (e) in the case of a US Tranche Swingline Loan,
$500,000, (f) in the case of a European Tranche Swingline Loan denominated in Euro, €100,000,
(g) in the case of a European Tranche Swingline Loan denominated in Sterling, £100,000, and (h) in
the case of a Swingline Loan denominated in an Alternative Currency (other than Euro or Sterling),
the Alternative Currency Equivalent of $100,000.



“Borrowing Multiple” means (a) in the case of a Borrowing (other than Swingline Loans)
denominated in US Dollars, $500,000, (b) in the case of a Borrowing (other than Swingline Loans)
denominated in Sterling, £500,000, (c) in the case of a Borrowing (other than Swingline Loans)
denominated in Euro, €500,000, (d) in the case of a Borrowing (other than Swingline Loans)
denominated in an Alternative Currency (other than Euro or Sterling), the Alternative Currency
Equivalent of $500,000, (e) in the case of a US Tranche Swingline Loan, $100,000, (f) in the case
of a European Tranche Swingline Loan denominated in Sterling, £100,000, (g) in the case of a
European Tranche Swingline Loan denominated in Euro, €100,000, and (h) in the case of a European
Tranche Swingline Loan denominated in an Alternative Currency other than Euro or Sterling, the
Alternative Currency Equivalent of $100,000.



 


6









 






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



“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided, that (a) when used in connection with a Eurocurrency Loan denominated in US
Dollars or any Alternative Currency other than Euro, the term “Business Day” shall also exclude any
day that is not a London Business Day, and (b) when used in connection with a Loan denominated in
Euro, the term “Business Day” shall also exclude (i) any day that is not a TARGET Day and (ii) any
day that is not a London Business Day.




“Calence” means Calence, LLC, a Delaware limited liability company.



“Calence Acquisition” means the direct or indirect acquisition by the Company of all
of the issued and outstanding Equity Interests of Calence on the terms and conditions set forth in
the Calence Acquisition Agreement.



“Calence Acquisition Agreement” means that certain Agreement and Plan of Merger, dated
as of January 24, 2008, among the Company, Insight Networking Services, LLC and Calence, as
amended, restated, supplemented or otherwise modified from time to time.



“Calence Material Adverse Effect” means a material adverse effect on (i) the business,
operations, assets, condition (financial or other) or prospects of Calence, other than any adverse
effect arising out of or resulting from (a) general economic or political conditions, (b) any
changes in any law or regulation, (c) changes, events or developments generally affecting the
technology industry, (d) any act or omission by Calence taken with the prior written consent of the
Company or a Subsidiary thereof or at the Company’s or its Subsidiary’s written request, or any act
or omission by Calence taken as a result of the Company’s or its Subsidiary’s failure to comply
with its obligations under Section 4.3 of the Calence Acquisition Agreement, or (e) the
announcement of the execution of the Calence Acquisition Agreement or the consummation of the
acquisition evidenced thereby, except, in the case of clauses (a), (b) and (c) to the extent that
such changes have a disproportionately adverse effect on Calence as compared to other comparable
businesses or (ii) Calence’s ability to consummate the Calence Acquisition. Notwithstanding the
foregoing, the “E-Rate Business”, as defined in the Calence Acquisition Agreement, shall be
excluded from a determination of Calence Material Adverse Effect.



“CAM” means the mechanism for the allocation and exchange of interests in Loans,
participations in Letters of Credit and other extensions of credit under the several Tranches and
collections thereunder established under Article IX.



“CAM Exchange” means the exchange of any Lender’s interests provided for in
Article IX.



“CAM Exchange Date” means the first date on which there shall occur (a) any event
referred to in clause (h) or (i) of Article VII in respect of the Company
or (b) an acceleration of Loans pursuant to Article VII.


 


7









 





“CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of
which (a) the numerator shall be the aggregate US Dollar Equivalent (determined on the basis of
Exchange Rates prevailing on the CAM Exchange Date of the sum, without duplication, of (i) the
Obligations owed to such Lender (whether or not at the time due and payable), (ii) the LC Exposure
of such Lender and (iii) the Swingline Exposure of such Lender, in each case immediately prior to
the occurrence of the CAM Exchange Date (but after giving effect to Sections 9.01(a)(ii)
and (iii)), and (b) the denominator shall be the aggregate US Dollar Equivalent (as so
determined) of the sum, without duplication, of (A) the Obligations owed to all the Lenders
(whether or not at the time due and payable), (B) the aggregate LC Exposures of all the Lenders and
(C) the aggregate Swingline Exposures of all the Lenders, in each case immediately prior to the
occurrence of the CAM Exchange Date; provided that, for purposes of clause (a) above, the
Obligations owed to the Swingline Lender will be deemed not to include any Swingline Loans except
to the extent provided in clause (a)(iii) above.



“Capital Expenditures” means, without duplication, any expenditures for any purchase
or other acquisition of any asset which would be classified as a fixed or capital asset on a
consolidated balance sheet of the Company and its Subsidiaries prepared in accordance with GAAP,
excluding (i) expenditures of insurance proceeds to rebuild or replace any asset after a casualty
loss and (ii) leasehold improvement expenditures for which the Company or a Subsidiary is
reimbursed promptly by the lessor.



“Capitalized Lease” of a Person means any lease of property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in accordance with GAAP.



“Capitalized Lease Obligations” of a Person means the amount of the obligations of
such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such
Person prepared in accordance with GAAP.



“Cash Pooling Arrangements” means cash pooling arrangements maintained by the Foreign
Subsidiaries of the Company in the ordinary course of business in order to manage currency
fluctuations and overdrafts among deposit accounts of such Subsidiaries.



“Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of Equity Interests representing more than 25% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Company; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Company by Persons
who were neither (i) nominated by the board of directors of the Company nor (ii) appointed by
directors so nominated; or (c) the Company shall cease to own and control, directly or indirectly,
100% of the Equity Interests of any European Borrower.



“Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any


 


8









 





lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any)
with any request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.



“Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are US Tranche Revolving Loans, US Tranche Swingline
Loans, European Tranche Revolving Loans, or European Tranche Swingline Loans, and (b) any
Commitment, refers to whether such Commitment is a US Tranche Revolving Commitment or a European
Tranche Commitment.




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



“Collateral” means any and all property owned, leased or operated by a Loan Party
covered by the Collateral Documents and any and all other property of any Loan Party, now existing
or hereafter acquired, that may at any time be or become subject to a Lien in favor of the
Administrative Agent, on behalf of the Holders of Secured Obligations, to secure the Secured
Obligations.



“Collateral Documents” means the Security Agreements, the Pledge Agreements, the
Intellectual Property Security Agreements, and all other security agreements, mortgages, deeds of
trust, pledges, assignments, financing statements and all other written matter whether heretofore,
now, or hereafter executed by any Loan Party that are intended to create or evidence Liens to
secure the Secured Obligations.




“Commitment” means a US Tranche Revolving Commitment or a European Tranche Commitment.



“Company” has the meaning assigned to such term in the heading of this Agreement.



“Company Pledge Agreement” means that certain Second Amended and Restated Pledge
Agreement, dated as of the date hereof, between the Company and the Administrative Agent, for the
benefit of the Holders of Secured Obligations.



“Company Security Agreement” means the Second Amended and Restated Security Agreement,
dated as of the date hereof between the Company and the Administrative Agent, for the benefit of
the Holders of Secured Obligations.



“Compliance Certificate” means a certificate of a Financial Officer substantially in
the form of Exhibit C.



“Consolidated Capital Expenditures” means, with reference to any period, the Capital
Expenditures of the Company and its Subsidiaries calculated on a consolidated basis for such
period.



“Consolidated EBITDA” means the sum of (a) Consolidated Net Income plus (b) to the
extent deducted in determining Consolidated Net Income, (i) Consolidated Interest Expense, (ii)
expense for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v) any


 


9









 





extraordinary
non-cash or nonrecurring non-cash charges or losses incurred other than in the ordinary course of
business, (vi) any non-cash charges arising from compensation expense as a result of the adoption
of Financial Accounting Standards Board Statement 123 (Revised 2004), “Share-Based Payment”, which
requires certain stock-based compensation to be recorded as expense within the Company’s
consolidated statement of operations and (vii) costs, expenses and fees incurred in connection with
the Transactions consummated on the Effective Date, minus (c)(i) to the extent included in
Consolidated Net Income, any extraordinary non-cash or nonrecurring non-cash gains realized other
than in the ordinary course of business and (ii) the amount of any subsequent cash payments in
respect of any non-cash charges described in the preceding clause (b)(vi), all calculated
for the Company and its Subsidiaries on a consolidated basis.



“Consolidated Funded Indebtedness” means, at any time, the sum (without duplication)
of (i) the aggregate principal amount of Consolidated Indebtedness owing by the Company and its
Subsidiaries which has actually been funded and is outstanding at such time, whether or not such
amount is due or payable at such time, plus (ii) the aggregate stated or face amount of all letters
of credit at such time for which any of the Company and its Subsidiaries is the account party
(unless cash collateralized with cash and/or cash equivalents in a manner permitted hereunder) plus
(iii) the aggregate amount of Capitalized Lease Obligations owing by the Company and its
Subsidiaries plus (iv) the aggregate of all amounts owing by the Company and its Subsidiaries with
respect to judgments or settlements arising in connection with trials, arbitrations, mediations,
litigation or other forums for dispute resolution (to the extent not covered by a valid and binding
policy of insurance in favor of the Company or the applicable Subsidiary with respect to which the
related insurer has been notified of a claim for payment and has not disputed such claim).



“Consolidated Indebtedness” means, at any time, the Indebtedness of the Company and
its Subsidiaries calculated on a consolidated basis as of such time.



“Consolidated Interest Expense” means, with reference to any period, the interest
expense of the Company and its Subsidiaries calculated on a consolidated basis for such period,
including, without limitation, yield or any other financing costs resembling interest which are
payable under any Permitted Receivables Facility.



“Consolidated Net Income” means, with reference to any period, the net income (or
loss) of the Company and its Subsidiaries calculated on a consolidated basis for such period.



“Consolidated Rentals” means, with reference to any period, the Rentals of the Company
and its Subsidiaries calculated on a consolidated basis for such period.



“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.


 


10









 





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




“Designated Subsidiary” means each of Software Spectrum, Inc. and Calence.



“Disqualified Equity Interests” means Equity Interests that (a) require the payment of
any cash dividends prior to the date that is 91 days after the Maturity Date, (b) mature or are
mandatorily redeemable (other than solely for Qualified Equity Interests) or subject to mandatory
repurchase or redemption or repurchase at the option of the holders thereof (other than solely for
Qualified Equity Interests), in each case in whole or in part and whether upon the occurrence of
any event, pursuant to a sinking fund obligation on a fixed date or otherwise, prior to the date
that is 91 days after the Maturity Date (other than (i) upon termination of the Commitments and
payment in full of the Obligations then due and owing or (ii) upon a “change in control” or asset
sale, provided, that any payment required pursuant to this clause (ii) is subject to the
prior repayment in full of the Obligations or is otherwise contractually subordinated in right of
payment to the Obligations on terms reasonably satisfactory to the Administrative Agent) or (c) are
convertible or exchangeable, automatically or at the option of any holder thereof, into any
Indebtedness, Equity Interests or other assets other than Qualified Equity Interests prior to the
date that is 91 days after the Maturity Date.



“Domestic Subsidiary” means a Subsidiary incorporated or organized under the laws of
the United States of America, any State thereof or the District of Columbia.



“Dutch Borrower” means Insight Enterprises B.V., a besloten vennootschap met beperkte
aansprakelijkheid, incorporated under the laws of The Netherlands having its corporate seat
(statutaire zetel) in The Hague, The Netherlands, together with its successors and permitted
assigns.



“Dutch Parallel Debt” has the meaning assigned to such term in Article VIII.



“Effective Date” means the date on which the conditions specified in Section
4.01 are satisfied (or waived in accordance with Section 11.02).



“EMU Legislation” means the legislative measures of the European Union for the
introduction of, changeover to or operation of the Euro in one or more member states.



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



“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Company or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or


 


11









 





threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.



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



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



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



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



“EU Banking Passport” means the right of passport to provide lending services on a
cross-border basis under the Council Directive of 20 March 2000 relating to the taking up and
pursuit of the business of credit institutions (No 2006/48/EC) in the relevant European Economic
Area member state. For purposes hereof, “EU Banking Passport” shall include each right of
passport to the extent multiple rights of passport are required under the aforementioned Council
Directive to extend credit to Borrowers in their respective jurisdictions of organization.



“EURIBO Rate” means, with respect to any Borrowing in Euro under any Tranche (to the
extent permitted under such Tranche), the rate per annum determined by the European Agent at
approximately 11:00 a.m., Brussels time, on the Quotation Day for such Interest Period by reference
to the percentage rate per annum determined by the Banking Federation of the European Union for
deposits in Euro (as reflected on the applicable Reuters


 


12









 





screen page) for a period equal to such
Interest Period; provided that, to the extent that an interest rate is not ascertainable
pursuant to the foregoing provisions of this definition, the “EURIBO Rate” shall be the average
(rounded upward, if necessary, to the next 1/100 of 1%) of the respective interest rates per annum
at which deposits in Euro are offered for such Interest Period to major banks in the Applicable
Interbank Market by JPMorgan Chase Bank, National Association at approximately 11:00 a.m., Brussels
time, on the Quotation Day for such Interest Period.



“Euro”
or “€” means the currency constituted by the Treaty on the European
Union and as referred to in the EMU Legislation.



“Eurocurrency”, when used in reference to any Loan or Borrowing, means that such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Applicable Interbank Rate with respect to the applicable currency of such Loan or Borrowing.



“European Agent” means J.P. Morgan Europe Limited, in its capacity as administrative
agent in respect of any extension of credit or other financial accommodation in favor of a European
Borrower or, solely with respect to the European Tranche, the Company, and in respect of the
European portion of the transactions evidenced hereby.




“European Borrower” means each of the UK Borrower and the Dutch Borrower.



“European Tranche” means the European Tranche Commitments, the European Tranche
Revolving Loans and the European Tranche Swingline Loans.



“European Tranche Commitment” means, with respect to each Lender, the commitment of
such Lender to make European Tranche Revolving Loans and to acquire participations in European
Tranche Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount
of such European Tranche Lender’s European
Tranche Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant
to Section 2.08, (b) increased from time to time pursuant to Section 2.09 and (c)
reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 11.04. The initial amount of each European Tranche Lender’s European Tranche
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to
which such European Tranche Lender shall have assumed its European Tranche Commitment, as
applicable. The aggregate amount of the European Tranche Commitments on the date hereof is
$25,000,000.



“European Tranche Exposure” means, with respect to any European Tranche Lender at any
time, the US Dollar Equivalent of the sum at such time, without duplication, of (a) such Lender’s
European Tranche Percentage of the sum of the principal amounts of the outstanding European Tranche
Revolving Loans, plus (b) such Lender’s European Tranche Swingline Exposure at such time.



“European Tranche Lender” means a Qualifying Lender with a European Tranche
Commitment.


 


13









 





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



“European Tranche Revolving Borrowing” means a Borrowing comprised of European Tranche
Revolving Loans.



“European Tranche Revolving Loan” means a Loan made by a European Tranche Lender
pursuant to Section 2.01(b). Each European Tranche Revolving Loan made to the Company
shall be denominated in US Dollars or an Alternative Currency and shall be a Eurocurrency Loan, and
each European Tranche Revolving Loan made to a European Borrower shall be denominated in an
Alternative Currency and shall be a Eurocurrency Loan.



“European Tranche Swingline Exposure” means, at any time, the aggregate principal
amount of all European Tranche Swingline Loans outstanding at such time. The European Tranche
Swingline Exposure of any European Tranche Lender at any time shall be its European Tranche
Percentage of the total European Tranche Swingline Exposure at such time.



“European Tranche Swingline Lender” means J.P. Morgan Europe Limited, in its capacity
as lender of European Tranche Swingline Loans hereunder.



“European Tranche Swingline Loan” means a Loan made by the European Tranche Swingline
Lender to a European Borrower pursuant to Section 2.04.



“European Tranche Swingline Rate” means, for any day, in relation to any European
Tranche Swingline Loan, the percentage rate per annum which is equal to the rate (rounded upwards
to four decimal places) as supplied to the European Agent at its request quoted
by JPMorgan Chase Bank, National Association to leading banks in the Applicable Interbank
Market as of 11:00 a.m. London time on the day of the proposed Borrowing for the relevant European
Tranche Swingline Loan for the offering of deposits in the relevant currency for a period
comparable to the Interest Period for the relevant European Tranche Swingline Loan and for
settlement on that day.




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



“Exchange Rate” means on any day, for purposes of determining the US Dollar Equivalent
of any other currency, the rate at which such other currency may be exchanged into US Dollars at
the time of determination on such day on the Reuters WRLD Page for such currency. In the event
that such rate does not appear on any Reuters WRLD Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Borrowers, or, in the absence of such an agreement, such
Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange operations in respect of
such currency are then being conducted, at or about such time as the Administrative Agent shall
elect after determining that such rates shall be the basis for determining the Exchange Rate, on
such date for the purchase of US Dollars for delivery two


 


14









 





Business Days later; provided
that if at the time of any such determination, for any reason, no such spot rate is being quoted,
the Administrative Agent may use any reasonable method it deems appropriate to determine such rate,
and such determination shall be presumed correct absent manifest error.



“Exchange Rate Date” means, if on such date any outstanding Revolving Credit Exposure
is (or any Revolving Credit Exposure that has been requested at such time would be) denominated in
a currency other than US Dollars, each of:




(a) the last Business Day of each calendar quarter,



(b) if an Event of Default has occurred and is continuing, the CAM Exchange Date and any other
Business Day designated as an Exchange Rate Date by the Administrative Agent in its sole
discretion, and



(c) each date (with such date to be reasonably determined by the Administrative Agent) that is
on or about the date of (i) a Borrowing Request or an Interest Election Request with respect to
Revolving Loans or (ii) each request for the issuance, amendment, renewal or extension of any
Letter of Credit or Swingline Loan.



“Excluded Taxes” means, with respect to any Lender or Issuing Bank, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States of America (or any
political subdivision thereof), or by the jurisdiction under which such recipient is organized or
incorporated or in which its principal office or any lending office from which it makes Loans
hereunder is located, (b) any branch profit taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction described in clause (a) above, (c) in the
case of a US Tranche Lender, any withholding tax that is imposed by the United States of America
(or any political subdivision thereof) on payments by the Company from an office
within such jurisdiction and would apply as of the date such US Tranche Lender becomes a party
to this Agreement (or, subject to Section 2.17(f)(ii), in the case of a Lender that becomes
a US Tranche Lender by operation of the CAM Exchange, that would apply as of the date such Lender
becomes a US Tranche Lender) or relates to payments received by a new lending office designated by
such US Tranche Lender and is in effect and would apply at the time such lending office is
designated, (d) in the case of a European Tranche Lender, any withholding tax that is imposed by
the Netherlands or the United States (or any political subdivision thereof) on payment by a
European Borrower from an office within such jurisdiction, in any case to the extent such tax is in
effect and would apply as of the date such European Tranche Lender becomes a party to this
Agreement (or, subject to Section 2.17(f)(ii), in the case of a Lender that becomes a
European Tranche Lender by operation of the CAM Exchange, that would apply as of the date such
Lender becomes a European Tranche Lender) or relates to payments received by a new lending office
designated by such European Tranche Lender and is in effect and would apply at the time such
lending office is designed, or (e) any withholding tax that is attributable to such Lender’s
failure to comply with Section 2.17(e), except, in the case of clause (c) or
(d) above, to the extent that such withholding tax shall have resulted from the making of
any payment by a Borrower to a location other than the office designated by the Applicable Agent or
such Lender for the receipt of payments of the applicable type from the applicable Borrower and in
the case of clauses (a) to (e) above, Excluded Taxes does not include UK Tax.


 


15









 






“Existing Credit Agreement” is defined in the Preliminary Statements hereto.




“Existing Letters of Credit” has the meaning set forth in Section 2.05(a).



“Exposure” means, with respect to any Lender, such Lender’s US Tranche Revolving
Exposure and European Tranche Exposure.




“Facility Office” has the meaning assigned to such term in Section 2.17(f).



“FCC” means the Federal Communications Commission or any successor commission or
agency of the United States of America having jurisdiction over the Company, any Subsidiary, any
System or any Telecommunications Equipment.



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



“Financial Officer” means any of the following officers of the Company: chief
executive officer, president, chief financial officer, treasurer, chief accounting officer or
senior vice president of finance.



“Fixed Charge Coverage Ratio” means, as of the last day of any fiscal quarter of the
Company, the ratio of (a)(i) Consolidated EBITDA during the four fiscal quarter period then ended
minus (ii) Consolidated Capital Expenditures during such period minus (iii) cash
dividends or distributions (excluding any repurchase of its Equity Interests made by the Company in
accordance with Section 6.06) paid by the Company on its Equity Interests during such period
plus (iv) Consolidated Rentals during such period to (b)(i) Consolidated Interest Expense
during such period plus (ii) Consolidated Rentals during such period plus (iii)
expenses for taxes paid or taxes accrued during such period (calculated for the Company and its
Subsidiaries on a consolidated basis) plus (iv) any scheduled amortization of the principal
portion of Indebtedness during such period (other than amounts owing in connection with Permitted
Receivables Facilities), including, without limitation, Capitalized Lease Obligations (calculated
for the Company and its Subsidiaries on a consolidated basis).



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




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




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


 


16









 





“Governmental Approval” means, with respect to the Company or any Subsidiary, any
license, permit or certificate of public convenience and necessity issued or required to be issued
to the Company or such Subsidiary by the FCC, any PUC or any Governmental Authority in connection
with any System or Telecommunications Equipment.



“Governmental Authority” means the government of the United States of America, the
Netherlands, the United Kingdom, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government, including, without limitation, the European
Union.



“Government Contract Payment” has the meaning set forth in the definition of
“Government Contract Payment Sale”.



“Government Contract Payment Purchaser” has the meaning set forth in the definition of
“Government Contract Payment Sale”.



“Government Contract Payment Sale” means a transaction in which (a) a Loan Party
enters into a lease or software licensing agreement with a U.S. state or federal Governmental
Authority pursuant to which (i) such Loan Party will lease certain equipment or license certain
software to such Governmental Authority and (ii) such Governmental Authority is obligated to make a
series of payments to such Loan Party during the term of such lease or software license (each such
payment, a “Government Contract Payment”), (ii) such Loan Party
pays the related vendor in full for the related equipment or software on the date such
transaction is consummated, (iii) such Loan Party sells such Government Contract Payments (and, in
the case of a lease, the related lease equipment) to a third-party (a “Government Contract
Payment Purchaser”) on such date and (iv) such Loan Party administers and services such
Government Contract Payments for such Government Contract Payment Purchaser during the term of such
lease or software license; provided, that after the date of such transaction the sole
payment obligation of such Loan Party in connection with such transaction shall be to pay to such
Government Payment Purchaser all related Government Contract Payments actually received by such
Loan Party.



“Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term


 


17









 





Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.



“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, 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.



“Holders of Secured Obligations” means the holders of the Secured Obligations from
time to time and shall refer to (i) each Lender in respect of its Loans, (ii) the Issuing Bank in
respect of LC Disbursements, (iii) the Agents, the Lenders and the Issuing Bank in respect of all
other present and future obligations and liabilities of any Borrower or any Subsidiary Guarantor of
every type and description arising under or in connection with this Agreement or any other Loan
Document, (iv) each Person benefiting from indemnities made by any Borrower or any Subsidiary
Guarantor hereunder or under other Loan Documents, (iv) each Lender (or Affiliate thereof), in
respect of all Swap Agreements of the Company or any Subsidiary with such Lender (or such
Affiliate) as exchange party or counterparty thereunder and (v) their respective successors,
transferees and assigns.



“Hostile Acquisition” means (a) the acquisition of the Equity Interests of a Person
through a tender offer or similar solicitation of the owners of such Equity Interests which has not
been approved (prior to such acquisition) by the board of directors (or any other applicable
governing body) of such Person or by similar action if such Person is not a corporation and (b) any
such acquisition as to which such approval has been withdrawn.



“Immaterial Subsidiary” means any Subsidiary of the Company that is not a Material
Subsidiary.



“Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (d) all obligations of such
Person in respect of the deferred purchase price property or services (excluding current accounts
payable incurred in the ordinary course of business), (e) all Indebtedness of others secured by any
Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby
has been assumed, (f) all Guarantees by such Person of obligations, liabilities or indebtedness of
the type described in clauses (a) through (e) and (g) through (l) of this definition, (g) all
Capitalized Lease Obligations of such Person, (h) Off-Balance Sheet Liabilities of such Person, (i)
the principal component of all obligations, contingent or otherwise, of such Person as an account
party in respect of letters of credit and letters of guaranty (unless cash collateralized with cash
and/or cash equivalents in a manner permitted hereunder), (j) the principal component of all
obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) with
respect to any Subsidiary of the Company, any Disqualified Equity Interests of such Person and (l)
all Net Mark-to-Market Exposure of such Person under all Swap Agreements. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any partnership in which such
Person is a


 


18









 





general partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.




“Indemnified Taxes” means Taxes other than Excluded Taxes and Other Taxes.




“Indemnitee” has the meaning set forth in Section 11.03(b).



“Information Memorandum” means the Confidential Information Memorandum dated February
2008 relating to the Company and the Transactions.



“Initial Subsidiary Guarantor” means each Domestic Subsidiary of the Company listed on
Schedule 1.01(b).



“Intellectual Property Security Agreements” means each of intellectual property
security documents made by the Loan Parties in favor of the Administrative Agent and such other
intellectual property security documents as any Loan Party may from time to time hereafter make in
favor of the Administrative Agent.



“Intercreditor Agreement” means the Amended and Restated Intercreditor Agreement,
dated as of April 1, 2008, among the Administrative Agent, IBM Credit Corporation, Hewlett Packard
Company and JPMorgan Chase Bank, National Association, as Agent for the “Securitization Parties”
identified therein, and as acknowledged by the Company and certain of its Subsidiaries.



“Interest Election Request” means a request by the applicable Borrower to convert or
continue a Borrowing in accordance with Section 2.07.



“Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any
Eurocurrency Loan (other than a Swingline Loan), the last day of the Interest Period applicable to
the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an
Interest Period of more than three months’ duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months’ duration after the first day of such
Interest Period, and (c) with respect to any Swingline Loan, the day that such Loan is required to
be repaid pursuant to the terms of this Agreement.



“Interest Period” means (a) with respect to any Eurocurrency Borrowing (other than a
European Tranche Swingline Loan), the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the calendar week or calendar month that is one week, two
weeks or one, two, three or six months thereafter, as the applicable Borrower may elect and (b)
with respect to any European Tranche Swingline Loan, the period commencing on the date of such Loan
and ending on the date one, seven or fourteen days thereafter, as the applicable Borrower may
elect; provided, that (i) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day unless, with
respect to any Eurocurrency Borrowing other than a European Tranche Swingline Loan, such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day


 


19









 





and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing (other than a European Tranche Swingline Loan) that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.



“Issuing Bank” means JPMorgan Chase Bank, National Association in its capacity as an
issuer of Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.05(i). The Issuing Bank may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank”
shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.



“LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.



“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time and (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Company at such time. The LC Exposure of
any US Tranche Lender at any time shall be its US Tranche Revolving Percentage of the total LC
Exposure at such time.



“Lead Arranger” means J.P. Morgan Securities Inc., in its capacity as sole lead
arranger and sole bookrunner.



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




“Letter of Credit” means any letter of credit issued pursuant to this Agreement.



“LIBO Rate” means, with respect to any Eurocurrency Borrowing other than in Euro under
any Tranche for any Interest Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m., London time, on the Quotation Day for such Interest Period by reference
to the British Bankers’ Association Interest Settlement Rates for deposits in the currency of such
Borrowing (as reflected on the applicable Reuters screen page), for a period equal to such Interest
Period; provided that, to the extent that an interest rate is not ascertainable pursuant to
the foregoing provisions of this definition, the “LIBO Rate” shall be the average (rounded upward,
if necessary, to the next 1/100 of 1%) of the respective interest rates per annum at which deposits
in the currency of such Borrowing are offered for such Interest Period to major banks in the
Applicable Interbank Market by JPMorgan Chase Bank, National Association at approximately 11:00
a.m., London time, on the Quotation Day for such Interest Period.



“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b)


 


20









 





the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset.



“Loan Documents” means this Agreement, the Subsidiary Guarantee Agreement, the
Collateral Documents, the Intercreditor Agreement, each promissory note delivered pursuant to this
Agreement and each other agreement, instrument, certificate or other document executed by any Loan
Party in connection with any of the foregoing.




“Loan Parties” means the Borrowers and the Subsidiary Guarantors.



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



“Local Time” means (a) with respect to a Loan, Borrowing or Letter of Credit extended
or issued to the Company under the US Tranche, New York City time, and (b) with respect to any
other Loan or Borrowing, London time.



“London Business Day” means any day that is not a Saturday, Sunday or other day on
which commercial banks in London are authorized or required by law to remain closed.



“Mandatory Cost” is described in Schedule 1.01(a).



“Material Adverse Effect” means a material adverse effect on (a) the business, assets,
property or financial condition of the Company and the Subsidiaries, taken as a whole, or (b) the
validity or enforceability of this Agreement or any other Loan Document or the rights or remedies
of the Agents and the Lenders hereunder and thereunder.



“Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of any
Borrower or any Subsidiary in an aggregate principal amount exceeding $25,000,000. For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of any Borrower or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that such Borrower or such Subsidiary would be required
to pay if such Swap Agreement were terminated at such time.



“Material Subsidiary” means any direct or indirect Domestic Subsidiary of the Company
or any direct Foreign Subsidiary of the Company or any Subsidiary Guarantor, in each case set forth
on Schedule 3.16 or designated as a Material Subsidiary in a Compliance Certificate
delivered by the Company pursuant to this Agreement.




“Maturity Date” means April 1, 2013.




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



“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA with respect to which the Company or any of its ERISA Affiliates may have any liability,
contingent or otherwise.


 


21









 





“Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the
excess (if any) of all unrealized losses over all unrealized profits of such Person arising from
Swap Agreements. “Unrealized losses” means the fair market value of the cost to such Person of
replacing such Swap Agreement as of the date of determination (assuming such Swap Agreement were to
be terminated as of that date), and “unrealized profits” means the fair market value of the gain to
such Person of replacing such Swap Agreement as of the date of determination (assuming such Swap
Agreement were to be terminated as of that date).



“Obligations” means the due and punctual payment of (a) the principal of and premium,
if any, and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans made to any Borrower, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (b) each payment required to
be made by the Company under this Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursement of disbursements, interest thereon and obligations
to provide cash collateral, and (c) all other monetary obligations, including fees, costs, expenses
and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the
Borrowers and the Subsidiary Guarantors under this Agreement and the other Loan Documents.



“Off-Balance Sheet Liability” of a Person means, without duplication, (a) any
Attributable Receivables Indebtedness of such Person, and (b) the principal component of (i) any
repurchase obligation or liability of such Person with respect to Receivables or notes receivable
sold by such Person, (ii) any liability under any so-called “synthetic lease” or “tax ownership
operating lease” transaction entered into by such Person or (iii) any obligation arising with
respect to any other transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance sheets of such
Person, but excluding from this clause (iii) all Operating Leases.



“Operating Lease” of a Person means any lease of an asset (other than a Capitalized
Lease) by such Person as lessee which has an original term (including any required renewals and any
renewals effective at the option of the lessor) of one year or more.



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




“Participant” has the meaning set forth in Section 11.04(c).



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



“Permitted Acquisition” means (a) subject to the satisfaction of the terms and
conditions in Section 4.01, the Calence Acquisition, and (b) any other acquisition (whether
by


 


22









 





purchase, merger, consolidation or otherwise but excluding in any event a Hostile Acquisition)
or series of related acquisitions by the Company or any Subsidiary of all or substantially all the
assets of, or more than fifty percent (50%) of the Equity Interests in, a Person or division or
line of business of a Person if, at the time of and immediately after giving effect thereto, (i) no
Default has occurred and is continuing or would arise after giving effect thereto, (ii) such Person
or division or line of business is engaged in a type of business that complies with the
requirements of the last sentence of Section 6.03, (iii) the Total Leverage Ratio shall not
exceed the Applicable Acquisition Ratio and the Fixed Charge Coverage Ratio shall not be less than
1.25 to 1.00, in each case determined on a pro forma basis reasonably acceptable to the
Administrative Agent after giving effect to such acquisition, recomputed as of the last day of the
most recently ended fiscal quarter of the Company for which financial statements are available, as
if such acquisition (and any related incurrence or repayment of Indebtedness, with any new
Indebtedness being deemed to be amortized over the applicable testing period in accordance with its
terms) had occurred on the first day of each relevant period for testing such compliance and (iv)
the Company shall have delivered a Compliance Certificate not less than fifteen (15) days (or such
shorter period as the Administrative Agent shall agree) prior to the consummation of such
acquisition demonstrating compliance with the foregoing clause (iii) and setting forth the
Material Subsidiaries after giving effect to such acquisition.



“Permitted Encumbrances” means:




(a) Liens for taxes that are not yet due or are being contested in compliance with
Section 5.04;




(b) carriers’, suppliers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,
landlords’ and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.04;




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




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




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




(f) easements, zoning restrictions, rights-of-way, use restrictions, minor defects
or irregularities in title, reservations (including reservations in any original grant
from any government of any water or mineral rights or interests therein) and similar
encumbrances on real property imposed by law or arising in the ordinary course of
business that do not secure any monetary obligations and do not materially detract from
the value of the affected property or interfere with the ordinary conduct of business of
the Company or any Subsidiary;


 


23









 






(g) Liens in favor of payor banks having a right of setoff, revocation, refund or
chargeback with respect of money or instruments of the Company or any Subsidiary on
deposit with or in possession of such bank;




(h) deposits securing liability to insurance carriers under insurance or
self-insurance arrangements; and




(i) Liens created under the Collateral Documents.




“Permitted Investments” means:




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




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




(c) investments in commercial paper maturing within one year from the date of
acquisition thereof and rated, at such date of acquisition, at least A-2 by S&P or P-2 by
Moody’s, or carrying an equivalent rating by a nationally recognized rating agency if both
of the two named rating agencies cease publishing ratings of commercial paper issuers
generally;




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




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




(f) money market funds that (i) comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, and (ii) are rated
AAA by S&P or Aaa by Moody’s;




(g) in the case of any Foreign Subsidiary, high quality, short-term liquid Investments
made by such Foreign Subsidiary in the ordinary course of managing its surplus cash position
in investments in any OECD country of similar quality as those described in
clauses (a) through (f) above; and


 


24









 






(h) demand deposit accounts maintained in the ordinary course of business.



“Permitted Receivables Facility” means the receivables facility or facilities created
under the Permitted Receivables Facility Documents, providing for the sale or pledge by the Company
and/or one or more other Receivables Sellers of Permitted Receivables Facility Assets (thereby
providing financing to the Company and the Receivables Sellers) to the Receivables Entity (either
directly or through another Receivables Seller), which in turn shall sell or pledge interests in
the respective Permitted Receivables Facility Assets to third-party investors pursuant to the
Permitted Receivables Facility Documents (with the Receivables Entity permitted to issue investor
certificates, purchased interest certificates or other similar documentation evidencing interests
in the Permitted Receivables Facility Assets) in return for the cash used by the Receivables Entity
to purchase the Permitted Receivables Facility Assets from the Company and/or the respective
Receivables Sellers, in each case as more fully set forth in the Permitted Receivables Facility
Documents.



“Permitted Receivables Facility Assets” means (a) Receivables (whether now existing or
arising in the future) of the Company and its Subsidiaries which are transferred or pledged to the
Receivables Entity pursuant to the Permitted Receivables Facility and any related
assets which are also so transferred or pledged to the Receivables Entity and all proceeds
thereof and (b) loans to the Company and its Subsidiaries secured by Receivables (whether now
existing or arising in the future) of the Company and its Subsidiaries which are made pursuant to
the Permitted Receivables Facility.



“Permitted Receivables Facility Documents” means each of the documents and agreements
entered into in connection with the Permitted Receivables Facility, including all documents and
agreements relating to the issuance, funding and/or purchase of certificates and purchased
interests, all of which documents and agreements (in the case of material documents and agreements)
shall be in form and substance reasonably satisfactory to the Administrative Agent in all material
respects, in each case as such documents and agreements may be amended, restated, amended and
restated, modified, supplemented, refinanced or replaced from time to time so long as (a) any such
amendments, modifications, supplements, refinancings or replacements do not impose any conditions
or requirements on the Company or any of its Subsidiaries that are more restrictive in any material
respect than those in existence immediately prior to any such amendment, modification, supplement,
refinancing or replacement, and (b) any such amendments, modifications, supplements, refinancings
or replacements are not adverse in any material way to the interests of the Lenders. The
Administrative Agent and the Lenders hereby acknowledge that all Permitted Receivables Facility
Documents in effect on the Effective Date with respect to the Permitted Receivables Facility to
which Insight Receivables, LLC is a party are satisfactory in form.



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



“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Company or any ERISA Affiliate is (or, if such plan were


 


25









 





terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



“Pledge Agreements” means (i) the Company Pledge Agreement, (ii) the Subsidiary Pledge
Agreement, (iii) each of the Charge Over Shares, dated April 1, 2008, between the Company and the
Administrative Agent, (iv) the Charge Over Shares, dated April 1, 2008, between Insight Enterprises
UK Limited and the Administrative Agent, (v) the Deed of Pledge on Shares in the Capital of Insight
Enterprises B.V., dated April 1, 2008, among Insight Enterprises Holdings B.V., Insight Enterprises
B.V. and the Administrative Agent, (vi) the Deed of Pledge on Shares in the Capital of Insight
Enterprises Holdings B.V., dated April 1, 2008, among Insight Technology Solutions Inc., Insight
Enterprises C.V., Insight Enterprises Holdings B.V. and the Administrative Agent and (vii) such
other pledge agreements as may from time to time be made by the Company or any other Loan Party in
favor of the Administrative Agent for the benefit of the Holders of Secured Obligations, in each
case, as amended, restated, supplemented or otherwise modified from time to time.



“Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, National Association as its prime rate in effect at its principal office in
New York City; each change in the Prime Rate shall be effective from and including the
date such change is publicly announced as being effective, and such prime rate need not be the
lowest interest rate charged by JPMorgan Chase Bank, National Association in respect of loans or
other extensions of credit.



“PUC” means any state Governmental Authority having utility or telecommunications
regulatory authority over the Company, any Subsidiary, any System or any Telecommunications
Equipment.



“Qualified Equity Interests” means any Equity Interests that do not constitute
Disqualified Equity Interests.



“Qualifying Lender” means (i) a building society (as defined for the purpose of
section 880 of the Income Tax Act 2007) making an advance under a Loan Document or (ii) a UK
Lender.



“Quotation Day” means, in relation to any period for which an interest rate is to be
determined:



(a) if the currency is in Euro, two TARGET Days and two London Business Days (to the extent
the two are not the same) before the first day of that period; or



(b) for US Dollars or any Alternative Currency other than Euro, two Business Days before the
first day of that period,



unless market practice differs in the Applicable Interbank Market for a currency, in which case the
Quotation Day for that currency will be determined by the Applicable Agent in accordance with
market practice in the Applicable Interbank Market (and if quotations would normally be given by
leading banks in the Applicable Interbank Market on more than one day, the Quotation Day will be
the last of those days).


 


26









 





“Receivables” means all accounts receivable (including, without limitation, all rights
to payment created by or arising from sales of goods, leases of goods or the rendition of services
rendered no matter how evidenced whether or not earned by performance).



“Receivables Entity” means a wholly-owned Subsidiary of the Company which engages in
no activities other than in connection with the financing of accounts receivable of the Receivables
Sellers and which is designated (as provided below) as the “Receivables Entity” (a) no portion of
the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by
the Company or any other Subsidiary of the Company (excluding guarantees of obligations (other than
the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings),
(ii) is recourse to or obligates the Company or any other Subsidiary of the Company in any way
(other than pursuant to Standard Securitization Undertakings) or (iii) subjects any property or
asset of the Company or any other Subsidiary of the Company, directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization
Undertakings, (b) with which neither the Company nor any of its Subsidiaries has any contract,
agreement, arrangement or understanding (other than pursuant to the Permitted Receivables Facility
Documents (including with respect to fees payable in the
ordinary course of business in connection with the servicing of accounts receivable and
related assets)) on terms less favorable to the Company or such Subsidiary than those that might be
obtained at the time from persons that are not Affiliates of the Company, and (c) to which neither
the Company nor any other Subsidiary of the Company has any obligation to maintain or preserve such
entity’s financial condition or cause such entity to achieve certain levels of operating results.
Except with respect to Insight Receivables, LLC, an Illinois limited liability company, which is
hereby designated as a Receivables Entity, any such designation shall be evidenced to the
Administrative Agent by filing with the Administrative Agent an officer’s certificate of the
Company certifying that such designation complied with the foregoing conditions.



“Receivables Sellers” means the Company and its Subsidiaries (other than the
Receivables Entity, and, until the lien release provisions of Article VIII in respect of a
Designated Subsidiary have been satisfied, such Designated Subsidiary and its Subsidiaries) that
are from time to time party to the Permitted Receivables Facility Documents.




“Register” has the meaning set forth in Section 11.04(b)(iv).



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



“Rentals” of a Person means the aggregate fixed amounts payable by such Person under
any Operating Lease.



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




“Reserve Account” has the meaning set forth in Section 9.02.


 


27









 





“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Company or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests in the Company or any Subsidiary thereof
or any option, warrant or other right to acquire any such Equity Interest in the Company or any
Subsidiary thereof.



“Revolving Borrowing” means a Borrowing comprised of US Tranche Revolving Loans or
European Tranche Revolving Loans.



“Revolving Credit Exposure” means a US Tranche Revolving Exposure or a European
Tranche Exposure.



“Revolving Loan” means a US Tranche Revolving Loan or a European Tranche Revolving
Loan.




“S&P” means Standard & Poor’s.



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



“Secured Obligations” means (a) the Obligations and (b) unless otherwise agreed upon
in writing by the applicable Lender party thereto, the due and punctual payment and performance of
all obligations of the Company or any Subsidiary, monetary or otherwise, under each Swap Agreement
entered into with any counterparty that was a Lender (or an Affiliate thereof) at the time such
Swap Agreement was entered into.



“Security Agreements” means the Company Security Agreement and the Subsidiary Security
Agreement.



“Solvent” means, with respect to any Person on a particular date, that on such date
(a) the fair value of the property of such Person is greater than the total amount of liabilities,
including contingent liabilities, of such Person; (b) 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; (c) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay
as such debts and liabilities mature; and (d) such Person is not engaged in a business or
transaction, and is not about to engage in a business or transaction, for which such Person’s
property would constitute an unreasonably small capital. The amount of contingent liabilities
(such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the
amount that, in light of all the facts and circumstances existing at the time, represents the
amount that can be reasonably be expected to become an actual or matured liability.



“Standard Securitization Undertakings” means representations, warranties, covenants
and indemnities entered into by the Company or any Subsidiary thereof in connection with the
Permitted Receivables Facility which are reasonably customary in an accounts receivable financing
transaction.


 


28









 





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



“Sterling” and “£” mean the lawful currency of the United Kingdom.



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



“Subsidiary” means any subsidiary of the Company (after giving effect to the Calence
Acquisition); provided, that Persons that would be required in accordance with GAAP to be
consolidated with the Company, but which are not otherwise controlled by the Company shall be
“Subsidiaries” hereunder solely for the purpose of making calculations under Section 6.10
hereof, but shall not be “Subsidiaries” hereunder for purposes of any representation, warranty or
other covenant hereunder.



“Subsidiary Guarantee Agreement” means the Second Amended and Restated Subsidiary
Guaranty, dated as of the date hereof among the Subsidiary Guarantors and the Administrative Agent,
for the benefit of the Holders of Secured Obligations.



“Subsidiary Guarantors” means each Initial Subsidiary Guarantor and each other Person
that becomes party to a Subsidiary Guarantee Agreement as a Subsidiary Guarantor, and the permitted
successors and assigns of each such Person.



“Subsidiary Pledge Agreement” means that certain Second Amended and Restated Domestic
Subsidiary Pledge Agreement, dated as of the date hereof, among the Subsidiary Guarantors and the
Administrative Agent, for the benefit of the Holders of Secured Obligations.


 


29









 





“Subsidiary Security Agreement” means the Second Amended and Restated Subsidiary
Security Agreement, dated as of the date hereof, among certain of the Subsidiary Guarantors and the
Administrative Agent, for the benefit of the Holders of Secured Obligations.



“Substantial Portion” means, with respect to the assets of the Company and its
Subsidiaries, assets that represent more than 10.0% of the consolidated assets of the Company and
its Subsidiaries or assets that are responsible for more than 10.0% of the consolidated net sales
or of the consolidated net income of the Company and its Subsidiaries, in each case, as would be
shown in the consolidated financial statements of the Company and its Subsidiaries as at the end of
the four fiscal quarter period ending with the fiscal quarter immediately prior to the fiscal
quarter in which such determination is made (or if financial statements have not been delivered
hereunder for that fiscal quarter which ends the four fiscal quarter period, then the financial
statements delivered hereunder for the quarter ending immediately prior to that quarter).



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



“Swingline Exposure” means, at any time, the sum of (a) the US Tranche Swingline
Exposure and (b) the European Tranche Swingline Exposure. The Swingline Exposure of any Lender
shall be the sum of (a) the US Tranche Swingline Exposure for such Lender, if any, and (b) the
European Tranche Swingline Exposure for such Lender, if any, at such time.



“Swingline Lender” means the US Tranche Swingline Lender or the European Tranche
Swingline Lender, as applicable.



“Swingline Loan” means a US Tranche Swingline Loan or a European Tranche Swingline
Loan, as applicable.




“Switching Equipment” means telecommunications switches and associated electronics.



“System” means each telecommunications system owned or operated by the Company or any
Subsidiary in the United States of America as an integrated communications provider in a designated
metropolitan area, and all replacements, enhancements or additions thereto.



“TARGET” means Trans-European Automated Real-time Gross Settlement Express Transfer
payment system.


 


30









 






“TARGET Day” means any day on which TARGET is open for settlement of payments in Euro.



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



“Telecommunications Equipment” means Switching Equipment, fiber optic cable, or other
comparable switches, transmission equipment and other ancillary equipment necessary for the
installation and operation of a switch room or central office and co-location with other
telecommunications providers that will enable the Company or any Subsidiary to offer telephony
services, as well as all software and hardware associated with the network operating center and
back office systems (including operations systems and support, billing systems and data services).



“Total Leverage Ratio” means, as of the last day of any fiscal quarter of the Company,
the ratio of Consolidated Funded Indebtedness at such time to Adjusted Consolidated EBITDA for the
four fiscal quarter period then most recently ended.




“Tranche” means the US Tranche or the European Tranche.



“Tranche Percentage” means, with respect to any Lender, such Lender’s US Tranche
Revolving Percentage or European Tranche Percentage, as applicable.



“Transactions” means (i) the execution, delivery and performance by the Borrowers of
this Agreement, the execution, delivery and performance by the Borrowers and their applicable
Subsidiaries of all other Loan Documents, the borrowing of Loans and the use of the proceeds
thereof and the issuance of Letters of Credit hereunder and (ii) the Calence Acquisition.



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



“UK Borrower” means Insight Direct (UK) Ltd., a company organized under the laws of
England, together with its successors and permitted assigns.



“UK Chargor” means Insight Enterprises UK Limited, a company organized under the laws
of England, together with its successors and permitted assigns.



“UK Lender” means a Lender which is beneficially entitled to interest payable to that
Lender in respect of an advance under a Loan Document and is a Lender which is:




(a) a company resident in the United Kingdom for United Kingdom tax purposes; or




(b) a partnership each member of which is:


 


31









 






(i) a company resident in the United Kingdom; or




(ii) a company not so resident in the United Kingdom which carries on a trade
in the United Kingdom through a permanent establishment and which brings into
account in computing its chargeable profits (for the purposes of section 11(2) of
the Income and Corporation Taxes Act 1988) the whole of any share of interest
payable in respect of that advance that falls to it by reason of sections 114 and
115 of the Income and Corporation Taxes Act 1988; or



(c) a company not so resident in the United Kingdom which carries on a trade in the United
Kingdom through a permanent establishment and which brings into account interest payable in respect
of that advance in computing its chargeable profits (within the meaning given by section 11(2) of
the Income and Corporation Taxes Act 1988).



“UK Tax” means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same) imposed by the government of the United
Kingdom or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government of the United Kingdom.



“US Dollar Equivalent” means, on any date of determination, (a) with respect to any
amount in US Dollars, such amount, and (b) with respect to any amount in an Alternative Currency,
the equivalent in US Dollars of such amount, determined by the Administrative Agent pursuant to
Section 1.05 using the Exchange Rate with respect to such Alternative Currency at the time
in effect under the provisions of such Section.




“US Dollars” or “$” means the lawful money of the United States of America.



“US Swingline Rate” means either (a) the Alternate Base Rate plus the Applicable Rate
for ABR Loans or (b) a rate mutually agreed upon by the Company and JPMorgan Chase Bank, National
Association.



“US Tranche” means the US Tranche Revolving Commitments, the US Tranche Revolving
Loans, the LC Exposure and the US Tranche Swingline Loans.




“US Tranche Lender” means a Lender with a US Tranche Revolving Commitment.



“US Tranche Revolving Borrowing” means a Borrowing comprised of US Tranche Revolving
Loans.



“US Tranche Revolving Commitment” means, with respect to each Lender, the commitment
of such Lender to make US Tranche Revolving Loans and to acquire participations in Letters of
Credit and US Tranche Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender’s US Tranche Revolving Exposure hereunder, as such commitment may
be (a) reduced from time to time pursuant to Section 2.08,


 


32









 





(b) increased from time to time
pursuant to Section 2.09 and (c) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 11.04. The initial amount of each
Lender’s US Tranche Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its US Tranche Revolving
Commitment, as applicable. The aggregate amount of the US Tranche Revolving Commitments on the
date hereof is the US Dollar Equivalent of $275,000,000.



“US Tranche Revolving Exposure” means, with respect to any US Tranche Lender at any
time, the sum at such time, without duplication, of (a) such Lender’s US Tranche Revolving
Percentage of the sum of the principal amounts of the outstanding US Tranche Revolving Loans, plus
(b) the aggregate amount of such Lender’s LC Exposure and US Tranche Swingline Exposure at such
time.



“US Tranche Revolving Loan” means a Loan made by a US Tranche Lender pursuant to
Section 2.01(a).



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



“US Tranche Swingline Exposure” means, at any time, the aggregate principal amount of
all US Tranche Swingline Loans outstanding at such time. The US Tranche Swingline Exposure of any
US Tranche Lender at any time shall be its US Tranche Revolving Percentage of the total US Tranche
Swingline Exposure at such time.



“US Tranche Swingline Lender” means JPMorgan Chase Bank, National Association, in its
capacity as lender of US Tranche Swingline Loans hereunder.



“US Tranche Swingline Loan” means a Loan made by the US Tranche Swingline Lender to
the Company pursuant to Section 2.04.



“Vendor Trade Programs” means those certain inventory finance transactions from time
to time entered into by the Company or its Affiliates with IBM Credit Corporation or its
Affiliates, Hewlett Packard Corporation or its Affiliates, Castle Pines Capital LLC or its
Affiliates or any other Person reasonably acceptable to the Administrative Agent.



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



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


 


33









 





 a “US Tranche Revolving Borrowing”) or by Type (e.g., a “Eurocurrency
Borrowing”) or by Class and Type (e.g., a “Eurocurrency US Tranche Revolving Borrowing”).



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



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



SECTION 1.05. Foreign Currency Calculations. (a) For purposes of determining the
European Tranche Exposure, or any other amount as a result of foreign currency exchange rate
fluctuation, the Administrative Agent shall determine the Exchange Rate as of the applicable
Exchange Rate Date with respect to each Alternative Currency in which any requested or outstanding
Borrowing is denominated and shall apply such Exchange Rates to determine such amount (in each case
after giving effect to any Borrowings to be made or repaid and any Letters of Credit to be issued,
amended, renewed, extended or terminated, to the extent practicable on or prior to the applicable
date for such calculation).



(b) For purposes of any determination under Article VI or under paragraph (f),
(g) or (k) of Article VII, all amounts incurred, outstanding or proposed to
be incurred or outstanding in currencies other than US Dollars shall be translated into US Dollars
at the currency exchange rates in effect on the date of such determination; provided that
no Default or Event of Default shall arise as a result of any limitation set forth in Article VI
being exceeded


 


34









 





solely as a result of changes in currency exchange rates from those rates applicable
at the time or times transactions were initially consummated in reliance on the exceptions under
such Sections.



ARTICLE II




The Credits




SECTION 2.01. Commitments. (a) Subject to the terms and conditions set forth
herein, each US Tranche Lender agrees to make US Tranche Revolving Loans to the Company from time
to time during the Availability Period in US Dollars in an aggregate principal amount at any time
outstanding that will not result in (i) such Lender’s US Tranche Revolving Exposure exceeding its
US Tranche Revolving Commitment, or (ii) the aggregate
amount of the Lenders’ US Tranche Revolving Exposures exceeding the aggregate amount of the US
Tranche Revolving Commitments.



(b) Subject to the terms and conditions set forth herein, each European Tranche Lender agrees
to make European Tranche Revolving Loans to (i) the European Borrowers in Alternative Currencies
and (ii) the Company in US Dollars and Alternative Currencies from time to time during the
Availability Period in an aggregate principal amount at any time outstanding that will not result
in (i) such Lender’s European Tranche Exposure exceeding its European Tranche Commitment or (ii)
the aggregate amount of the Lenders’ European Tranche Exposures exceeding the aggregate amount of
the European Tranche Commitments.



(c) Within the foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Revolving Loans.



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




(b) Subject to Section 2.14,




(i) each US Tranche Revolving Borrowing shall be comprised entirely of Eurocurrency
Loans or ABR Loans, in each case as the Company may request in accordance herewith;
provided that all US Tranche Revolving Borrowings made on the Effective Date must be
made as ABR Borrowings but may be converted into Eurodollar Borrowings in accordance with
Section 2.07;




(ii) each European Tranche Revolving Borrowing shall be comprised entirely of
Eurocurrency Loans;


 


35









 






(iii) each US Tranche Swingline Loan shall bear interest by reference to the US
Swingline Rate; and




(iv) each European Tranche Swingline Loan shall bear interest by reference to the
European Tranche Swingline Rate.



Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections
2.14, 2.15, 2.16, 2.17, 2.18 and 2.19 shall apply to
such Affiliate to the same extent as to such Lender); provided that any exercise of such
option shall not affect the obligation of the applicable Borrower to repay such Loan in accordance
with the terms of this Agreement.



(c) Each Borrowing shall be in an aggregate amount that is at least equal to the Borrowing
Minimum and an integral multiple of the Borrowing Multiple; provided that an ABR Borrowing
to the Company under the US Tranche Revolving Commitments may be made in an aggregate amount that
is equal to the aggregate available US Tranche Revolving Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Borrowings of
more than one Type and Class may be outstanding at the same time; provided, that (i) there
shall not at any time be more than a total of 12 US Tranche Eurocurrency Revolving Borrowings
outstanding, and (ii) there shall not at any time be more than a total of 8 European Tranche
Eurocurrency Revolving Borrowings outstanding.



(d) Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.



(e) The first Loan from any Lender to the Dutch Borrower shall be at least EUR 50,000 or its
equivalent in foreign currency.




SECTION 2.03. Requests for Revolving Borrowings.



(a) To request a Revolving Borrowing, the applicable Borrower, or the Company on behalf of
the applicable Borrower, shall notify the Applicable Agent (and the Administrative Agent, if the
Applicable Agent is not the Administrative Agent) of such request by (x) e-mail, telephone or
telecopy, if with respect to the US Tranche and (y) telecopy, if with respect to the European
Tranche:




(i) in the case of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of the proposed Borrowing, and




(ii) in the case of an ABR Borrowing, not later than 12:00 p.m., New York City time,
on the Business Day of the proposed Borrowing.



Each Borrowing Request shall be irrevocable and each telephonic request shall be confirmed by 2:00
p.m. (Local Time) on the same Business Day by hand delivery or telecopy to the Applicable Agent of
a written Borrowing Request. Each written Borrowing Request shall be in a form approved by the
Applicable Agent and signed by the applicable Borrower, or by the Company on


 


36









 





behalf of the
applicable Borrower. Each electronic, telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:



1. The Borrower requesting such Borrowing (or on whose behalf the Company is requesting such
Borrowing);



2. Whether the requested Borrowing is to be a US Tranche Revolving Borrowing or a European
Tranche Revolving Borrowing;




3. The currency and aggregate principal amount of the requested Borrowing;



4. The date of the requested Borrowing, which shall be a Business Day;




5. The Type of the requested Borrowing;



6. In the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and



7. The location and number of the relevant account(s) to which funds are to be disbursed,
which shall comply with the requirements of Section 2.06.



(b) If no election as to the Type of Borrowing is specified, then the requested Revolving
Borrowing shall be (i) in the case of a Borrowing under the US Tranche, an ABR Borrowing, and (ii)
in the case of a Borrowing under the European Tranche, a Eurocurrency Borrowing. If no Interest
Period is specified with respect to any requested Eurocurrency Borrowing, then the relevant
Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the Applicable Agent
shall advise each Lender that will make a Loan as part of the requested Revolving Borrowing of the
details thereof and of the amount of the Loan to be made by such Lender as part of the requested
Revolving Borrowing.



SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the US Tranche Swingline Lender agrees to make US Tranche Swingline Loans in US Dollars to
the Company from time to time during the Availability Period, in an aggregate principal amount at
any time outstanding that will not result in (i) the aggregate principal amount of outstanding US
Tranche Swingline Loans exceeding $15,000,000 or (ii) the total US Tranche Revolving Exposures
exceeding the total US Tranche Revolving Commitments; provided that the US Tranche
Swingline Lender shall not be required to make a US Tranche Swingline Loan to refinance an
outstanding US Tranche Swingline Loan. Subject to the terms and conditions set forth herein, the
European Tranche Swingline Lender agrees to make European Tranche Swingline Loans in an Alternative
Currency to a European Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the US Dollar Equivalent of
the aggregate principal amount of outstanding European Tranche Swingline Loans exceeding $5,000,000
or (ii) the total European Tranche Exposures exceeding the total European Tranche Commitments;
provided that the European Tranche Swingline Lender shall not be required to make a
European Tranche Swingline Loan to refinance an outstanding European Tranche Swingline Loan.
Within the foregoing limits and subject to


 


37









 





the terms and conditions set forth herein, the Borrowers
may borrow, prepay and reborrow Swingline Loans.



(b) To request a Swingline Loan, the applicable Borrower shall notify the Administrative
Agent of such request by telephone (confirmed by telecopy) or e-mail (in the case of a US Tranche
Swingline Loan), and, in the case of a European Tranche Swingline Loan, the European Agent of such
request in a written notice, via telecopy, not later than (x) 1:00 p.m., New York city time, for a
Swingline Loan administered by the Administrative Agent and (y) 9:00 a.m. London time with respect
to a Swingline Loan administered by the European Agent, on the day of a proposed Swingline Loan.
Each such notice shall be irrevocable, shall be deemed to certify that all conditions for a
Borrowing set forth in this Agreement have been satisfied, and shall specify the requested date
(which shall be a Business Day) and amount of the requested
Swingline Loan, the Tranche under which the requested Swingline Loan will be borrowed and, in
the case of a European Tranche Swingline Loan, the Interest Period to be applicable thereto (which
shall be a period contemplated by the definition of the term “Interest Period”). The Applicable
Agent will promptly advise the applicable Swingline Lender of any such notice received from such
Borrower. The applicable Swingline Lender shall, subject to the terms and condition of this
Agreement, make each Swingline Loan available to the applicable Borrower (which may vary based upon
the Tranche under which such Swingline Loan is made) by depositing the same, in immediately
available funds, to an account of such Borrower designated by such Borrower or the Company on
behalf of such Borrower with the Administrative Agent, the European Agent, or such other Person as
agreed to by the Agents and the Borrower, as applicable, or, solely with respect to those Swingline
Loans administered by the Administrative Agent, by wire transfer to an account specified by such
Borrower in the applicable borrowing request (or, in the case of a US Tranche Swingline Loan made
to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by
remittance to the applicable Issuing Bank) by 3:00 p.m., Local Time, on the requested date of such
Swingline Loan.



(c) A Swingline Lender may by written notice given to the Applicable Agent not later than
1:00 p.m., Local Time, on any Business Day require the Lenders under a Tranche to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding under
such Tranche. Such notice shall specify the aggregate amount of Swingline Loans in which such
Lenders will participate. Promptly upon receipt of such notice, the Applicable Agent will give
notice thereof to each applicable Lender, specifying in such notice such Lender’s Tranche
Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Applicable Agent, for the account
of the applicable Swingline Lender, such Lender’s Tranche Percentage of such Swingline Loan or
Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected
by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, mutatis mutandis, to the payment obligations of the Lenders), and the
Applicable Agent shall promptly pay to the applicable Swingline Lender the amounts so received by
it from the Lenders. The Applicable Agent shall


 


38









 





notify the applicable Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments
in respect of such Swingline Loan shall be made to the Applicable Agent and not to such Swingline
Lender. Any amounts received by a Swingline Lender from the applicable Borrower (or other party on
behalf of the applicable Borrower) in respect of a Swingline Loan after receipt by such Swingline
Lender of the proceeds of a sale of participations therein shall be promptly remitted to the
Applicable Agent; any such amounts received by such Agent shall be promptly remitted by such Agent
to the Lenders that shall have made their payments pursuant to this paragraph and to such Swingline
Lender, as their interests may appear; provided that any such payment so remitted shall be
repaid to such Swingline Lender or to such Applicable Agent, as applicable, if and to the extent
such payment is required to be refunded to the applicable Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve the applicable Borrower of any
default in the payment thereof.



SECTION 2.05. Letters of Credit. (a) General; Existing Letters of Credit.
Subject to the terms and conditions set forth herein, the Company may request the issuance, for its
own account and for the benefit of the Company or any Subsidiary of the Company, as applicable, of
Letters of Credit denominated in US Dollars, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time during the Availability Period. In
the event of any inconsistency between the terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other agreement submitted by the Company
to, or entered into by the Company with the Issuing Bank relating to any Letter of Credit, the
terms and conditions of this Agreement shall control. Schedule 2.05 sets forth a list of
existing letters of credit outstanding as of the Effective Date (the “Existing Letters of
Credit”) issued by the Issuing Bank for the account of the Company or a Subsidiary thereof. On
and after the Effective Date, the Existing Letters of Credit shall constitute Letters of Credit
deemed to have been issued under this Agreement.



(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Company shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing Bank) to
the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such other information
as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by
the Issuing Bank, the Company also shall submit a letter of credit application on the Issuing
Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Company shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the US Tranche Revolving
Exposure shall not exceed the total US Tranche Revolving Commitments and (ii) the aggregate face
amount of all outstanding Letters of Credit shall not exceed $50,000,000.


 


39









 





(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Maturity Date.



(d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the US Tranche Lenders, the Issuing Bank hereby grants to each US Tranche Lender,
and each such US Tranche Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender’s US Tranche Revolving Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and
in furtherance of the foregoing, each US Tranche Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such US Tranche
Lender’s US Tranche Revolving Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Company on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Company for any reason. Each US
Tranche Lender acknowledges and agrees that its obligation to acquire participations pursuant to
this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.



(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of
a Letter of Credit, the Company shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York
City time, on the next Business Day following the date that such LC Disbursement is made;
provided that the Company may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be financed with
an ABR US Tranche Revolving Borrowing or US Tranche Swingline Loan in an equivalent amount and, to
the extent so financed, the Company’s obligation to make such payment shall be discharged and
replaced by the resulting ABR US Tranche Revolving Borrowing or US Tranche Swingline Loan, as the
case may be. If the Company fails to make such payment when due, then the Administrative Agent
shall notify each US Tranche Lender of the applicable LC Disbursement, the payment then due from
the Company in respect thereof and such US Tranche Lender’s US Tranche Revolving Percentage
thereof. Promptly following receipt of such notice, each US Tranche Lender shall pay to the
Administrative Agent its US Tranche Revolving Percentage of the payment then due from the Company
in the same manner as provided in Section 2.06 with respect to Loans made by such Lender
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations
of the Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank in US Dollars
the amounts so received by it from such Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Company pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that US Tranche Lenders have made
payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a US Tranche Lender pursuant to
this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR
US Tranche Revolving Loans or US


 


40









 





Tranche Swingline Loans, as contemplated above) shall not
constitute a Loan and shall not relieve the Company of its obligation to reimburse such LC
Disbursement.



(f) Obligations Absolute. The Company’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that
does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Company’s obligations hereunder. Neither the Agents, the Lenders nor the Issuing Bank, nor any
of their Related Parties, shall have any liability or responsibility by reason of or in connection
with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank; provided that the foregoing
shall not be construed to excuse the Issuing Bank from liability to the Company to the extent of
any direct damages (as opposed to consequential damages, claims in respect of which are hereby
waived by the Company to the extent permitted by applicable law) suffered by the Company that are
caused by the Issuing Bank’s failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance with the terms of a Letter of
Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of any notice or information
to the contrary, or refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.



(g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Company by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Company of its obligation to reimburse the Issuing Bank
and the US Tranche Lenders with respect to any such LC Disbursement.


 


41









 





(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Company shall reimburse such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and including the date such
LC Disbursement is made to but excluding the date that the Company reimburses such LC Disbursement,
at the rate per annum then applicable to ABR US Tranche Revolving Loans; provided that, if
the Company fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of
this Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that interest accrued on and after
the date of payment by any US Tranche Lender pursuant to paragraph (e) of
this Section to reimburse the Issuing Bank shall be for the account of such Lender to the
extent of such payment.



(i) Replacement of an Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Company, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective, the Company shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b). From and after the effective date of any such replacement, (i) the successor Issuing
Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with
respect to Letters of Credit to be issued by it thereafter and (ii) references herein to the
“Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require. After the replacement
of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.



(j) Cash Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the Company receives notice from the Administrative Agent or the Required
Lenders demanding the deposit of cash collateral pursuant to this paragraph, the Company shall
deposit in an account with the Administrative Agent, in the name of the Administrative Agent and
for the benefit of the Lenders, an amount in US Dollars in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence of any Event of
Default with respect to the Company described in clause (h) or (i) under
Article VII. The Company also shall deposit cash collateral pursuant to this paragraph as
and to the extent required by Section 2.11(b). Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the Secured Obligations. The
Administrative Agent shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment of such deposits,
which investments shall be made at the option and sole discretion of the Administrative Agent and
at the Company’s risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such account shall be applied
by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Company for the LC Exposure


 


42









 





at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of Required Lenders), be applied to
satisfy other Secured Obligations. If the Company is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the
extent not applied as aforesaid) shall be returned to the Company within three Business Days after
all Events of Default have been cured or waived.



SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately
available funds in the applicable currency by 12:00 noon, Local Time, to the account of the
Applicable Agent or such other Person as indicated by the Applicable Agent most recently designated
for such purpose for Loans of such Class and currency by notice to the applicable Lenders;
provided that Swingline Loans shall be made as provided in Section 2.04. The
Applicable Agent will make such Loans available to the relevant Borrower by promptly crediting the
amounts so received, in like funds, (A) to an account of such Borrower maintained by the Applicable
Agent or such other Person approved by the Applicable Agent (i) in New York City, in the case of US
Tranche Loans, (ii) in London in the case of Loans under the European Tranche made to a European
Borrower or (iii) in London or New York City in the case of Loans under the European Tranche made
to the Company or (B) by wire transfer to another account or accounts specified by such Borrower in
the applicable Borrowing Request; provided that ABR US Tranche Revolving Loans made to
finance the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the Issuing Bank.



(b) Unless the Applicable Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Applicable Agent
such Lender’s share of such Borrowing, the Applicable Agent may assume that such Lender has made
such share available on such date in accordance with paragraph (a) of this Section and may,
in reliance upon such assumption, make available to the relevant Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable Borrowing available to
the Applicable Agent, then the applicable Lender and such Borrower severally agree to pay to the
Applicable Agent forthwith on demand such corresponding amount 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 Applicable Agent, at (i) in the case of such Lender, the rate reasonably
determined by the Applicable Agent to be the cost to it of funding such amount or (ii) in the case
of such Borrower, the interest rate applicable to the subject Loan. If such Lender pays such
amount to the Applicable Agent, then such amount shall constitute such Lender’s Loan included in
such Borrowing.



SECTION 2.07. Interest Elections. (a) Each Borrowing initially shall be of the
Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request; provided,
that each Borrowing under the US Tranche made on the Effective Date shall initially be an ABR
Borrowing. Thereafter, the relevant Borrower may elect to convert such Borrowing (other than a
Swingline Loan) to a different Type or to continue such Borrowing and, in the case of a
Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in this Section. A
Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall
be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall


 


43









 





be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings, which may not be
converted or continued.



(b) To make an election pursuant to this Section, a Borrower, or the Company on its behalf,
shall notify the Administrative Agent of such election by e-mail or telephone or in writing and, in
the case of a Eurocurrency Borrowing under the European Tranche, the European Agent of such
election in writing, by the time that a Borrowing Request would be required under
Section 2.03 if such Borrower were requesting a Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such Interest Election
Request shall be irrevocable and, in the case of an electronic or telephone Interest Election
Request, shall be confirmed promptly by a written Interest Election Request. Each written Interest
Election Request shall be made by hand delivery or telecopy to the Applicable Agent of a written
request in a form approved by the Administrative Agent and signed by the relevant Borrower, or the
Company on its behalf. Notwithstanding any contrary provision herein, this Section shall not be
construed to permit any Borrower to (i) change the currency of any Borrowing, (ii) elect an
Interest Period for Eurocurrency Loans that does not comply with Section 2.02(d) or
(iii) convert any Borrowing to a Borrowing of a Type not available under the Class of Commitments
pursuant to which such Borrowing was made.



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




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




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




(iii) the Type of the resulting Borrowing; and




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



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



(d) Promptly following receipt of an Interest Election Request, the Applicable Agent shall
advise each Lender holding a Loan to which such request relates of the details thereof and of such
Lender’s portion of each resulting Borrowing.



(e) If the relevant Borrower fails to deliver a timely Interest Election Request to the
Applicable Agent with respect to a Eurocurrency Borrowing no later than three Business Days prior
to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period, such Borrowing shall (i) in the case


 


44









 





of a
Eurocurrency Borrowing under the US Tranche, be converted to an ABR Borrowing, and (ii) in the case
of any other Eurocurrency Borrowing, be continued as a Eurocurrency Borrowing with an Interest
Period of one month’s duration. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the request of the Required
Lenders, so notifies the Company, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing borrowed by the Company may be converted to or
continued at the end of the then current Interest Period as a Eurocurrency Borrowing and (ii)
unless repaid, each Eurocurrency Borrowing shall (A) in the case of such a Borrowing under the US
Tranche, be converted into an ABR Borrowing at the end of the Interest Period applicable thereto,
and (B) in the case of any other Eurocurrency Borrowing, be continued as a Eurocurrency Borrowing
with an Interest Period of one month’s duration.



SECTION 2.08. Termination and Reduction of Commitments. (a) Unless previously
terminated, the US Tranche Revolving Commitments and the European Tranche Commitments shall
terminate on the Maturity Date.



(b) The Company may at any time terminate, or from time to time reduce, the Commitments of
the US Tranche or the European Tranche; provided that (i) each reduction of the Commitments
of the applicable Tranche shall be in an amount that is an integral multiple of the Borrowing
Multiple for a Borrowing denominated in US Dollars and not less than the Borrowing Minimum for a
Borrowing denominated in US Dollars, (ii) the Company shall not terminate or reduce the US Tranche
Revolving Commitments if, after giving effect to any concurrent prepayment of the US Tranche
Revolving Loans in accordance with Section 2.11, the aggregate US Tranche Revolving
Exposures would exceed the aggregate US Tranche Revolving Commitments, and (iii) the Company shall
not terminate or reduce the European Tranche Commitments if, after giving effect to any concurrent
prepayment of the European Tranche Revolving Loans in accordance with Section 2.11, the
aggregate European Tranche Exposures would exceed the aggregate European Tranche Commitments.



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




SECTION 2.09. Increase in Commitments.



(a) Anything in this Agreement to the contrary notwithstanding, at any time and from time to
time prior to the Maturity Date, the Company may, by written notice to the Administrative Agent
(which the Administrative Agent shall promptly furnish to each Lender in the applicable Tranche),
request that one or more Persons (which may include any Lender, as


 


45









 





provided below) offer to
increase their Commitments under any Tranche (if they are Lenders) or to make additional
Commitments under any Tranche (if they are not already Lenders) (such increased and/or additional
Commitments being, in the case of any Tranche, a “Tranche Increase”) under this
paragraph (a), it being understood that if such offer is to be made by a Person that is not
already a Lender, the Administrative Agent shall have consented to such Person being a Lender
hereunder to the extent such consent would be required pursuant to
Section 11.04(b) in the event of an assignment to such Person (such consent not to be
unreasonably withheld). The minimum aggregate amount of any Tranche Increase shall be $10,000,000
in the case of the US Tranche and $5,000,000 in the case of the European Tranche. In no event
shall the aggregate amount of all Tranche Increases pursuant to this paragraph (a) exceed
$75,000,000. No more than two Tranche Increases shall be made during the term of this Agreement.
The Company may arrange for one or more banks or other financial institutions, which may include
any Lender, to extend applicable Commitments or increase their existing applicable Commitments in
an aggregate amount equal to the amount of the Tranche Increase. In the event that one or more of
such Persons offer to increase or enter into such Commitments, and such Persons, the Company, any
other applicable Borrower and the Administrative Agent agree as to the amount of such Commitments
to be allocated to the respective Persons making such offers and the fees (if any) to be payable by
the Company in connection therewith, the Company, any other applicable Borrower, such Persons, the
Administrative Agent and any other Applicable Agent shall execute and deliver an appropriate
amendment to this Agreement (or other appropriate documentation reasonably acceptable to the
Administrative Agent and the Company to effectuate the Tranche Increase), which amendment or other
documentation shall specify, among other things, the procedures for reallocating any outstanding
Revolving Credit Exposure under the Tranche that is subject to the Tranche Increase effected by
such amendment or other documentation and the Company shall deliver such authorization
documentation and opinions of counsel as the Administrative Agent shall reasonably request;
provided, that no consent of any Lender not participating in such Tranche Increase shall be
required. Notwithstanding anything to the contrary set forth herein, the Agents shall have at
least 15 Business Days, but no more than 20 Business Days, prior to the proposed effective date for
such Tranche Increase to obtain administrative details from Lenders increasing their Commitments or
Persons becoming new Lenders hereunder and to otherwise administer such Tranche Increase, including
processing Borrowing Requests and determining whether breakage amounts, if any, will be required to
be paid by the Borrowers. No such increase shall be effective until such administration period has
expired.



(b) Notwithstanding the foregoing, no increase in the Commitments (or in the Commitment of
any Lender) or addition of a new Lender shall become effective under this Section if any Default or
Event of Default has occurred and is continuing prior to the effectiveness of any such increase or
would arise after giving effect thereto.



SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) (i) Each Borrower hereby
unconditionally promises to pay to the Applicable Agent for the accounts of the applicable Lenders
the then unpaid principal amount of each Borrowing of such Borrower no later than the Maturity
Date; (ii) the Company hereby unconditionally promises to pay to each US Tranche Swingline Lender
the then unpaid principal amount of each US Tranche Swingline Loan made by the US Tranche Swingline
Lender on the earlier of the Maturity Date and the first date after such US Tranche Swingline Loan
is made that is the 15th or last day of a calendar


 


46









 





month and is at least five Business
Days after such US Tranche Swingline Loan is made, provided that on each date that a US
Tranche Revolving Borrowing is made, the Company shall repay all US Tranche Swingline Loans then
outstanding and (iii) each European Borrower unconditionally promises to pay to the European
Tranche Swingline Lender the then unpaid principal amount of each European Tranche Swingline Loan
to such European Borrower on the
last day of the Interest Period applicable thereto; provided, that so long as the
conditions for a Borrowing have been satisfied, a Borrower may use Revolving Borrowing proceeds to
repay a Swingline Loan. Each Borrower agrees to repay the principal amount of each Loan made to
such Borrower and the accrued interest thereon in the currency of such Loan.



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



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



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



(e) Any US Tranche Lender may request through the Administrative Agent that Loans made by it
under the US Tranche to any Borrower be evidenced by a promissory note. In such event, the
relevant Borrower shall prepare, execute and deliver to such US Tranche Lender a promissory note
payable to the order of such US Tranche Lender (or, if requested by such US Tranche Lender, to such
US Tranche Lender and its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 11.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns). Loans made under
the European Tranche shall be evidenced solely as described in paragraphs (b) and
(c) of this Section, and no promissory notes shall be issued by any Borrower in respect of
any such Loans.



SECTION 2.11. Prepayment of Loans. (a) Any Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (d) of this Section.


 


47









 





(b) In the event and on such occasion that (i) the sum of the US Tranche Revolving Exposures
exceeds the total US Tranche Revolving Commitments, or (ii) the sum of the European Tranche
Exposures exceeds the total European Tranche Commitments, the Borrowers under the applicable
Tranche shall prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are
outstanding under the US Tranche, deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.05(j)), in an
aggregate amount equal to such excess; provided that if such excess arises solely as a
result of currency rate fluctuations and such excess under any Tranche is not greater than 5% of
the total Commitments under such Tranche, such prepayment or deposit, as the case may be, shall not
be required.



(c) Prior to any optional or mandatory prepayment of Borrowings hereunder, the applicable
Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in
the notice of such prepayment pursuant to paragraph (d) of this Section.



(d) The applicable Borrower, or the Company on behalf of the applicable Borrower, shall
notify the Applicable Agent (and, in the case of prepayment of a Swingline Loan, the applicable
Swingline Lender) by telephone confirmed by telecopy) of any prepayment of a Borrowing hereunder
(i) in the case of a Eurocurrency Borrowing, not later than 12:00 noon, Local Time, three Business
Days before the date of such prepayment, and (ii) in the case of an ABR Borrowing or a Swingline
Loan, not later than 12:00 noon, Local Time, on the date of such prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal amount of each
Borrowing or portion thereof to be prepaid; provided that, if a notice of optional
prepayment is given in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.08(c), then such notice of prepayment may be revoked if such
notice of termination is revoked in accordance with Section 2.08(c). Promptly following
receipt of any such notice, the Applicable Agent shall advise the applicable Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided in
Section 2.02. Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the
extent required by Section 2.13 and (ii) break funding payments to the extent required
pursuant to Section 2.16.



SECTION 2.12. Fees. (a) The Company agrees to pay to the Administrative Agent,
for the account of each US Tranche Lender, a commitment fee which shall accrue at the Applicable
Rate on the daily unused portion of the US Tranche Revolving Commitment of such US Tranche Lender
during the period from and including the Effective Date to but excluding the date on which such US
Tranche Revolving Commitment terminates. The European Borrowers agree to pay to the European Agent
for the account of each European Tranche Lender a commitment fee, which shall accrue at the
Applicable Rate on the daily unused portion of the European Tranche Commitment of such European
Tranche Lender during the period from and including the Effective Date to but excluding the date on
which such European Tranche Commitment terminates. The Company shall pay any commitment fee
described hereunder that is not paid by any other Borrower when due. Any payment required to be
made pursuant to this paragraph (a) by the Company to the European Agent shall be made to
the Administrative Agent, as a sub-agent for the European Agent, as applicable, in New York, New
York for the account of


 


48









 





the applicable Lenders. Accrued commitment fees shall be payable in
arrears on the third Business Day following the last day of March, June, September and December of
each year and on the date on which the Commitments terminate, commencing on the first such date to
occur after the date hereof.



(b) The Company agrees to pay (i) to the Administrative Agent for the account of each US
Tranche Lender a participation fee with respect to its participations in Letters of Credit, which
shall accrue at the same Applicable Rate used to determine the interest rate applicable to
Eurocurrency Revolving Loans on the average daily amount of such Lender’s LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which such Lender’s US
Tranche Revolving Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee, which fee shall accrue at the rate of 0.125%
per annum on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) with respect to Letters of Credit issued by the
Issuing Bank, during the period from and including the Effective Date to but excluding the later of
the date of termination of the US Tranche Revolving Commitments and the date on which there ceases
to be any LC Exposure, as well as the Issuing Bank’s standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day following such last
day, commencing on the first such date to occur after the Effective Date; provided that all
such fees shall be payable on the date on which the US Tranche Revolving Commitments terminate and
any such fees accruing after the date on which the US Tranche Revolving Commitments terminate shall
be payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall
be payable within 10 days after demand (accompanied by reasonable back-up documentation therefor).
All participation fees and fronting fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day but excluding the
last day).



(c) The Company agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Company and the Administrative
Agent. The Company and the Borrowers jointly and severally agree to pay to the European Agent, for
its own account, fees payable in the amounts and at the times separately agreed upon between the
Company and the European Agent.



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



SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (other than
each Swingline Loan) shall bear interest at a rate per annum equal to the Alternate Base Rate plus
the Applicable Rate. US Tranche Swingline Loans shall bear interest at a rate per annum equal to
the US Swingline Rate. European Tranche Swingline Loans shall bear interest at


 


49









 





a rate per annum
equal to the European Tranche Swingline Rate plus the Applicable Rate for Eurocurrency
Revolving Loans plus the Mandatory Cost.



(b) The Loans comprising each Eurocurrency Borrowing by the Company under the US Tranche
shall bear interest at the Applicable Interbank Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate. The Loans comprising each Eurocurrency
Borrowing under the European Tranche shall bear interest at the Applicable Interbank Rate for
the Interest Period then in effect for such Borrowing plus the Applicable Rate plus
the Mandatory Cost.



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



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



(e) Subject to Section 2.13(f), all interest hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate and interest accruing upon
Obligations denominated in Sterling shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate Base Rate and the
Applicable Interbank Rate shall be determined by the Applicable Agent, and such determination shall
be conclusive absent manifest error.



(f) The principle of deemed reinvestment of interest shall not apply to any interest
calculation under this Agreement. The rates of interest stipulated in this Agreement are intended
to be nominal rates and not effective rates or yields.



(g) Notwithstanding any other provision of this Agreement, if and to the extent that the laws
of the Netherlands, the United Kingdom or any other jurisdiction in which a Borrower is organized
or from which Loans are made are applicable to interest payable under this Agreement, no interest
on the credit advanced will be payable in excess of that permitted by such laws.


 


50









 





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




(a) the Applicable Agent determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for ascertaining
the Applicable Interbank Rate for such Interest Period; or




(b) the Applicable Agent is advised by a majority in interest of the Lenders that
would participate in such Borrowing that the Applicable Interbank Rate for such Interest
Period will not adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest Period;



then the Applicable Agent shall give notice thereof to the applicable Borrower and the applicable
Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Applicable
Agent notifies the applicable Borrower and the applicable Lenders that the circumstances giving
rise to such notice no longer exist (i) any Interest Election Request that requests the conversion
of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing in such currency
shall be ineffective, and such Borrowing shall be converted to or continued on the last day of the
Interest Period applicable thereto (A) if such Borrowing is a Eurocurrency Borrowing under the US
Tranche, as an ABR Borrowing, or (B) if such Borrowing is a Eurocurrency Borrowing under the
European Tranche, as a Borrowing bearing interest at such rate as the European Agent shall
determine, after consultation with the Lenders, adequately reflects the costs to the applicable
Lenders of making or maintaining their Loans, and (ii) if any Borrowing Request requests a
Eurocurrency Borrowing in such currency, unless the applicable Borrower notifies the Applicable
Agent in writing prior to the date on which such Borrowing is requested to be made that it wishes
to revoke such Borrowing Request, (A) if such Borrowing is a Eurocurrency Borrowing under the US
Tranche, such Borrowing shall be made as an ABR Borrowing, and (B) if such Borrowing is a
Eurocurrency Borrowing under the European Tranche, such Borrowing shall be made as a Borrowing
bearing interest at such rate as the European Agent shall determine adequately reflects the costs
to the applicable Lenders of making or maintaining their Loans, plus the Applicable Rate
for Eurocurrency Loans plus the Mandatory Cost.




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




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




(ii) impose on any Lender or Issuing Bank or the Applicable Interbank Markets any
other condition affecting this Agreement or Eurocurrency Loans made by such Lender or any
Letter of Credit or participation therein, including, without limitation, any change under
applicable law or regulation governing the issuance and maintenance of EU Lending Passports;


 


51









 





and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
Issuing Bank hereunder (whether of principal, interest or otherwise), then the applicable Borrower
will pay to such Lender or Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or Issuing Bank, as the case may be, for such additional
costs incurred or reduction suffered.



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



(c) A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary
to compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section shall be delivered to the Company and shall
be conclusive absent manifest error. The Company shall pay or cause the other Borrowers to pay
such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.



(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to
demand such compensation; provided that the Company and the other Borrowers shall not be
required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender or Issuing Bank, as the
case may be, notifies the Company of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.



This Section 2.15 shall not apply to increased costs relating to Taxes or UK Tax, which
shall be governed exclusively by Section 2.17 and Section 2.18.



SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurocurrency Loan
to a Loan of a different Type or Interest Period other than on the last day of the Interest


 


52









 





Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(d) and is revoked in accordance therewith), or (d) the assignment or
deemed assignment of any Eurocurrency Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Company pursuant to Section 2.21 or the
CAM Exchange, then, in any such event, the applicable Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a Eurocurrency Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender
to be the excess, if any, of (i) the amount of interest that would have accrued on the principal
amount of such Loan had such event not occurred, at the Applicable Interbank Rate that would have
been applicable to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue,
for the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest that would accrue on such principal amount for such period at the interest rate such
Lender would bid were it to bid, at the commencement of such period, for deposits in the applicable
currency of a comparable amount and period from other banks in the Applicable Interbank Market. A
certificate of any Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section, and setting forth in reasonable detail the calculations used by
such Lender to determine such amount or amounts, shall be delivered to the applicable Borrower and
shall be conclusive absent manifest error. The applicable Borrower shall pay such Lender the
amount shown as due on any such certificate within 10 days after receipt thereof; provided
that the Company and the other Borrowers shall not be required to compensate a Lender pursuant to
this Section for any amounts under this Section 2.16 incurred more than 180 days prior to
the date that such Lender notifies the Company of such amount and of such Lender’s intention to
claim compensation therefor.




SECTION 2.17. Taxes.



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



(b) In addition, each Borrower shall pay any Other Taxes related to such Borrower to the
relevant Governmental Authority in accordance with applicable law.



(c) The relevant Borrower shall indemnify each Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, which demand shall be accompanied by documentation
reasonably satisfactory to establish the nature of the amounts for which demand is being made, and
the fact and amount of the payment thereof, for the full amount of any Indemnified Taxes or Other
Taxes paid by such Agent, such Lender or the Issuing Bank, as


 


53









 





the case may be, on or with respect
to any payment by or on account of any obligation of such Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority.



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



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



(f) (i) Each Lender, on the date it becomes a Lender hereunder, will designate lending
offices for the Loans to be made by it (a “Facility Office”) such that, on such date, it
(directly or through any Borrower) will not be subject to or liable for (i) in the case of a US
Tranche Lender, any withholding tax that is imposed by the United States of America, (or any
political subdivision thereof) on payments by the Company from an office within such jurisdiction
or (ii) in the case of a European Tranche Lender, any withholding tax that is imposed by the
Netherlands or the United States of America (or any political subdivision thereof) on payments by a
European Borrower or the Company from an office within such jurisdiction. If any Lender does not
comply with this Section 2.17(e) or (f), the relevant Borrower shall have no
obligation to indemnify such Lender, or any relevant Agent or Issuing Bank for the account of such
Lender, under this Section 2.17, provided, however, that such Borrower
shall not be relieved of the foregoing indemnity obligation if a liability under this Section
results solely from the occurrence of the CAM Exchange.




(ii) Notwithstanding anything in Section 2.17(f)(i) to the contrary, if a
Lender becomes a European Tranche Lender or a US Tranche Lender solely due to the occurrence
of the CAM Exchange, such Lender shall use commercially reasonable efforts to designate a
Facility Office to acquire Loans pursuant to the CAM Exchange and to receive payments on
such Loans such that payments from the relevant Borrower to such Facility Office with
respect to such Loans shall qualify for the lowest rate of withholding taxes available to
such Lender in respect of payments made by such Borrower to any Facility Office of such
Lender on the date such Lender acquires such Loans. Such Lender shall furnish such
information as is described in Section 2.17(e) to qualify for such lowest rate of
withholding. If such Lender is unable to qualify for a complete exemption from withholding
tax with respect to payments made by such Borrower to


 


54









 






such Facility Office with respect to
such Loans, any withholding tax to which such Lender is subject with respect to payments
made by such Borrower to such Facility Office, taking into account such qualification for
such reduced rate of withholding, shall not constitute Excluded Taxes with respect to such
Lender with respect to such Loan.



(g) In cases in which a Borrower makes a payment under this Agreement to the Administrative
Agent with knowledge that the Administrative Agent is acting as an agent for a
foreign person, such Borrower will not treat such payment as being made to a U.S. person for
purposes of Treas. Reg. § 1.1441-1(b)(2)(ii) (or a successor provision) without the express written
consent of the Administrative Agent.



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




SECTION 2.18. UK Tax.




(a) Definitions:



“Protected Party” means a Lender which is or will be subject to any liability or
required to make any payment for or on account of UK Tax, in relation to a sum received or
receivable (or any sum deemed for the purposes of UK Tax to be received or receivable) under a Loan
Document.



“Tax Confirmation” means a confirmation by a Lender that the Person beneficially
entitled to interest payable to that Lender in respect of an advance under a Loan Document is
either:




	 	(i)	 	a company resident in the United Kingdom for United Kingdom tax
purposes; or







	 	(ii)	 	a partnership each member of which is:





 


55









 











	 	(i)	 	a company resident in the United Kingdom for
United Kingdom tax purposes; or







	 	(ii)	 	a company not so resident in the United Kingdom
which carries on a trade in the United Kingdom through a permanent
establishment and which brings into account in computing its chargeable
profits (for the purposes of section 11(2) of the Income and
Corporation
Taxes Act 1988) the whole of any share of interest payable in respect
of that advance that falls to it by reason of sections 114 and 115 of
the Income and Corporation Taxes Act 1988; or







	 	(iii)	 	a company not so resident in the United Kingdom which carries
on a trade in the United Kingdom through a permanent establishment and which
brings into account interest payable in respect of that advance in computing
its chargeable profits (within the meaning given by section 11(2) of the Income
and Corporation Taxes Act 1988).






“Tax Credit” means a credit against, relief or remission for, or repayment of any UK
Tax.



“Tax Deduction” means a deduction or withholding for or on account of UK Tax from a
payment under a Loan Document.



“Tax Payment” means either an increased payment made by a Borrower to a Lender under
Section 2.18(e) or a payment under Section 2.18(l).



“VAT” means value added tax as provided for in the Value Added Tax Act 1994
and any other tax of a similar nature.




	 	(b)	 	Unless a contrary indication appears, in this Section
2.18 a reference to “determines” or “determined” means a
determination made in the absolute discretion of the person making the
determination.







	 	(c)	 	Each Borrower shall make all payments to be made by it without
any Tax Deduction, unless a Tax Deduction is required by law.







	 	(d)	 	Each Borrower shall promptly upon becoming aware that it must
make a Tax Deduction (or that there is any change in the rate or the basis of a
Tax Deduction) notify the Agents accordingly. Similarly, a Lender shall notify
the Agents on becoming so aware in respect of a payment payable to that Lender.
If the Agents receive such notification from a Lender it shall notify that
Borrower.







	 	(e)	 	If a Tax Deduction is required by law to be made by a Borrower,
the amount of the payment due from that Borrower shall be increased to an
amount which (after making any Tax Deduction) leaves an amount equal to the
payment which would have been due if no Tax Deduction had been required.





 


56









 











	 	(f)	 	A Borrower is not required to make an increased payment to a
Lender under paragraph (e) above for a Tax Deduction in respect of tax imposed
by the United Kingdom from a payment of interest on a Loan, if on the date on
which the payment falls due the payment could have been made to the relevant
Lender without a Tax Deduction if it was a Qualifying
Lender, but on that date that Lender is not or has ceased to be a Qualifying
Lender other than as a result of any change after the date it became a
Lender under this Agreement in (or in the interpretation, administration, or
application of) any law or any published practice or concession of any
relevant taxing authority.







	 	(g)	 	If a Borrower is required to make a Tax Deduction, that
Borrower shall make that Tax Deduction and any payment required in connection
with that Tax Deduction within the time allowed and in the minimum amount
required by law.







	 	(h)	 	Within 30 days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Borrower making that Tax
Deduction shall deliver to the Agents for the Lender entitled to the payment
evidence reasonably satisfactory to the Lender that the Tax Deduction has been
made or (as applicable) any appropriate payment paid to the relevant taxing
authority.







	 	(i)	 	A UK Lender with a European Tranche Commitment which becomes a
party to this Agreement on the day on which this Agreement is entered into
gives a Tax Confirmation to the Borrowers by entering into this Agreement.







	 	(j)	 	A UK Lender with a European Tranche Commitment which becomes a
party to this Agreement by transfer or assignment under Section 11.04
after the day on which this Agreement is entered into is deemed to give a Tax
Confirmation to the Borrowers on the date of that transfer or assignment.







	 	(k)	 	A UK Lender with a European Tranche Commitment shall promptly
notify the Borrower and the Agents if there is any change in the position from
that set out in the Tax Confirmation.







	 	(l)	 	Each Borrower shall (within 10 Business Days following written
demand by the Agents, accompanied by reasonable backup documentation) pay to a
Protected Party an amount equal to the loss, liability or cost which that
Protected Party determines will be or has been (directly or indirectly)
suffered for or on account of UK Tax by that Protected Party in respect of a
Loan Document.







	 	(m)	 	Paragraph (l) above shall not apply with respect to any UK Tax
assessed on a Lender:





 


57









 











	 	(A)	 	under the law of the jurisdiction in which that
Lender is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Lender is treated as resident for tax
purposes; or







	 	(B)	 	under the law of the jurisdiction in which that
Lender’s Facility Office, designated in accordance with Section
2.17(f), is located in respect of amounts received or receivable in
that jurisdiction,







if that UK Tax is imposed on or calculated by reference to the net income
received or receivable (but not any sum deemed to be received or receivable)
by that Lender.




	 	(n)	 	Furthermore, paragraph (l) above shall not apply to the extent
a loss, liability or cost:







	 	(A)	 	is compensated for by an increased payment
under paragraphs (c) to (k) above; or







	 	(B)	 	would have been compensated for by an increased
payment under paragraphs (c) to (k) above but was not so compensated
solely because the exclusion in paragraph (f) applied.







	 	(o)	 	A Protected Party making, or intending to make a claim under
paragraph (l) above shall promptly notify the Agents of the event which will
give, or has given, rise to the claim, following which the Agents shall notify
the Borrower.







	 	(p)	 	A Protected Party shall, on receiving a payment from a Borrower
under paragraph (l), notify the Agents.







	 	(q)	 	If a Borrower makes a Tax Payment and the relevant Lender
determines that:







	 	(A)	 	a Tax Credit is attributable to that Tax Payment; and







	 	(B)	 	that Lender has obtained, utilized and retained that Tax Credit,







the relevant Lender shall pay an amount to such Borrower which that Lender
determines will leave it (after that payment) in the same after-Tax position
as it would have been in had the Tax Payment not been made by such Borrower.




	 	(r)	 	Each Borrower shall pay and, within 10 Business Days following
written demand (accompanied by reasonable backup documentation therefor),
indemnify each Lender against any cost, loss or liability that Lender incurs in
relation to all stamp duty, registration and other similar UK Taxes payable in
respect of any Loan Document.





 


58









 











	 	(s)	 	All amounts set out, or expressed to be payable under a Loan
Document by any party to a Lender which (in whole or part) constitute the
consideration for VAT purposes shall be deemed to be exclusive of any VAT which
is chargeable on such supply, and accordingly, subject to
paragraph (t) below, if VAT is chargeable on any supply made by any Lender
to any party under a Loan Document, that party shall pay to the Lender (in
addition to and at the same time as paying the consideration) an amount
equal to the amount of the VAT (and such Lender shall promptly provide an
appropriate VAT invoice to such party).







	 	(t)	 	Where a Loan Document requires any party to reimburse a Lender
for any costs or expenses, that party shall also at the same time pay and
indemnify the Lender against all VAT incurred by the Lender in respect of the
costs or expenses to the extent that the Lender reasonably determines that
neither it nor any other member of any group of which it is a member for VAT
purposes is entitled to credit or repayment from the relevant tax authority in
respect of the VAT.






SECTION 2.19. EU Banking Passport; Local Branch Availability. In order to extend
Loans and other financial accommodations under the European Tranche and remain in compliance with
all applicable laws and regulations (including, without limitation, the laws of each jurisdiction
in which a Borrower with availability under the European Tranche is organized), each Lender with a
European Tranche Commitment shall either (x) obtain and hold an EU Banking Passport for so long as
the laws and regulations governing members of the European Union provide for EU Banking Passports
and/or (y) otherwise have the ability to fund a Borrowing and satisfy its duties and obligations
under the European Tranche in a Borrower’s jurisdiction of organization (so long as such Borrower
is entitled to request extensions of credit under the European Tranche), including, without
limitation, having a local branch in any such jurisdiction of organization or otherwise being able
to fund extensions of credit in such jurisdiction without violating applicable laws or regulations.
Each Person that becomes a Lender hereunder with a European Tranche Commitment pursuant to the
assignment provisions of Section 11.04 shall certify in its Assignment and Assumption that
it possesses an EU Banking Passport and/or satisfies the requirements of the foregoing clause
(y), provided that with respect to the Dutch Borrower no such certification shall be required
as long as the first Loan extended by such Lender shall be no less than EUR 50,000 or its
equivalent in any other foreign currency. In the event EU Banking Passports are no longer
available, including, without limitation, as a result of changes in applicable laws or regulations,
or a Lender is prohibited from extending credit to a Borrower from a previously permitted
jurisdiction into a previously permitted jurisdiction, or if adverse tax consequences result from
such Loans or other financial accommodations remaining outstanding, then no Lender shall be
required to make or maintain Loans or other financial accommodations under the European Tranche in
contravention of applicable laws and regulations or if such adverse tax consequences remain
outstanding, and the applicable Borrowers shall repay all Obligations arising in connection
therewith as required to prevent any contravention of such laws and regulations.




SECTION 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.


 


59









 





(a) Each Borrower shall make each payment required to be made by it hereunder or under any
other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.15, 2.16, 2.17, 2.18 or
2.19, or otherwise) prior to the time expressly required hereunder or under such other Loan
Document for such
payment (or, if no such time is expressly required, prior to 12:00 noon, Local Time), on the
date when due, in immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the Applicable Agent, be deemed to
have been received on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Applicable Agent to the applicable account
specified in Schedule 2.20 or, in any such case, to such other account as the Applicable
Agent shall from time to time specify in a notice delivered to the Company, except payments to be
made directly to the Issuing Bank or a Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.15, 2.16, 2.17, 2.18,
2.19 and 11.03 shall be made directly to the Persons entitled thereto and payments
pursuant to the other Loan Documents shall be made to the Persons specified therein. The
Applicable Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
or under any other Loan Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such extension. All
payments under any Loan Document of principal or interest in respect of any Loan or LC Disbursement
shall be made in the currency of such Loan or LC Disbursement; and all other payments hereunder or
under any other Loan Document shall be made in US Dollars, except as otherwise expressly provided.
Any payment required to be made by an Agent hereunder shall be deemed to have been made by the time
required if such Agent shall, at or before such time, have taken the necessary steps to make such
payment in accordance with the regulations or operating procedures of the clearing or settlement
system used by such Agent to make such payment.



(b) Any proceeds of Collateral received by the Administrative Agent (i) not constituting
either (A) a specific payment of principal, interest, fees or other sum payable under the Loan
Documents (which shall be applied as specified by the applicable Borrower) or (B) a mandatory
prepayment (which shall be applied in accordance with Section 2.11) or (ii) after an Event
of Default has occurred and is continuing and the Administrative Agent so elects or Required
Lenders so direct, such funds shall be applied ratably first, to pay any fees, indemnities,
or expense reimbursements including amounts then due to the Agents and the Issuing Bank from the
Borrowers (other than in connection with Swap Agreements), second, to pay any fees or
expense reimbursements then due to the Lenders from the Borrowers (other than in connection with
Swap Agreements), third, to pay interest then due and payable on the Loans ratably,
fourth, pro rata, to prepay principal on the Loans and unreimbursed LC Disbursements and
the payment of any Secured Obligations owing with respect to Swap Agreements, fifth, to pay
an amount to the Administrative Agent equal to one hundred five percent (105%) of the aggregate
undrawn face amount of all outstanding Letters of Credit and the aggregate amount of any unpaid LC
Disbursements, to be held as cash collateral for such Obligations, and sixth, to the
payment of any other Secured Obligation due to any Agent or any Lender by the Loan Parties.
Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the
applicable Borrower, or unless a Default is in existence, neither any Agent nor any Lender shall
apply any payment which it receives to any Eurocurrency Loan of a Class, except (a) on the


 


60









 





expiration date of the Interest Period applicable to any such Eurocurrency Loan or (b) in the
event, and only to the extent, that there are no outstanding ABR Loans of the same Class and, in
any event, the applicable Borrower shall pay the break funding payment required in accordance
with Section 2.16.




(c) [Reserved]



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



(e) Unless the Applicable Agent shall have received notice from the relevant Borrower prior
to the date on which any payment is due for the account of all or certain of the Lenders or the
Issuing Bank hereunder that such Borrower will not make such payment, the Applicable 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 applicable Lenders or the Issuing Bank, 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 applicable Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Applicable Agent forthwith on demand the amount so distributed to such Lender or the
Issuing Bank 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 Applicable Agent, at a rate
determined by the Applicable Agent in accordance with banking industry practices on interbank
compensation.



(f) If any Lender shall fail to make any payment required to be made by it to any Agent
pursuant to this Agreement, then the Agents may, in their discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by them for the account of


 


61









 





 such Lender to
satisfy such Lender’s obligations to the Agents until all such unsatisfied obligations are fully
paid.



SECTION 2.21. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15, 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 2.17 or Section 2.18, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15, 2.17, or 2.18, as the case may
be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Company hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such designation or
assignment.



(b) If any Lender requests compensation under Section 2.15, or if 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 2.17 or Section 2.18, or if any Lender defaults
in its obligation to fund Loans hereunder, or if any Lender fails to grant a consent in connection
with any proposed change, waiver, discharge or termination of the provisions of this Agreement
requiring the consent of each Lender or each affected Lender as contemplated by Section
11.02 but the consent of the Required Lenders or (giving effect to this Section
2.21(b)) each other affected Lender, respectively, is obtained, then the Company may, at its
sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 11.04), all its interests, rights and obligations under the Loan
Documents to an assignee that shall assume such obligations (or, in the case of any change, waiver,
discharge or termination of the provisions of this Agreement that requires the consent of Lenders
of a particular class or type of Loans and Commitments, all its interests, rights and obligations
under the Loan Documents in respect of such class or type) (which assignee may be another Lender,
if a Lender accepts such assignment); provided that (i) the Company shall have received the
prior written consent of the Administrative Agent (and if a US Tranche Revolving Commitment is
being assigned, the Issuing Bank), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company (in the case of all other amounts) (or, in
the case of any change, waiver, discharge or termination of the provisions of this Agreement that
requires the consent of Lenders of a particular class or type of Loans, payment equal to the
aggregate amount of outstanding Loans of such class or type owed to such replaced Lender (together
with all other amounts owed to such replaced Lender as a holder of such class or type of Loans))
and (iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17 or
Section 2.18, such assignment will result in a reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require
such assignment and delegation cease to apply.


 


62









 





ARTICLE III




Representations and Warranties





Each Borrower represents and warrants to the Lenders that:



SECTION 3.01. Organization; Powers. Each of the Company and its Material
Subsidiaries is duly organized, validly existing and in good standing (to the extent that such
concept is applicable in the relevant jurisdiction) under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in, and is in good
standing (to the extent such concept is applicable) in, every jurisdiction where such qualification
is required; provided, that this provision shall not restrict any transaction otherwise
permitted under Section 6.03.



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



SECTION 3.03. Governmental Approvals; No Conflicts. (a) The Transactions (i) do not
require any material consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or made and are in full force and
effect, (ii) will not violate in any material respect any applicable law or regulation applicable
to the Company or its Subsidiaries and will not violate the charter, by-laws or other
organizational or constitutional documents of the Company or any of its Subsidiaries or any order
of any Governmental Authority, (iii) except as would not reasonably be expected to have a Material
Adverse Effect, will not violate or result in a default under any indenture, agreement or other
instrument binding upon the Company or any of its Subsidiaries or its assets, or give rise to a
right thereunder to require any payment to be made by the Company or any of its Subsidiaries, and
(iv) will not result in the creation or imposition of any Lien on any asset of the Company or any
of its Subsidiaries (other than the Lien created by the Collateral Documents).



(b) The Company and the Subsidiaries have obtained all regulatory licenses, permits or
franchises required in connection with their ownership or operation of the Systems and
Telecommunications Equipment, except where the failure to hold any regulatory licenses, permits or
franchises would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect . All of the Company’s and the Subsidiaries’ Governmental Approvals are in full
force and effect, have been validly transferred to the Company or such Subsidiary, and the Company
or such Subsidiary has the power and authority to operate thereunder in each case, except where a
failure would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


63









 





SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Company
has heretofore furnished to the Lenders a consolidated balance sheet and statements of income,
stockholders equity and cash flows for the Company and its Subsidiaries as of and for the fiscal
year ended December 31, 2007, reported on by KPMG LLP, independent public accountants. Such
financial statements present fairly, in all material respects, the financial position and results
of operations and cash flows of the Company and its consolidated Subsidiaries as of such dates and
for such periods in accordance with GAAP.



(b) Since December 31, 2007, there has been no material adverse change in the business,
assets, property or financial condition of the Company and its Subsidiaries, taken as a whole.



(c) The Company has heretofore furnished to the Lenders (i) an audited consolidated balance
sheet and statements of income, stockholders equity and cash flows for Calence and its Subsidiaries
as of and for the fiscal years ended January 31, 2004, January 31, 2005, January 31, 2006 and
January 31, 2007 and (ii) an unaudited consolidated balance sheet and statement of income for
Calence and its Subsidiaries, as of and for the fiscal year ended January 31, 2008. Such financial
statements present fairly, in all material respects, the financial position and results of
operations and cash flows of Calence and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.



(d) As of the Effective Date, since January 24, 2008, there has not occurred any event,
change or circumstance that has had a Calence Material Adverse Effect.



(e) The Company has heretofore furnished to the Lenders a pro forma capitalization table as
of December 31, 2007, giving effect to the Calence Acquisition as if consummated on such date,
along with pro forma Consolidated EBITDA for the twelve-month period ended December 31, 2007 for
the Company and its Subsidiaries and for the twelve-month period ended January 31, 2008 for
Calence, giving credit to the consolidated EBITDA of Calence for the twelve-month period ended
January 31, 2008. Such pro forma financial data were prepared in good faith based upon estimates
and assumptions the Company believes to be reasonable as of the Effective Date.



(f) The Company has heretofore furnished to the Lenders forecasted consolidated balance
sheets and statements of income, stockholders equity and cash flows for the five-year period
beginning on January 1, 2008, in each case prepared on a basis consistent with the financial
statements described in Section 3.04(a) and the estimates and assumptions stated therein,
all of which the Company believes as of the date hereof to be reasonable and, as of the Effective
Date, reflect the Company’s good faith and reasonable estimates of the future financial performance
of the Company and its Subsidiaries for such period; provided that (i) such forecasts are
subject to significant uncertainties and contingencies, which may be beyond the Company’s and its
Subsidiaries’ control, (ii) no assurances are given that the results forecasted in any such
projections will be realized and (iii) the actual results may differ from the forecasted results
set forth in such projections and such differences may be material.


 


64









 





SECTION 3.05. Properties; Insurance. (a) Each of the Company and its Material
Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property
material to its business, except for minor defects in title that do not interfere with its ability
to conduct its business as currently conducted or to utilize such properties for their intended
purposes.



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



(c) Each of the Company and its Subsidiaries maintains, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are customarily maintained
by companies engaged in the same or similar businesses operating in the same or similar locations;
provided, that each of the Company and its Subsidiaries may self-insure in the ordinary
course of business to the same extent as other companies engaged in similar businesses and owning
similar properties in the same general areas in which the Company or each such Subsidiary, as
applicable, operates.



SECTION 3.06. Litigation, Environmental and Labor Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against
or, to the knowledge of the Company, threatened against or affecting the Company or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, would reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect or (ii) except as set forth on Schedule 3.06, that
purport to affect or pertain to this Agreement, any other Loan Document, the Calence Acquisition
Agreement or the consummation of the Transactions.



(b) Except with respect to any matters that, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental Liability.



(c) There are no labor controversies pending against or, to the knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries which would reasonably be
expected, individually or in the aggregate, to result in a Material Adverse Effect.



SECTION 3.07. Compliance with Laws and Agreements. Each of the Company and its
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.


 


65









 





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



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



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



SECTION 3.11. Subsidiaries; Ownership of Capital Stock. As of the Effective Date,
Schedule 3.11 sets forth all of the Company’s Subsidiaries, the jurisdiction of
organization of each of its Subsidiaries and the identity of the holders of all shares or other
interests of each class of Equity Interests of each of its Subsidiaries.



SECTION 3.12. Solvency. As of the Effective Date, both before and after giving
effect to (a) the Transactions to be consummated on the Effective Date and (b) the payment and
accrual of all fees, costs and expenses in connection therewith, the Company and its Subsidiaries,
on a consolidated basis, are and will be Solvent.



SECTION 3.13. Disclosure. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other written information furnished by or on behalf
of the Company to any Agent, the Issuing Bank or any Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other information so
furnished or publicly available in periodic and other reports, proxy statements and other materials
filed by the Company or any Subsidiary with the Securities and Exchange Commission), taken as a
whole, 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
materially misleading; provided that, with respect to projected financial information, the
Borrowers represent only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time (it being understood and agreed that (i) such projected
financial information is subject to significant uncertainties and contingencies, which may be
beyond the Company’s and its Subsidiaries’ control, (ii) no assurances are given that the results
forecasted in any such projected financial information will be realized and (iii) the actual
results may differ from the forecasted results set forth in such projected financial information
and such differences may be material).



SECTION 3.14. Regulation U. Margin stock (as defined in Regulation U) constitutes
less than 25% of the value of those assets of the Company and its Subsidiaries which are subject to
any limitation on sale, pledge, or other restriction hereunder.


 


66









 





SECTION 3.15. Security Interest in Collateral. The provisions of this Agreement and
the other Loan Documents create legal and valid Liens on all the Collateral in favor of the
Administrative Agent, for the benefit of the Holders of Secured Obligations, and, to the extent
required by the Security Agreements, such Liens constitute perfected and continuing Liens on the
Collateral, securing the Secured Obligations and having priority over all other Liens on the
Collateral except in the case of (a) Permitted Encumbrances and other Liens permitted under this
Agreement and (b) Liens perfected only by possession (including possession of any certificate of
title) to the extent the Administrative Agent has not obtained or does not maintain possession of
such Collateral.



SECTION 3.16. Material Subsidiaries. As of the Effective Date, on a pro forma basis
after giving effect to the Calence Acquisition, the direct and indirect Domestic Subsidiaries of
the Company and direct Foreign Subsidiaries of the Company and the Subsidiary Guarantors set forth
on Schedule 3.16, together with the Company and the UK Borrower, (i) generated at least 80%
of Adjusted Consolidated EBITDA during the four fiscal quarter period ended December 31, 2007 and
(ii) owned assets (other than Equity Interests in Subsidiaries) representing at least 80% of the
consolidated assets of the Company and its Subsidiaries (including Calence) as of December 31,
2007. Each Compliance Certificate delivered hereunder designates as Material Subsidiaries direct
and indirect Domestic Subsidiaries of the Company and direct Foreign Subsidiaries of the Company
and the Subsidiary Guarantors that, as of the end of the applicable fiscal quarter (in the case of
a Compliance Certificate delivered pursuant to Section 5.01(c)) or as of the date of the
applicable Permitted Acquisition after giving effect to such acquisition on a pro forma basis (in
the case of a Compliance Certificate delivered in connection with a Permitted Acquisition),
together with the Company and the UK Borrower, (i) generated at least 80% of Adjusted Consolidated
EBITDA during the most recent four fiscal quarter period for which financial statements have been
provided by the Company pursuant to Section 5.01 and (ii) owned assets (other than Equity
Interests in Subsidiaries) representing at least 80% of the consolidated assets of the Company and
its Subsidiaries as of the end of such period.



SECTION 3.17. United Kingdom Companies Act. The UK Borrower and the UK Chargor are
in compliance with the provisions of Sections 151 to 158 of the United Kingdom Companies Act of
1985 in relation to the Transactions.



ARTICLE IV




Conditions




SECTION 4.01. Effective Date. This Agreement and the obligations of the Lenders to
make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived in accordance with
Section 11.02):




(a) The Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence reasonably satisfactory to the Administrative Agent


 


67









 






(which may include telecopy or electronic mail transmission of a signed signature
page of this Agreement) that such party has signed a counterpart of this Agreement.




(b) The Administrative Agent shall have received, in form and substance reasonably
acceptable to it, fully executed copies of the Subsidiary Guarantee Agreement and each
of the Collateral Documents set forth on Exhibit B hereto.




(c) The Administrative Agent shall have received a favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the Effective Date) of
Skadden, Arps, Slate, Meagher & Flom LLP, special New York counsel for the Borrowers, in
form and substance reasonably satisfactory to the Administrative Agent and covering such
matters relating to the Borrowers and the Loan Documents as the Administrative Agent
shall reasonably request. The Borrowers hereby request such counsel to deliver such
opinion. The Administrative Agent shall also have received favorable written opinions
(addressed to the Administrative Agent and the Lenders and dated the Effective Date) of
Eversheds LLP special English counsel to the Borrowers, and Faasen & Partners B.V.,
special Dutch counsel to the Borrowers, in form and substance reasonably acceptable to
the Administrative Agent and covering such matters relating to this Agreement as the
Administrative Agent shall reasonably request. The Borrowers hereby request such
counsel to deliver such opinions.




(d) The Administrative Agent shall have received such documents and certificates
as the Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of the Borrowers and the Initial Subsidiary
Guarantors (including, with respect to the Dutch Borrower, an original recent excerpt
from the East Netherlands Trade Register), the authorization of the Transactions and any
other legal matters relating to the Borrowers or any Initial Subsidiary Guarantor, this
Agreement or the Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel, including all of the agreements, documents and
instruments set forth in Exhibit B hereto.




(e) The Administrative Agent shall have received (i) a certificate, dated the
Effective Date and signed by a Financial Officer, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02
(after giving effect to the Calence Acquisition) and (ii) a certificate, dated the
Effective Date and signed by a Financial Officer, certifying that as of the Effective
Date, both before and after giving effect to (a) the Transactions to be consummated on
the Effective Date and (b) the payment and accrual of all fees, costs and expenses in
connection therewith, the Company and its Subsidiaries, on a consolidated basis, are and
will be Solvent.




(f) The Lenders shall have received the financial statements referenced in
Section 3.04(a), (c), (e) and (f).


 


68









 






(g) The Administrative Agent shall have received, in form and substance reasonably
acceptable to it, a certificate, dated the Effective Date and signed by a Financial
Officer, setting forth reasonably detailed calculations demonstrating that, as of the
Effective Date, the Total Leverage Ratio is equal to or less than 2.25 to 1.00 and the
Fixed Charge Coverage Ratio is equal to or greater than 1.25 to 1.00, which calculations
shall give effect to the Transactions occurring on the Effective Date on a pro forma
basis.




(h) The Administrative Agent shall have received a true and correct copy of the
Calence Acquisition Agreement as amended (to the extent applicable) through the
Effective Date; provided, that such agreement shall not have been amended in any
manner adverse to the Administrative Agent and the Lenders without the prior written
consent of the Administrative Agent (such consent not to be unreasonably withheld).




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




(j) The Lenders shall have received all documentation and other information
required by bank regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including the U.S.A. Patriot Act and (if
applicable) the Money Laundering Regulations 2003 of the United Kingdom (as amended).




(k) Without in any way limiting any of the foregoing conditions relating to the
Calence Acquisition, the Calence Acquisition shall be consummated on the Effective Date
concurrently or substantially concurrently with the funding of the initial Loans
hereunder and substantially in accordance with the Calence Acquisition Agreement.




(l) The Administrative Agent shall have received from the Dutch Borrower a
confirmation by an authorized signatory of the Dutch Borrower that there is no works
council, or, if a works council is established, a confirmation that all consultation
obligations in respect of such works council have been complied with and that positive
unconditional advice has been obtained, attaching a copy of such advice and a copy of
the request for such advice.




(m) Evidence reasonably satisfactory to the Administrative Agent that all Liens in
respect of the Vendor Trade Program to which Castle Pines Capital LLC is subject have
been released.




(n) Each Borrower that is a resident for tax purposes in the United States of
America and the Administrative Agent shall have received a complete Form W-8BEN (or
other applicable Form W-8) from each Foreign Lender.


 


69









 





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



SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:




(a) The representations and warranties of the Loan Parties set forth in each Loan
Document (except, with respect to the Loans made and Letters of Credit issued on the
Effective Date, the representation and warranty set forth in Section 3.04(b))
shall be true and correct in all material respects on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, except to the extent any such representation or warranty is
stated to relate solely to an earlier date, in which case such representation or
warranty shall have been true and correct in all material respects on and as of such
earlier date.




(b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.



Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.



ARTICLE V




Affirmative Covenants




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



SECTION 5.01. Financial Statements and Other Information. The Company will furnish
to the Administrative Agent (who shall deliver to each Lender):




(a) within 90 days after the end of each fiscal year of the Company, its audited
consolidated balance sheet and related statements of operations, stockholders’ equity
and cash flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on by KPMG LLP
or other independent public accountants of recognized national standing (without a
“going concern” or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and results
of operations of the Company and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied; provided, that the Company shall
be deemed to have delivered the foregoing to the Administrative Agent and the Lenders
if such information has been filed with the Securities and Exchange Commission and



 


70









 






is available on the EDGAR site at
www.sec.gov or any successor government site that is
freely and readily available to the Administrative Agent and the Lenders without charge,
or has been made available on the Company’s website www.insight.com, and the delivery
date therefor shall be deemed to be the first day on which such information is available
to the Administrative Agent and the Lenders on one of such web pages; provided,
further, that the Company will promptly notify the Administrative Agent (who
shall notify the Lenders) of each posting to such sites upon the occurrence thereof. In
order to provide such notices promptly, the Company agrees that it shall register the
Administrative Agent in the appropriate Company databases necessary to cause such
notices to be sent automatically (including, without limitation, by e-mail to e-mail
addresses agreed upon by the Administrative Agent) on the applicable filing dates;




(b) within 45 days after the end of each of the first three fiscal quarters of
each fiscal year of the Company, its unaudited consolidated balance sheet and related
unaudited statements of operations, stockholders’ equity, and cash flows as of the end
of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal
year, all certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of the Company and
its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes; provided, that the Company shall be deemed to have delivered the
foregoing to the Administrative Agent and the Lenders if such information has been filed
with the Securities and Exchange Commission and is available on the EDGAR site at
www.sec.gov or any successor government site that is freely and readily available to the
Administrative Agent and the Lenders without charge, or has been made available on the
Company’s website www.insight.com, and the delivery date therefor shall be deemed to be
the first day on which such information is available to the Administrative Agent and the
Lenders on one of such web pages; provided, further, that the Company
will promptly notify the Administrative Agent (who shall notify the Lenders) of each
posting to such sites upon the occurrence thereof. In order to provide such notices
promptly, the Company agrees that it shall register the Administrative Agent in the
appropriate Company databases necessary to cause such notices to be sent automatically
to the Administrative Agent (including, without limitation, by e-mail to e-mail
addresses agreed upon by the Administrative Agent) on the applicable filing dates;




(c) concurrently with any delivery of financial statements under clause
(a) or (b) above, a Compliance Certificate (i) certifying as to whether a
Default has occurred and is continuing and, if a Default has occurred and is continuing,
specifying the details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance
with certain provisions of Article VI to the extent set forth in the form of
Compliance Certificate attached hereto as Exhibit C, and (iii) identifying
the Material Subsidiaries as of the end of the applicable fiscal period and (iv) if any
change in



 


71









 






GAAP or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 if and to the extent (A) such
change is not noted on the Company’s most recent Form 10-Q or Form 10-K filing or any of
the Company’s other Form 10-Q or Form 10-K filings filed since the Effective Date and
(B) any such change has had an effect on the financial statements accompanying such
certificate, specifying such change and the related effect;




(d) [Reserved]




(e) within 45 days after the beginning of each fiscal year of the Company,
consolidated financial projections for the Company and its Subsidiaries for such fiscal
year prepared in good faith in accordance with prior practice of the Company;




(f) promptly after the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed by the Company or any
Subsidiary with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with national
securities exchanges, or distributed by the Company or any Subsidiary thereof to its
shareholders generally, as the case may be; provided, that the Company shall be
deemed to have delivered the foregoing to the Administrative Agent and the Lenders if
such information has been filed with the Securities and Exchange Commission and is
available on the EDGAR site at www.sec.gov or any successor government site that is
freely and readily available to the Administrative Agent and the Lenders without charge,
or has been made available on the Company’s website www.insight.com, and the delivery
date therefor shall be deemed to be the first day on which such information is available
to the Administrative Agent and the Lenders on one of such web pages; provided,
further, that the Company will promptly notify the Administrative Agent (who
shall notify the Lenders) of each posting to such sites upon the occurrence thereof. In
order to provide such notices promptly, the Company agrees that it shall register the
Administrative Agent in the appropriate Company databases necessary to cause such
notices to be sent automatically to the Administrative Agent (including, without
limitation, by e-mail to e-mail addresses agreed upon by the Administrative Agent) on
the applicable filing dates;




(g) promptly following any request in writing therefor, all documentation and
other information required by bank regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot
Act and (if applicable) the Money Laundering Regulations 2003 of the United Kingdom (as
amended); and




(h) promptly following any request in writing therefor, such other information
regarding the operations, business affairs or financial condition of the
Company or any Subsidiary, or compliance with the terms of this Agreement, as any
Agent or any Lender may reasonably request.


 


72









 





SECTION 5.02. Notices of Material Events. The Company will furnish to the
Administrative Agent (who shall deliver to each Lender) prompt written notice of the following:




(a) the occurrence of any Default;




(b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Company or any Affiliate
thereof that, if adversely determined, would reasonably be expected to result in a
Material Adverse Effect;




(c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, would reasonably be expected to result in liability of the
Company and its Subsidiaries in an aggregate amount exceeding $10,000,000; and




(d) any other development that results in, or would reasonably be expected to
result in, a Material Adverse Effect.



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



SECTION 5.03. Existence; Conduct of Business. The Company will, and will cause each
of its Material Subsidiaries to, do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business, except for such rights, licenses, permits,
privileges and franchises the loss of which, either individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall
not prohibit any merger, amalgamation, consolidation, liquidation or dissolution or other
transaction permitted under Section 6.03.



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



SECTION 5.05. Maintenance of Properties; Insurance. The Company will, and will cause
each of its Material Subsidiaries to, (a) keep and maintain all property material to the conduct of
its business in good working order and condition (ordinary wear and tear and casualty events
excepted), and (b) maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar locations;
provided, that each of the Company and its Subsidiaries may self-insure in the ordinary
course of business to the same extent as other companies engaged in similar businesses and owning
similar


 


73









 





properties in the same general areas in which the Company or each such Subsidiary, as
applicable, operates.



SECTION 5.06. Books and Records; Inspection Rights. The Company will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct entries in all material respects are made of all dealings and transactions in relation to
its business and activities. The Company will, and will cause each of its Subsidiaries to, permit
any representatives designated by the Administrative Agent, upon reasonable prior notice and during
reasonable business hours, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as often as reasonably requested
(provided that in no event shall there be more than one such visit or inspection per
calendar year except during the continuance of an Event of Default). Notwithstanding anything to
the contrary in this Section 5.06, none of the Company or any of its Subsidiaries will be
required to disclose, permit the inspection, examination or making of extracts, or discussion of,
any documents, information or other matter that (i) constitutes non-financial trade secrets or
non-financial proprietary information, (ii) in respect of which disclosure to the Administrative
Agent (or its designated representative) is then prohibited by law or any agreement binding on the
Company or any of its Subsidiaries or (iii) is subject to attorney-client or similar privilege
constitutes attorney work-product. The Administrative Agent shall, upon the request of any Lender,
provide to such Lender the written report, if any, prepared by the Administrative Agent with
respect to any such visit or inspection.



SECTION 5.07. Compliance with Laws. The Company will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property except where the failure to do so, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse Effect.



SECTION 5.08. Use of Proceeds and Letters of Credit. Each Borrower will, and will
cause its Subsidiaries to, use the proceeds of the Loans and the Letters of Credit, as applicable,
for the Calence Acquisition (in the case of the Company), for working capital and for general
corporate purposes, including Permitted Acquisitions. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations T, U and X.



SECTION 5.09. Subsidiary Collateral Documents; Subsidiary Guarantors. The Company
shall execute or shall cause to be executed:




(a) following the date on which (i) any Person becomes a Material Subsidiary of
the Company pursuant to a Permitted Acquisition or (ii) any Person is initially
designated as a Material Subsidiary in a certificate delivered pursuant to Section
5.01(c), in each case as soon as practicable but in any event within thirty (30)
days (or such longer period as the Administrative Agent shall agree) following such
date, if such Person is a Domestic Subsidiary, (a) a Pledge Agreement (or
supplement thereto) in favor of the Administrative Agent for the benefit of the Holders
of Secured Obligations with respect to all of the Equity Interests of such Domestic
Subsidiary owned by the Company and its Domestic Subsidiaries that are Subsidiary
Guarantors


 


74









 






in
substantially the form of the Pledge Agreement(s) executed on the
Effective Date; (b) a supplement to the Subsidiary Guarantee Agreement pursuant to which
such Domestic Subsidiary shall become a Subsidiary Guarantor; (c) a Subsidiary Security
Agreement in substantially the form executed on the Effective Date (or a supplement
thereto) pursuant to which such Domestic Subsidiary shall grant the Administrative Agent
for the benefit of the Holders of Secured Obligations, a first priority perfected
security interest in substantially all of its assets as and to the extent provided
therein, and the other documents required thereby; (d) a Subsidiary Pledge Agreement in
substantially the form executed on the Effective Date (or a supplement thereto) pursuant
to which such Domestic Subsidiary shall grant the Administrative Agent for the benefit
of the Holders of Secured Obligations, a first priority perfected security interest in
the Equity Interests of its direct Subsidiaries (but not in excess of 65% (in vote and
value) of all of the outstanding Equity Interests of its direct Foreign Subsidiaries),
and the other documents required thereby; and (e) if requested by the Administrative
Agent or the Required Lenders, Collateral Documents in respect of such Domestic
Subsidiary’s owned real property located in the United States with a value in excess of
$10,000,000 (per property) that is acquired after the Effective Date, in each case to
provide the Administrative Agent with a first priority perfected security interest
therein and Lien thereon;




(b) following the date on which (i) any Person becomes a Material Subsidiary of
the Borrower pursuant to a Permitted Acquisition, or (ii) any Person is initially
designated as a Material Subsidiary in a certificate delivered pursuant to Section
5.01(c), in each case if such Person is a Foreign Subsidiary, upon the request of
the Administrative Agent, as soon as practicable but in any event within thirty (30)
days (or such longer period of time as the Administrative Agent shall agree) following
such date, a pledge agreement or share mortgage in favor of the Administrative Agent,
for the benefit of the Holders of Secured Obligations, governed by the law of the
jurisdiction of organization of such Foreign Subsidiary with respect to 65% (in vote and
value) of all of the outstanding Equity Interests of such Foreign Subsidiary to the
extent owned by the Company or a Subsidiary Guarantor; provided, that if at any
time any such Foreign Subsidiary issues or causes to be issued Equity Interests, such
that the aggregate amount of the Equity Interests of such Foreign Subsidiary pledged to
the Administrative Agent for the benefit of the Holders of Secured Obligations is less
than 65% (in vote or value) of all of the outstanding Equity Interests of such Foreign
Subsidiary to the extent owned by the Company or a Subsidiary Guarantor, the Company
shall (A) promptly notify the Administrative Agent of such deficiency and (B) deliver or
cause to be delivered any agreements, instruments, certificates and other documents as
the Administrative Agent may reasonably request all in form and substance reasonably
satisfactory to the Administrative Agent, in order to cause all of the Equity Interests
of such Foreign Subsidiary owned by the Company and the Subsidiary Guarantors (but not
in excess of 65% (in vote or value) of all of the outstanding Equity Interests thereof) to be
pledged to the Administrative Agent for the benefit of the Holders of Secured
Obligations; provided further, that if at any time any such Foreign
Subsidiary redeems or acquires, or causes to be redeemed or acquired, Equity Interests
in such Foreign Subsidiary, such that the aggregate amount of the Equity Interests of
such



 


75









 






 Foreign Subsidiary pledged to the Administrative Agent, for the benefit of the
Holders of Secured Obligations, would be greater than or equal to 65% (in vote or value)
of all of the outstanding Equity Interests of such Person, taking into account such
redemption or acquisition, the Company shall (A) notify the Administrative Agent of the
intent to effect such redemption or acquisition at least thirty (30) days (or such
shorter period of time as the Administrative Agent shall agree) prior to the
effectiveness thereof, and (B) the Administrative Agent shall, on or prior to the date
of such redemption or acquisition, deliver or cause to be delivered any agreements,
instruments, certificates and other documents as the Company may reasonably request, all
in form and substance reasonably satisfactory to the Company and the Administrative
Agent, evidencing a release of a sufficient number of the Equity Interests of such
Foreign Subsidiary, taking into account such redemption or acquisition, from any pledge,
mortgage, lien or other encumbrance imposed under the Pledge Agreements, Security
Agreement and other Collateral Documents such that, taking into account such Equity
Interests redeemed or acquired and such Equity Interests released, the aggregate Equity
Interests in such Foreign Subsidiary that remain subject to any such pledge, mortgage or
encumbrance do not exceed 65% (in vote or value) of all of the outstanding Equity
Interests in such Foreign Subsidiary;




(c) on or prior to July 1, 2008 (or such later date as the Administrative Agent
shall agree), a pledge agreement or share mortgage in favor of the Administrative Agent,
for the benefit of the Holders of Secured Obligations, governed by the law of the
jurisdiction of organization of such Foreign Subsidiary with respect to 65% (in vote and
value) of all of the outstanding Equity Interests of the following Foreign Subsidiaries:
Insight Technology Solutions GmbH and Insight Technology Solutions SA; and




(d) in any such case as provided above in this Section 5.09 the Company
shall deliver or cause to be delivered to the Administrative Agent all such Pledge
Agreements, supplements to the Subsidiary Guarantee Agreement, Security Agreements and
other Collateral Documents, together with appropriate corporate resolutions and other
documentation (including opinions, UCC financing statements, real estate title insurance
policies, environmental reports, the stock certificates representing the equities
subject to such pledge, stock powers with respect thereto executed in blank, and such
other documents as shall be reasonably requested to perfect the Lien of such pledge) in
each case in form and substance reasonably satisfactory to the Administrative Agent, and
the Administrative Agent shall be reasonably satisfied that it has a first priority
perfected pledge of or charge over the Collateral related thereto.




Notwithstanding the foregoing requirements of this Section 5.09:




(i) all of the Equity Interests of a European Borrower and the Subsidiaries of the
Company that directly or indirectly own the Equity Interests of such European Borrower
(other than Insight Enterprises CV) shall be pledged to the Administrative Agent to secure
the Secured Obligations owing by such European Borrower and each other European Borrower;
and




 


76











 





(ii) no Receivables Entity shall be required to enter into the Subsidiary Guarantee
Agreement, the Subsidiary Security Agreement, the Subsidiary Pledge Agreement or any other
Collateral Document or otherwise guaranty the Secured Obligations or grant security
interests in its property to the Administrative Agent hereunder or in connection herewith so
long as such Receivables Entity is subject to a Permitted Receivables Facility.



SECTION 5.10. United Kingdom Companies Act. The UK Borrower and the UK Chargor shall
comply in all respects with Sections 151 to 158 of the United Kingdom Companies Act of 1985 in
relation to the Transactions, including in relation to the payment of all amounts due under this
Agreement.



ARTICLE VI




Negative Covenants




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



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




(a) the Secured Obligations;




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




(c) Indebtedness owing by (i) the Company to any Subsidiary, (ii) any European
Borrower to any Subsidiary, (iii) any Foreign Subsidiary to a European Borrower so long
as the aggregate principal amount of all such Indebtedness under this clause (iii)
(excluding any Indebtedness in connection with Cash Pooling Arrangements) at no time
exceeds $25,000,000 in the aggregate, or (iv) to the extent not governed by clause
(i) through (iii), any Subsidiary to the Company or any other Subsidiary;
provided, that Indebtedness of any Foreign Subsidiary to the Company or any
Subsidiary Guarantor shall be subject to Section 6.04;




(d) Guarantees by (i) the Company of Indebtedness owing by a Subsidiary, (ii) any
European Borrower of Indebtedness owing by a Foreign Subsidiary so long as the aggregate
principal amount of Indebtedness being guaranteed and subject to this clause (ii) does
not exceed $25,000,000 at any time, or (iii) to the extent not governed by clauses
(i) or (ii), a Subsidiary of Indebtedness owing by the Company or any other
Subsidiary; provided that (A) the Indebtedness so Guaranteed is permitted by
this Section 6.01 and (B) Guarantees by the Company or any Subsidiary Guarantor
of Indebtedness of any Foreign Subsidiary shall be subject to Section 6.04;


 


77









 






(e) Indebtedness of the Company or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets, including
Capital Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof; provided, that
(i) such Indebtedness is incurred prior to or within 90 days after such acquisition or
the completion of such construction or improvement and (ii) the aggregate principal
amount of Indebtedness permitted by this clause (e) shall not exceed $25,000,000
at any time outstanding;




(f) Indebtedness of the Company or any Subsidiary incurred pursuant to Permitted
Receivables Facilities; provided, that the Attributable Receivables Indebtedness
thereunder shall not exceed an aggregate principal amount of $225,000,000 at any time
outstanding;




(g) Indebtedness of the Company or any of its Subsidiaries incurred pursuant to
Vendor Trade Programs;




(h) Attributable Debt in respect Sale and Leaseback Transactions permitted by
Section 6.09;




(i) Indebtedness of an Acquired Entity existing at the time of the related
Permitted Acquisition or other investment permitted under Section 6.04 which was
not incurred in contemplation of such Permitted Acquisition or other investment, so long
as, determined on a pro forma basis prior to such Acquired Entity becoming a Subsidiary
of the Company, the addition of such Indebtedness to the consolidated Indebtedness of
the Company and its Subsidiaries does not cause an Event of Default under Section
6.10 or any other term or provision of this Agreement;




(j) Indebtedness incurred by the Company or any of its Subsidiaries arising from
agreements providing for indemnification related to sales or goods or adjustment of
purchase price or similar obligations in any case incurred in connection with the
disposition of any business, assets or Subsidiary of the Company;




(k) Indebtedness of the Company or any of its Subsidiaries in respect of workers’
compensation claims, property casualty or liability insurance, take-or-pay obligations
in supply arrangements, self-insurance obligations, performance, bid, customs,
government, judgment, appeal and surety bonds and other obligations of a similar nature,
in each case in the ordinary course of business;




(l) Indebtedness representing deferred compensation to employees of the Company or
any of its Subsidiaries incurred in the ordinary course of business;




(m) Indebtedness in the form of earn-outs, indemnification, incentive,
non-compete, consulting or other similar arrangements and other contingent payments in
respect of Permitted Acquisitions or other investments permitted by Section 6.04;


 


78









 






(n) Indebtedness of the Company or any of its Subsidiaries arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument inadvertently drawn by the Company or such Subsidiary in the ordinary course
of business against insufficient funds, so long as such Indebtedness is promptly repaid;




(o) Indebtedness in respect of Swap Agreements not prohibited hereunder;




(p) Indebtedness of any Loan Party incurred pursuant to a Government Contract
Payment Sale;




(q) Indebtedness owing by Foreign Subsidiaries to non-Affiliates, so long as the
aggregate principal amount thereof at no time exceeds $5,000,000, together with (but
without duplication of) all Guarantees thereof by the Company or any Subsidiary thereof;




(r) Indebtedness arising in favor of depositary institutions in respect of
currency fluctuations or overdrafts under any Cash Pooling Arrangement, so long as the
aggregate principal amount thereof at no time exceeds $1,000,000; and




(s) other unsecured Indebtedness not governed by clauses (a) through
(r) of this Section 6.01 so long as the aggregate principal amount
thereof at no time exceeds $25,000,000.



SECTION 6.02. Liens. The Company will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:




(a) Permitted Encumbrances;




(b) any Lien on any property or asset of the Company or any Subsidiary existing on
the date hereof and set forth in Schedule 6.02; provided that (i) such
Lien shall not apply to any other property or asset of the Company or any Subsidiary and
(ii) such Lien shall secure only those obligations which it secures on the date hereof;




(c) any Lien existing on any property or asset prior to the acquisition thereof by
the Company or any Subsidiary or existing on any property or asset of any Person that
becomes a Subsidiary after the date hereof prior to the time such Person becomes a
Subsidiary; provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary, as the case may
be, (ii) such Lien shall not apply to any other property or assets of the Company or any
Subsidiary and (iii) such Lien shall secure only those obligations which it secures on
the date of such acquisition or the date such Person becomes a Subsidiary, as the case
may be;




(d) Liens on fixed or capital assets acquired, constructed or improved by the
Company or any Subsidiary; provided that (i) such security interests secure


 


79









 






Indebtedness permitted by clause (e) of Section 6.01, (ii) such
security interests and the Indebtedness secured thereby are incurred prior to or within
90 days after such acquisition or the completion of such construction or improvement,
(iii) the Indebtedness secured thereby does not exceed 100% of the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such security interests
shall not apply to any other property or assets of the Company or any Subsidiary;




(e) Liens arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any Lien permitted under clauses (b), (c) or
(d) above; provided, that (i) such Indebtedness is not secured by any
additional assets and (ii) the amount of such Indebtedness secured by any such Lien is
not increased;




(f) Liens arising out of Sale and Leaseback Transactions permitted by Section
6.09;




(g) Liens in connection with or to secure Indebtedness permitted under Section
6.01 that arise under Permitted Receivables Facilities or Vendor Trade Programs so
long as the parties to each such Permitted Receivables Facility or Vendor Trade Program
are bound by, and such Liens are subject to, the Intercreditor Agreement;




(h) Liens that are contractual rights of set-off;




(i) licenses, sublicenses, leases or subleases granted to or from others that do
not interfere in any material respect with the business of the Company or any
Subsidiary;




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




(k) Liens on Government Contract Payments (and related equipment, as applicable)
arising in favor of a Government Contract Payment Purchaser in connection with a
Government Contract Payment Sale;




(l) Liens securing Indebtedness permitted under Section 6.01(q);




(m) Liens on deposit accounts subject to Cash Pooling Arrangements securing
Indebtedness permitted under Section 6.01(r); and




(n) other Liens securing obligations in an aggregate principal amount at any time
not to exceed $2,500,000.



SECTION 6.03. Fundamental Changes. The Company will not, and will not permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or sell, transfer, lease or otherwise make any disposition of its
property or the Equity Interests of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except that:


 


80









 






(a) the Company and its Subsidiaries may purchase and sell inventory in the
ordinary course of business;




(b) the Company and its Subsidiaries may sell, transfer or otherwise dispose of
excess, damaged, obsolete or worn out assets and scrap in the ordinary course of
business;




(c) the Company and its Subsidiaries may enter into and consummate Permitted
Acquisitions;




(d) (i) any Person may merge into the Company in a transaction where the Company
is the survivor thereof, (ii) any Person (other than the Company) may merge into a
Subsidiary Guarantor where such Subsidiary Guarantor is the survivor thereof, (iii) any
Person (other than the Company or a Subsidiary Guarantor) may merge into any European
Borrower where such European Borrower is the survivor thereof, (iv) any Person (other
than a Loan Party) may merge into any other Foreign Subsidiary and (v) any Immaterial
Subsidiary may merge into any other Immaterial Subsidiary; provided, that any
such merger involving a Person that is not a wholly owned Subsidiary immediately prior
to such merger shall not be permitted unless also permitted by Section 6.04;
provided, further, that no Designated Subsidiary (or any Subsidiary
thereof) shall merge with or into any Receivables Seller unless the Designated
Subsidiary requirements of Article VIII has been satisfied;




(e) (i) the Company may sell or transfer assets to any Subsidiary Guarantor, (ii)
any Subsidiary may sell or transfer assets to the Company or any Subsidiary Guarantor,
(iii) any European Borrower may sell or transfer assets to any Foreign Subsidiary so
long as the aggregate consideration for all such sales and transfers governed by this
clause (iii) does not exceed $10,000,000 at any time, and (iv) to the extent not
governed by clauses (i) through (iii) above, any Foreign Subsidiary or
Immaterial Subsidiary may sell or transfer assets to the Company or any other
Subsidiary; provided, that no Designated Subsidiary (or any Subsidiary thereof)
shall sell or transfer any Receivables, directly or indirectly, to any Receivables
Seller unless the Designated Subsidiary requirements of Article VIII have been
satisfied;




(f) the Company or any Subsidiary may (i) sell Receivables under Permitted
Receivables Facilities (subject to the limitation that the Attributable Receivables
Indebtedness thereunder shall not exceed an aggregate principal amount of $225,000,000)
and (ii) sell or discount, in each case without recourse and in the ordinary course of
business, overdue accounts receivable arising in the ordinary course of business, in
connection with the compromise or collection thereof consistent with customary industry
practice (and not as part of any bulk sale or financing of receivables);




(g) if at the time thereof and immediately after giving effect thereto no Event of
Default shall have occurred and be continuing, any Subsidiary that is not a Borrower may
liquidate or dissolve if the Company determines in good faith that such


 


81









 






liquidation or dissolution is in the best interests of the Company and is not
materially disadvantageous to the Lenders;




(h) the Company or any Subsidiary may (i) sell Permitted Investments in the
ordinary course of business, (ii) license intellectual property in the ordinary course
of business and (iii) dispose of or abandon intellectual property that is, in the
reasonable judgment of the Company, no longer economically practicable to maintain or
useful in the conduct of the business of the Company and its Subsidiaries taken as a
whole;




(i) any sale of assets pursuant to a Sale and Leaseback Transaction permitted by
Section 6.09;




(j) any lease or sub-lease of property in the ordinary course of business that
would not materially interfere with the required use of such property by the Company or
its Subsidiaries;




(k) any sale of Government Contract Payments (and related leased equipment, as
applicable) pursuant to a Government Contract Payment Sale; and




(l) the Company or any Subsidiary may engage in a sale or transfer of any assets
not described above so long as such assets, when taken together with all other assets
sold or transferred pursuant to this clause (l) in any fiscal year, does not
constitute a Substantial Portion of the assets of the Company and its Subsidiaries.



In addition to the foregoing, the Company will not, and will not permit any of its Subsidiaries to,
engage to any material extent in any business if as a result thereof the general nature of the
business of the Company and its Subsidiaries taken as a whole would be substantially changed from
the general nature of the business of the Company and its Subsidiaries on the Effective Date.



SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The Company
will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary prior to such merger)
any capital stock, evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any other interest in,
any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:




(a) Permitted Acquisitions; provided, that the Company shall comply with
Section 5.09 following any such Permitted Acquisition;




(b) Permitted Investments;




(c) existing investments in Subsidiaries and other investments in existence on the
date hereof and described in Schedule 6.04;


 


82









 






(d) investments made by the Company and the Subsidiaries in Equity Interests in
their respective Subsidiaries; provided that the aggregate amount of such
investments by the Company and Subsidiary Guarantors in Foreign Subsidiaries (together
with outstanding intercompany loans permitted under the first proviso to paragraph
(e) below and outstanding Guarantees permitted under the first proviso to
paragraph (f) below) shall not exceed $50,000,000 at any time outstanding;
provided, further, that investments made by the European Borrowers in
Equity Interests in their respective Foreign Subsidiaries shall not exceed $25,000,000
at any time outstanding;




(e) loans or advances made by the Company to any Subsidiary and made by any
Subsidiary to the Company or any other Subsidiary; provided that the amount of
such loans and advances made by the Company and Subsidiary Guarantors to Foreign
Subsidiaries (together with outstanding investments permitted under the first proviso to
paragraph (d) above and outstanding Guarantees permitted under the first proviso
to paragraph (f) below) shall not exceed $50,000,000 at any time outstanding;
provided, further, that loans made by the European Borrowers to Foreign
Subsidiaries shall be limited by Section 6.01; and no such loan or advance shall
contravene the provisions of Section 151 of the English Companies Act 1985;




(f) Guarantees constituting Indebtedness permitted by Section 6.01;
provided that the aggregate principal amount of Indebtedness of Foreign
Subsidiaries (excluding the Obligations) that is Guaranteed by the Company or any
Subsidiary Guarantor (together with outstanding investments permitted under the first
proviso to paragraph (d) above and outstanding intercompany loans permitted
under the first proviso to paragraph (e) above) shall not exceed $50,000,000 at
any time outstanding; provided, further, that guarantees made by the
European Borrowers in respect of Foreign Subsidiaries shall be limited by Section
6.01;




(g) Guarantees by the Company or any Subsidiary of operating leases or of other
obligations that do not constitute Indebtedness, in each case entered into by the
Company or any Subsidiary in the ordinary course of business;




(h) extensions of trade credit in the ordinary course of business;




(i) Investments of the Company or any Subsidiary under Swap Agreements permitted
hereunder;




(j) loans and advances to employees, officers and directors of the Company or any
of its Subsidiaries in the ordinary course of business in an aggregate amount (for the
Company and all Subsidiaries) not to exceed $2,500,000 at any one time outstanding; and




(k) other investments (whether in capital stock, evidences of indebtedness or
other securities (including any option, warrant or other right to acquire any of the
foregoing), loans or advances, Guarantees or other investments and interests) not
exceeding $10,000,000 at any time outstanding (determined as the


 


83









 






amount originally advanced, loaned or otherwise invested, less any returns on the
respective investment not to exceed the original amount invested).



SECTION 6.05. Swap Agreements. The Company will not, and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Company or any Subsidiary has actual exposure (other than those in
respect of Equity Interests of the Company or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Company or any Subsidiary.



SECTION 6.06. Restricted Payments. The Company will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Company may declare and pay dividends with respect to its Equity
Interests payable solely in additional shares of its common stock, (b) (i) Subsidiaries may declare
and pay dividends ratably with respect to their Equity Interests, and (ii) a Subsidiary may make
distributions to allow for the payment of any Federal, state, local, or foreign Taxes (including UK
Tax) that are due and payable by any group of corporations that includes the Subsidiary and with
which the Subsidiary joins in filing any consolidated, combined, unitary, or similar tax returns,
determined as if the Subsidiary filed such tax returns separately as the parent of an affiliated
(or similar) group that included the Subsidiary and its subsidiaries, (c) so long as no Default
exists at the time thereof, the Company may redeem, repurchase, acquire or retire (i) any of its
outstanding Equity Interests during the term of this Agreement so long as, after giving effect to
the applicable redemption, repurchase, acquisition or retirement, the Total Leverage Ratio is less
than the Applicable Share Repurchase Ratio, and (ii) to the extent the Company is unable to satisfy
the Applicable Share Repurchase Ratio requirement set forth in the foregoing clause (i), any of its
outstanding Equity Interests during the term of this Agreement in an aggregate amount not to exceed
$50,000,000 less the aggregate amount of Equity Interests of the Company repurchased by the Company
during the period from February 6, 2008 to the Effective Date (with the understanding that this
$50,000,000 basket is separate from the basket provided in the foregoing clause (i) and only
available when the clause (i) basket is unavailable), and (d) the Company may declare and pay
distributions and dividends on its Equity Interests; provided, that, with respect to the
foregoing clause (d), (1) no Default shall exist before or after giving effect to such
distributions and dividends or be created as a result thereof and (2) each cash dividend declared
by the Company shall be made within 90 days of the declaration thereof.



SECTION 6.07. Transactions with Affiliates. The Company will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions that (i) are in the ordinary
course of business and (ii) are at prices and on terms and conditions not less favorable to the
Company or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties, (b) transactions between or among the Company and the Subsidiary Guarantors not involving
any other Affiliate, (c) transactions between or among the Foreign Subsidiaries not involving any
other Affiliate and (d) any transaction expressly permitted under this Article VI.


 


84









 





SECTION 6.08. Restrictive Agreements; Receivables Entities. The Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit
to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon
(a) the ability of the Company or any Subsidiary to create, incur or permit to exist any Lien upon
any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock or to make or repay loans or advances
to the Company or any other Subsidiary or to Guarantee Indebtedness of the Company or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by this Agreement or any other Loan Document, (ii) the foregoing shall not apply
to restrictions and conditions existing on the date hereof identified on Schedule 6.08 (but
shall apply to any extension or renewal of, or any amendment or modification expanding the scope
of, any such restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be
sold and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply
to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property or assets securing
such Indebtedness, (v) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to a Permitted Receivables Facility or Vendor Trade Programs or
to customary provisions contained in joint venture agreements and other similar agreements
applicable to joint ventures entered into in the ordinary course of business and (vi) clause
(a) of the foregoing shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof. No Receivables Entity shall be bound by any provision of this
Article VI so long as it constitutes a Receivables Entity and is subject to a Permitted
Receivables Facility.



SECTION 6.09. Sale and Leaseback Transactions. The Company will not, and will not
will permit any Subsidiary to, enter into any arrangement, directly or indirectly, whereby it shall
sell or transfer any property, real or personal, used or useful in its business, whether now owned
or hereafter acquired, and thereafter rent or lease such property or other property that it intends
to use for substantially the same purpose or purposes as the property sold or transferred, except
for (i) those properties listed in Schedule 6.09, (ii) those assets approved by the Administrative
Agent in its reasonable discretion, and (iii) any such sale of any fixed or capital assets by the
Company or any Subsidiary that is made for cash consideration in an amount not less than the fair
value of such fixed or capital asset and is consummated within 90 days after the Company or such
Subsidiary acquires or completes the construction of such fixed or capital asset; provided,
however, that the aggregate amount of Attributable Debt resulting from such transactions
under this clause (iii) shall not exceed $50,000,000 at any time.




SECTION 6.10. Financial Covenants.



(a) Maximum Total Leverage Ratio. The Company will not permit the Total Leverage
Ratio, as of the last day of each of its fiscal quarters, to exceed the following ratios for the
following periods:


 


85









 





	 	 	 
	 	 	Maximum Total Leverage
	Period	 	Ratio
	 
	Effective Date through September 30, 2009
	 	3.00 to 1.00
	 
	October 1, 2009 through September 30, 2010
	 	2.75 to 1.00
	 
	October 1, 2010 and thereafter
	 	2.50 to 1.00






(b) Minimum Fixed Charge Coverage Ratio. The Company will not permit the Fixed
Charge Coverage Ratio, as of the last day of each of its fiscal quarters, to be less than 1.25 to
1.00.



(c) Minimum Asset Coverage Ratio. The Company will not permit the Asset Coverage
Ratio, as of the last day of each of its fiscal quarters, to be less than 1.50 to 1.00.



ARTICLE VII




Events of Default





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




(a) (i) any Borrower shall fail to pay any principal of any Loan when and as the
same shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise or (ii) the Company shall fail to pay any
reimbursement obligation in respect of any LC Disbursement within three Business Days
after the date the same shall become due and payable;




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




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




(d) any Borrower shall fail to observe or perform any covenant or agreement
contained in Section 5.02(a), 5.03 (with respect to any Borrower’s
existence), 5.08, 5.09 or in Article VI;




(e) any Borrower shall fail to observe or perform any covenant or agreement
contained in this Agreement or in any other Loan Document (other than those specified in
clause (a), (b) or (d) of this Article), and such failure shall
continue


 


86









 






unremedied for a period of 30 days after notice thereof from the Administrative
Agent to the Company (which notice will be given at the request of any Lender);




(f) the Company or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable (subject to any applicable grace
period with respect thereto, if any, set forth in the agreement evidencing such Material
Indebtedness);




(g) any event or condition occurs that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with or without
the giving of notice, the lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity; provided that this
clause (g) shall not apply to secured Indebtedness that becomes due as a result
of the voluntary sale or transfer of the property or assets securing such Indebtedness;




(h) an involuntary proceeding shall be commenced or an involuntary petition shall
be filed seeking (i) bankruptcy, winding up, dissolution, liquidation, administration,
moratorium, reorganization or other relief in respect of the Company or any Subsidiary
or its debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, administrative, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, administrator, administrative
receiver, trustee, custodian, sequestrator, conservator or similar official for the
Company or any Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed or unwithdrawn for 90 days
or an order or decree approving or ordering any of the foregoing shall be entered or,
with respect to the Dutch Borrower, such proceeding can no longer be dismissed (in
kracht van gewijsde);




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




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


 


87









 






(k) one or more (i) judgments for the payment of money in an aggregate amount in
excess of $10,000,000 (to the extent not covered by a valid and binding policy of
insurance in favor of the Company or the applicable Subsidiary with respect to which the
related insurer has been notified of a claim for payment and has not disputed such
claim) or (ii) nonmonetary judgments or orders which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, shall be rendered
against the Company, any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of the Company or any Subsidiary to enforce any such
judgment;




(l) an ERISA Event shall have occurred that, when taken together with all other
ERISA Events that have occurred and are continuing, would reasonably be expected to
result in liability of the Company and its Subsidiaries in an aggregate amount exceeding
$10,000,000;




(m) a Change in Control shall occur;




(n) any Loan Document shall fail to remain in full force or effect against the
Company or any Subsidiary or any action shall be taken or shall be failed to be taken by
the Company or any Subsidiary to discontinue or to assert the invalidity or
unenforceability of, or which results in the discontinuation or invalidity or
unenforceability of, any Loan Document or any Lien in favor of the Administrative Agent
under the Loan Documents (with respect to Collateral having an aggregate book value in
excess of $1,000,000), or such Lien (with respect to Collateral having an aggregate book
value in excess of $1,000,000) shall not have the priority contemplated by the Loan
Documents;




(o) an event (such event, an “Off-Balance Sheet Trigger Event”) shall
occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet
Liabilities of the Company or any Subsidiary to require the amortization or liquidation
of such Off-Balance Sheet Liabilities and (x) such Off-Balance Sheet Trigger Event shall
not be remedied or waived within the later to occur of the tenth day after the
occurrence thereof or the expiry date of any grace period related thereto under the
agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall
require the amortization or liquidation of such Off-Balance Sheet Liabilities as a
result of such Off-Balance Sheet Trigger Event, (ii) results in the termination of
reinvestments of collections or proceeds of receivables and related assets under the
agreements evidencing such Off-Balance Sheet Liabilities, or (iii) causes or otherwise
permits the replacement or substitution of the Company or any Subsidiary as the servicer
under the agreements evidencing such Off-Balance Sheet Liabilities; provided,
however, that this paragraph (o) shall not apply on any date with
respect to any voluntary request by the Company or Subsidiary for an above-described
amortization, liquidation, or termination of reinvestments so long as the aforementioned
investors or purchasers cannot independently require on such date such amortization,
liquidation or termination of reinvestments; or


 


88









 






(p) the FCC, any PUC or any other Governmental Authority, by final order,
determines that the existence or performance of this Agreement or any other Loan
Document results in a revocation, suspension or material adverse modification of any
Governmental Approval, such revocation, suspension or material adverse modification
continues unremedied for a period of five Business Days after the issuance of any such
final order, and such revocation, suspension or material adverse modification would
reasonably be expected to result in a Material Adverse Effect.



then, and in every such event (other than an event with respect to a Loan Party described in
clause (h) or (i) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Company, take either or both of the following actions, at the same or
different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any such principal or face amount not so declared to be due and payable or
required to be prepaid may thereafter be declared to be due and payable or required to be prepaid),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to a
Loan Party described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrowers.



In connection with the enforcement by the Administrative Agent of any remedies available to it
as a result of any Event of Default that would require the approval of the FCC, a PUC or any
Governmental Authority, and subject to the terms and conditions set forth herein, the Company
agrees that it shall (and shall cause each Subsidiary to) join and cooperate fully with, at the
request of the Administrative Agent, any receiver referred to below and/or the successful bidder or
bidders at any foreclosure sale in a filing of an application (and furnishing any additional
information that may be required in connection with such application or which the Administrative
Agent may believe relevant to such application) with the FCC, any PUC and all other applicable
Governmental Authorities, requesting their prior approval of (i) the operation or abandonment of
all or the portion of any System or Telecommunications Equipment and/or (ii) the transfer of
control of the Company or any Subsidiary or assignment of all licenses, certificates, Governmental
Approvals, approvals and permits, issued to the Company or any Subsidiary by the FCC, any PUC or
any such Governmental Authorities with respect to any System or Telecommunications Equipment and
the operation thereof, to the Administrative Agent, the receiver or to the successful bidder or
bidders. In connection with the foregoing, the Company shall and shall cause each Subsidiary to
take such further actions, and execute all such instruments, as the Administrative Agent reasonably
deems necessary or desirable.



If the Company fails to reasonably cooperate with the Administrative Agent in its enforcement
of any remedies that would require the approval of the FCC, a PUC, or any Governmental Authority,
and subject to the terms and conditions set forth herein, (i) the



 


89









 






Company agrees, for itself and on behalf of the Subsidiaries, that the Administrative Agent
may enforce any obligation of the Company or any such Subsidiary as set forth in this section by an
action for specific performance; and (ii) the Company, subject to the rules and regulations of the
FCC, a PUC, or any Governmental Authority, hereby irrevocably constitutes and appoints (for itself
and the Subsidiaries) the Administrative Agent and any agent or officer thereof (which appointment
is coupled with an interest) as its true and lawful attorney-in-fact with full irrevocable power
and authority and in the place and stead of the Company (or the applicable Subsidiary) and in the
name of the Company (or the applicable Subsidiary) or in its own name, after the occurrence and
during the continuance of an Event of Default and in connection with the foregoing, for the purpose
of executing on behalf and in the name of the Company (or the applicable Subsidiary) any and all of
the above-referenced instruments and to take any and all appropriate action in furtherance of the
foregoing. The exercise of any rights or remedies hereunder or under any other Loan Document by
the Administrative Agent or any other Person acting on its behalf that may require FCC, any PUC or
any other Governmental Authority approval, shall be subject to obtaining such approval and shall at
all times be consistent in all material respects with the rules and regulations of the FCC, any
PUC, or any Governmental Authority. Pending the receipt of any FCC, any PUC or any Governmental
Authority approval, neither the Company nor any Subsidiary shall do anything to delay, hinder,
interfere or obstruct the exercise of the Administrative Agent’s rights or remedies hereunder in
obtaining such approvals. Notwithstanding anything to the contrary in this Agreement, neither the
Administrative Agent nor any other Person acting on its behalf shall take any action which would
reasonably be expected to cause the revocation, suspension or material adverse modification of any
of the regulatory licenses, permits, or franchises of the Company or the Subsidiaries.



In connection with the exercise of its remedies under this Agreement that require the approval
of the FCC, a PUC, or any Governmental Authority, the Administrative Agent may, upon the occurrence
of an Event of Default, obtain the appointment of a receiver or trustee to assume upon receipt of
all necessary judicial, FCC, any PUC or other Governmental Authority consents or approvals, control
of or ownership of any of the Governmental Approvals. Such receiver or trustee shall have all
rights and powers provided to it by law or by court order or provided to the Administrative Agent
under this Agreement. Upon the appointment of such trustee or receiver, the Company agrees for
itself and the Subsidiaries to cooperate, to the extent necessary or appropriate, in the
expeditious preparation, execution and filing of an application to the FCC, any PUC or any other
Governmental Authority or for consent to the transfer or control or assignment of the Company’s or
any Subsidiary’s Governmental Approvals to the receiver or trustee.



ARTICLE VIII




The Agents




Each of the Lenders and the Issuing Bank hereby irrevocably appoints each Applicable Agent as
its agent and authorizes such Applicable Agent to take such actions on its behalf and to exercise
such powers as are delegated to such Applicable Agent by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.


 


90









 





Each bank serving as an 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 such Agent, and
such bank and its Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an
Agent hereunder.



The Agents shall not have any duties or obligations except those expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to
any fiduciary or other implied duties, regardless of whether a Default has occurred and is
continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby that
such Agent is required to exercise in writing as directed by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 11.02), and (c) except as expressly set forth herein, no Agent shall have any duty
to disclose, or shall be liable for the failure to disclose, any information relating to the
Company or any of its Subsidiaries that is communicated to or obtained by the bank serving as such
Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
11.02) or in the absence of its own gross negligence or willful misconduct. No Agent shall be
deemed to have knowledge of any Default unless and until written notice thereof is given to such
Agent by a Borrower or a Lender, and no Agent shall 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, (ii) the contents of any certificate, report or other document delivered
hereunder or in connection herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement, instrument or document, (v)
the satisfaction of any condition set forth in Article IV or elsewhere herein, other than
to confirm receipt of items expressly required to be delivered to such Agent or (vi) the perfection
or priority of any Lien securing the Obligations.



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



Each Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each 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 an Agent.


 


91









 





Subject to the appointment and acceptance of a successor Agent as provided in this paragraph,
any Agent may resign at any time by notifying the Lenders, the Issuing Bank (in the case of the
Administrative Agent) and the Company. Upon any such resignation, the Required Lenders shall have
the right, in consultation with the Company, to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of
the Lenders and the Issuing Bank (in the case of a successor Administrative Agent), appoint a
successor Agent, which, in the case of the Administrative Agent shall be a bank with an office in
New York, New York, or an Affiliate of any such bank; and in the case of the European Agent, shall
be a bank with an office in London, England, or an Affiliate of any such bank. The appointment of
a successor European Agent shall be subject to the consent of the Administrative Agent (such
consent not to be unreasonably withheld). Upon the acceptance of its appointment as an Agent
hereunder by a successor, such successor shall succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. The fees payable by any Borrower to a successor Agent
shall be the same as those payable to its predecessor unless otherwise agreed between such Borrower
and such successor. After an Agent’s resignation hereunder, the provisions of this Article and
Section 11.03 shall continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as an Agent.



Each Lender acknowledges that it has, independently and without reliance upon any Agent or any
other Lender and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any related agreement
or any document furnished hereunder or thereunder.



Each Lender authorizes the Administrative Agent to enter into the Collateral Documents and to
take all action contemplated thereby. Each Lender agrees that no one (other than the
Administrative Agent) shall have the right individually to seek to realize upon the security
granted by any Collateral Document, it being understood and agreed that such rights and remedies
may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured
Obligations upon the terms of the Collateral Documents. In the event that any collateral is
hereafter pledged by any Person as collateral security for the Secured Obligations, the
Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and
deliver on behalf of the Lenders any Loan Documents necessary or appropriate to grant and perfect a
Lien on such collateral in favor of the Administrative Agent on behalf of the Lenders. The Lenders
hereby authorize the Administrative Agent, at its option and in its discretion, to permit the
release of any Lien granted to or held by the Administrative Agent upon any Collateral (i) as
described in Section 11.02(c); (ii) as permitted by, but only in accordance with, the terms
of the applicable Loan Documents; or (iii) if approved, authorized or ratified in writing by the
Required Lenders, unless such release is required to be approved by all of the Lenders hereunder.
Upon request by the Administrative Agent at any time, the Lenders will confirm in



 


92









 






writing the Administrative Agent’s authority to release particular types or items of
collateral pursuant hereto.



The Company may request that the Administrative Agent and the Lenders release their security
interest in Receivables originated by a Designated Subsidiary. If the Company delivers a written
certification to the Administrative Agent certifying that (i) no Event of Default is then
outstanding, (ii) the applicable Designated Subsidiary (or its successor) has merged into Insight
Direct USA, Inc., with Insight Direct USA, Inc. being the survivor thereof, (iii) Insight Direct
USA, Inc. owns all of the Receivables originated by the applicable Designated Subsidiary and (iv)
such Receivables, once released from the Administrative Agent’s and the Holders of Secured
Obligations’ security interest, qualify as eligible receivables under a Permitted Receivables
Facility, then the Administrative Agent shall promptly after its receipt of such written
certification release its and the Holders of Secured Obligations’ security interest in such
Receivables. Prior to giving effect to any such release, the Administrative Agent shall be entitled
to receive copies of the documentation evidencing any such merger (including documentation
certified by the applicable secretary of state or comparable Governmental Authority), the
subsequent ownership of the applicable Receivables, and the eligibility of such Receivables under a
Permitted Receivables Facility, and may withhold any such release until such supporting
documentation is delivered. No such release shall occur if an Event of Default is then
outstanding.



Each Lender hereby authorizes the Administrative Agent on the Effective Date to enter into the
Intercreditor Agreement and to take all actions with respect to such agreement as contemplated
hereunder or thereunder. Each Lender hereby authorizes the Administrative Agent on the Effective
Date to release from the Subsidiary Guarantee Agreement and the Collateral Documents each
Subsidiary that does not constitute a Material Subsidiary as of such date.



The Dutch Borrower hereby irrevocably and unconditionally undertakes to pay to the
Administrative Agent an amount equal to the aggregate amount payable by it and the UK Borrower from
time to time in respect of (a) their Obligations and (b) each Swap Agreement entered into by the
Dutch Borrower or the UK Borrower with any counterparty that was a Lender (or an Affiliate thereof)
at the time such Swap Agreement was entered into (unless the applicable Lender party thereto agreed
in writing not be secured pursuant to this Credit Agreement) (the “Swap Obligations”). This
payment undertaking of the Dutch Borrower to the Administrative Agent is hereinafter to be referred
to as the “Dutch Parallel Debt”.



The Dutch Parallel Debt will be payable in the currency or currencies of the corresponding
Obligations and Swap Obligations.



Any obligation under the Dutch Parallel Debt shall become due and payable (opeisbaar) as and
when and to the extent one or more of the corresponding Obligations or Swap Obligations become due
and payable. The parties hereto agree that a Default in respect of the Obligations or Swap
Obligations entered into by the Dutch Borrower or the UK Borrower shall constitute a default
(verzuim) within the meaning of Article 3:248 Netherlands Civil Code with respect to the Dutch
Parallel Debt as well without any notice being required therefor.



Each of the parties hereto acknowledges that:


 


93









 






(i) each Dutch Parallel Debt constitutes an undertaking, obligation and liability of
the Dutch Borrower to the Administrative Agent which is separate and independent from, and
without prejudice to, the Obligations and Swap Obligations; and




(ii) each Dutch Parallel Debt represents the Administrative Agent’s own separate and
independent claim (eigen en zelfstandige vordering) to receive payment of the Dutch Parallel
Debt from the Dutch Borrower,




it being understood that the amount which may become payable by the Dutch Borrower,
respectively, as the Dutch Parallel Debt shall never exceed the total of the amounts
which are payable by it and the UK Borrower under the Obligations and Swap
Obligations.



For the avoidance of doubt, the Dutch Borrower, the UK Borrower and the Administrative Agent
confirm that the claims of the Administrative Agent against the Dutch Borrower in respect of the
Dutch Parallel Debt and the claims of any one or more of the Holders of Secured Obligations against
the Dutch Borrower and the UK Borrower in respect of the Obligations and Swap Obligations payable
by the Dutch Borrower and the UK Borrower to such Holders of Secured Obligations do not constitute
common property (gemeenschap) within the meaning of article 3:166 Netherlands Civil Code and that
the provisions relating to common property shall not apply. If, however, it shall be held that such
claim of the Administrative Agent and such claims of any one or more of the Holders of Secured
Obligations do constitute common property and the provisions relating to common property do apply,
the parties agree that the applicable provisions of the Credit Agreement and the Intercreditor
Agreement shall constitute the administration agreement (beheersregeling) within the meaning of
article 3:168 Netherlands Civil Code.



To the extent the Administrative Agent irrevocably (onaantastbaar) receives any amount in
payment of any Dutch Parallel Debt, the Administrative Agent shall distribute such amount among the
Holders of Secured Obligations that are creditors of the corresponding Obligations or Swap
Obligations in accordance with the applicable provisions of the Credit Agreement and the
Intercreditor Agreement. The Dutch Borrower, the UK Borrower and the Administrative Agent agree
that upon irrevocable receipt by the Administrative Agent of any amount in payment of the Dutch
Parallel Debt (a “Received Amount”), the corresponding Obligations or Swap Obligations
shall be reduced by amounts totalling an amount equal to the Received Amount (a “Deductible
Amount”) in the manner as if the Deductible Amount were received as payment of the relevant
Obligations or Swap Obligations on the date of receipt by the Administrative Agent of the Received
Amount.



The parties hereto acknowledge and agree that, for purposes of a Dutch pledge, any resignation
by the Administrative Agent is not effective until its rights under the Dutch Parallel Debt are
assigned to the successor Administrative Agent.



No Person identified on the cover page to this Agreement, the signature pages to this
Agreement or otherwise in this Agreement as a “Co-Syndication Agent” or a “Lead Arranger” shall
have any right, power, obligation, liability, responsibility or duty under this Agreement other
than, if such Person is a Lender, those applicable to all Lenders as such.


 


94









 





Without limiting the foregoing, no Person identified on the cover page to this Agreement, the
signature pages to this Agreement or otherwise in this Agreement as a “Co-Syndication Agent”, or a
“Lead Arranger” shall have or be deemed to have any fiduciary duty to or fiduciary relationship
with any Lender. In addition to the agreement set forth above, each of the Lenders acknowledges
that it has not relied, and will not rely, on any Person so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.



ARTICLE IX




Collection Allocation Mechanism




SECTION 9.01. Implementation of CAM. (a) On the CAM Exchange Date, (i) the
Commitments shall automatically and without further act be terminated as provided in Article
VII, (ii) each US Tranche Lender shall immediately be deemed to have acquired (and shall
promptly make payment therefor to the Administrative Agent in accordance with Section
2.04(c)) participations in the Swingline Loans under the US Tranche in an amount equal to such
Lender’s US Tranche Revolving Percentage of each such Swingline Loan outstanding on such date,
(iii) each European Tranche Lender shall immediately be deemed to have acquired (and shall promptly
make payment therefor to the applicable Agent in accordance with Section 2.04(c))
participations in the Swingline Loans under the European Tranche in an amount equal to such
Lender’s European Tranche Percentage of each such Swingline Loan outstanding on such date, (iv)
simultaneously with the automatic conversions pursuant to clause (v) below (after giving
effect to clauses (ii) and (iii) above), the Lenders shall automatically and
without further act (and without regard to the provisions of Section 11.04) be deemed to
have exchanged interests in the Loans (other than the Swingline Loans) and participations in
Swingline Loans and Letters of Credit, such that in lieu of the interest of each Lender in each
Loan and Letter of Credit in which it shall participate as of such date (including such Lender’s
interest in the Obligations of each Borrower in respect of each such Loan and Letter of Credit),
such Lender shall hold an interest in every one of the Loans (other than the Swingline Loans) and a
participation in every one of the Swingline Loans and Letters of Credit (including the Obligations
of each Borrower in respect of each such Loan and each Reserve Account established pursuant to
Section 9.02 below), whether or not such Lender shall previously have participated therein,
equal to such Lender’s CAM Percentage thereof, and (v) simultaneously with the deemed exchange of
interests pursuant to clause (iv) above, the interests in the Loans to be received in such
deemed exchange shall, automatically and with no further action required, be converted into the US
Dollar Equivalent, determined using the Exchange Rate calculated as of such date, of such amount
and on and after such date all amounts accruing and owed to the Lenders in respect of such
Obligations shall accrue and be payable in US Dollars at the rate otherwise applicable hereunder.
Each Lender and each Borrower hereby consents and agrees to the CAM Exchange, and each Lender
agrees that the CAM Exchange shall be binding upon its successors and assigns and any person that
acquires a participation in its interests in any Loan or any participation in any Swingline Loan or
Letter of Credit. Each Borrower and each Lender agrees from time to time to execute and deliver to
the Administrative Agent all such promissory notes and other 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, and each Lender agrees to
surrender any promissory notes originally received by it in connection with its Loans hereunder to
the Administrative Agent against


 


95









 





delivery of any promissory notes evidencing its interests in the Loans so executed and
delivered; provided, however, that the failure of any Borrower to execute or
deliver or of any Lender to accept any such promissory note, instrument or document shall not
affect the validity or effectiveness of the CAM Exchange.



(b) As a result of the CAM Exchange, upon and after the CAM Exchange Date, each payment
received by the Administrative Agent pursuant to any Loan Document in respect of the Obligations,
and each distribution made by the Administrative Agent pursuant to any Loan Document in respect of
the Obligations, shall be distributed to the Lenders pro rata in accordance with their respective
CAM Percentages. Any direct payment received by a Lender on or after the CAM Exchange Date,
including by way of set-off, in respect of an Obligation shall be paid over to the Administrative
Agent for distribution to the Lenders in accordance herewith.



SECTION 9.02. Letters of Credit. (a) In the event that on the CAM Exchange Date any
Letter of Credit shall be outstanding and undrawn in whole or in part, or any L/C Disbursement
shall not have been reimbursed by the Company or with the proceeds of a Revolving Borrowing or
Swingline Borrowing, each US Tranche Lender shall promptly pay over to the Administrative Agent, in
immediately available funds, an amount in US Dollars equal to such Lender’s US Tranche Revolving
Percentage of such undrawn face amount or (to the extent it has not already done so) such
unreimbursed drawing, as applicable, together with interest thereon from the CAM Exchange Date to
the date on which such amount shall be paid to the Administrative Agent at the rate that would be
applicable at the time to a US Tranche ABR Revolving Loan in a principal amount equal to such
undrawn face amount or unreimbursed drawing, as applicable. The Administrative Agent shall
establish a separate account (each, a “Reserve Account”) or accounts for each Lender for
the amounts received with respect to each such Letter of Credit pursuant to the preceding sentence.
The Administrative Agent shall deposit in each Lender’s Reserve Account such Lender’s CAM
Percentage of the amounts received from the US Tranche Lenders as provided above. The
Administrative Agent shall have sole dominion and control over each Reserve Account, and the
amounts deposited in each Reserve Account shall be held in such Reserve Account until withdrawn as
provided in paragraph (b), (c), (d) or (e) below. The
Administrative Agent shall maintain records enabling it to determine the amounts paid over to it
and deposited in the Reserve Accounts in respect of each Letter of Credit and the amounts on
deposit in respect of each Letter of Credit attributable to each Lender’s CAM Percentage. The
amounts held in each Lender’s Reserve Account shall be held as a reserve against the LC Exposures,
shall be the property of such Lender, shall not constitute Loans to or give rise to any claim of or
against any Borrower and shall not give rise to any obligation on the part of any Borrower to pay
interest to such Lender, it being agreed that the reimbursement obligations in respect of Letters
of Credit shall arise only at such times as drawings are made thereunder, as provided in
Section 2.05.



(b) In the event that after the CAM Exchange Date any drawing shall be made in respect of a
Letter of Credit, the Administrative Agent shall, at the request of the Issuing Bank, withdraw from
the Reserve Account of each Lender any amounts, up to the amount of such Lender’s CAM Percentage of
such drawing or payment, deposited in respect of such Letter of Credit and remaining on deposit and
deliver such amounts to the Issuing Bank in satisfaction of the reimbursement obligations of the US
Tranche Lenders under Section 2.05(d) (but not of the Company under Section
2.05(e)). In the event that any US Tranche Lender shall default on its



 


96









 






obligation to pay over any amount to the Administrative Agent as provided in this Section
9.02, the Issuing Bank shall have a claim against such Lender to the same extent as if such
Lender had defaulted on its obligations under Section 2.05(d), but shall have no claim
against any other Lender in respect of such defaulted amount, notwithstanding the exchange of
interests in the Company’s reimbursement obligations pursuant to Section 9.01. Each other
Lender shall have a claim against such defaulting Lender for any damages sustained by it as a
result of such default, including, in the event that such Letter of Credit shall expire undrawn,
its CAM Percentage of the defaulted amount.



(c) In the event that after the CAM Exchange Date any Letter of Credit shall expire undrawn,
the Administrative Agent shall withdraw from the Reserve Account of each Lender the amount
remaining on deposit therein in respect of such Letter of Credit and distribute such amount to such
Lender.



(d) With the prior written approval of the Administrative Agent (not to be unreasonably
withheld), any Lender may withdraw the amount held in its Reserve Account in respect of the undrawn
amount of any Letter of Credit. Any Lender making such a withdrawal shall be unconditionally
obligated, in the event there shall subsequently be a drawing under such Letter of Credit, to pay
over to the Administrative Agent, in the currency in which such drawing is denominated, for the
account of the Issuing Bank, on demand, its CAM Percentage of such drawing or payment.



(e) Pending the withdrawal by any Lender of any amounts from its Reserve Account as
contemplated by the above paragraphs, the Administrative Agent will, at the direction of such
Lender and subject to such rules as the Administrative Agent may prescribe for the avoidance of
inconvenience, invest such amounts in customary, highly-rated, short-term investments reasonably
acceptable to the Administrative Agent. Each Lender that has not withdrawn its amounts in its
Reserve Account as provided in paragraph (d) above shall have the right, at intervals
reasonably specified by the Administrative Agent, to withdraw the earnings on investments so made
by the Administrative Agent with amounts in its Reserve Account and to retain such earnings for its
own account.



(f) Notwithstanding the foregoing or anything else to the contrary set forth in this
Agreement or any other Loan Document, to the extent the Company has cash collateralized LC Exposure
in respect of outstanding Letters of Credit within five (5) Business Days after the date such cash
collateralization is required under the terms of this Agreement (including, without limitation,
Section 2.05(j)), no Lender shall be required to deposit any amount in a Reserve Account or
otherwise post any amount in respect of outstanding Letters of Credit as contemplated by this
Section 9.02. In the event any LC Exposure is not cash collateralized as required under
this Agreement and the Company does not post required cash collateral within five (5) Business Days
after the date on which such cash collateral was required to be posted, then the Lenders shall be
required to make deposits as and when contemplated in this Section 9.02 in the amount not
secured by cash collateral required to be posted under Section 2.05(j) or otherwise.


 


97









 





ARTICLE X




Guarantee




SECTION 10.01. Company Guaranty. In order to induce the Lenders to extend credit to
the European Borrowers hereunder, the Company hereby irrevocably and unconditionally guarantees, as
a primary obligor and not merely as a surety, the payment when and as due of the Obligations of
such European Borrowers. The Company further agrees that the due and punctual payment of such
Obligations may be extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such
extension or renewal of any such Obligation.



The Company waives presentment to, demand of payment from and protest to any Borrower of any
of the Obligations, and also waives notice of acceptance of its obligations and notice of protest
for nonpayment. The obligations of the Company hereunder shall not be affected by (a) the failure
of any Agent, Issuing Bank or Lender to assert any claim or demand or to enforce any right or
remedy against any Borrower under the provisions of this Agreement, any other Loan Document or
otherwise; (b) any extension or renewal of any of the Obligations; (c) any rescission, waiver,
amendment or modification of, or release from, any of the terms or provisions of this Agreement, or
any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in
the performance of any of the Obligations; or (e) any other act (other than payment of the
Obligations), omission or delay to do any other act which may or might in any manner or to any
extent vary the risk of the Company or otherwise operate as a discharge of a guarantor as a matter
of law or equity or which would impair or eliminate any right of the Company to subrogation.



The Company further agrees that its agreement hereunder constitutes a guarantee of payment
when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or
collection of any of the Obligations or operated as a discharge thereof) and not merely of
collection, and waives any right to require that any resort be had by any Agent or Lender to any
balance of any deposit account or credit on the books of any Agent or Lender in favor of any
Borrower or any other Person.



The obligations of the Company hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than payment of the Obligations), and shall not be
subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of
the invalidity, illegality or unenforceability of any of the Obligations, any impossibility in the
performance of any of the Obligations or otherwise.



The Company further agrees that its obligations hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any Agent, Issuing Bank or Lender upon the bankruptcy or
reorganization of any Borrower or otherwise.



In furtherance of the foregoing and not in limitation of any other right which any Agent or
Lender may have at law or in equity against the Company by virtue hereof, upon the failure of any
European Borrower to pay any Obligation when and as the same shall become due,



 


98









 






whether at maturity, by acceleration, after notice of prepayment or otherwise, the Company
hereby promises to and will, upon receipt of written demand by any Agent or Lender, forthwith pay,
or cause to be paid, to the applicable Agent, or Lender in cash an amount equal to the unpaid
principal amount of such Obligations then due, together with accrued and unpaid interest thereon.
The Company further agrees that if payment in respect of any Obligation shall be due in a currency
other than US Dollars and/or at a place of payment other than New York and if, by reason of any
Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or
other event, payment of such Obligation in such currency or at such place of payment shall be
impossible or, in the reasonable judgment of any Agent or Lender, disadvantageous to such Agent or
Lender in any material respect, then, at the election of the Administrative Agent, the Company
shall make payment of such Obligation in US Dollars (based upon the applicable Exchange Rate in
effect on the date of payment) and/or in New York, and, as a separate and independent obligation,
shall indemnify each Agent and Lender against any losses or reasonable out-of-pocket expenses that
it shall sustain as a result of such alternative payment.



Upon payment by the Company of any sums as provided above, all rights of the Company against
any European Borrower arising as a result thereof by way of right of subrogation or otherwise shall
in all respects be subordinated and junior in right of payment to the prior indefeasible payment in
full in cash of all the Obligations owed by such European Borrower to the Agents and the Lenders.



Nothing shall discharge or satisfy the liability of the Company hereunder except the full
performance and payment of the Obligations.



SECTION 10.02. European Borrowers’ Guaranty. In order to induce the Lenders to
extend credit to the European Borrowers hereunder, each European Borrower hereby irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and
as due of the Obligations of each other European Borrower. Each European Borrower further agrees
that the due and punctual payment of such Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will remain bound upon its guarantee
hereunder notwithstanding any such extension or renewal of any such Obligation.



Each European Borrower waives presentment to, demand of payment from and protest to any
European Borrower of any of the Obligations, and also waives notice of acceptance of its
obligations and notice of protest for nonpayment. The obligations of each European Borrower
hereunder shall not be affected by (a) the failure of any Agent, Issuing Bank or Lender to assert
any claim or demand or to enforce any right or remedy against any European Borrower under the
provisions of this Agreement, any other Loan Document or otherwise; (b) any extension or renewal of
any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from,
any of the terms or provisions of this Agreement, or any other Loan Document or agreement; (d) any
default, failure or delay, willful or otherwise, in the performance of any of the Obligations; or
(e) any other act (other than payment of the Obligations), omission or delay to do any other act
which may or might in any manner or to any extent vary the risk of such European Borrower or
otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair
or eliminate any right of such



 


99









 





European Borrower to subrogation.



Each European Borrower further agrees that its agreement hereunder constitutes a guarantee of
payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual
or collection of any of the Obligations or operated as a discharge thereof) and not merely of
collection, and waives any right to require that any resort be had by any Agent, Issuing Bank or
Lender to any balance of any deposit account or credit on the books of any Agent, Issuing Bank or
Lender in favor of any European Borrower or any other Person.



The obligations of each European Borrower hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than payment of the Obligations), and
shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever,
by reason of the invalidity, illegality or unenforceability of any of the Obligations, any
impossibility in the performance of any of the Obligations or otherwise.



Each European Borrower further agrees that its obligations hereunder shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any
Obligation is rescinded or must otherwise be restored by any Agent, Issuing Bank or Lender upon the
bankruptcy or reorganization of any European Borrower or otherwise.



In furtherance of the foregoing and not in limitation of any other right which any Agent or
Lender may have at law or in equity against any European Borrower by virtue hereof, upon the
failure of any other European Borrower to pay any Obligation when and as the same shall become due,
whether at maturity, by acceleration, after notice of prepayment or otherwise, each European
Borrower hereby promises to and will, upon receipt of written demand by any Agent or Lender,
forthwith pay, or cause to be paid, to the applicable Agent or Lender in cash an amount equal
to the unpaid principal amount of such Obligations then due, together with accrued and unpaid
interest thereon. Each European Borrower further agrees that if payment in respect of any
Obligation shall be due in a currency other than US Dollars and/or at a place of payment other than
New York and if, by reason of any Change in Law, disruption of currency or foreign exchange
markets, war or civil disturbance or other event, payment of such Obligation in such currency or at
such place of payment shall be impossible or, in the reasonable judgment of any Agent or Lender,
disadvantageous to such Agent or Lender in any material respect, then, at the election of the
Administrative Agent, each European Borrower shall make payment of such Obligation in US Dollars
(based upon the applicable Exchange Rate in effect on the date of payment) and/or in New York, and,
as a separate and independent obligation, shall indemnify each Agent and Lender against any losses
or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment.



Upon payment by each European Borrower of any sums as provided above, all rights of such
European Borrower against any other European Borrower arising as a result thereof by way of right
of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to
the prior indefeasible payment in full in cash of all the Obligations owed by such European
Borrower to the Agents and the Lenders.



Nothing shall discharge or satisfy the liability of any European Borrower hereunder except the
full performance and payment of the Obligations.


 


100









 





ARTICLE XI




Miscellaneous




SECTION 11.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as
follows:




	 	(i)	 	if to any Borrower, to:







c/o Insight Enterprises, Inc.

1305 W. Auto Drive

Tempe, AZ 85284

Attn: Glynis Bryan

Phone: (480) 333-3390

Fax: (480) 760-8894




With a copy to:




1305 W. Auto Drive

Tempe, AZ 85284

Attn: Mark N. Rogers, Esq.

Phone: (480) 333-3475

Fax: (480) 760-9068




	 	(ii)	 	if to the Administrative Agent, to:







JPMorgan Chase Bank, National Association

10 South Dearborn, Floor 19

Mail Code: IL1-0010

Chicago, IL 60603-2003

Attn: Mi Y. Kim

Phone: (312) 732-4853

Fax: (312) 385-7098


 


101









 






	 	(iii)	 	if to the European Agent, to:







J. P. Morgan Europe Limited

Mail Code: London Wall/9

125 London Wall, Floor 9, London EC2Y5AJ

United Kingdom

Attention: Manager of Loan & Agency Services

Fax: 44 207 7772360




(in each case with a copy to the Administrative Agent as provided in
clause (ii) above);




	 	(iv)	 	if to the Issuing Bank, to:







JPMorgan Chase Bank, National Association

Commercial Banking

201 N. Central Avenue, Floor 21

Mail Code: AZ1-1178

Phoenix, AZ 85004

Attn: Steve Krakoski

Phone: (602) 221-1360

Fax: (602) 221-1502




	 	(v)	 	if to the US Tranche Swingline Lender, to:







JPMorgan Chase Bank, National Association

Loan and Agency Services Group

Mail Code: IL 1-0010

10 S. Dearborn St., 19th Floor

Chicago, IL 60603

Attention: Mi Young Kim

Phone: (312) 732-4853

Fax: (312) 385-7098




	 	(vi)	 	if to the European Tranche Swingline Lender, to:







J.P. Morgan Europe Limited

Mail Code: London Wall/9

125 London Wall, Floor 9

London EC2Y5AJ

United Kingdom

Attention: European Loan Operation

Fax: 44 207 492-3298




(in each case with a copy to the Administrative Agent as provided in
clause (ii) above and, in the case of notices to the European
Tranche


 


102









 






Swingline Lender, the European Agent as provided in clause (iii)
above); and




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




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




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



SECTION 11.02. Waivers; Amendments. (a) No failure or delay by any Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Agents, the Issuing Bank and the Lenders hereunder and under the other
Loan Documents are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any
Loan Party therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether any Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default at the time.



(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except pursuant to an agreement or agreements in writing entered
into by the Borrowers and the Required Lenders or by the Borrowers and the Administrative Agent
with the consent of the Required Lenders or, in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or
Loan Parties that are parties thereto, in each case with the consent of the Required Lenders;
provided that no such agreement shall:




(i) increase any Commitment of any Lender without the written consent of such Lender,


 


103









 






(ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each
Lender directly affected thereby,




(iii) postpone the date of any scheduled payment (if any) of the principal amount of
any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender directly affected
thereby,




(iv) change Section 2.05(c) or otherwise amend this Agreement in any manner
that would permit Letters of Credit having an expiration date later than that specified in
Section 2.05(c) without the written consent of each US Tranche Lender,




(v) change Section 2.20(b) or (c) or any other provision providing for
the pro rata nature of disbursements by or payments to Lenders, in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of each Lender
(it being understood that any increase (or any amendment effecting any increase) in the
total US Tranche Revolving Commitments or European Tranche Commitments pursuant to
Section 2.09 shall not be deemed to alter such pro rata sharing of payments),




(vi) change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision of any Loan Document specifying the number or percentage of
Lenders required to waive, amend or modify any rights thereunder or make any determination
or grant any consent thereunder, without the written consent of each Lender,




(vii) release the Company or all or substantially all of the Subsidiary Guarantors
from, its or their obligations under Article X or the Subsidiary Guarantee Agreement
without the written consent of each Lender,




(viii) unless otherwise permitted hereunder, release all or substantially all of the
Collateral without the written consent of each Lender,




(ix) change any provisions of Article IX without the written consent of each
Lender,




(x) add any additional Subsidiary of the Company as a Borrower under any Tranche
without the written consent of each Lender under the applicable Tranche; or




(xi) change any provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans of any
Tranche differently than those of Lenders holding Loans of any other Tranche without the
written consent of Lenders holding a majority in interest of the outstanding Loans and
unused Commitments of each adversely affected Tranche;



provided further that (A) no such agreement shall amend, modify or otherwise affect the
rights or duties of any Agent, the Issuing Bank or any Swingline Lender hereunder or under any
other



 


104









 






Loan Document without the prior written consent of such Agent, the Issuing Bank or such Swingline
Lender, as the case may be, and (B) any waiver, amendment or modification of this Agreement that by
its terms affects the rights or duties under this Agreement of the US Tranche Lenders (but not the
European Tranche Lenders) or the European Tranche Lenders (but not the US Tranche Lenders) may be
effected by an agreement or agreements in writing entered into by the Company and requisite
percentage in interest of the affected Tranche of Lenders. Notwithstanding the foregoing, any
amendment to this Agreement solely for the purpose of effecting an increase in the total
Commitments in any Tranche pursuant to Section 2.09 may be entered into by the Company and
any other relevant Borrower, the Administrative Agent and any other Applicable Agent, any Lender
that has agreed to increase its Commitment in the relevant Tranche and any Person that has agreed
to become a Lender hereunder and to have a Commitment in the relevant Tranche.



(c) The Lenders hereby irrevocably authorize the Administrative Agent to, and the
Administrative Agent shall, release any Liens granted to the Administrative Agent by the Loan
Parties on any Collateral (i) upon the termination of the all Commitments, the expiration or
termination of all Letters of Credit and payment and satisfaction in full in cash of all Secured
Obligations (other than contingent indemnity obligations), (ii) constituting property being sold,
transferred or otherwise disposed of if the Company certifies to the Administrative Agent that such
sale, transfer or disposition is made in compliance with the terms of this Agreement (and the
Administrative Agent may rely conclusively on any such certificate, without further inquiry), (iii)
constituting property leased to the Company or any Subsidiary under a lease which has expired or
been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any
sale or other disposition of such Collateral in connection with any exercise of remedies of the
Agents and the Lenders pursuant to Article VII. Any such release shall not in any manner
discharge, affect, or impair the Obligations or any Liens (other than those expressly being
released) upon (or obligations of the Loan Parties in respect of) all interests retained by the
Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of
the Collateral.



SECTION 11.03. Expenses; Indemnity; Damage Waiver. (a) The Company shall pay (i)
all reasonable and documented out-of-pocket expenses incurred by each Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
in connection with the syndication of the credit facilities provided for herein, the preparation
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 the Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all documented out-of-pocket
expenses incurred by any Agent, the Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for any Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with any Loan Document, including its rights
under this Section, or 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; provided, however, that
in no event shall the Company be required to reimburse the Lenders for more than one counsel to the
Administrative Agent (and up to one



 


105









 






local counsel in each applicable jurisdiction and regulatory counsel) and one counsel for all
of the other Lenders (and up to one local counsel in each applicable jurisdiction and regulatory
counsel), unless a Lender or its counsel determines that it is impractical or inappropriate (or
would create actual or potential conflicts of interest) to not have individual counsel, in which
case each Lender may have its own counsel which shall be reimbursed in accordance with the
foregoing.



(b) The Company shall indemnify each Agent, the Issuing Bank and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with, or as a result of (i) the execution or delivery of any Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties to the Loan Documents
of their respective obligations thereunder or the consummation of the Transactions or any other
transactions contemplated thereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter
of Credit 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 Company or any of its Subsidiaries, or
any Environmental Liability arising out of the operations or properties of the Company or any of
its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee.



(c) To the extent that the Company fails to pay any amount required to be paid by it to any
Agent, the Issuing Bank or any Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to such Agent, the Issuing Bank or such Swingline
Lender, as the case may be, such Lender’s pro rata share (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 such Agent, the Issuing
Bank or such Swingline Lender in its capacity as such; and provided further that
payment of any amount by any Lender pursuant to this paragraph (c) shall not relieve the
Company of its obligation to pay such amount, and such Lender shall have a claim against the
Company for such amount. For purposes hereof, a Lender’s “pro rata share” shall be determined
based upon its share of the sum (without duplication) of the total Exposures and unused Commitments
at the time.



(d) To the extent permitted by applicable law, no Borrower shall assert, and each Borrower
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



 


106









 






any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.



(e) All amounts due under this Section shall be payable not later than 10 days after written
demand (accompanied by reasonable back-up documentation) therefor.



SECTION 11.04. Successors and Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.



(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with
the prior written consent (such consent not to be unreasonably withheld) of:




(A) the Company; provided that no consent of the Company shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund
or, if an Event of Default has occurred and is continuing, any other assignee; and




(B) the Administrative Agent and, in the case of any assignment in respect of
the US Tranche, JPMorgan Chase Bank, National Association, for so long as it
constitutes an Issuing Bank.




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




(A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans of any Tranche, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent)
shall not be less than the US Dollar Equivalent of $5,000,000 in respect of
Commitments or Loans under any Tranche, unless each of the Company and the
Administrative Agent otherwise consent, provided that no such consent of the
Company shall be required if an Event of Default has occurred and is continuing;


 


107









 






(B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement,
provided that this clause shall not be construed to prohibit the assignment
of a proportionate part of all the assigning Lender’s rights and obligations in
respect of one Tranche of Commitments or Loans;




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




(D) the assignee, if it is not already a Lender under the applicable Tranche,
hereby represents and warrants for the benefit of the Borrowers, the Agents and the
Lenders that, as of the date of such assignment, it will comply with Section
2.17(e) and (f) and, as applicable, Section 2.18, with respect
to withholding tax on payments by the Borrowers;




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




(F) each European Tranche Lender may only assign all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) to an assignee which is a
Qualifying Lender;




(G) each Foreign Lender shall deliver to each Borrower that is a resident for
tax purposes in the United States of America and the Administrative Agent a complete
Form W-8BEN (or other applicable Form W-8) prior to the effectiveness of the
applicable assignment (with the understanding that such assignment shall not be
effective unless such form is delivered or such condition is otherwise waived by
such Borrower and the Administrative Agent); and




(H) except in the case of an assignment to a Lender that has already extended a
Loan to the Dutch Borrower, the amount of any assignment with respect to a Loan to
the Dutch Borrower shall be at least EUR 50,000 or its equivalent in foreign
currency.




For the purposes of this Section 11.04(b), the term “Approved Fund” has
the following meaning:




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


 


108









 






Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.




(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17, 2.18, 2.19 and 11.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section 11.04 shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance
with paragraph (c) of this Section.




(iv) The Administrative Agent, acting for this purpose as an agent of each Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans, and principal amount of LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive (absent manifest
error), and the Borrowers, the Agents, the Issuing Bank 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 Company, the other Agents, the Issuing
Bank and any Lender, at any reasonable time and from time to time upon reasonable prior
notice.




(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Assumption and record the information contained therein in the
Register; provided that if either the assigning Lender or the assignee shall have
failed to make any payment required to be made by it pursuant to Section 2.04(c),
2.05(d) or (e), 2.06(b), 2.20(d) or 11.03(c), the
Administrative Agent shall have no obligation to accept such Assignment and Assumption and
record the information therein in the Register unless and until such payment shall have been
made in full, together with all accrued interest thereon. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as provided in
this paragraph.



(c) (i) Any Lender may, without the consent of any Borrower, any Agent, the Issuing Bank or
any Swingline Lender, sell participations to one or more banks or other entities


 


109









 





(a “Participant”) in all or a portion of such Lender’s rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrowers, the Agents, the Issuing Bank and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 11.02(b) that affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16, 2.17, 2.18 and 2.19 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 11.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.20(c) as though it were a Lender.




(ii) A Participant shall not be entitled to receive any greater payment under
Section 2.15, 2.16, 2.17, 2.18 or 2.19 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 Company’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.17 or 2.18
unless the Company is notified of the participation sold to such Participant and such
Participant undertakes, for the benefit of the Borrowers, to comply with Section
2.17(e) and (f) and, as applicable, Section 2.18, as though it were a
Lender.



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



(e) Notwithstanding anything in this Section 11.04 to the contrary, no Participant
shall obtain any rights to enforce any provision of this Agreement against the Company or any
European Borrower unless and until the Participant furnishes the Company identifying information
reasonably satisfactory to the Company and agrees to be identified in the Register with respect to
its participation in the same manner as Loans and Commitments are maintained in the Register
hereunder.



SECTION 11.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall



 


110









 






survive the execution and delivery of the Loan Documents and the making of any Loans, and
issuance of any Letters of Credit, regardless of any investigation made by any such other party or
on its behalf and notwithstanding that any Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect as long as the principal of or
any accrued interest on any Loan or any fee or any other amount payable under this Agreement or any
other Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as
the Commitments have not expired or terminated. The provisions of Sections 2.15,
2.16, 2.17, 2.18, 2.19 and 11.03 and Article VIII
shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or any other Loan
Document or any provision hereof or thereof.



SECTION 11.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Agents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the Administrative Agent and
when the Administrative Agent shall have received counterparts hereof which, when taken together,
bear the signatures of each of the other parties hereto as of the Effective Date, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.



SECTION 11.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



SECTION 11.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final and in whatever currency denominated) at any time
held and other obligations at any time owing by such Lender or Affiliate to or for the credit or
the account of any Borrower against any of and all the Secured Obligations of such Borrower now or
hereafter existing and held by such Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and remedies (including other rights
of setoff) which such Lender may have.


 


111









 





SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process. (a)
This Agreement shall be construed in accordance with and governed by the law of the State of New
York.



(b) Each Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in
New York County and of the United States District Court of the Southern District of New York, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be binding (subject to appeal as provided by applicable law) and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that any Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against any Borrower or its properties in the courts of any
jurisdiction.



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



(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 11.01, and each of the Borrowers hereby appoints the
Company as its agent for service of process. Nothing in this Agreement or any other Loan Document
will affect the right of any party to this Agreement to serve process in any other manner permitted
by law.



SECTION 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.


 


112









 





SECTION 11.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



SECTION 11.12. Confidentiality. Each of the Agents, the Issuing Bank and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to any Borrower and its obligations, (g)
with the consent of the Company or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes available to any
Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source other than the
Company. For the purposes of this Section, “Information” means all information received
from the Company relating to the Company or its business, other than any such information that is
available to any Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to
disclosure by the Company; provided that, in the case of information received from the
Company after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 11.12 FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND
ITS AFFILIATES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.



ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE COMPANY OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY
AND ITS AFFILIATES, AND THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE



 


113









 






COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE
QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC
INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.




SECTION 11.13. Conversion of Currencies.



(a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto agrees, to the fullest
extent that it may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first currency could be
purchased with such other currency on the Business Day immediately preceding the day on which final
judgment is given.



(b) The obligations of each Borrower in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than the
currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be
discharged only to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction 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 Applicable Creditor in the Agreement Currency, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Borrowers contained in this
Section 11.13 shall survive the termination of this Agreement and the payment of all other
amounts owing hereunder.




SECTION 11.14. USA Patriot Act; European “Know Your Customer” Checks.



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



(b) If (i) the introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation made after the date of this Agreement; (ii) any change in the
status of a Borrower after the date of this Agreement; or (iii) a proposed assignment or transfer
by a Lender of any of its rights and obligations under this Agreement to a party that is not a
Lender prior to such assignment or transfer, obliges the European Agent or any Lender (or, in the
case of paragraph (iii) above, any prospective new Lender) to comply with “know your
customer” or similar identification procedures in circumstances where the necessary information is
not already available to it, each Borrower shall promptly upon the request of the European Agent or
any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably
requested by the European Agent (for itself or on behalf of any Lender)



 


114









 






or any Lender (for itself or, in the case of the event described in paragraph (iii)
above, on behalf of any prospective new Lender) in order for the European Agent, such Lender or, in
the case of the event described in paragraph (iii) above, any prospective new Lender to
carry out and be satisfied it has complied with all necessary “know your customer” or other similar
checks under all applicable laws and regulations pursuant to the transactions contemplated in this
Agreement and the other Loan Documents. Each Lender shall promptly upon the request of the European
Agent supply, or procure the supply of, such documentation and other evidence as is reasonably
requested by the European Agent (for itself) in order for the European Agent to carry out and be
satisfied it has complied with all necessary “know your customer” or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated in this Agreement and the
other Loan Documents.



SECTION 11.15. English Language. All certificates, instruments and other documents
to be delivered under or supplied in connection with this Agreement shall be in the English
language or shall attach a certified English translation thereof, which translation shall be the
governing version. Within one month of the delivery of any financial statements or other
information written in a language other than English, the Company shall deliver to the
Administrative Agent (for distribution to the Lenders) an English translation of such financial
statements.



SECTION 11.16. Appointment for Perfection. Each Lender hereby appoints each other
Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative
Agent and the Holders of Secured Obligations, in assets which, in accordance with Article 9 of the
UCC or any other applicable law can be perfected only by possession. Should any Lender (other than
the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the
Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor shall
deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral in
accordance with the Administrative Agent’s instructions.



SECTION 11.17. Borrower Limitations. Each Borrower shall be liable for its
Obligations (including, without limitation, Loans extended to it). The Company shall be liable for
each European Borrower’s Obligations. Each European Borrower shall be liable for each other
European Borrower’s Obligations, but shall in no event be liable for any of the Company’s
Obligations. Each Subsidiary Guarantor shall guaranty the repayment of all Obligations,
irrespective of the Borrower that incurs such Obligations.



ARTICLE XII




No Novation; References to this Agreement in Loan Documents




SECTION 12.01. No Novation. It is the express intent of the parties hereto that
this Agreement (i) shall re-evidence the Borrowers’ indebtedness under the Existing Credit
Agreement, (ii) is entered into in substitution for, and not in payment of, the obligations of the
Borrowers under the Existing Credit Agreement, and (iii) is in no way intended to constitute a
novation of any of the Borrowers’ indebtedness which was evidenced by the Existing Credit Agreement
or any of the other Loan Documents. All Loans made and Secured Obligations


 


115









 





incurred under the Existing Credit Agreement which are outstanding on the Effective Date shall
continue, after giving effect to the reallocations described in clause (c) below, as Loans
and Secured Obligations under (and shall be governed by the terms of) this Agreement. Without
limiting the foregoing, upon the effectiveness hereof: (a) pursuant to Section 2.05(a), the
Existing Letters of Credit shall constitute Letters of Credit deemed to have been issued under this
Agreement, (b) all Secured Obligations in respect of Swap Agreements with any Lender or any
Affiliate of any Lender which are outstanding on the Effective Date shall continue as Secured
Obligations under this Agreement and the other Loan Documents and (c) the Administrative Agent
shall make such reallocations of each Lender’s “Exposure” under the Existing Credit Agreement as
necessary in order that such Lender’s Exposure hereunder reflects such Lender’s pro rata share of
the aggregate US Tranche Revolving Exposures hereunder (based on its US Tranche Revolving
Commitment) and such Lender’s pro rata share of the aggregate European Tranche Exposures hereunder
(based on its European Tranche Commitment).



SECTION 12.02. References to This Agreement In Loan Documents. Upon the
effectiveness of this Agreement, on and after the date hereof, each reference in any other Loan
Document to the Existing Credit Agreement (including any reference therein to “the Credit
Agreement,” “thereunder,” “thereof,” “therein” or words of like import referring thereto) shall
mean and be a reference to this Agreement.



The remainder of this page is intentionally blank.



 


116









 





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



	 	 	 	 	 	 	 	 	 
	 	 	INSIGHT ENTERPRISES, INC.,	 	 
	 	 	as the Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Glynis Bryan	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Glynis Bryan	 	 
	 

	 	 	 	Title:
	 	CFO	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	INSIGHT DIRECT (UK) LTD.,	 	 
	 	 	as the UK Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Jet Golia	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	J. Golia	 	 
	 

	 	 	 	Title:
	 	Commercial V.P., Company Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	INSIGHT ENTERPRISES B.V.,	 	 
	 	 	as the Dutch Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Russell Leighton	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Russell Leighton	 	 
	 

	 	 	 	Title:
	 	Director, Finance SVP	 	 






Signature Page to

Second Amended and Restated Credit Agreement



 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, NATIONAL	 	 
	 	 	ASSOCIATION, as a Lender and as	 	 
	 	 	Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Anna C. Ruiz	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Anna C. Ruiz	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	J.P. MORGAN EUROPE LIMITED,	 	 
	 	 	as a Lender and as European Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Paul Hogan	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Paul Hogan	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender and as a Co-Syndication Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Tim Dillingham	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Tim Dillingham	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender and as a Co-Syndication Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Blake Malia	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Blake Malia	 	 
	 

	 	 	 	Title:
	 	Assistant Vice President	 	 






Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Fred L. Thorne	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Fred L. Thorne	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 






Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	COMERICA BANK, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Fatima Arshad	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Fatima Arshad	 	 
	 

	 	 	 	Title:
	 	Corporate Banking Officer	 	 






Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	HSBC BANK USA, NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Steven T. Brennan	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Steven T. Brennan	 	 
	 

	 	 	 	Title:
	 	First Vice President	 	 






Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	BANK OF ARIZONA, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Christine Nowaczyk	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Christine Nowaczyk	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 






Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ D. Barnell	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	D. Barnell	 	 
	 

	 	 	 	Title:
	 	Vice President & Manager	 	 






Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	COMPASS BANK, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Kenneth R. Ehrhardt	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Kenneth R. Ehrhardt	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	THE NORTHERN TRUST COMPANY,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Morgan Lyons	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Morgan Lyons	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Philip K. Liebscher	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Philip K. Liebscher	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 






Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	BANK OF THE WEST, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Todd C. Abboud	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Todd C. Abboud	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 






Signature Page to

Second Amended and Restated Credit Agreement





 


 









 







SCHEDULE 1.01(A)




Mandatory Cost Formulae





	1.	 	The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank.







	2.	 	On the first day of each Interest Period (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Associated Costs
Rate”) for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Administrative Agent as a weighted average of the Lenders’
Associated Costs Rates (weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per annum.







	3.	 	The Associated Costs Rate for any Lender lending from a Facility Office in a Participating
Member State will be the percentage notified by that Lender to the Administrative Agent. This
percentage will be certified by that Lender in its notice to the Administrative Agent to be
its reasonable determination of the cost (expressed as a percentage of that Lender’s
participation in all Loans made from that Facility Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of loans made from that Facility
Office.







	4.	 	The Associated Costs Rate for any Lender lending from a Facility Office in the United Kingdom
will be calculated by the Administrative Agent as follows:







	 	(a)	 	in relation to a Loan in Sterling:






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

	 	per cent. per annum
	100 - (A + C)
	 	 







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






	 	 	 
	E x 0.01

	 	per cent. per annum.
	300
	 	 







Where:




	 	A	 	
is the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.





 


 









 











	 	B	 	

is the percentage rate of interest (excluding the Applicable Rate and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest
specified in Section 2.13(c) payable for the relevant Interest Period on the Loan.







	 	C	 	

is the percentage (if any) of Eligible Liabilities which that Lender is required
from time to time to maintain as interest bearing Special Deposits with the Bank of
England.







	 	D	 	

is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.







	 	E	 	

is designed to compensate Lenders for amounts payable under the Fees Rules and is
calculated by the Administrative Agent as being the average of the most recent rates of
charge supplied by the Reference Banks to the Administrative Agent pursuant to paragraph
7 below and expressed in pounds per £1,000,000.







	5.	 	For the purposes of this Schedule:







	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings
given to them from time to time under or pursuant to the Bank of England Act 1998 or (as
may be appropriate) by the Bank of England.







	 	(b)	 	“Facility Office” means the office or offices notified by a Lender to the
Administrative Agent in writing on or before the date it becomes a Lender (or, following
that date, by not less than five Business Days’ written notice) as the office or offices
through which it will perform its obligations under this Agreement.







	 	(c)	 	“Fees Rules” means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force from time to time
in respect of the payment of fees for the acceptance of deposits.







	 	(d)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate).







	 	(e)	 	“Participating Member State” means any member state of the European Union
that adopts or has adopted the euro as its lawful currency in accordance with
legislation of the European Union relating to economic and monetary union.







	 	(f)	 	“Reference Banks” means, in relation to Mandatory Cost, the principal
London offices of JPMorgan Chase Bank, National Association.







	 	(g)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.





 


 









 











	 	(h)	 	“Unpaid Sum” means any sum due and payable but unpaid by any Borrower
under the Loan Documents.







	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A
negative result obtained by subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal places.







	7.	 	If requested by the Administrative Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Administrative Agent, the
rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to
the Fees Rules in respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of that Reference Bank.







	8.	 	Each Lender shall supply any information required by the Administrative Agent for the purpose
of calculating its Associated Costs Rate. In particular, but without limitation, each Lender
shall supply the following information on or prior to the date on which it becomes a Lender:







	 	(i)	 	the jurisdiction of its Facility Office; and







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






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




	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the Administrative Agent
based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the Administrative Agent to the contrary, each
Lender’s obligations in relation to cash ratio deposits and Special Deposits are the same as
those of a typical bank from its jurisdiction of incorporation with a Facility Office in the
same jurisdiction as its Facility Office.







	10.	 	The Administrative Agent shall have no liability to any person if such determination results
in an Associated Costs Rate which over or under compensates any Lender and shall be entitled
to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs
3, 7 and 8 above is true and correct in all respects.





 


 









 











	11.	 	The Administrative Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Associated Costs Rate for each
Lender based on the information provided by each Lender and each Reference Bank pursuant to
paragraphs 3, 7 and 8 above.







	12.	 	Any determination by the Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Associated Costs Rate or any amount payable to a Lender shall,
in the absence of manifest error, be conclusive and binding on all parties hereto.







	13.	 	The Administrative Agent may from time to time, after consultation with the Company and the
relevant Lenders, determine and notify to all parties hereto any amendments which are required
to be made to this Schedule in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other authority which replaces
all or any of its functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all parties.







 


 











 




SCHEDULE 1.01(B)




Initial Subsidiary Guarantors




Calence, LLC, a Delaware limited liability company

Insight Canada, Inc., an Arizona corporation

Insight Direct USA, Inc., an Illinois corporation

Insight Direct Worldwide, Inc., an Arizona corporation

Insight Technology Solutions, Inc., a Delaware corporation

Insight North America, Inc., an Arizona corporation

Insight Public Sector, Inc., an Illinois corporation

Insight Receivables Holding, LLC, an Illinois limited liability company

Insight Stadium Services, LLC, an Arizona limited liability company

Insight Licensing, Inc., a Delaware corporation

Software Spectrum, Inc., a Delaware corporation





 


 









 







SCHEDULE 2.01




Lenders and Commitments




	 	 	 	 	 	 	 	 	 
	 	 	US Tranche	 	 	European	 
	 	 	Revolving	 	 	Tranche	 
	Lender	 	Commitment	 	 	Commitment	 
	 
	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, National Association
	 	$	20,000,000	 	 	$	0	 
	J. P. Morgan Europe Limited
	 	$	0	 	 	$	25,000,000	 
	Wells Fargo Bank, National Association
	 	$	35,000,000	 	 	$	0	 
	U.S. Bank National Association
	 	$	35,000,000	 	 	$	0	 
	Bank of America, N.A.
	 	$	30,000,000	 	 	$	0	 
	Comerica Bank
	 	$	25,000,000	 	 	$	0	 
	HSBC Bank USA, National Association
	 	$	25,000,000	 	 	$	0	 
	Bank of Arizona, N.A.
	 	$	20,000,000	 	 	$	0	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	20,000,000	 	 	$	0	 
	Compass Bank
	 	$	20,000,000	 	 	$	0	 
	The Northern Trust Company
	 	$	20,000,000	 	 	$	0	 
	PNC Bank National Association
	 	$	20,000,000	 	 	$	0	 
	Bank of the West
	 	$	5,000,000	 	 	$	0	 
	 
	 	 	 	 	 	 
	TOTALS
	 	$	275,000,000	 	 	$	25,000,000	 
	 
	 	 	 	 	 	 






 


 









 





SCHEDULE 2.05




Existing Letters of Credit




None.




 


 









 







SCHEDULE 2.20




Payment Instructions




	 	 	 	 	 
	Administrative Agent:	 	JPMorgan Chase Bank, National Association
	 
	 	 	 	 
	European Agent:

	 	Euro	 	 
	 

	 	To
	 	JP Morgan AG, Frankfurt (CHASDEFX)
	 
	 	 	 	 
	 

	 	US Dollars	 	 
	 

	 	To
	 	JPMorgan Chase Bank, New York (CHASUS33)
	 
	 	 	 	 
	 

	 	Sterling	 	 
	 

	 	To
	 	JP MORGAN EUROPE LIMITED (CHASGB22)






 


 









 





SCHEDULE 3.06




Litigation




In the Calence Acquisition Agreement, Seller disclosed an investigation by the Federal
Communications Commission (“FCC”) Office of Inspector General (“OIG”) and the United States
Department of Justice (“DOJ”) into the activities of one or more current or former employees in the
San Antonio, Texas office of Calence, LLC (“Calence”) related to Calence’s participation in the
“E-Rate” federal government program, which funds, through the Universal Service Administrative
Company (“USAC”), internet connections and related information technology upgrades to schools and
libraries. According to Seller, the OIG/DOJ investigation arose out of voluntary disclosures made
by Calence to USAC regarding these employees’ potentially improper contacts with representatives
of, and/or pricing issues in proposals and contracts with, certain school districts in the San
Antonio area. Seller further disclosed receipt of a Commitment Adjustment letter from USAC to one
of those school districts in which USAC (a) identifies a claim for a refund from that school
district in the amount of approximately $2.3 million and (b) states that it possesses the authority
to seek the refund directly from the service provider (Calence). Since the execution of the
Calence Acquisition Agreement, the Company has received notice from Seller of its receipt from the
FCC OIG of a subpoena for records in Calence’s possession related to Calence’s E-Rate and other
contracts with EISD.




 


 









 







SCHEDULE 3.11




Subsidiaries




	 	 	 	 	 
	 	 	JURISDICTION OF	 	HOLDER OF EQUITY
	SUBSIDIARY	 	ORGANIZATION	 	INTERESTS
	1. Insight Direct Worldwide, Inc.

	 	Arizona
	 	100% Insight Enterprises, Inc.
	2. Treasure Chest Computers, Inc.

	 	Louisiana
	 	100% Insight Enterprises, Inc.
	3. Software Spectrum, Inc.

	 	Delaware
	 	100% Insight Enterprises, Inc.
	4. Insight North America, Inc.

	 	Arizona
	 	100% Insight Direct Worldwide, Inc.
	5. Insight Canada, Inc.

	 	Arizona
	 	100% Insight North America, Inc.
	6. 3683371 Canada, Inc.

	 	Canada
	 	100% Insight North America, Inc.
	7. Insight Public Sector, Inc.

	 	Illinois
	 	100% Insight North America, Inc.
	8. 3051918 Nova Scotia Company

	 	Canada
	 	100% Insight North America, Inc.
	9. Insight Direct USA, Inc.

	 	Illinois
	 	100% Insight North America, Inc.
	10. Kortex Computer Centre, Ltd.

	 	Canada
	 	100% 3051918 Nova Scotia Company
	11. Insight Direct Canada, Inc.

	 	Canada
	 	100% Insight Canada, Inc.
	12. Insight Receivables Holding, LLC

	 	Illinois
	 	0.17% Insight Enterprises, Inc.; 
96.13% Insight Direct USA, Inc.; 
3.70% Insight Public Sector, Inc.
	13. Insight Receivables, LLC

	 	Illinois
	 	100% Insight Receivables Holding, LLC
	14. Insight Consulting Services, LLC

	 	Arizona
	 	100% Insight Direct USA, Inc.
	15. Insight Stadium Services, LLC

	 	Arizona
	 	100% Insight Direct USA, Inc.
	16. Calence, LLC

	 	Delaware
	 	100% Insight Direct USA, Inc.
	17. Insight Holding (Deutschland) GmbH

	 	Germany
	 	100% Insight Enterprises, Inc.
	18. Insight Enterprises UK, Ltd.

	 	United Kingdom
	 	100% Insight Enterprises, Inc.
	19. Insight Deutschland GmbH &

	 	Germany
	 	99.9% Insight Holding






 


 









 





	 	 	 	 	 
	 	 	JURISDICTION OF	 	HOLDER OF EQUITY
	SUBSIDIARY	 	ORGANIZATION	 	INTERESTS
	KoKG

	 	 	 	(Deutschland) GmbH; 
0.1% Insight Marketing GmbH
	20. Insight Marketing GmbH

	 	Germany
	 	100% Insight Holding (Deutschland) GmbH
	21. Insight Direct (G.B.) Ltd.

	 	United Kingdom
	 	100% Insight Enterprises UK, Ltd.
	22. Insight Direct (UK) Ltd.

	 	United Kingdom
	 	100% Insight Enterprises UK, Ltd.
	23. Software Spectrum Ltd.

	 	United Kingdom
	 	100% Insight Enterprises UK, Ltd.
	24. KUKWE Ltd.

	 	United Kingdom
	 	100% Insight Enterprises UK, Ltd.
	25. Pulse Building Ltd.

	 	United Kingdom
	 	100% Insight Enterprises UK, Ltd.
	26. Insight UK Acquisitions Ltd.

	 	United Kingdom
	 	100% Insight Enterprises UK, Ltd.
	27. Insight Development Corp. Ltd.

	 	United Kingdom
	 	100% Insight Enterprises UK, Ltd.
	28. Insight Action Ltd.

	 	United Kingdom
	 	100% Insight UK Acquisitions Ltd.
	29. Action Computer Supplies Ltd.

	 	United Kingdom
	 	100% Insight Action Ltd.
	30. Docufile Ltd.

	 	United Kingdom
	 	100% Insight Action Ltd.
	31. D.S.I. Data Systems International Limited

	 	United Kingdom
	 	100% Insight Action Ltd.
	32. Frasier Associates Public Limited Company

	 	United Kingdom
	 	100% Insight Action Ltd.
	33. Computers By Post Limited

	 	United Kingdom
	 	100% D.S.I. Data Systems International Limited
	34. Insight Direct (Services) Limited

	 	United Kingdom
	 	100% D.S.I. Data Systems International Limited
	35. Uchida Spectrum, Inc.

	 	Japan
	 	19.5% Software Spectrum, Inc.
	36. Insight Technology Solutions, Inc. 
(f/k/a Software Spectrum
Holdings, Inc.)

	 	Delaware
	 	100% Software Spectrum, Inc.
	37. Insight Licensing, Inc. 
(f/k/a Software Spectrum Licensing, Inc.)

	 	Delaware
	 	100% Software Spectrum, Inc.
	38. Insight Technology Solutions SA

	 	France
	 	100% Software Spectrum, Inc.
	39. Insight Enterprises C.V.

	 	Netherlands
	 	100% Insight Technology Solutions, Inc.






 


 









 





	 	 	 	 	 
	 	 	JURISDICTION OF	 	HOLDER OF EQUITY
	SUBSIDIARY	 	ORGANIZATION	 	INTERESTS
	40. Insight Enterprises Holdings B.V.

	 	Netherlands
	 	100% Insight Technology Solutions, Inc. (legal ownership); 
100% Insight Enterprises C.V. (beneficial ownership)
	41. Insight Australia Holdings Pty Ltd.

	 	Australia
	 	100% Insight Technology Solutions, Inc.
	42. Insight Enterprises B.V.

	 	Netherlands
	 	100% Insight Enterprises Holdings B.V.
	43. Insight Enterprises Netherlands BV

	 	Netherlands
	 	100% Insight Enterprises Holdings B.V.
	44. Insight Enterprises Australia Pty Limited

	 	Australia
	 	100% Insight Australia Holdings Pty Ltd.
	45. Insight Technology Solutions Pte Ltd.

	 	Singapore
	 	99% Insight Australia Holdings Pty Ltd; 
1% Insight Enterprises Australia Pty Limited
	46. Insight Enterprises (NZ) Limited

	 	New Zealand
	 	99% Insight Australia Holdings Pty Ltd; 
1% Insight Enterprises Australia Pty Limited
	47. Insight Enterprises Hong Kong

	 	Hong Kong
	 	99% Insight Australia Holdings Pty Ltd;
 1% Insight Enterprises Australia Pty Limited
	48. Insight Enterprises (Shanghai) Software Trading Co. Ltd.

	 	China
	 	100% Insight Enterprises Hong Kong
	49. Insight Technology Solutions GmbH

	 	Germany
	 	100% Insight Technology Solutions, Inc.
	50. Software Spectrum Services B.V.

	 	Netherlands
	 	100% Insight Technology Solutions, Inc.
	51. Insight Software Canada Limited

	 	Canada
	 	100% Insight Technology Solutions, Inc.
	52. Software Spectrum Limited

	 	Ireland
	 	100% Insight Technology Solutions, Inc.
	53. Insight Technology Solutions GmbH

	 	Austria
	 	100% Insight Technology Solutions, Inc.
	54. Insight Technology Solutions SRL

	 	Italy
	 	99.9% Insight Technology Solutions, Inc.; 
0.1% Insight Technology Solutions SA
	55. Insight Technology Solutions S.L.

	 	Spain
	 	98.5% Insight Technology Solutions, Inc.;
 1.5% Insight Technology Solutions SA






 


 









 





	 	 	 	 	 
	 	 	JURISDICTION OF	 	HOLDER OF EQUITY
	SUBSIDIARY	 	ORGANIZATION	 	INTERESTS
	56. Insight Technology Solutions AG

	 	Switzerland
	 	100% Insight Technology Solutions, Inc.
	57. Insight Technology Solutions AB

	 	Sweden
	 	100% Insight Technology Solutions, Inc.
	58. SSI Holdings Limited

	 	United Kingdom
	 	100% Insight Technology Solutions, Inc.
	59. SSI Britain Limited (UK)

	 	United Kingdom
	 	100% Insight Technology Solutions, Inc.
	60. Corporate Software & Technology International SARL

	 	Switzerland
	 	100% Insight Technology Solutions, Inc.






 


 









 





SCHEDULE 3.16




Initial Material Subsidiaries




	 	 	 
	 	 	JURISDICTION OF
	SUBSIDIARY	 	ORGANIZATION
	1. Calence, LLC

	 	Delaware
	2. Insight Canada, Inc.

	 	Arizona
	3. Insight Direct USA, Inc.

	 	Illinois
	4. Insight North America, Inc.

	 	Arizona
	5. Insight Public Sector, Inc.

	 	Illinois
	6. Insight Receivables, LLC

	 	Illinois
	7. Software Spectrum, Inc.

	 	Delaware
	8. Insight Technology Solutions SA

	 	France
	9. Insight Technology Solutions GmbH

	 	Germany
	10. Insight Software Canada Limited

	 	Canada
	11. 3683371 Canada Inc.

	 	Canada
	12. Insight Direct Canada, Inc.

	 	Canada
	14. Insight Receivables Holding, LLC

	 	Illinois
	15. Insight Consulting Services, LLC

	 	Arizona
	16. Insight Technology Solutions, Inc.

	 	Delaware
	17. Insight Enterprises UK, Ltd.

	 	United Kingdom
	18. Insight Direct Worldwide, Inc.

	 	Arizona






 


 









 





SCHEDULE 6.01




Existing Indebtedness





	1.	 	Indebtedness disclosed on Insight Enterprises, Inc.’s December 31, 2007 financial
statements not otherwise permitted under Sections 6.01(b)-(o).







	2.	 	Equipment lease agreement between Calence LLC and CSI Leasing Inc: Schedules 1 (dated
March 3, 2006) and 3 (dated September 7, 2006).







	3.	 	Equipment lease agreement between First Financial Corporate Services Inc. and Calence
LLC: Schedule 11A (dated February 16, 2006), 13 (dated November 14, 2005), and 14 (dated
April 12, 2006).







	4.	 	Third Amended Guaranty by Insight Enterprises, Inc., dated March 31, 2006, in favor of
Avnet Technology Solutions, in the maximum aggregate amount of $50,000,000 (assumed as part
of acquisition of Software Spectrum, Inc. in September 2006).







	5.	 	Guaranty by Insight Enterprises, Inc., dated December 19, 2005, in favor of Synnex
Information Technologies, in the maximum aggregate amount of $25,000,000 (assumed as part
of acquisition of Software Spectrum, Inc. in September 2006).







 


 









 







SCHEDULE 6.02




Existing Liens




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Debtor	 	Jurisdiction	 	Filing No.	 	Date Filed	 	Secured Party	 	Collateral
	Equipment /Vehicle Leases
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Insight Enterprises, Inc.

	 	Delaware — Secretary of State
	 	 	30890601	 	 	4/4/2003
	 	GE Capital
	 	Equipment

	Insight Direct USA, Inc.

	 	Illinois — Secretary of State
	 	 	11021891	 	 	6/2/2006
	 	Bal Global Finance, LLC and Banc of America Leasing & Capital, LLC
	 	Leased Equipment

	Insight Direct USA, Inc.

	 	Illinois — Secretary of State
	 	 	11016448	 	 	6/1/2006
	 	Bal Global Finance, LLC and Banc of America Leasing & Capital, LLC
	 	Leased Equipment

	Software Spectrum, Inc.

	 	Delaware — Secretary of State
	 	 	50663089	 	 	3/2/2005
	 	General Electric Capital Corporation
	 	Leased Equipment

	Calence LLC

	 	Delaware — Secretary of State
	 	 	61526946	 	 	5/5/2006
	 	Steelcase Financial
	 	Leased Equipment

	Calence LLC

	 	Delaware —
Secretary of State
	 	 	60860726

62793818

63461589

60863803

62928802

63461555

63149739

2007 0881531

2007 0881606

2007 0937259

64292066

2007 1304848	 	 	3/14/2006

Amendment

Amendment

3/14/2006

Amendment

Amendment

CSI Leasing

Amendment

Amendment

Amendment

12/8/2006

Amendment
	 	CSI Leasing

CSI Leasing

OFC Capital Corp

CSI Leasing

CSI Leasing

OFC Capital Corp

CSI Leasing

CSI Leasing

CSI Leasing

GECC

CSI Leasing

CSI Leasing
	 	Leased Equipment







 


 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Debtor	 	Jurisdiction	 	Filing No.	 	Date Filed	 	Secured Party	 	Collateral
	Calence LLC

	 	Delaware —
Secretary of State
	 	 	60801621

61352004

61419621

61675966

62193399

61734367

62201523	 	 	3/8/2006

4/27/2006

Amendment

6/26/2006

Amendment

6/27/2006

Amendment
	 	First Financial
First Financial
Bank of the West
First Financial
Somerset Capital
First Financial
Somerset Capital
	 	Leased Equipment

	Calence LLC

	 	Arizona
	 	 	N/A	 	 	N/A
	 	DDI Leasing
	 	$834
	Calence LLC

	 	Delaware —
Secretary of State	 	 	2443728	 	 	6/27/2007	 	GECC	 	Leased Equipment

	Calence LLC

	 	Delaware —
Secretary of State
	 	 	62702355

63316189	 	 	8/4/2006

9/26/2006
	 	IBM Credit LLC
	 	Leased Equipment

	Calence LLC

	 	Delaware —
Secretary of State
	 	 	64333209

64333225

64333191

64333365

64333423

64336640

64336665

64336673

64336723	 	 	12/12/2006

12/12/2006

12/12/2006

12/12/2006

1212/2006

12/12/2006

12/12/2006

12/12/2006

12/12/2006
	 	Cisco Systems

Cisco Systems

Cisco Systems

Cisco Systems

Cisco Systems

Cisco Systems

Cisco Systems

Cisco Systems

Cisco Systems
	 	Leased Equipment

	Insight Technology Solutions SL (formerly Software Spectrum S.L.)

	 	Spain
	 	 	N/A	 	 	N/A
	 	ALD Automotive
	 	EUR 1,855

	Insight Technology Solutions SRL (formerly Software Spectrum SRL.)

	 	Italy
	 	 	N/A	 	 	N/A
	 	Various
	 	EUR 1,826

	Insight Technology Solutions AG (formerly Software Spectrum AG.)

	 	Switzerland
	 	 	N/A	 	 	N/A
	 	Leaseplan
	 	EUR 15,640







 


 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Debtor	 	Jurisdiction	 	Filing No.	 	Date Filed	 	Secured Party	 	Collateral
	Other Liens-Misc

	 	 	 	 	 	 	 	 	 	Secured Party
	 	Collateral

	Calence LLC

	 	Arizona
	 	 	N/A	 	 	N/A
	 	Billsoft Services Inc.
	 	$	1,000	 
	Calence LLC

	 	Texas
	 	 	N/A	 	 	N/A
	 	City of Austin
	 	$	3,780	 
	Calence LLC

	 	Arizona
	 	 	N/A	 	 	N/A
	 	AZ Dept of Revenue
	 	$	2,000	 
	Calence LLC

	 	Arizona
	 	 	N/A	 	 	N/A
	 	Telx- Phoenix LLC
	 	$	1,144	 
	Insight Technology Solutions SL (formerly Software Spectrum S.L.)

	 	Spain
	 	 	N/A	 	 	N/A
	 	Canal Isabel II
	 	Customer Contract Deposit EUR 38,979

	Insight Technology Solutions SRL (formerly Software Spectrum SRL.)

	 	Italy
	 	 	N/A	 	 	N/A
	 	Grant Thornton SrL
	 	Vendor Deposit EUR 35,000

	Software Spectrum, Inc.

	 	Belgium
	 	 	N/A	 	 	N/A
	 	Deposito & Consgnatiekas
	 	Vendor Deposit EUR 50,000

	Insight Technology Solutions AG (formerly Software Spectrum AG.)

	 	Switzerland
	 	 	N/A	 	 	N/A
	 	Taxing authorities
	 	Import Tax Deposit EUR 5,735

	Insight Technology Solutions AB (formerly Software Spectrum AB.)

	 	Sweden
	 	 	N/A	 	 	N/A
	 	TDC A/S
	 	Mobile Phone Deposit EUR 670








 


 









 







SCHEDULE 6.04




Existing Investments





	1.	 	Investments disclosed on Insight Enterprises, Inc.’s December 31, 2007
financial statements and not otherwise permitted under Sections 6.04(a), or (c)-(k).






 


 









 







SCHEDULE 6.08




Restrictive Agreements




None.




 


 









 







SCHEDULE 6.09




Sale and Leaseback Transactions





	1.	 	6820 South Harl Avenue, Tempe, AZ 85283

	 
	2.	 	1305 West Auto Drive, Tempe, AZ 85284

	 
	3.	 	910 South Carver Road, Tempe, AZ 85284

	 
	4.	 	8123 South Hardy Ave, Tempe, AZ 85284

	 
	5.	 	444 Scott Drive, Bloomingdale, IL 60108







 


 









 







EXHIBIT A




FORM OF




ASSIGNMENT AND ASSUMPTION




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



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



	 	 	 
	1. Assignor:
	 	 
	 

	 	 
	 
	 	 
	2. Assignee:
	 	 
	 

	 	 
	 

	 	[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 
	3. Borrowers:

	 	Insight Enterprises, Inc., Insight Enterprises B.V. and Insight Direct (UK) Ltd.





 






	 	 	 
	1	 	Select as applicable.




 


 









 









	 	 	 
	4. Administrative Agent:

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

	 	The Second Amended and Restated
Credit Agreement dated as of
April 1, 2008 among Insight
Enterprises, Inc., the European
Borrowers named therein, the
Lenders party thereto, J.P.
Morgan Europe Limited, as
European Agent, JPMorgan Chase
Bank, National Association, as
Administrative Agent and the
other agents parties thereto.
	 
	 	 
	6. Assigned Interest:
	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	 	Amount of	 	 	Percentage Assigned	 
	Facility	 	Commitment/Loans for all	 	 	Commitment/	 	 	of	 
	Assigned2	 	Lenders	 	 	Loans Assigned	 	 	Commitment/Loans3	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 






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



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



	 	 	 	 	 	 	 	 	 
	 	 	ASSIGNOR	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ASSIGNEE	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 





 






	 	 	 
	2	 	Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g. “US Tranche Revolving Commitment,” “European Tranche
Commitment,” etc.).

	 
	3	 	Set forth, so at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.




 


 









 









	 	 	 	 	 	 	 
	[Consented to and]4 Accepted:	 	 
	 
	 	 	 	 	 	 
	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	[Consented to:] 5	 	 
	 
	 	 	 	 	 	 
	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Issuing Bank	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	[Consented to:]6	 	 
	 
	 	 	 	 	 	 
	INSIGHT ENTERPRISES, INC.	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 





 






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

	 
	5	 	To be added only if the consent of the Issuing Bank is
required by the terms of the Credit Agreement.

	 
	6	 	To be added only if the consent of the Company is
required by the terms of the Credit Agreement.






 


 











 




ANNEX I




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION





1. Representations and Warranties.



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



1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.01
thereof, as applicable, and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent, any other Agent or any other
Lender, [and] (v) if it is not already a Lender and will become a Foreign Lender, attached to the
Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms
of the Credit Agreement, duly completed and executed by the Assignee[, and (vi) it (x) possesses an
EU Banking Passport and/or (y) otherwise has the ability to fund a Borrowing and satisfy its duties
and obligations under the European Tranche in a Borrower’s jurisdiction of organization (so long as
such Borrower is entitled to request extensions of credit under the European Tranche), including,
without limitation, having a local branch in any such jurisdiction of organization or otherwise
being able to fund extensions of credit in such jurisdiction without violating applicable laws or
regulations]7; and (b) agrees that (i) it will, independently and without reliance on
the Administrative Agent, any other Agent, the Assignor or any other


 






	 	 	 
	7	 	To be inserted if a European Tranche Commitment is
being assigned.




 


 









 









Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as a Lender.



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



3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. [The assignment being consummated pursuant to this
Assignment and Assumption will not result in a non-exempt prohibited transaction under Section 4975
of the Code or Section 406 of ERISA.]8 This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.



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


 






	 	 	 
	8	 	To be inserted if Assignment and Assumption is being
entered into during the occurrence and continuance of an Event of Default.




 


 









 









EXHIBIT B




LIST OF CLOSING DOCUMENTS




See attached.




B-1






 


 









 







EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE




Pursuant to Section 5.01(c) of that certain Second Amended and Restated Credit
Agreement, dated as of April 1, 2008 (as amended, restated, amended and restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and among Insight
Enterprises, Inc., a Delaware corporation (the “Company”), the European Borrowers named
therein, the financial institutions from time to time parties thereto as lenders, J.P. Morgan
Europe Limited, as European Agent, and JPMorgan Chase Bank, National Association, as Administrative
Agent (the “Administrative Agent”), the Company, through a Financial Officer, hereby
delivers this Compliance Certificate (this “Certificate”) to the Administrative Agent,
together with the financial statements being delivered to the Administrative Agent pursuant to
Section 5.01[(a)][(b)] of the Credit Agreement for the accounting period as at, and for the
[fiscal year] [fiscal quarter and the then elapsed portion of the fiscal year] of the Company
ending on,                     ,
 _____ 
(the “Financial Statements”). Capitalized terms used herein
and in the Schedules attached hereto shall have the meanings set forth in the Credit Agreement.
Subsection references herein relate to subsections of the Credit Agreement.




THE UNDERSIGNED HEREBY CERTIFIES THAT:



SECTION 12.03. 1. I am the duly appointed [_____] of the Company and constitute a Financial
Officer under (and as defined in) the Credit Agreement.



SECTION 12.04. 2. I have reviewed the terms of the Credit Agreement and I have made, or have caused
to be made under my supervision, a detailed review of the transactions and conditions of the
Company and its Subsidiaries during the accounting period covered by the attached financial
statements.



SECTION 12.05. 3. The examinations described in paragraph 2 did not disclose, and I have no
knowledge of, the existence of any condition or event which constitutes a Default as of the date of
this Certificate, except as set forth below.



SECTION 12.06. 4. Described below are the exceptions, if any, to paragraph 3 by listing, in detail,
the nature of the condition or event, the period during which it has existed and the action which
the Company has taken, is taking, or proposes to take with respect to each such condition or event:




 





 





 




SECTION 12.07. 5. Except as set forth below, no change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to in Section 3.04 of
the Credit Agreement that (i) is not noted on the Company’s most recent Form 10-Q or Form


 


 









 





10-K filing or any of the Company’s other Form 10-Q or Form 10-K filings filed since the Effective
Date and (ii) had an effect on the Financial Statements.



SECTION 12.08. 6. Described below are the exceptions, if any, to paragraph 5 by listing, in
reasonable detail, the effect of such change on the financial statements accompanying this
Certificate:




 





 





 




SECTION 12.09. 7. Schedule I attached hereto sets forth financial data and computations
evidencing the Company’s compliance with certain covenants and other provisions of the Credit
Agreement related to the information set forth on the Financial Statements, all of which data and
computations are true and correct in all material respects.



SECTION 12.10. 8. Schedule II attached hereto sets forth the Material Subsidiaries as of
                    ,
 _____. Such Subsidiaries, together with the Company and the UK Borrower, (i)
generated at least 80% of Adjusted Consolidated EBITDA during the four fiscal quarter period ended
on such date and (ii) owned assets (other than Equity Interests in Subsidiaries) representing at
least 80% of the consolidated assets of the Company and its Subsidiaries as of such date.
Schedule III attached hereto sets forth financial data and computations evidencing
compliance with the foregoing all of which data and computations are true and correct in all
material respects. The following Subsidiaries set forth on Schedule II have not been
specified as Material Subsidiaries on a previous Compliance Certificate:




 





 





 




SECTION 12.11. 9. The information set forth herein is accurate as of
 _____, 20
 _____, and the
Financial Statements delivered herewith fairly present in all material respects the financial
position and the results of operations and cash flows for the Company and its Subsidiaries as of
such date and for the periods ending on such date in accordance with GAAP, [subject to year-end
audit adjustments and the absence of footnotes]9.


 






	 	 	 
	9	 	Include bracketed language for unaudited financial
statements.




 


 









 









SECTION 12.12. The foregoing certifications, together with the computations set forth in Schedules I and
III and the list of Material Subsidiaries of the Company attached as Schedule II
hereto in support hereof, are made and delivered this
 _____ 
day of                     , 2
 _____.



	 	 	 	 	 	 	 	 	 
	 	 	INSIGHT ENTERPRISES, INC., as the Company	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By: 	 	 	 	 	 	 
	 	 	 	 	 	 	                                                  
	 

	 	 	 	Name:	 	 	 	 
	 	 	 	 	 	 	 	 	                                                  
	 

	 	 	 	Title:	 	 	 	 
	 	 	 	 	 	 	 	 	                                                  







 


 











 




SCHEDULE I TO COMPLIANCE CERTIFICATE




Compliance as of                                         ,                     




with certain provisions of the Credit Agreement




The computations set forth in this Schedule I are designed to facilitate the
calculation of financial covenants and certain other provisions in the Credit Agreement relating to
the information set forth in the Company’s consolidated financial statements delivered with this
Certificate. The use of abbreviated terminology and/or descriptions in the computations below are
not in any way intended to override or eliminate the more detailed descriptions for such
computations set forth in the relevant provisions of the Credit Agreement, all of which shall be
deemed to control. In addition, the failure to identify any specific provisions or terms of the
Credit Agreement in this Schedule I does not in any way affect their applicability during
the periods covered by such financial statements or otherwise, which shall in all cases be governed
by the Credit Agreement. For purposes of this Schedule I, the “Measurement
Quarter” shall be the fiscal quarter of the Company ending on the date set forth above.



I. FINANCIAL COVENANTS


A. TOTAL LEVERAGE RATIO (Section 6.10(a))



	 	 	 	 	 	 	 	 	 
	1. Consolidated Funded Indebtedness (as of
the end of the Measurement Quarter)
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	a. outstanding Consolidated Indebtedness of the Company
and its Subsidiaries which has actually been funded
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	b. plus aggregate face amount of all letters of
credit for
which the Company and its Subsidiaries are the
account party (unless cash collateralized)
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	c. plus Capitalized Lease Obligations of the Company
and its Subsidiaries
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	d. plus amounts owing by the Company and its
Subsidiaries in respect of judgments and
settlements (unless covered by insurance)
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	e. = Consolidated Funded Indebtedness
	 	 	=	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	2. Adjusted Consolidated EBITDA (for
the four consecutive fiscal quarters then
ending)
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	a. Consolidated EBITDA
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(i) net income (or loss) of the Company and its
Subsidiaries on a consolidated basis
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(ii) plus interest expense of the Company
and its Subsidiaries
on a consolidated basis (including, without limitation,
yield and other financing costs resembling interest
payable under any Permitted Receivables Facility)
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 






 












 





	 	 	 	 	 	 	 	 	 
	(iii) plus expense for taxes paid or accrued
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(iv) plus depreciation
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(v) plus amortization
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(vi) plus any extraordinary non-cash or nonrecurring
non-cash charges or losses incurred other than in the
ordinary course of business
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(vii) plus any non-cash charges arising from
compensation expense as a result of FASB 123
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(viii) plus costs, expenses and fees incurred in connection
with the Transactions
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(ix) minus any extraordinary non-cash or nonrecurring
non-cash gains realized other than in the
ordinary course of business
	 	 	-	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(x) minus the amount of any subsequent cash payments in
respect of any non-cash charges described in Item a(vii)
above
	 	 	-	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(xi) = Consolidated EBITDA
	 	 	=	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	b. Acquired Entity EBITDA
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	[(i) Acquired Entity EBITDA for Calence Acquisition
	 	 	 	 	 	$	]	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	[(ii) Acquired Entity EBITDA for                     
for the Permitted Acquisition consummated on
                    , 20__]
	 	 	 	 	 	$	]	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(iii) Total Acquired Entity EBITDA
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	c. Adjusted Consolidated EBITDA (sum of Consolidated
EBITDA and Total Acquired Entity EBITDA)
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	3. Total Leverage Ratio (Ratio of I.A.1.e. to I.A.2.c.)
	 	 	 	 	 	____ to 1.00
	 
	 	 	 	 	 	 	 	 
	4. Maximum Total Leverage Ratio
	 	 	 	 	 	 	 	 10





 



	 	 	 	 	 
	10Period	 	Maximum Total Leverage Ratio	 
	 
	Effective Date through September 30, 2009
	 	 	3.00 to 1.00	 
	 
	October 1, 2009 through September 30, 2010
	 	 	2.75 to 1.00	 
	 
	October 1, 2010 and thereafter
	 	 	2.50 to 1.00	 






 












 






The Total Leverage Ratio in I.A.3. shall not exceed the Maximum Total Leverage Ratio
in I.A.411:


B. MINIMUM FIXED CHARGE COVERAGE RATIO (Section 6.10(b))


	 	 	 	 	 	 	 	 	 
	1. COVERAGE AMOUNT (for the four consecutive fiscal quarters then ending)
	 	 	 	 	 	 	 	 
	 
	a. Consolidated EBITDA (I.A.2.a(xi))
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	b. minus capital expenditures for the Company and
its Subsidiaries
	 	 	-	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	c. minus cash dividends or distributions paid by the
Company on its Equity Interests (other than share
repurchases by the Company)
	 	 	-	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	d. plus fixed amounts payable by the Company and its
Subsidiaries under operating leases
	 	 	-	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	e. = Coverage Amount
	 	 	=	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	2. FIXED CHARGES (for the four consecutive fiscal quarters then ending)
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	a. interest expense of the Company and its Subsidiaries
(I.A.2.a(ii) above)
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	b. plus fixed amounts payable by the Company and its
Subsidiaries under operating leases
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	c. plus expenses for taxes paid or accrued
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	d. plus scheduled amortization of the principal portion of
Indebtedness (including Capitalized Lease Obligations
but excluding amounts owing in respect of Permitted
Receivables Facilities)
	 	 	+	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	e.  = Fixed Charges
	 	 	=	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	3. Fixed Charge Coverage Ratio (Ratio of I.B.1.e. to I.B.2.e.)
	 	 	 	 	 	____ to 1.00
	 
	 	 	 	 	 	 	 	 
	4. Minimum Fixed Charge Coverage Ratio
	 	 	 	 	 	 	1.25 to 1.00	 







The Fixed Charge Coverage Ratio in I.B.3. shall not be less than the Minimum Fixed
Charge Coverage Ratio in I.B.4.



C. MINIMUM ASSET COVERAGE RATIO (Section 6.10(c))



 




	 	 	 
	11	 	In the case of a Compliance Certificate delivered in
connection with a Permitted Acquisition, the Total Leverage Ratio shall not
exceed the Applicable Acquisition Ratio for such applicable period.




 












 









	 	 	 	 	 
	1. BOOK VALUE (as of the end of the Measurement Quarter)
	 	 	 	 
	 
	 	 	 	 
	a. aggregate total book value of the Company’s and its Subsidiaries’
Receivables and inventory (including, without limitation, Receivables
subject to Permitted Receivables Facilities and inventory subject to
Vendor Trade Programs)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	2. INDEBTEDNESS (as of the end of the Measurement Quarter)
	 	 	 	 
	 
	 	 	 	 
	a. aggregate principal amount of Indebtedness outstanding
under the Loan Documents, all Permitted Receivables Facilities
and all Vendor Trade Programs (other than any Vendor Trade
Program that is unsecured)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	3. Asset Coverage Ratio (Ratio of I.C.1.a. to I.C.2.a.)
	 	____ to 1.00
	 
	 	 	 	 
	4. Minimum Asset Coverage Ratio
	 	 	1.50 to 1.00	 







The Asset Coverage Ratio in I.C.3. shall not be less than the Minimum Asset Coverage
Ratio in I.C.4.




 














 




II. CERTAIN OTHER MISCELLANEOUS BASKETS BASED ON FINANCIAL STATEMENTS




	 	 	 	 	 
	A. Indebtedness (Section 6.01)
	 	 	 	 
	 
	 	 	 	 
	1. Amount of Indebtedness of Foreign
Subsidiaries to the European Borrowers as
of the end of the Measurement Quarter,
excluding Cash Pooling Arrangements
(Maximum Amount: $25,000,000)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	2. Amount of Indebtedness of Foreign
Subsidiaries guaranteed by the European
Borrowers as of the end of the
Measurement Quarter (Maximum Amount: $25,000,000)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	3. Amount of purchase-money Indebtedness
permitted under Section 6.01(e) as of the
end of the Measurement Quarter (Maximum
Amount: $25,000,000)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	4. Amount of Attributable Receivables
Indebtedness outstanding pursuant to
Permitted Receivables Facilities as of
the end of the Measurement Quarter
(Maximum Amount: $225,000,000)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	5. Amount of Indebtedness of Foreign
Subsidiaries to non-Affiliates as of the
end of the Measurement Quarter (Maximum
Amount: $5,000,000)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	6. Amount of Indebtedness arising in favor
of depositary institutions in respect of
currency fluctuations or overdrafts under
any Cash Pooling Arrangement (Maximum
Amount: $1,000,000)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	7. Amount of unsecured Indebtedness of a
type not described in Section 6.01(a) to
(r) as of the end of the Measurement
Quarter (Maximum Amount: $25,000,000)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	B. Liens (Section 6.02)
	 	 	 	 
	 
	 	 	 	 
	1. Amount of Liens securing obligations of a
type not otherwise permitted in Section
6.02(a) to (m) as of the end of the
Measurement Quarter (Maximum Amount: $2,500,000)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	C. Asset Sales (Section 6.03)
	 	 	 	 
	 
	 	 	 	 
	1. State whether the amount of assets sold
pursuant to assets sales during the
fiscal year including the Measurement
Quarter and permitted solely under
Section 6.03(l) constituted a Substantial
Portion of the assets of the Company and
its Subsidiaries.
	 	Yes/No
	 
	 	 	 	 
	D. Investments (Section 6.04)
	 	 	 	 
	 
	 	 	 	 
	1. The sum of the (i) investments by the
Company and Subsidiary Guarantors in the
Equity Interests of their respective
Foreign Subsidiaries, (ii) loans and
advances by the Company and Subsidiary
Guarantors to
	 	 	 	 






 


 









 





	 	 	 	 	 
	the Foreign Subsidiaries
and (iii) guarantees by the Company and
the Subsidiary Guarantors of Indebtedness
of the Foreign Subsidiaries, in each case
permitted solely under Section 6.04(d) —
(f) as of the end of the Measurement
Quarter (Maximum Amount: $50,000,000)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	2. Amount of investments by the European
Borrowers in the Equity Interests in
their respective Foreign Subsidiaries
permitted solely under Section 6.04(d) as
of the end of the Measurement Quarter
(Maximum Amount: $25,000,000)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	3. Amount of investments of a type not
described in Section 6.04(a) to (j) as of
the end of the Measurement Quarter
(Maximum Amount: $10,000,000)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	E. Restricted Payments (Section 6.06)
	 	 	 	 
	 
	 	 	 	 
	1. Aggregate purchase price with respect to
repurchases of shares of Equity Interests
by the Company made since the Effective
Date (excluding repurchases after giving
effect to which the Total Leverage Ratio
is less than the Applicable Share
Repurchase Ratio)12
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	2. $50,000,000 less the aggregate amount of
Equity Interests of the Company
repurchased by the Company during the
period from February 6, 2008 to the
Effective Date
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	The Restricted Payments in II.E.1 shall
be less than amount set forth in II.E.2.
	 	 	 	 





 





	 	 	 
	12	 	Applicable Share Repurchase Ratio shall mean the
following Total Leverage Ratio for the following periods:





	 	 	 
	Period	 	Total Leverage Ratio
	Effective Date through September 30, 2009
	 	2.25 to 1.00
	October 1, 2009 through September 30, 2010
	 	2.00 to 1.00
	October 1, 2010 and thereafter
	 	1.75 to 1.00





 


 









 





SCHEDULE II TO COMPLIANCE CERTIFICATE




Material Subsidiaries




 


 









 







SCHEDULE III TO COMPLIANCE CERTIFICATE




Material Subsidiaries




	 	 	 	 	 
	I. Adjusted Consolidated EBITDA Test
	 	 	 	 
	 
	 	 	 	 
	A. EBITDA of the Company, the UK Borrower and the Material
Subsidiaries set forth on Schedule II for the four fiscal quarter
period ended on                      (the “Measurement Period”)
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	B. Percentage, taken by dividing amount in Item I.A by amount of
Adjusted Consolidated EBITDA for the Measurement Period
	 	 	 	%
	 
	 	 	 
	 
	 	 	 	 
	C. Required percentage:
	 	 	80	%
	 
	 	 	 
	 
	 	 	 	 
	II. Consolidated Assets Test
	 	 	 	 
	 
	 	 	 	 
	A. Assets of the Company, the UK Borrower and the Material Subsidiaries
set forth on Schedule II as of the end of the Measurement Period
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	B. Consolidated assets of the Company and its Subsidiaries as of the end
of the Measurement Period
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	C. Percentage taken by dividing amount in Item II.A by amount in
Item II.B
	 	 	 	%
	 
	 	 	 
	 
	 	 	 	 
	D. Required percentage:
	 	 	80	%