Exhibit 10.01

 

Execution Version

 


 



 

CREDIT AGREEMENT

 

Dated as of March 31, 2014
 among

 

FLEXTRONICS INTERNATIONAL LTD.
  and
  CERTAIN SUBSIDIARIES,
  as Borrowers,

 

BANK OF AMERICA, N.A.,
  as Administrative Agent and Swing Line Lender,

 

and

 

The Other Lenders Party Hereto

 

CITIBANK, N.A.,
  as Syndication Agent,

 

and

 

BNP PARIBAS,
 HSBC BANK USA, NATIONAL ASSOCIATION,
 JPMORGAN CHASE BANK, N.A.,
 THE ROYAL BANK OF SCOTLAND plc
  and

THE BANK OF NOVA SCOTIA,
  as Co-Documentation Agents

 

and

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
  CITIGROUP GLOBAL MARKETS INC.,

BNP PARIBAS SECURITIES CORP.,
 HSBC SECURITIES (USA) INC.,
 J.P. MORGAN SECURITIES LLC,

RBS SECURITIES INC.

and

THE BANK OF NOVA SCOTIA,
 as
 Joint Lead Arrangers and Joint Bookrunners

 


 



 











 

TABLE OF CONTENTS

 

	
Section
    	
 
    	
Page
    
	
 
    	
 
    
	
ARTICLE I.  DEFINITIONS AND ACCOUNTING TERMS
    	
1
    
	
 
    	
 
    
	
1.01
    	
Defined Terms
    	
1
    
	
1.02
    	
Other Interpretive Provisions
    	
35
    
	
1.03
    	
Accounting Terms
    	
35
    
	
1.04
    	
Rounding
    	
36
    
	
1.05
    	
Exchange Rates; Currency Equivalents
    	
36
    
	
1.06
    	
Additional Alternative Currencies
    	
37
    
	
1.07
    	
Change of Currency
    	
38
    
	
1.08
    	
Times of Day
    	
38
    
	
1.09
    	
Letter of Credit Amounts
    	
38
    
	
 
    	
 
    
	
ARTICLE II.  THE COMMITMENTS AND CREDIT EXTENSIONS
    	
38
    
	
 
    	
 
    
	
2.01
    	
The Loans
    	
38
    
	
2.02
    	
Borrowings, Conversions and Continuations of Loans
    	
39
    
	
2.03
    	
Letters of Credit
    	
41
    
	
2.04
    	
Swing Line Loans
    	
52
    
	
2.05
    	
Prepayments
    	
55
    
	
2.06
    	
Termination or Reduction of Commitments
    	
62
    
	
2.07
    	
Repayment of Loans
    	
63
    
	
2.08
    	
Interest
    	
64
    
	
2.09
    	
Fees
    	
65
    
	
2.10
    	
Computation of Interest and Fees
    	
65
    
	
2.11
    	
Evidence of Debt
    	
66
    
	
2.12
    	
Payments Generally; Administrative Agent’s Clawback
    	
66
    
	
2.13
    	
Sharing of Payments by Lenders
    	
68
    
	
2.14
    	
Designated Borrowers
    	
69
    
	
2.15
    	
Increase in Revolving Credit Facility
    	
71
    
	
2.16
    	
Increase in Term A Facility
    	
72
    
	
2.17
    	
New Term Facilities
    	
73
    
	
2.18
    	
Cash Collateral
    	
75
    
	
2.19
    	
Defaulting Lenders
    	
76
    
	
 
    	
 
    
	
ARTICLE III.  TAXES, YIELD PROTECTION AND ILLEGALITY
    	
78
    
	
 
    	
 
    
	
3.01
    	
Taxes
    	
78
    
	
3.02
    	
Illegality
    	
83
    
	
3.03
    	
Inability to Determine Rates
    	
83
    
	
3.04
    	
Increased Costs
    	
84
    
	
3.05
    	
Compensation for Losses
    	
86
    
	
3.06
    	
Mitigation Obligations; Replacement of Lenders;   Certificates
    	
87
    
	
3.07
    	
Survival
    	
87
    
				


 

i











 

TABLE OF CONTENTS (continued)

 

	
Section
    	
 
    	
Page
    
	
 
    	
 
    
	
ARTICLE IV.  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
    	
88
    
	
 
    	
 
    
	
4.01
    	
Conditions of Initial Credit Extension
    	
88
    
	
4.02
    	
Conditions to all Credit Extensions
    	
90
    
	
 
    	
 
    
	
ARTICLE V.  REPRESENTATIONS AND WARRANTIES
    	
91
    
	
 
    	
 
    
	
5.01
    	
Due Incorporation, Qualification, Etc.
    	
91
    
	
5.02
    	
Authority
    	
92
    
	
5.03
    	
Enforceability
    	
92
    
	
5.04
    	
Non-Contravention
    	
92
    
	
5.05
    	
Approvals
    	
92
    
	
5.06
    	
No Violation or Default
    	
92
    
	
5.07
    	
Litigation
    	
93
    
	
5.08
    	
Title; Possession Under Leases
    	
93
    
	
5.09
    	
Financial Statements
    	
93
    
	
5.10
    	
Employee Benefit Plans
    	
93
    
	
5.11
    	
Other Regulations
    	
95
    
	
5.12
    	
Patent and Other Rights
    	
95
    
	
5.13
    	
Governmental Charges
    	
95
    
	
5.14
    	
Margin Stock
    	
95
    
	
5.15
    	
Subsidiaries, Etc.
    	
95
    
	
5.16
    	
Solvency, Etc.
    	
96
    
	
5.17
    	
No Withholding, Etc.
    	
96
    
	
5.18
    	
No Material Adverse Effect
    	
96
    
	
5.19
    	
Accuracy of Information Furnished
    	
96
    
	
5.20
    	
Representations as to Foreign Obligors
    	
96
    
	
5.21
    	
Taxpayer Identification Number; Other Identifying Information
    	
97
    
	
5.22
    	
OFAC
    	
97
    
	
 
    	
 
    
	
ARTICLE VI.  AFFIRMATIVE COVENANTS
    	
98
    
	
 
    	
 
    
	
6.01
    	
Information
    	
98
    
	
6.02
    	
Books and Records
    	
101
    
	
6.03
    	
Inspections
    	
101
    
	
6.04
    	
Insurance
    	
101
    
	
6.05
    	
Taxes, Governmental Charges and Other Indebtedness
    	
101
    
	
6.06
    	
Use of Proceeds
    	
102
    
	
6.07
    	
General Business Operations
    	
102
    
	
6.08
    	
Pari Passu Ranking
    	
102
    
	
6.09
    	
PATRIOT Act
    	
102
    
	
6.10
    	
Subsidiary Guarantors
    	
103
    
	
 
    	
 
    	
 
    
	
ARTICLE VII.  NEGATIVE COVENANTS
    	
104
    
	
 
    	
 
    	
 
    
	
7.01
    	
Indebtedness
    	
104
    
	
7.02
    	
Liens
    	
106
    
				


 

ii











 

TABLE OF CONTENTS (continued)

 

	
Section
    	
 
    	
Page
    
	
 
    	
 
    	
 
    
	
7.03
    	
Asset Dispositions
    	
108
    
	
7.04
    	
Mergers, Acquisitions, Etc.
    	
110
    
	
7.05
    	
Investments
    	
111
    
	
7.06
    	
Dividends, Redemptions, Etc.
    	
112
    
	
7.07
    	
Change in Business
    	
113
    
	
7.08
    	
Employee Benefit Plans
    	
113
    
	
7.09
    	
Transactions With Affiliates
    	
113
    
	
7.10
    	
Accounting Changes
    	
114
    
	
7.11
    	
Burdensome Contractual Obligations
    	
114
    
	
7.12
    	
Financial Covenants
    	
115
    
	
7.13
    	
Sanctions
    	
115
    
	
 
    	
 
    	
 
    
	
ARTICLE VIII.  EVENTS OF DEFAULT AND REMEDIES
    	
116
    
	
 
    	
 
    	
 
    
	
8.01
    	
Events of Default
    	
116
    
	
8.02
    	
Remedies Upon Event of Default
    	
119
    
	
8.03
    	
Application of Funds
    	
120
    
	
8.04
    	
Lender Rate Contract Remedies
    	
121
    
	
 
    	
 
    	
 
    
	
ARTICLE IX.  ADMINISTRATIVE AGENT
    	
121
    
	
 
    	
 
    	
 
    
	
9.01
    	
Appointment and Authority
    	
121
    
	
9.02
    	
Rights as a Lender
    	
121
    
	
9.03
    	
Exculpatory Provisions
    	
121
    
	
9.04
    	
Reliance by Administrative Agent
    	
122
    
	
9.05
    	
Delegation of Duties
    	
123
    
	
9.06
    	
Resignation of Administrative Agent
    	
123
    
	
9.07
    	
Non-Reliance on Administrative Agent and Other Lenders
    	
124
    
	
9.08
    	
No Other Duties, Etc.
    	
125
    
	
9.09
    	
Administrative Agent May File Proofs of Claim
    	
125
    
	
9.10
    	
Guaranty Matters
    	
125
    
	
 
    	
 
    	
 
    
	
ARTICLE X.  MISCELLANEOUS
    	
126
    
	
 
    	
 
    	
 
    
	
10.01
    	
Amendments, Etc.
    	
126
    
	
10.02
    	
Notices; Effectiveness; Electronic Communication
    	
128
    
	
10.03
    	
No Waiver; Cumulative Remedies; Enforcement
    	
130
    
	
10.04
    	
Expenses; Indemnity; Damage Waiver
    	
131
    
	
10.05
    	
Payments Set Aside
    	
133
    
	
10.06
    	
Successors and Assigns
    	
133
    
	
10.07
    	
Treatment of Certain Information; Confidentiality
    	
139
    
	
10.08
    	
Right of Setoff
    	
140
    
	
10.09
    	
Interest Rate Limitation
    	
141
    
	
10.10
    	
Counterparts; Integration; Effectiveness
    	
141
    
	
10.11
    	
Survival of Representations and Warranties
    	
141
    
	
10.12
    	
Severability
    	
142
    
	
10.13
    	
Replacement of Lenders
    	
142
    
				


 

iii











 

TABLE OF CONTENTS (continued)

 

	
Section
    	
 
    	
Page
    
	
 
    	
 
    	
 
    
	
10.14
    	
Governing Law; Jurisdiction; Etc.
    	
143
    
	
10.15
    	
Waiver of Jury Trial
    	
144
    
	
10.16
    	
California Judicial Reference
    	
144
    
	
10.17
    	
No Advisory or Fiduciary Responsibility
    	
145
    
	
10.18
    	
Electronic Execution of Assignments and Certain Other   Documents
    	
145
    
	
10.19
    	
Judgment Currency
    	
146
    
	
10.20
    	
Bermuda Branch; Full Recourse Obligations
    	
146
    
	
10.21
    	
Waiver of Notice Under Existing FIL Credit Agreement
    	
146
    
	
10.22
    	
USA PATRIOT Act
    	
146
    
				


 

iv











 

SCHEDULES

 

	
1.01(e)
    	
Existing   Letters of Credit
    
	
1.01(i)
    	
Ineligible   Material Subsidiaries
    
	
1.01(ii)
    	
Initial   Subsidiary Guarantors
    
	
2.01
    	
Commitments   and Applicable Percentages
    
	
2.01(A)
    	
Outstanding   Term A Loans And Applicable Percentages
    
	
2.14
    	
Designated   Borrowers
    
	
5.15
    	
Subsidiaries
    
	
5.21
    	
Identification Numbers for the Company and   Designated Borrowers that are Foreign Subsidiaries
    
	
7.01
    	
Existing   Secured Indebtedness
    
	
7.05
    	
Investments
    
	
10.02
    	
Administrative   Agent’s Office; Certain Addresses for Notices
    


 

EXHIBITS

 

Form of

	
A
    	
Committed   Loan Notice
    
	
B
    	
Swing   Line Loan Notice
    
	
C-1
    	
Term   Note
    
	
C-2
    	
Revolving   Credit Note
    
	
D
    	
Compliance   Certificate
    
	
E
    	
Assignment   and Assumption
    
	
F
    	
Company   Guaranty
    
	
G
    	
Subsidiary   Guaranty
    
	
H
    	
Designated   Borrower Request and Assumption Agreement
    
	
I
    	
Designated   Borrower Notice
    
	
J
    	
Guarantor   Release Certificate
    
	
K
    	
Administrative   Questionnaire
    
	
L
    	
U.S.   Tax Certificates
    


 

v











 

CREDIT AGREEMENT

 

This CREDIT AGREEMENT (“Agreement”) is entered into as of March 31, 2014, among FLEXTRONICS INTERNATIONAL LTD., a Singapore company (the “Company” or “FIL”) acting, subject to Section 10.20 hereof, through its Bermuda branch, certain Subsidiaries of the Company party hereto pursuant to Section 2.14 (each a “Designated Borrower” and, together with the Company, the “Borrowers” and, each a “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent and Swing Line Lender.

 

The Company has requested that the Lenders provide a revolving credit facility, which is intended to replace and refinance the Existing FIL Credit Agreement, and the Lenders are willing to do so on the terms and conditions set forth herein.

 

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

 

ARTICLE I.
 DEFINITIONS AND ACCOUNTING TERMS

 

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

 

“Acceptable Discount” has the meaning specified in Section 2.05(a)(ii).

 

“Acceptable Prepayment Amount” has the meaning specified in Section 2.05(a)(ii).

 

“Acceptance Date” has the meaning specified in Section 2.05(a)(ii).

 

“Act” has the meaning specified in Section 6.09.

 

“Adjusted Revenues” means, in respect of any Subsidiary of FIL for any period, total revenues for such Subsidiary for such period, less Intercompany Revenues for such period.

 

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

 

“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Company and the Lenders.

 

“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit K or any other form approved by the Administrative Agent.

 

1











 

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

 

“Agent Parties” has the meaning specified in Section 10.02(c).

 

“Aggregate Commitments” means the Commitments of all the Lenders.

 

“Aggregate Revolving Credit Commitment” means the sum of the Revolving Credit Commitments of the Revolving Credit Lenders.

 

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

 

“Agreement Currency” has the meaning specified in Section 10.19.

 

“Alternative Currency” means each of Euro, Sterling, Yen, and each other currency (other than Dollars) that is approved in accordance with Section 1.06.

 

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

 

“Alternative Currency Sublimit” means an amount equal to 20% of the Aggregate Revolving Credit Commitment.  The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitment.

 

“Applicable Discount” has the meaning specified in Section 2.05(a)(ii).

 

“Applicable Foreign Obligor Documents” has the meaning specified in Section 5.20(a).

 

“Applicable Percentage” means (a) in respect of the Term A Facility, with respect to any Term A Lender at any time, the percentage (carried out to the ninth decimal place) of the Term A Facility represented by the principal amount of such Term A Lender’s Term A Loans at such time, which as of the Closing Date shall be as set forth opposite the name of such Lender on Schedule 2.01(a) hereto, (b) in respect of any Incremental Term Facility, with respect to any Lender under such Incremental Term Facility at any time, the percentage (carried out to the ninth decimal place) of the Incremental Term Facility represented by the principal amount of such Lender’s Incremental Term Loans under such Facility at such time and (c) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment at such time.  If the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Revolving Credit Commitments have expired, then the Applicable Percentage of each Revolving Credit Lender in respect of the Revolving Credit Facility shall be

 

2











 

determined based on the Applicable Percentage of such Revolving Credit Lender in respect of the Revolving Credit Facility most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

 

“Applicable Rate” means, from time to time, the following percentages per annum, based upon the Debt Rating as set forth below:

 

Applicable Rate

 

	
Pricing
   Level
    	
 
    	
Debt Ratings
   S&P/Moody’s
    	
 
    	
Commitment
   Fee
    	
 
    	
Eurocurrency
   Rate Loans
   and
   Letters of
   Credit
    	
 
    	
Base Rate
   Loans
    	
 
    
	
1
    	
 
    	
BBB or better/Baa2
   or better
    	
 
    	
0.15
    	
%
    	
1.125
    	
%
    	
0.125
    	
%
    
	
2
    	
 
    	
BBB-/Baa3
    	
 
    	
0.20
    	
%
    	
1.375
    	
%
    	
0.375
    	
%
    
	
3
    	
 
    	
BB+/Ba1
    	
 
    	
0.25
    	
%
    	
1.625
    	
%
    	
0.625
    	
%
    
	
4
    	
 
    	
BB/Ba2
    	
 
    	
0.325
    	
%
    	
1.875
    	
%
    	
0.875
    	
%
    
	
5
    	
 
    	
worse than
   BB/Ba2
    	
 
    	
0.40
    	
%
    	
2.125
    	
%
    	
1.125
    	
%
    


 

“Debt Rating” means, as of any date of determination, either the long term issuer credit rating of the Company as determined by S&P, or the issuer rating (PDR) of the Company as determined by Moody’s (or, if no such issuer rating is in effect, then the corporate family rating of the Company as determined by Moody’s) (collectively, the “Debt Ratings”); provided that (a) if the respective Debt Ratings issued by the foregoing rating agencies differ by one level, then the Pricing Level for the higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5 being the lowest); (b) if the respective Debt Ratings issued by the foregoing rating agencies differ by more than one level, then the Pricing Level that is one level lower than the Pricing Level of the higher Debt Rating shall apply; (c) if the Company has only one Debt Rating, the Pricing Level that is one level lower than that of such Debt Rating shall apply; and (d) if the Company does not have any Debt Rating, Pricing Level 5 shall apply.

 

Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the certificate delivered pursuant to Section 4.01(a)(ix).  Thereafter, each change in the Applicable Rate resulting from a publicly announced change in the Debt Rating shall be effective, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.

 

3











 

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

 

“Applicant Borrower” has the meaning specified in Section 2.14(b).

 

“Appropriate Lender” means, at any time, (a) with respect to any of the Term A Facility, any Incremental Term Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a Term A Loan, an Incremental Term Loan or a Revolving Credit Loan, respectively, at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.

 

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

 

“Arrangers” means, collectively, MLPFS and CGMI, in their capacity as joint lead arrangers and joint bookrunners.

 

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

 

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Administrative Agent.

 

“Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Company (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Loan Prepayment pursuant to Section 2.05(a)(ii); provided that the Company shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent); provided, further, that neither the Company nor any of its Affiliates may act as the Auction Agent.

 

“Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).

 

“Auto-Reinstatement Letter of Credit” has the meaning specified in Section 2.03(b)(iv).

 

“Availability Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date for the Revolving Credit Facility, (b) the date of termination of the Aggregate Revolving Credit Commitment pursuant to Section 2.06, and (c) the date of

 

4












 

termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.

 

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

 

“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended.

 

“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurocurrency Rate for an Interest Period of one month plus 1.00%.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change to the Base Rate due to a change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

 

“Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.

 

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

 

“BofA Fee Letter” means the letter agreement dated March 3, 2014, among the Company, the Administrative Agent and Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

“Borrower” and “Borrowers” each have the meaning specified in the introductory paragraph hereto.

 

“Borrower Materials” has the meaning specified in Section 6.01.

 

“Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term Borrowing, as the context may require.

 

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:

 

(a)                                 if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day that is also a London Banking Day;

 

(b)                                 if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be 

 

5











 

carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day;

 

(c)                                  if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and

 

(d)                                 if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

 

“Capital Leases” means any and all lease obligations that, in accordance with GAAP, are required to be capitalized on the books of a lessee.

 

“Cash Collateral” and “Cash Collateralize” have the meaning specified in Section 2.03(g).

 

“CGMI” means Citigroup Global Markets Inc.

 

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

“Change of Control” means, with respect to FIL, (a) the acquisition after the date hereof by any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)) of (A) beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act) of 50% or more of the outstanding Equity Securities of FIL entitled to vote for members of the board of directors (or similar governing body), or (B) all or substantially all of the assets of FIL; or (b) during any period of 12 consecutive calendar months, individuals who are directors of FIL on the first day of such period (“Initial Directors”) and any directors of FIL who are specifically approved by two-thirds of the Initial Directors and previously approved directors shall cease to constitute a majority of the board of directors of FIL before the end of such period.

 

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“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.

 

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

 

“Commitment” means a Term A Commitment or a Revolving Credit Commitment, as the context may require.

 

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

 

“Committed Loan” means a Term A Loan or a Revolving Credit Loan.

 

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

 

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

 

“Company Guaranty” means the Company Guaranty made by the Company in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit F.

 

“Compliance Certificate” means a certificate substantially in the form of Exhibit D.

 

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

“Consolidated Tangible Assets” shall mean, with respect to FIL and its Subsidiaries, the aggregate amount of assets (determined on a consolidated basis and in accordance with GAAP) after deducting therefrom all goodwill, trade names, trademarks, patents, licenses, unamortized debt discount and expense, treasury stock and other like intangibles (in each case, determined on a consolidated basis and in accordance with GAAP).

 

“Contingent Obligation” means, without duplication, with respect to any Person, (a) any Guaranty Obligation of that Person and (b) any direct or indirect obligation or liability, contingent or otherwise, of that Person (i) in respect of any Surety Instrument issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings or payments or (ii) in respect of any Rate Contract that is not entered into in connection with a bona fide hedging operation that provides offsetting benefits to such Person.  The amount of any Contingent Obligation shall (subject, in the case of Guaranty Obligations, to the last sentence of the definition of “Guaranty Obligation”) be deemed equal to the maximum reasonably anticipated liability in respect thereof (subject to reduction as the underlying liability so guaranteed is reduced from time to time), and shall, with respect to item (b)(ii) of this definition, be marked to market on a current basis.

 

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“Contractual Obligation” of any Person means any indenture, note, lease, loan agreement, security, deed of trust, mortgage, security agreement, guaranty, instrument, contract, agreement or other form of contractual obligation or undertaking to which such Person is a party or by which such Person or any of its property is bound.

 

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

 

“CFC” means a “controlled foreign corporation” described in Section 957(a) of the Code.

 

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

 

“Debt/EBITDA Ratio” means, with respect to FIL and its Subsidiaries, as of any date of determination, the ratio, determined on a consolidated basis in accordance with GAAP, of:

 

(a)                                 The total Indebtedness of FIL and its Subsidiaries on such date; provided, however, that in computing the foregoing sum, (i) there shall be excluded therefrom any Indebtedness to the extent the proceeds thereof are (A) legally segregated from FIL’s or such Subsidiaries’ other assets and (B) either (1) only held in the form of cash or cash equivalents or (2) used by FIL or its Subsidiaries for a purpose approved in advance from time to time by the Required Lenders and (ii) there shall be included as a component of total Indebtedness, without duplication and regardless of whether constituting Indebtedness as defined herein, all Securitization Attributable Indebtedness

 

to

 

(b)                                 EBITDA for the four fiscal quarter period ending on such date.

 

“Debt Rating” has the meaning specified in the definition of “Applicable Rate.”

 

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

 

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

 

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

 

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(b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.

 

“Defaulting Lender” means, subject to Section 2.19(b) , any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Company, the Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Company, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.

 

“Designated Borrower” has the meaning specified in the introductory paragraph hereto.

 

“Designated Borrower Notice” has the meaning specified in Section 2.14(b).

 

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“Designated Borrower Request and Assumption Agreement” has the meaning specified in Section 2.14(b).

 

“Designated Borrower Sublimit” means an amount equal to 100% of the Aggregate Revolving Credit Commitment.  The Designated Borrower Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitment.

 

“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.

 

“Discounted Loan Prepayment” has the meaning specified in Section 2.05(a)(ii).

 

“Discounted Prepayment Determination Date” has the meaning specified in Section 2.05(a)(ii).

 

“Discounted Prepayment Effective Date” means in the case of Discount Range Prepayment Offer or Solicited Discounted Prepayment Offer, five (5) Business Days following the Discount Range Prepayment Response Date or the Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section 2.05(a)(ii), unless a shorter period is agreed to between the Company and the Auction Agent.

 

“Discount Prepayment Response Date” has the meaning specified in Section 2.05(a)(ii).

 

“Discount Range” has the meaning specified in Section 2.05(a)(ii).

 

“Discount Range Prepayment Amount” has the meaning specified in Section 2.05(a)(ii).

 

“Discount Range Prepayment Notice” means a written notice of Discount Range Prepayment Offers made pursuant to Section 2.05(a)(ii) in form reasonably satisfactory to the Auction Agent.

 

“Discount Range Prepayment Offer” means the irrevocable written offer by a Lender submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.

 

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

 

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

 

“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any state or other political subdivision of the United States.

 

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“EBITDA” means, with respect to FIL and its Subsidiaries (including, for the purposes of this definition and if required to be consolidated for GAAP purposes, Elementum), for any period, the sum, determined on a consolidated basis in accordance with GAAP, of the following:

 

(a)                                 The net income or net loss of FIL and its Subsidiaries for such period before provision for income taxes;

 

plus

 

(b)                                 The sum (without duplication and to the extent deducted in calculating net income or loss in clause (a) above) of (i) all Interest Expense of FIL and its Subsidiaries accruing during such period, (ii) all depreciation and amortization expenses of FIL and its Subsidiaries accruing during such period and (iii) any other noncash charges of FIL and its Subsidiaries incurred in such period, including noncash charges for stock options, performance shares or other equity-based compensation (it being understood and agreed that the term “noncash charges” does not include charges which consist of, or require an accrual of or cash reserve for, anticipated cash charges in subsequent periods);

 

plus

 

(c)                                  An amount, not to exceed $100,000,000 in any consecutive four-quarter period, equal to the sum (without duplication and to the extent deducted in calculating net income or loss in clause (a) above) of all one-time cash charges associated with (i) merger- or acquisition-related expenses (including legal fees, investment banking fees and other similar fees and expenses), in connection with any merger or acquisition entered into or consummated by FIL or any of its Subsidiaries which is otherwise permitted under this Agreement, (ii) restructuring costs incurred by FIL or any of its Subsidiaries in connection with any restructuring entered into or consummated by FIL or any of its Subsidiaries which is otherwise permitted under this Agreement, and (iii) net losses from the early extinguishment of notes or other Indebtedness; in each case paid in such period and calculated in accordance with GAAP; provided, however, that no one-time cash charges in connection with merger- or acquisition-related expenses shall be added to the calculation of EBITDA if FIL and its Subsidiaries, in connection with any merger or acquisition to which such expenses relate, shall have adjusted EBITDA on a pro forma basis to give effect to such merger or acquisition as if such merger or acquisition had occurred as of the first day of such period as described in the next succeeding paragraph.

 

If FIL or any of its Subsidiaries acquires (whether by purchase, merger, consolidation or otherwise) any Person as a new Subsidiary or all or substantially all of the assets or property of any Person, during any period in respect of which EBITDA is to be determined, such EBITDA may, in the sole discretion of FIL, be determined on a pro forma basis as if such acquisition occurred as of the first day of such period.

 

“Elementum” means Elementum SCM (Cayman) Ltd.

 

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“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b) (subject to such consents, if any, as may be required under Section 10.06(b)).

 

“Eligible Material Subsidiary” shall mean, at any time of determination, any Material Subsidiary that is not then an Ineligible Material Subsidiary.

 

“Employee Benefit Plan” shall mean any employee benefit plan within the meaning of section 3(3) of ERISA maintained or contributed to by any Borrower, any Material Subsidiary or any ERISA Affiliate, other than a Multiemployer Plan.

 

“Enabling Period” has the meaning specified in Section 7.03(a).

 

“Environmental Laws” means all the Governmental Rules and Contractual Obligations relating to the protection of human health and the environment, including those pertaining to the reporting, licensing, permitting, investigation or remediation of emissions, discharges, releases, or threatened releases of Hazardous Materials into the air, surface water, groundwater, or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling of, or exposure to, Hazardous Materials.

 

“Equity Securities” of any Person means (a) all common stock, preferred stock, participations, shares, partnership interests, membership interests, beneficial interests in a trust or other equity interests in such Person (regardless of how designated and whether or not voting or non-voting) and (b) all warrants, options and other rights to acquire any of the foregoing.

 

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

 

“ERISA Affiliate” means any Person which is treated as a single employer with any Borrower or any Material Subsidiary under Section 414 of the Code.

 

“Euro”, “EUR” and “€” mean the single currency of the Participating Member States.

 

“Eurocurrency Base Rate” has the meaning specified in the definition of Eurocurrency Rate.

 

“Eurocurrency Rate” means:

 

(a)                                 With respect to any Credit Extension:

 

(i)  denominated in a LIBOR Quoted Currency, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant 

 

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currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and

 

(ii)  with respect to a Credit Extension denominated in any Non-LIBOR Quoted Currency, (1) the rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the Lenders pursuant to Section 1.06 (a) or (2) with respect to any LIBOR Quoted Currency that becomes a Non-LIBOR Quoted Currency after the Closing Date, the rate per annum determined by the Administrative Agent and the Revolving Credit Lenders at or after the time in which such currency is no longer a LIBOR Quoted Currency; and

 

(b)                                 for any rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;

 

provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

 

“Eurocurrency Rate Loan” means a Loan (other than a Swing Line Loan) that bears interest at a rate based on clause (a) of the definition of “Eurocurrency Rate.”  Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative Currency.  All Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans.

 

“Event of Default” has the meaning specified in Section 8.01.

 

“Excluded Subsidiary” has the meaning specified in Section 6.07.

 

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Sections 3.06(b) or 10.13) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.01, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office; (c) Taxes attributable to such 

 

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Recipient’s failure (other than as a result of a Change in Law) to comply with Section 3.01(g); and (d) any U.S. federal withholding Taxes imposed under FATCA.  Notwithstanding anything to the contrary contained in this definition, “Excluded Taxes” shall not include any withholding tax imposed at any time on payments made by or on behalf of a Foreign Obligor to any Lender hereunder or under any other Loan Document, provided that such Lender shall have complied with Section 3.01(g).

 

“Existing FIL Credit Agreement” means the Credit Agreement dated as of October 19, 2011, as amended, among FIL, the “Designated Borrowers” party thereto, Bank of America, as the administrative agent, and the “Lenders” party thereto.

 

“Existing Letters of Credit” means the standby letters of credit identified on Schedule 1.01(e) hereof.

 

“Existing Secured Indebtedness” means the secured Indebtedness existing on the Closing Date specified on Schedule 7.01.

 

“Extended Letter of Credit” has the meaning specified in Section 2.03(a)(ii)(B).

 

“Facility” means the Term A Facility, an Incremental Term Facility or the Revolving Credit Facility, as the context may require.

 

“FASB” means the Financial Accounting Standards Board.

 

“FASB ASC” means the Accounting Standards Codification of FASB.

 

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

 

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

 

“Fee Letters” means (a) the BofA Fee Letter and (b) the letter agreement, dated March 27, 2014, among the Company, Citibank, N.A. and CGMI.

 

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

 

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“Financial Statements” means, with respect to any accounting period for any Person, statements of income, shareholders’ equity and cash flows of such Person for such period, and a balance sheet of such Person as of the end of such period, setting forth in each case in comparative form figures for the corresponding period in the preceding fiscal year if such period is less than a full fiscal year or, if such period is a full fiscal year, corresponding figures from the preceding annual audit, all prepared in reasonable detail and in accordance with GAAP.

 

“Flextronics (Hungary)” means Flextronics International KFT, a Hungarian company.

 

“Flextronics Sales (Mauritius)” means Flextronics Sales & Marketing (A-P) Ltd., a Mauritius company.

 

“Foreign Lender” means (a) if a Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if a Borrower is not a U.S. Person, a Lender that is resident or organized under the Governmental Rules of a jurisdiction other than that in which such Borrower is resident for tax purposes.  For purposes of this definition the United States, each state thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

“Foreign Obligor” means the Company, and any Loan Party that is a Foreign Subsidiary.

 

“Foreign Plan” shall mean any employee benefit plan maintained or contributed to by any Borrower or any of its Subsidiaries which is mandated or governed by any Governmental Rule of any Governmental Authority other than the United States.

 

“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a state thereof or the District of Columbia.

 

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

 

“Fronting Exposure” means, at any time there is a Defaulting Lender which is a Revolving Credit Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders or Cash Collateralized in accordance with the terms hereof.

 

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

 

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of FASB or such other principles as may be approved by a significant segment of the accounting profession in the

 

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United States, that are applicable to the circumstances as of the date of determination, consistently applied.

 

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

 

“Governmental Charges” shall mean, with respect to any Person, all levies, assessments, fees, claims or other charges imposed by any Governmental Authority upon such Person or any of its property or otherwise payable by such Person.

 

“Governmental Rule” means any law, rule, regulation, ordinance, order, code interpretation, judgment, decree, directive, guidelines, policy or similar form of decision of any Governmental Authority.

 

“Granting Lender” has the meaning specified in Section 10.06(h).

 

“Guaranties” means the Company Guaranty and the Subsidiary Guaranty.

 

“Guarantor Release Certificate” has the meaning specified in Section 6.10(b).

 

“Guarantors” means, collectively, the Company and each Subsidiary Guarantor.

 

“Guaranty Obligation” means, with respect to any Person, subject to the last sentence of this definition, any direct or indirect liability of that Person with respect to any indebtedness, lease, dividend, letter of credit or other obligation (other than endorsements of instruments for collection or deposits in the ordinary course of business) (the “primary obligations”) of another Person (the “primary obligor”), including any obligation of that Person, whether or not contingent, (a) to purchase, repurchase or otherwise acquire such primary obligations or any property constituting direct or indirect security therefor, (b) to advance or provide funds (i) for the payment or discharge of any such primary obligation, or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (d) otherwise to assure or hold harmless the holder of any such primary obligation against loss in respect thereof.  The amount of any Guaranty Obligation shall be deemed equal to the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if indeterminable, the maximum reasonably anticipated liability in respect thereof (subject to reduction as the underlying liability so guaranteed is reduced from time to time); provided, however, that with respect to (1) any Guaranty Obligation by FIL or any of its Subsidiaries in respect of a primary obligation of FIL or any of its Subsidiaries and (2) any Guaranty Obligation of FIL or any of its Subsidiaries in respect of the primary obligation of a lessor in connection with a transaction relating to Synthetic Lease Obligations entered into by FIL or any of its Subsidiaries, such Guaranty Obligation shall, in

 

16











 

each case, be deemed to be equal to the maximum reasonably anticipated liability in respect thereof which shall be deemed to be limited to an amount that actually becomes past due from time to time with respect to such primary obligation.

 

“Hazardous Materials” shall mean all pollutants, contaminants and other materials, substances and wastes which are hazardous, toxic, caustic, harmful or dangerous to human health or the environment, including petroleum and petroleum products and byproducts, radioactive materials, asbestos and polychlorinated biphenyls.

 

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

 

“Increase Effective Date” has the meaning specified in Section 2.15(c).

 

“Identified Participating Lenders” has the meaning specified in Section 2.05(a)(ii).

 

“Identified Qualifying Lenders” has the meaning specified in Section 2.05(a)(ii).

 

“Incremental Term Borrowing” means a borrowing consisting of simultaneous Incremental Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the applicable Lenders pursuant to Section 2.16 or 2.17.

 

“Incremental Term Facility” means the term loans collectively comprising a term loan tranche established pursuant to Section 2.16 or 2.17.

 

“Incremental Term Loan” means a term loan made by a Lender pursuant to Section 2.16 or 2.17.

 

“Indebtedness” of any Person shall mean, without duplication, the following:

 

(a)                                 All obligations of such Person evidenced by notes, bonds, debentures or other similar instruments and all other obligations of such Person for borrowed money (including obligations to repurchase receivables and other assets sold with recourse); provided that, “Indebtedness” shall not at any date of determination include obligations of such Person for the deferred purchase price of property evidenced by notes, bonds, debentures or similar instruments to the extent (i) such obligations have a regularly-scheduled maturity date that is less than one year after such date, and (ii) solely for purposes of Section 8.01(e), the non-payment of such obligations as of such date is subject to a good faith dispute, including by virtue of a bona fide right of setoff by such Person;

 

(b)                                 All obligations of such Person for the deferred purchase price of property or services (including obligations under letters of credit and other credit facilities which secure or finance such purchase price), and the capitalized amount reported for income tax purposes with respect to Synthetic Lease Obligations; provided that, “Indebtedness” shall not at any date of determination include obligations consisting of accounts payable for property or services or the deferred purchase price of property to the extent (i) such obligations have a regularly-scheduled maturity date or payment due date that is less than

 

17











 

one year after such date, and (ii) solely for purposes of Section 8.01(e), the non-payment of such obligations as of such date is subject to a good faith dispute, including by virtue of a bona fide right of setoff by such Person;

 

(c)                                  All obligations of such Person under conditional sale or other title retention agreements with respect to property (other than inventory) acquired by such Person (to the extent of the value of such property if the rights and remedies of the seller or lender under such agreement in the event of default are limited solely to repossession or sale of such property);

 

(d)                                 All obligations of such Person as lessee under or with respect to Capital Leases and Synthetic Lease Obligations;

 

(e)                                  All Guaranty Obligations of such Person with respect to the Indebtedness of any other Person, and all other Contingent Obligations (other than Guaranty Obligations) of such Person;

 

(f)                                   All obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment (other than payments made solely with other Equity Securities) in respect of any Equity Securities in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

 

(g)                                  All obligations of other Persons of the types described in clauses (a) - (f) above to the extent secured by (or for which any holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Lien in any property (including accounts and contract rights) of such Person, even though such Person has not assumed or become liable for the payment of such obligations, valued at the lesser of (1) the fair market value of the property securing such obligations and (2) the stated principal amount of such obligations.

 

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

 

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

 

“Indemnitee” has the meaning specified in Section 10.04(b).

 

“Ineligible Material Subsidiary” means, at any time of determination, (a) any Material Subsidiary (i) that is then prohibited by any applicable Governmental Rule from acting as a Subsidiary Guarantor under the Subsidiary Guaranty, (ii) that then would incur or suffer, or would cause FIL or any Domestic Subsidiary to incur or suffer, (x) significant tax or similar liabilities or obligations or (y) an inclusion of income under Section 951(a)(1)(B) of the Code (or similar non-U.S. tax law) that is reasonably and substantially likely to result in a significant

 

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adverse effect on the Company’s consolidated financial accounts, as a result of acting as a Subsidiary Guarantor under the Subsidiary Guaranty (other than in the case of a Person that, immediately prior to becoming a Subsidiary of such a Domestic Subsidiary, was a Subsidiary Guarantor) or (iii) that is a Foreign Subsidiary as to which the representations and warranties set forth in Section 5.20 (other than subsection (c) thereof), after the exercise of commercially reasonable efforts by the Company and such Subsidiary, would not be true and correct were it to execute the Subsidiary Guaranty,  (b) any Material Subsidiary that then would incur or suffer, or would cause any Foreign Subsidiary to incur or suffer, significant tax or similar liabilities or obligations or an inclusion of income that is reasonably and substantially likely to result in a significant adverse effect on the Company’s consolidated financial accounts, as a result of acting as a Subsidiary Guarantor under the Subsidiary Guaranty (other than in the case of a Person that, immediately prior to becoming a Subsidiary of such a Foreign Subsidiary, was a Subsidiary Guarantor) with respect to which the Company has elected, by written notice to the Administrative Agent delivered within the time period specified by Section 6.10(a) for the delivery of a Subsidiary Guaranty by such Subsidiary, to provide a Substitute Guaranty in place of the Subsidiary Guaranty which would have otherwise been required to be delivered pursuant to Section 6.10 by such Subsidiary, (c) the Subsidiaries of FIL listed on Schedule 1.01(i), (d) any other Subsidiary of the Company which is a CFC with respect to which the Company has elected, by written notice to the Administrative Agent delivered within the time period specified by Section 6.10(a) for the delivery of a Subsidiary Guaranty by such Subsidiary, to provide a Substitute Guaranty in place of the Subsidiary Guaranty which would have otherwise been required to be delivered pursuant to Section 6.10 by such Subsidiary and (e) a bankruptcy-remote special purpose vehicle that exists solely to facilitate a securitization transaction permitted hereunder.

 

“Information” has the meaning specified in Section 10.07.

 

“Intercompany Receivables” means, in respect of FIL or any of its consolidated Subsidiaries, at any time of determination, assets consisting of receivables owing to such Person by FIL or any consolidated Subsidiary of FIL.

 

“Intercompany Revenues” means, in respect of any Subsidiary of FIL for any period, revenues of such Subsidiary that would not, after taking into account offsetting entries in the consolidation process, be recognized in accordance with GAAP as revenues of FIL in the consolidated Financial Statements of FIL and its Subsidiaries for such period.

 

“Interest Coverage Ratio” means, with respect to FIL and its Subsidiaries for any period, the ratio, determined on a consolidated basis in accordance with GAAP, of:

 

(a)                                 EBITDA for such period

 

to

 

(b)                                 aggregate Interest Expense of FIL and its Subsidiaries for such period.

 

“Interest Expense” shall mean, with respect to any Person for any period, (a) the amount which would, in conformity with GAAP, be set forth opposite the caption “interest expense” or any like caption on a consolidated income statement of such Person and its Subsidiaries minus

 

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(b) the amount of non-cash interest (including interest paid by the issuance of additional securities) included in such amount; provided that for any period during which there shall exist any securitization or similar program relating to the accounts receivable of FIL or its Subsidiaries, “Interest Expense” shall be adjusted to include (without duplication) an amount equal to the interest (or other fees in the nature of interest or discount) accrued and paid or payable in cash for such period by the applicable special purpose entity to the financiers of such securitization or similar program.

 

“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date; and (c) as to any Swing Line Loan that is not a Base Rate Loan, the last Business Day of each March, June, September and December (or such other dates as may be agreed by the Swing Line Lender and the Company in respect of the applicable borrowing) and the Maturity Date.

 

“Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter (in each case, subject to availability), as selected by the Company in its Committed Loan Notice; provided that:

 

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

 

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

 

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

 

“Investment” of any Person means any loan or advance of funds by such Person to any other Person (other than advances to employees of such Person for moving and travel expenses, drawing accounts, advances to employees of such Person for indemnification, and similar expenditures in the ordinary course of business), any purchase or other acquisition of any Equity Securities or Indebtedness of any other Person, any capital contribution by such Person to or any other investment by such Person in any other Person (including any Guaranty Obligations of such Person and any indebtedness of such Person of the type described in clause (f) of the definition of “Indebtedness” on behalf of any other Person); provided, however, that Investments shall not include (a) accounts receivable or other indebtedness owed by customers of such Person which are current assets and arose from sales of goods or services in the ordinary course of such

 

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Person’s business or (b) prepaid expenses of such Person incurred and prepaid in the ordinary course of business.

 

“IRS” means the United States Internal Revenue Service.

 

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

 

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

 

“Judgment Currency” has the meaning specified in Section 10.19.

 

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

 

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

 

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

 

“L/C Issuer” means Bank of America or any other Lender which shall agree in writing with the Company and with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) to act as such, as selected in connection with any Letter of Credit by a Borrower (or its predecessor in interest), each in its capacity as issuer of Letters of Credit hereunder.  For purposes of any Loan Document, references to “the L/C Issuer” in connection with or as applied to a particular Letter of Credit shall be deemed to refer to the applicable L/C Issuer that issued or will issue such Letter of Credit; references to “the L/C Issuer” in all other contexts shall, unless otherwise clearly indicated, be deemed to refer to all L/C Issuers.

 

“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

“Lender” or “Lenders” each have the meaning specified in the introductory paragraph hereto, including any Person making a Loan pursuant to Section 2.15, 2.16 or 2.17, and, as the

 

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context requires, includes the Swing Line Lender; provided, that for purposes of making Loans to Designated Borrowers, any Lender may from time to time delegate in its stead one or more of its Affiliates as such lenders, duly authorized to engage in such lending activities in the jurisdiction of such Designated Borrower, in which event the term “Lender” shall also include any such designated Affiliate as in effect from time to time, provided further, that, for all purposes of voting or consenting with respect to (a) any amendment, supplementation or modification of any Loan Document, (b) any waiver of any requirements of any Loan Document or any Default or Event of Default and its consequences, or (c) any other matter as to which a Lender may vote or consent pursuant to this Agreement, the Lender making such delegation shall be deemed the “Lender” rather than such Affiliate, which shall not be entitled to vote or consent.

 

“Lender Rate Contract” has the meaning specified in Section 8.04.

 

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent which office or offices may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate.  Unless the context otherwise requires, each reference to a Lender shall include its applicable Lending Office.

 

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

 

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

 

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

 

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

 

“Letter of Credit Sublimit” means an amount equal to $150,000,000.  The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitment.

 

“LIBOR” has the meaning specified in the definition of Eurocurrency Rate.

 

“LIBOR Quoted Currency” means each of the following currencies: Dollars; Euro; Sterling; Yen; and Swiss Franc); in each case as long as there is a published LIBOR with respect thereto.

 

“Lien” means, with respect to any property or asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such property or asset or the income therefrom, including any agreement to provide any of the foregoing, (b) the interest of a vendor or a lessor under any conditional sale agreement, Capital Lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

 

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“Liquidity Amount” means, at any time,  an amount equal to the sum of (a) the amount of unencumbered (excluding set-off rights and other similar Liens of depositary banks arising under applicable Governmental Rule) and unrestricted cash and cash equivalents of the Company and its Subsidiaries at such time plus (b) if at such time the Company is able to satisfy the conditions to borrowing set forth in Sections 4.02(a) and 4.02(b), the unutilized (by Revolving Credit Loans, Swing Line Loans or Letters of Credit) amount of the Aggregate Revolving Credit Commitment at such time.

 

“Loan” means an extension of credit by a Lender to a Borrower under Article II or pursuant to Section 2.15, 2.16 or 2.17 in the form of a Term Loan, a Revolving Credit Loan or a Swing Line Loan.

 

“Loan Documents” means this Agreement, each amendment hereto, each Designated Borrower Request and Assumption Agreement, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.18 of this Agreement, the Fee Letters, and the Guaranties.

 

“Loan Parties” means, collectively, the Company, each Subsidiary Guarantor and each Designated Borrower.

 

“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank Eurodollar market.

 

“Margin Stock” has the meaning given to that term in Regulation U issued by the FRB.

 

“Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations or financial condition of FIL and FIL’s Subsidiaries, taken as a whole (excluding, solely for purposes of the closing certificate delivered by FIL pursuant to Section 4.01(a)(ix), any such changes resulting solely from macroeconomic or financial market or electronics manufacturing industry events or circumstances that have not affected and are not expected to affect the operations, business, assets or financial condition of FIL and its Subsidiaries taken as a whole to an extent that is or would be disproportionate to that of other members of its industry), (b) the ability of any Borrower to pay or perform its Obligations in accordance with the terms of this Agreement and the other Loan Documents, (c) the ability of the Subsidiary Guarantors (taken as a whole) to pay or perform the Obligations in accordance with the terms of this Agreement and the other Loan Documents or (d) the rights and remedies of the Administrative Agent or any Lender under this Agreement, the other Loan Documents or any related document, instrument or agreement.

 

“Material Subsidiary” means, at any time of determination, (a) any Subsidiary of FIL that (i) had Adjusted Revenues during the immediately preceding fiscal year equal to or greater than 5% of the consolidated total revenues of FIL and its Subsidiaries during such preceding year or (ii) held assets, excluding Intercompany Receivables and Investments in FIL or any other FIL Subsidiary, on the last day of the immediately preceding fiscal year equal to or greater than 10% of the consolidated total assets of FIL and its Subsidiaries on such date, in each case as set forth or reflected in the audited Financial Statements dated March 31, 2013 or the then most-recently available audited Financial Statements provided pursuant to Section 6.01 hereof; and

 

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(b) following any Material Subsidiary Recalculation Event, any Subsidiary of FIL that, on a pro forma basis (after giving effect to such Material Subsidiary Recalculation Event and all other Material Subsidiary Recalculation Events occurring on or prior to the date thereof), (1) had Adjusted Revenues during the twelve-month period ended as of the last day of the immediately preceding fiscal quarter for which Financial Statements are available, greater than 5% of the consolidated total revenues of FIL and its Subsidiaries during such twelve-month period or (2) holds assets, excluding Intercompany Receivables and Investments in FIL or any other FIL Subsidiary, equal to or greater than 10% of the consolidated total assets of FIL and its Subsidiaries (including the assets of such Subsidiary and any other Subsidiaries acquired) as of the last day of the immediately preceding fiscal quarter for which Financial Statements are available (such tests in this clause (b), together, the “Pro Forma MS Test”).  For purposes of the Pro Forma MS Test in clause (b)(1), a Material Subsidiary Recalculation Event shall be deemed to have occurred as of the first day of the applicable twelve month period.  Notwithstanding the foregoing, for purposes of this definition, each of Flextronics (Hungary) and Flextronics Sales (Mauritius) shall at all times be deemed to be a Material Subsidiary notwithstanding the fact that the amount of its Adjusted Revenues or assets is less than the thresholds set forth above.

 

“Material Subsidiary Recalculation Event” means any of the following:  (a) the consummation of any acquisition by FIL or any of its Subsidiaries of any Person that becomes a Subsidiary (or part of a Subsidiary) as a result thereof (or the acquisition of all or substantially all of the assets of any Person or of any line of business of any Person) that would result in an additional Material Subsidiary, based on the Pro Forma MS Test, as applied as of such date; (b) any Subsidiary Guarantor ceasing to be a Subsidiary pursuant to a transaction otherwise permitted hereunder; (c) the occurrence of any event or circumstance resulting in the release of any Subsidiary Guarantor pursuant to the terms of the Subsidiary Guaranty; (d) any Person becoming an Ineligible Material Subsidiary solely by virtue of clauses (a)(i), (a)(ii) or (b) of the definition of “Ineligible Material Subsidiary,” and (e) any sale or disposition (including by merger) of any material portion of the Equity Securities of any Subsidiary of FIL, or the sale or transfer of all or substantially all of the assets of any Subsidiary of FIL, if such transaction would result in any additional Material Subsidiaries, based on the Pro Forma MS Test as applied as of such date.

 

“Maturity Date” means (a) with respect to the Revolving Credit Facility and the Term A Facility, March 31, 2019 and (b) with respect to any Incremental Term Facility, the agreed maturity date applicable thereto; provided, however, that if any such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

 

“Maximum Increase Amount” means, at any time, an amount equal to $500,000,000 minus the sum of (a) the aggregate amount of increases in the Aggregate Revolving Credit Commitment which have theretofore occurred or are pending pursuant to Section 2.15 plus (b) the aggregate principal amount of Incremental Term Loans which have occurred or are pending pursuant to Section 2.16 or 2.17.

 

“Maximum Rate” has the meaning specified in Section 10.09.

 

“MLPFS” means Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

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

 

“Multiemployer Plan” means any multiemployer plan within the meaning of section 3(37) of ERISA maintained or contributed to by any Borrower, any Material Subsidiary or any ERISA Affiliate.

 

“Net Proceeds” means, with respect to any issuance and sale of securities by any Person (a) the aggregate cash proceeds received by such Person from such sale less (b) the sum of (i) the actual amount of the reasonable fees and commissions payable to Persons other than such Person making the sale or any Affiliate of such Person and (ii) the reasonable legal expenses and other costs and expenses directly related to such sale that are to be paid by such Person.

 

“New Term Loans” has the meaning specified in Section 2.17(a).

 

“New Term Loans Funding Date” has the meaning specified in Section 2.17(c).

 

“Non-Core Assets” means those assets and businesses (including the Equity Securities of any Subsidiary engaged exclusively in such businesses) designated in good faith by the board of directors of FIL or the applicable Subsidiary proposing to sell such assets from time to time as “Non-Core Assets” and set forth in a certificate or certificates of a Responsible Officer delivered by FIL or such Subsidiary to the Administrative Agent to the effect that FIL’s or such Subsidiary’s board of directors has duly designated such assets and businesses as “Non-Core Assets” in good faith.

 

“Non-Extension Notice Date” has the meaning specified in Section 2.03(b).

 

“Non-LIBOR Quoted Currency” means any currency other than a LIBOR Quoted Currency.

 

“Non-Reinstatement Deadline” has the meaning specified in Section 2.03(b).

 

“Note” means a Term Note or a Revolving Credit Note, as the context may require.

 

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

 

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

 

“Offered Amount” has the meaning specified in Section 2.05(a)(ii).

 

“Offered Discount” has the meaning specified in Section 2.05(a)(ii).

 

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“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

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

 

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

 

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

 

“Participant” has the meaning specified in Section 10.06(d).

 

“Participant Register” has the meaning specified in Section 10.06(d).

 

“Participating Lender” has the meaning specified in Section 2.05(a)(ii).

 

“Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

 

“PBGC” means the Pension Benefit Guaranty Corporation.

 

“Permitted Indebtedness” has the meaning specified in Section 7.01.

 

“Permitted Liens” has the meaning specified in Section 7.02.

 

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

 

“Platform” has the meaning specified in Section 6.01.

 

“Pro Forma Calculation Subsidiary” means any Subsidiary as to which the Company has properly elected to present its EBITDA on a pro forma basis, as set forth in the last paragraph of the definition “EBITDA.”

 

“Pro Forma MS Test” has the meaning specified in the definition “Material Subsidiary.”

 

“Public Lender” has the meaning specified in Section 6.01.

 

“Qualifying Lender” has the meaning specified in Section 2.05(a)(ii).

 

“Rate Contracts” 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, deferred compensation arrangement or similar plan providing for payments only on account of past or future services provided by current or former directors, officers, employees or consultants of any Borrower or its Subsidiaries shall be a Rate Contract.

 

“Receivables Assets” means accounts receivable, indebtedness and other obligations owed to or owned by the Borrowers or any Subsidiary (whether now existing or arising or acquired in the future) arising in the ordinary course of business from the sale of goods or services (including any indebtedness or obligation constituting an account, chattel paper, instrument or general intangible), together with all related security, collateral, collections, contracts, contract rights, guarantees or other obligations in respect thereof, all proceeds and supporting obligations and all other related assets which are of the type customarily transferred in connection with a sale, factoring, financing or securitization transaction involving accounts receivable.

 

“Recipient” means (a) the Administrative Agent, (b) any Lender, (c) any L/C Issuer and (d) any other recipient of any payment to be made by or on behalf of any Loan Party.

 

“Register” has the meaning specified in Section 10.06(c).

 

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

 

“Reportable Event” means a reportable event within the meaning of Section 4043 of ERISA and applicable regulations thereunder, but shall not include a reportable event for which the notice requirement has been waived.

 

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

 

“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of (a) the Aggregate Revolving Credit Commitment plus (b) the aggregate outstanding principal amount of the Term Loans; provided, however, that if the commitment of the Revolving Credit Lenders to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have expired or been terminated, “Required Lenders” means Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes of this definition); provided that the unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

“Required Revolving Lenders” means, as of any date of determination, Revolving Credit Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.

 

“Required Term A Lenders” means, as of any date of determination, Term A Lenders holding more than 50% of the Term A Facility or the commitments thereunder on such date.

 

“Requirements of Law” applicable to any Person means (a) the articles or certificate of incorporation and by-laws, partnership agreement or other organizational or governing documents of such Person, (b) any Governmental Rule applicable to such Person, (c) any license, permit, approval or other authorization granted by any Governmental Authority to or for the benefit of such Person or (d) any judgment, decision or determination of any Governmental Authority or arbitrator, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

“Responsible Officer” means, with respect to any Loan Party, such Loan Party’s chief executive officer, chief financial officer, treasurer, vice president — finance, controller, assistant controller, assistant treasurer, director of treasury operations, corporate secretary, assistant secretary, director or any other officer or authorized representative of such Loan Party designated from time to time by its board of directors or equivalent governing body to execute and deliver any document, instrument or agreement hereunder.

 

“Revaluation Date” means (a) with respect to any Loan, each of the following:  (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative

 

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Currency pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall in good faith determine or the Required Lenders shall in good faith require; and (b) with respect to any Letter of Credit, each of the following:  (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in an Alternative Currency, and (iv) such additional dates as the Administrative Agent or the L/C Issuer shall in good faith determine or the Required Lenders shall in good faith require.

 

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

 

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

 

“Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.

 

“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment at such time or that, after the Aggregate Revolving Credit Commitment has expired or been terminated, holds a Revolving Credit Loan or a participation in a Letter of Credit or Swing Line Loan.

 

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

 

“Revolving Credit Note” means a promissory note made by the Borrower in favor of a Revolving Credit Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be, made by such Revolving Credit Lender, substantially in the form of Exhibit C-2.

 

“Sanction(s)” means any international economic sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

 

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

 

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

 

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

 

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

 

“Securitization Attributable Indebtedness” means the amount of obligations outstanding under the legal documents entered into as part of any accounts receivable securitization or similar transaction relating to accounts receivable originated by FIL or its Subsidiaries on any date of determination that corresponds to the outstanding net investment (including loans) of, or cash purchase price paid by, the unaffiliated third party purchasers or financial institutions participating in such transaction and, as such, would be characterized as principal if such securitization were structured as a secured lending transaction rather than as a purchase (or, to the extent structured as a secured lending transaction, is principal).  For the avoidance of doubt, “Securitization Attributable Indebtedness” shall not include (a) obligations that correspond to a deferred purchase price or other consideration owing to FIL or any of its Subsidiaries funded on a deferred basis from the proceeds of the collections on such receivables, a subordinated interest held by FIL or any of its Subsidiaries or the reserve or over-collateralization established or maintained for the benefit of the unaffiliated third party purchasers or financial institutions participating in such transaction, and (b) obligations arising under uncommitted factoring arrangements and similar uncommitted sale transactions.

 

“Significant Subsidiary” shall mean, at any time of determination, (a) any Subsidiary of FIL that (i) had Adjusted Revenues during the immediately preceding fiscal year equal to or greater than $100,000,000 or (ii) had net worth on the last day of the immediately preceding fiscal year equal to or greater than $100,000,000; and (b) in respect of any Subsidiary formed or acquired during the term of this Agreement, that (i) had Adjusted Revenues during the twelve-month period ended as of the last day of the immediately preceding fiscal quarter for which Financial Statements are available greater than $100,000,000 or (ii) has a net worth (determined on a pro forma basis as of the last day of the immediately preceding fiscal quarter for which Financial Statements are available) equal to or greater than $100,000,000.

 

“Solicited Discounted Prepayment Amount” has the meaning specified in Section 2.05(a)(ii).

 

“Solicited Discounted Prepayment Offer” means the irrevocable written offer by each Lender submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.

 

“Solicited Discounted Prepayment Notice” means a written notice of the Borrower of Solicited Discounted Prepayment Offers made pursuant to Section 2.05(a)(ii) in form reasonably satisfactory to the Auction Agent.

 

“Solicited Discounted Prepayment Response Date” has the meaning specified in Section 2.05(a)(ii).

 

“Solicited Discount Proration” has the meaning specified in Section 2.05(a)(ii).

 

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“Solvent” means, with respect to any Person on any date, that on such date (a) the fair value of the property of such Person is greater than the fair value of the liabilities (including contingent, subordinated, matured and unliquidated liabilities) of such Person, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature and (c) such Person is not engaged in or about to engage in business or transactions for which such Person’s property would constitute an unreasonably small capital.

 

“SPC” has the meaning specified in Section 10.06(h).

 

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

 

“Spot Rate” for a currency means the rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 8:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.

 

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

 

“Submitted Amount” has the meaning specified in Section 2.05(a)(ii).

 

“Submitted Discount” has the meaning specified in Section 2.05(a)(ii).

 

“Subsidiary” of any Person means (a) any corporation of which more than 50% of the issued and outstanding Equity Securities having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries, (b) any partnership, joint venture, limited liability company or other association of which more than 50% of the equity interest having the power to vote, direct or control the management of such partnership, joint venture or other association is at the time owned and controlled by such Person, by such Person and one or more of the other Subsidiaries or by one or more of such Person’s other Subsidiaries, or (c) any other Person included in the Financial Statements of such Person on a consolidated basis.  All references in this Agreement and the other Loan Documents to Subsidiaries of FIL shall, unless otherwise indicated, include any of the other Borrowers and their Subsidiaries.  Notwithstanding the foregoing, except where expressly included herein, Elementum shall not be considered a “Subsidiary” of the Company so

 

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long as FIL owns (directly or indirectly) less than 100% of the outstanding Equity Securities of Elementum.

 

“Subsidiary Guarantors” means, collectively, each Subsidiary of FIL which on the Closing Date or thereafter (pursuant to Section 6.10(a)) executes the Subsidiary Guaranty.  The Subsidiary Guarantors as of the Closing Date are identified on Schedule 1.01(ii).

 

“Subsidiary Guaranty” means the Subsidiary Guaranty (including counterparts thereof and joinders thereto) made by the Subsidiary Guarantors in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit G.

 

“Substitute Guaranty” means a counterpart of or joinder to the Subsidiary Guaranty (or such other document as the Administrative Agent shall deem appropriate) executed by a Substitute Guarantor pursuant to the second sentence of Section 6.10(a).

 

“Substitute Guarantors” means Significant Subsidiaries of the Company which (a) are not then Subsidiary Guarantors (except as provided below) and (b) in the aggregate, have Adjusted Revenues or hold assets (excluding Intercompany Receivables and Investments in FIL or any other FIL Subsidiary) that are at least equal to the Adjusted Revenues or assets (as applicable) of a Subsidiary or CFC referred to in clauses (b) or (d), as applicable, of the definition of “Ineligible Material Subsidiary” with respect to which the Company has elected not to provide a Subsidiary Guaranty; provided that, notwithstanding the provision set forth in clause (a) above, if FIL elects pursuant to clauses (b) and (d) of the definition of Ineligible Material Subsidiary to provide a Substitute Guaranty from a Substitute Guarantor in replacement of a Subsidiary Guaranty otherwise required hereby to be provided by a Material Subsidiary hereunder, FIL may designate Flextronics (Hungary) and/or Flextronics Sales (Mauritius) as Substitute Guarantors for such purposes (subject to the remaining provisions set forth in this definition and the provisions of this Agreement) notwithstanding the fact that the Subsidiaries Guaranties of Flextronics (Hungary) and Flextronics Sales (Mauritius) were provided on the Closing Date; provided further, that upon either such Subsidiary being deemed a Substitute Guarantor, clause (a) of this definition shall again apply.

 

“Surety Instruments” means all letters of credit (including standby and commercial), banker’s acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.

 

“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.

 

“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

 

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

 

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

 

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“Swing Line Sublimit” means an amount equal to the lesser of (a) $300,000,000 and (b) the Aggregate Revolving Credit Commitment.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitment.

 

“Synthetic Lease Obligation” means the monetary obligation of a Person as a lessee under (a) a so-called synthetic or tax retention lease, where such transaction is considered borrowed money indebtedness for tax purposes or bankruptcy purposes but is classified as an operating lease in accordance with GAAP or (b) a lease, funding agreement or other arrangement for the use or possession of real or personal property pursuant to which the lessor is treated as the owner of such property for accounting purposes and the lessee is treated as the owner of such property for federal income tax purposes and which creates obligations that do not appear as borrowed money indebtedness on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the borrowed money indebtedness of such Person (without regard to accounting treatment).

 

“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.

 

“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.

 

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

 

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

 

“Term A Commitment” means, as to each Term A Lender, its obligation to make Term A Loans to the Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term A Lender’s name on Schedule 2.01 under the caption “Term A Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term A Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

 

“Term A Facility” means, at any time, (a) on or prior to the Closing Date, the aggregate amount of the Term A Commitments at such time and (b) thereafter, the aggregate principal amount of the Term A Loans of all Term A Lenders outstanding at such time.

 

“Term A Lender” means (a) at any time on or prior to the Closing Date, any Lender that has a Term A Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Term A Loans at such time.

 

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“Term A Loan” means an advance made by any Term A Lender under the Term A Facility.

 

“Term Borrowing” means either a Term A Borrowing or an Incremental Term Borrowing.

 

“Term Facilities” means, at any time, the Term A Facility and each Incremental Term Facility.

 

“Term Increase Effective Date” has the meaning specified in Section 2.16(c).

 

“Term Lender” means, at any time, a Term A Lender or an Incremental Term Lender.

 

“Term Loan” means a Term A Loan and any Incremental Term Loan.

 

“Term Note” means a promissory note made by the Borrower in favor of a Term Lender evidencing a Term Loan made by such Lender, substantially in the form of Exhibit C-1.

 

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

 

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

 

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

 

“UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

 

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

 

“U.S. Borrower” means any Borrower that is a U.S. Person.

 

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 3.01(g).

 

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

 

“Wholly-Owned Subsidiary” means any Subsidiary of which more than 90% of the issued and outstanding Equity Securities are owned, directly or indirectly, by FIL.

 

“Yen” and “¥” mean the lawful currency of Japan.

 

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1.02                        Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

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

 

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

 

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

 

1.03                        Accounting Terms.

 

(a)                                 Generally.  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the audited Financial Statements dated as of March 31, 2013, except as otherwise specifically prescribed herein.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

 

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(b)                                 Changes in GAAP.  If at any time any change in GAAP would affect the computation of any financial ratio, requirement or other covenant set forth in any Loan Document, and either the Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such ratio, requirement or covenant to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio, requirement or covenant shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent and the Lenders financial statements and other documents as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio, requirement or covenant made before and after giving effect to such change in GAAP.  The foregoing notwithstanding, leases shall continue to be classified and accounted for on a basis consistent with that used in the audited Financial Statements dated as of March 31, 2013 for all purposes of this Agreement.

 

(c)                                  Consolidation of Variable Interest Entities.  All references herein to consolidated financial statements of the Company and its Subsidiaries (including, if required to be consolidated for GAAP purposes, Elementum) or to the determination of any amount for the Company and its Subsidiaries (including, if required to be consolidated for GAAP purposes, Elementum) on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Company is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary (including, if applicable, Elementum) as defined herein.

 

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

 

1.05                        Exchange Rates; Currency Equivalents.

 

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

 

(b)                                 Wherever in this Agreement in connection with a Committed Borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Committed Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the

 

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relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the L/C Issuer, as the case may be.

 

(c)                                  The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurocurrency Rate” or with respect to any comparable or successor rate thereto.

 

1.06                        Additional Alternative Currencies.

 

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

 

(b)                                 Any such request shall be made to the Administrative Agent not later than 8:00 a.m., 15 days prior to the date of the desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the L/C Issuer, in its or their sole discretion).  In the case of any such request pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Revolving Credit Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the L/C Issuer thereof.  Each Revolving Credit Lender (in the case of any such request pertaining to Eurocurrency Rate Loans) or the L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 8:00 a.m., 10 days after receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.

 

(c)                                  Any failure by a Revolving Credit Lender or the L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Revolving Credit Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such requested currency.  If the Administrative Agent and all the Revolving Credit Lenders consent to making Eurocurrency Rate Loans in such requested currency, the Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Revolving Credit Borrowings of Eurocurrency Rate Loans; and if the Administrative Agent and the L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.06, the

 

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Administrative Agent shall promptly so notify the Company.  Any specified currency of an Existing Letter of Credit that is neither Dollars nor one of the Alternative Currencies specifically listed in the definition of “Alternative Currency” shall be deemed an Alternative Currency with respect to such Existing Letter of Credit only.

 

1.07                        Change of Currency.

 

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

 

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

 

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

 

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

 

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

 

ARTICLE II.
 THE COMMITMENTS AND CREDIT EXTENSIONS

 

2.01                        The Loans.(a) The Term A Borrowing.  Subject to the terms and conditions set forth herein, each Term A Lender severally agrees to make a single loan to FIL on the Closing Date in an amount not to exceed the Term A Commitment of such Term A Lender.  The Term A Borrowing shall consist of Term A Loans made simultaneously by the Term A Lenders in

 

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accordance with their respective Applicable Percentage of the Term A Facility.  Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed.  Term A Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.  Each Term A Loan shall be denominated in Dollars.

 

(b)                                 The Revolving Credit Borrowings.  Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a “Revolving Credit Loan”) to the Borrowers in Dollars or in one or more Alternative Currencies from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided, however, that after giving effect to any Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Credit Commitment, (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, (iii) the aggregate Outstanding Amount of all Revolving Credit Loans made to the Designated Borrowers shall not exceed the Designated Borrower Sublimit, and (iv) the aggregate Outstanding Amount of all Revolving Credit Loans and Letters of Credit denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit.  Within the limits of each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01.  Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

 

2.02                        Borrowings, Conversions and Continuations of Loans.

 

(a)                                 Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Company’s irrevocable notice to the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Administrative Agent not later than (i) 10:00 a.m. (x) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Committed Loans, or (y) four Business Days (or five Business Days in the case of a Special Notice Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies, and (ii) 3:00 p.m. on the Business Day prior to the date of any Borrowing of Base Rate Loans which are Revolving Credit Loans.  Each telephonic notice by the Company pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Company.  Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 2.03(c) and 2.04(c), each Committed Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.  Each Committed Loan Notice (whether telephonic or written) shall specify (A) whether the Company is requesting a Committed Borrowing, a conversion of Committed

 

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Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (C) the principal amount of Committed Loans to be borrowed, converted or continued, (D) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, (E) if applicable, the duration of the Interest Period with respect thereto, (F) the currency of the Committed Loans to be borrowed, and (G) if applicable, the Designated Borrower.  If the Company fails to specify a currency in a Committed Loan Notice requesting a Borrowing, then the Committed Loans so requested shall be made in Dollars.  If the Company fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Company fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans or Revolving Credit Loans shall be made as, or converted to, Base Rate Loans; provided, however, that in the case of a failure to timely request a continuation of Committed Loans denominated in an Alternative Currency, such Loans shall be continued as Eurocurrency Rate Loans in their original currency with an Interest Period of one month.  Any automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans.  If the Company requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.  No Committed Loan may be converted into or continued as a Committed Loan denominated in a different currency, but instead must be prepaid in the original currency of such Committed Loan and reborrowed in the other currency.

 

(b)                                 Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount (and currency) of its Applicable Percentage under the applicable Facility of the applicable Term A Loans or Revolving Credit Loans, and if no timely notice of a conversion or continuation is provided by the Company, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans.  In the case of a Term A Borrowing, a Revolving Credit Borrowing or continuation of Committed Loans denominated in a currency other than Dollars, in each case as described in the preceding subsection.  In the case of a Committed Borrowing, each Appropriate Lender shall make the amount of its Committed Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office for the applicable currency not later than 10:00 a.m., in the case of any Committed Loan denominated in Dollars, and not later than the Applicable Time specified by the Administrative Agent in the case of any Committed Loan in an Alternative Currency, in each case on the Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the Company or the other applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Company or other applicable Borrower; provided, however, that if, on the date the Committed Loan Notice with respect to Revolving Credit Borrowing denominated in Dollars is given by the Company, there are L/C Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and, second, shall be made available to the applicable Borrower as provided above.

 

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(c)                                  Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan.  During the existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans (whether in Dollars or any Alternative Currency) without the consent of the Required Lenders, and the Required Lenders may demand that any or all of the then outstanding Eurocurrency Rate Loans denominated in an Alternative Currency be prepaid, or redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with respect thereto.

 

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

 

(e)                                  After giving effect to all Term A Borrowings, all conversions of Term A Loans from one Type to the other, and all continuations of Term A Loans as the same Type, there shall not be more than 3 Interest Periods in effect with respect to each Term Facility.  After giving effect to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall not be more than 10 Interest Periods in effect in respect of the Revolving Credit Facility.

 

2.03                        Letters of Credit.

 

(a)                           The Letter of Credit Commitment.

 

(i)                                     Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Company or any Designated Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Company or any Designated Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Credit Commitment, (x) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit, and (z) the aggregate Outstanding Amount of all Revolving Credit Loans and Letters of Credit denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit.  Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the

 

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Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company and Designated Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.  All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.

 

(ii)                                  The L/C Issuer shall not issue any Letter of Credit, if:

 

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

 

(B)                               the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Credit Lenders have approved such expiry date or (y) (1) the applicable L/C Issuer has approved such expiry date and (2) the expiry date of such Letter of Credit is not later than one year after the Letter of Credit Expiration Date; provided, however, that (x) in the case of a Letter of Credit with an expiry date after the Letter of Credit Expiration Date (an “Extended Letter of Credit”), the Company shall Cash Collateralize such Letter of Credit (in an amount equal to 105% of the maximum face amount of such Letter of Credit) in favor of the applicable L/C Issuer by a date that is no later than 30 days prior to the Letter of Credit Expiration Date and (y) on the Letter of Credit Expiration Date (1) all risk participations of the Revolving Credit Lenders in such Extended Letter of Credit and all obligations of the Administrative Agent with respect to such Extended Letter of Credit shall terminate (but, in either case, only with respect to drawings upon such Extended Letter of Credit occurring after the Maturity Date for the Revolving Credit Facility, it being understood that such participations and obligations relative to drawings upon such Extended Letter of Credit on or prior to such Maturity Date shall remain in full force and effect) and (2) fees on such Extended Letter of Credit shall cease to accrue pursuant to Section 2.03(i) and shall instead accrue as and to the extent separately agreed between the applicable L/C Issuer and the Company.  Notwithstanding any provision of Section 2.18 to the contrary, Cash Collateral required to be provided pursuant to this clause (B) shall be provided to and held by the applicable L/C Issuer for its own account to secure the applicable L/C Obligations pursuant to documentation and on terms satisfactory to the applicable L/C Issuer.

 

(iii)                               The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:

 

(A)                               any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Requirement of Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental

 

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Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;

 

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

 

(C)                               except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000 in the case of a commercial Letter of Credit or $500,000 in the case of a standby Letter of Credit;

 

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

 

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

 

(F)                                 any Revolving Credit Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral or reallocation of payments to the Defaulting Lender in accordance with Section 2.19(a)(ii), satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.19(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.

 

(iv)                              The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

 

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

 

(vi)                              The L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as

 

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used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

 

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

 

(i)                                     Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Company delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Company.  Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 8:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (I) the Letter of Credit to be amended; (II) the proposed date of amendment thereof (which shall be a Business Day); (III) the nature of the proposed amendment; and (IV) such other matters as the L/C Issuer may require.  Additionally, the Company shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.

 

(ii)                                  Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Company and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written notice from any Revolving Credit Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Company (or the applicable Designated Borrower) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Credit Lender’s Applicable Percentage times the amount of such Letter of Credit.

 

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(iii)         If the Company so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer, the Company shall not be required to make a specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Revolving Credit Lender or the Company that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.

 

(iv)          If the Company so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”).  Unless otherwise directed by the L/C Issuer, the Company shall not be required to make a specific request to the L/C Issuer to permit such reinstatement.  Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit.  Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”), the L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Revolving Lenders have elected not to permit such reinstatement or (B) from the Administrative Agent, any Lender or the Company that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit such reinstatement.

 

(v)           Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary

 

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thereof, the L/C Issuer will also deliver to the Company and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

 

(c)           Drawings and Reimbursements; Funding of Participations.

 

(i)            Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Company and the Administrative Agent thereof.  In the case of a Letter of Credit denominated in an Alternative Currency, the Company shall reimburse the L/C Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the Company shall have notified the L/C Issuer promptly following receipt of the notice of drawing that the Company will reimburse the L/C Issuer in Dollars.  In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the L/C Issuer shall notify the Company of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof.  Not later than 8:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor Date”), the Company shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency.  In the event that (A) a drawing denominated in an Alternative Currency is to be reimbursed in Dollars pursuant to the second sentence in this Section 2.03(c)(i) and (B) the Dollar amount paid by the Company, whether on or after the Honor Date, shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures a sum denominated in the Alternative Currency equal to the drawing, the Company agrees, as a separate and independent obligation, to indemnify the L/C Issuer for the loss resulting from its inability on that date to purchase the Alternative Currency in the full amount of the drawing.  If the Company fails to timely reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the amount of such Revolving Credit Lender’s Applicable Percentage thereof.  In such event, the Company shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Credit Commitment and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

(ii)           Each Revolving Credit Lender shall upon receipt of any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 10:00 a.m. on the Business

 

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Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Company in such amount.  The Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.

 

(iii)          With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Company shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.

 

(iv)          Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.

 

(v)           Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Company, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Company of a Committed Loan Notice).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Company to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

 

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

 

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the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

 

(d)           Repayment of Participations.

 

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

 

(ii)           If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(f)            Role of L/C Issuer.  Each Lender, the Company and each Designated Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Credit Lenders or the Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document.  The Company and each Designated Borrower hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Company’s (or any Designated Borrower’s) pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the Company or any applicable Designated Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Company or any applicable Designated Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Company or any applicable Designated Borrower which the Company or any applicable

 

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Designated Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

 

(g)           Cash Collateral.

 

(i)            Upon the request of the Administrative Agent, (A) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (B) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Company shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.

 

(ii)           In addition, if the Administrative Agent notifies the Company at any time that the Outstanding Amount of all L/C Obligations at such time exceeds 105% of the Letter of Credit Sublimit then in effect, then, within two Business Days after receipt of such notice, the Company shall Cash Collateralize the L/C Obligations in an amount equal to the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit.

 

(iii)          The Administrative Agent may, at any time and from time to time after the initial deposit of Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations.

 

(iv)          Sections 2.05, 2.18 2.19, 8.02 and 8.03 set forth certain additional requirements to deliver Cash Collateral hereunder.  For purposes of this Agreement, “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (A) the Administrative Agent and (B) the L/C Issuer or the Swing Line Lender, as applicable (which documents are hereby consented to by the Lenders). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

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(h)           Applicability of ISP and UCP; Limitation of Liability.  Unless otherwise expressly agreed by the L/C Issuer and the Company when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the Company for, and the L/C Issuer’s rights and remedies against the Company shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including any Requirements of Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

 

(i)            Letter of Credit Fees.  The Company shall pay to the Administrative Agent for the account of each Lender in accordance with, subject to adjustment as provided in Section 2.19, its Applicable Percentage, in Dollars, a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit; provided, however, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the L/C Issuer pursuant to this Section 2.03 shall be payable, to the maximum extent permitted by applicable Governmental Rule, to the other Revolving Credit Lenders in accordance with the upward adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.19(a)(iv), with the balance of such fee, if any, payable to the L/C Issuer for its own account.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09.  Letter of Credit Fees shall be (i) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears.  If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary contained herein, upon the request of the Required Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.

 

(j)            Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Company shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee (i) with respect to each commercial Letter of Credit, at the rate specified in the BofA Fee Letter, computed on the Dollar Equivalent of the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the Company and the L/C Issuer, computed on the Dollar Equivalent of the amount of such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit, at the rate per annum specified in the BofA Fee Letter, computed on the Dollar

 

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Equivalent of the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears.  Such standby Letter of Credit fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09.  In addition, the Company shall pay directly to the L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

 

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

 

2.04        Swing Line Loans.

 

(a)           The Swing Line.  Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans in Dollars (each such loan, a “Swing Line Loan”) to the Company from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Credit Commitment at such time, and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender at such time, plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such Lender’s Revolving Credit Commitment, and provided, further, that (y) the Company shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (z) the Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Company may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04.  Each Swing Line Loan shall be a Base Rate Loan or shall bear such other rate of interest specified in Section 2.08(a)(iii).  Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Revolving Credit Lender’s Applicable Percentage times the amount of such Swing Line Loan.

 

(b)           Borrowing Procedures.  Each Swing Line Borrowing shall be made upon the Company’s irrevocable notice to the Swing Line Lender and the Administrative Agent,

 

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which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 10:00 a.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $5,000,000, and (ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Company.  Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Credit Lender) prior to 11:00 a.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 12:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Company at its office by crediting the account of the Company on the books of the Swing Line Lender in Same Day Funds.

 

(c)           Refinancing of Swing Line Loans.

 

(i)            The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Base Rate Revolving Credit Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Credit Facility and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the Company with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.  Each Revolving Credit Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in Same Day Funds for the account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 10:00 a.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Revolving Credit Loan to the Company in such amount.  The Administrative Agent shall remit the funds so received to the Swing Line Lender.

 

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

 

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

 

(iv)          Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Company or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02.  No such funding of risk participations shall relieve or otherwise impair the obligation of the Company to repay Swing Line Loans, together with interest as provided herein.

 

(d)           Repayment of Participations.

 

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

 

(ii)           If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit Lender shall pay

 

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to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate.  The Administrative Agent will make such demand upon the request of the Swing Line Lender.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

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

 

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

 

2.05                        Prepayments.

 

(a)                                 (i) Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Term Loans and Revolving Credit Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Administrative Agent not later than 8:00 a.m. (1) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (2) four Business Days (or five, in the case of prepayment of Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies, and (3) on the date of prepayment of Base Rate Committed Loans; (B) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; (C) any prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies shall be in a minimum principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (D) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify each affected Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility) of such prepayment.  If such notice is given by the Company, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.  Each such prepayment of an outstanding Term Facility pursuant to this Section 2.05(a) shall, subject to Section 2.19, be applied to the principal repayment installments thereof on a pro rata basis, and each such prepayment shall be paid to the

 

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Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities.

 

(ii)                                  Notwithstanding anything in any Loan Document to the contrary, so long as (w) no Default or Event of Default has occurred and is continuing, (x) FIL shall deliver to the Administrative Agent a certificate stating that (1) no Default or Event of Default has occurred and is continuing or would result from the proposed prepayment described below and (2) each of the conditions set forth in this Section has been satisfied, (y) none of the Borrowers or any other Loan Party has any material non-public information with respect to FIL and its Subsidiaries or the securities of any of them that has not been disclosed to the Lenders generally (other than Lenders who elect not to receive such information) and (z) no proceeds of Revolving Credit Loans or Swing Line Loans are used for this purpose, FIL may prepay any portion of the outstanding Term Loans (and immediately and permanently cancel them) on the following basis:

 

(B)                                    FIL shall have the right to make a voluntary prepayment of Term Loans at a discount to par pursuant to Discount Range Prepayment Offers or Solicited Discounted Prepayment Offers (any such prepayment, the “Discounted Loan Prepayment”), in each case made in accordance with this Section 2.05(a)(ii); provided that FIL shall not initiate any action under this Section 2.05(a)(ii) in order to make a Discounted Loan Prepayment of Loans in any tranche of Term Loans unless (I) at least ten (10) Business Days shall have passed since the consummation of the most recent Discounted Loan Prepayment of any Term Loan in such tranche as a result of a prepayment made by FIL on the applicable Discounted Prepayment Effective Date; or (II) at least three (3) Business Days shall have passed since the date FIL was notified that no Lender was willing to accept any prepayment of any Term Loan in such tranche pursuant to a Discount Range Prepayment Notice or in the case of Solicited Discounted Prepayment Offers, the date of FIL’s election not to accept any Solicited Discounted Prepayment Offers relating to a Solicited Discount Prepayment Notice.

 

(C)                                    (1) Subject to the proviso to subsection (A) above, FIL may from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with five (5) Business Days’ notice in the form of a Discount Range Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of FIL, to (x) each Term Lender and/or (y) each Term Lender with respect to any Term Loans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate principal amount of the relevant Loans (the “Discount Range Prepayment Amount”), the tranche or tranches of Term Loans subject to such offer and the maximum and minimum percentage discounts to par (the “Discount Range”) of the principal amount of such Loans with respect to each relevant tranche of Term Loans willing to be prepaid by FIL (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with respect to different tranches of Term Loans and, in such event, each such offer will be treated as separate offer pursuant to the terms of this Section), (III) the Discount Range

 

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Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation shall remain outstanding through the Discount Range Prepayment Response Date.  The Auction Agent will promptly provide each applicable Term Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the third Business Day after the date of delivery of such notice to such Lenders (the “Discount Range Prepayment Response Date”).  Each Term Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par within the Discount Range (the “Submitted Discount”) at which such Term Lender is willing to allow prepayment of any or all of its then outstanding Loans of the applicable tranche or tranches and the maximum aggregate principal amount and tranches of such Term Lender’s Loans (the “Submitted Amount”) such Lender is willing to have prepaid at the Submitted Discount.  Any Term Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Loan Prepayment of any of its Loans at any discount to their par value within the Discount Range.

 

(2)                                 The Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine (in consultation with FIL and subject to rounding requirements of the Auction Agent made in its reasonable discretion) the Applicable Discount and Loans to be prepaid at such Applicable Discount in accordance with this subsection (B).  FIL agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by Auction Agent by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as the “Applicable Discount”) which yields a Discounted Loan Prepayment in an aggregate principal amount equal to the lower of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts.  Each Term Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Loans equal to its Submitted Amount (subject to any required proration pursuant to the following subsection (3)) at the Applicable Discount (each such Lender, a “Participating Lender”).

 

(3)                                 If there is at least one Participating Lender, FIL will prepay the respective outstanding Term Loans of each Participating Lender in the aggregate principal amount and of the tranches specified in such Term Lender’s Discount Range Prepayment Offer at the Applicable Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount to par greater

 

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than or equal to the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the principal amount of the relevant Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the “Identified Participating Lenders”) shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Auction Agent (in consultation with FIL and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “Discount Range Proration”).  The Auction Agent shall promptly, and in any case within five (5) Business Days following the Discount Range Prepayment Response Date, notify (I) FIL of the respective Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount of the Discounted Loan Prepayment and the tranches to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount and tranches of Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender of the aggregate principal amount and tranches of such Lender to be prepaid at the Applicable Discount on such date, and (IV) if applicable, each Identified Participating Lender of the Discount Range Proration.  Each determination by the Auction Agent of the amounts stated in the foregoing notices to FIL and Term Lenders shall be conclusive and binding for all purposes absent manifest error.  The payment amount specified in such notice to FIL shall be due and payable by FIL on the Discounted Prepayment Effective Date in accordance with subsection (E) below (subject to subsection (I) below).

 

(D)                                    (1) Subject to the proviso to subsection (A) above, FIL may from time to time solicit Solicited Discounted Prepayment Offers by providing the Auction Agent with five (5) Business Days’ notice in the form of a Solicited Discounted Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of FIL, to (x) each Term Lender and/or (y) each Term Lender with respect to Term Loans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate amount of the Loans (the “Solicited Discounted Prepayment Amount”) and the tranche or tranches of Term Loans the Borrower is willing to prepay at a discount (it being understood that different Solicited Discounted Prepayment Amounts may be offered with respect to different tranches of Term Loans and, in such event, each such offer will be treated as separate offer pursuant to the terms of this Section), (III) the Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by the Borrower shall remain outstanding through the Solicited Discounted Prepayment Response Date.  The Auction Agent will promptly provide each Appropriate Lender with a copy of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time on the third Business Day after the date of delivery of such notice to such Term Lenders (the “Solicited Discounted Prepayment Response Date”).  Each Term Lender’s Solicited Discounted

 

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Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date, and (z) specify both a discount to par (the “Offered Discount”) at which such Term Lender is willing to allow prepayment of its then outstanding Term Loans and the maximum aggregate principal amount and tranches of such Term Loans (the “Offered Amount”) such Term Lender is willing to have prepaid at the Offered Discount.  Any Term Lender whose Solicited Discounted Prepayment Offer is not received by the Auction Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Term Loans at any discount.

 

(2) The Auction Agent shall promptly provide FIL with a copy of all Solicited Discounted Prepayment Offers received on or before the Solicited Discounted Prepayment Response Date.  FIL shall review all such Solicited Discounted Prepayment Offers and select the smallest of the Offered Discounts specified by the relevant responding Lenders in the Solicited Discounted Prepayment Offers that is acceptable to FIL (the “Acceptable Discount”), if any.  If FIL elects to accept any Offered Discount as the Acceptable Discount, then as soon as practicable after the determination of the Acceptable Discount, but in no event later than by the third Business Day after the date of receipt by FIL from the Auction Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this subsection (2) (the “Acceptance Date”), FIL shall submit an Acceptance and

 

Prepayment Notice to the Auction Agent setting forth the Acceptable Discount.  If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice from FIL by the Acceptance Date, FIL shall be deemed to have rejected all Solicited Discounted Prepayment Offers.

 

(3) Based upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, within three (3) Business Days after receipt of an Acceptance and Prepayment Notice (the “Discounted Prepayment Determination Date”), the Auction Agent will determine (in consultation with FIL and subject to rounding requirements of the Auction Agent made in its reasonable discretion) the aggregate principal amount and the tranches of  Term  Loans (the “Acceptable Prepayment Amount”) to be prepaid by FIL at the Acceptable Discount in accordance with this Section 2.05(a)(ii)(C).  If FIL elects to accept any Acceptable Discount, then FIL agrees to accept all Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount.  Each Term Lender that has submitted a Solicited Discounted Prepayment Offer with an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Loans equal to its Offered Amount (subject to any required prorate reduction pursuant to the following sentence) at the Acceptable Discount (each such Lender, a “Qualifying Lender”).  FIL will prepay outstanding Loans pursuant to this subsection (C) to

 

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each Qualifying Lender in the aggregate principal amount and of the tranches specified in such Lender’s Solicited Discounted Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount, prepayment of the principal amount of the Term Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount (the “Identified Qualifying Lenders”) shall be made pro rata among the Identified Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Auction Agent (in consultation with FIL and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “Solicited Discount Proration”).  On or prior to the Discounted Prepayment Determination Date, the Auction Agent shall promptly notify (I) FIL of the Discounted Prepayment Effective Date and Acceptable Prepayment Amount comprising the Discounted Loan Prepayment and the tranches to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of all Loans and the tranches to be prepaid to be prepaid at the Applicable Discount on such date, (III) each Qualifying Lender of the aggregate principal amount and the tranches of such Lender to be prepaid at the Acceptable Discount on such date, and (IV) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration.  Each determination by the Auction Agent of the amounts stated in the foregoing notices to FIL and Lenders shall be conclusive and binding for all purposes absent manifest error.  The payment amount specified in such notice to FIL shall be due and payable by FIL on the Discounted Prepayment Effective Date in accordance with subsection (E) below (subject to subsection (I) below).

 

(E)                                     In connection with any Discounted Loan Prepayment, FIL and the Lenders acknowledge and agree that the Auction Agent may require the payment of customary and reasonable fees and expenses from FIL in connection therewith.

 

(F)                                      If any Loan is prepaid in accordance with paragraphs (B) through (C) above, FIL shall prepay such Loans on the Discounted Prepayment Effective Date.  FIL shall make such prepayment to the Administrative Agent, for the account of the Participating Lenders or Qualifying Lenders, as applicable, at the Administrative Agent’s Office in immediately available funds not later than 11:00 a.m. (New York time) on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the remaining principal installments of the relevant Term Loans on a pro-rata basis across such installments.  The Term Loans so prepaid shall be accompanied by all accrued and unpaid interest on the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date.  Each prepayment of the outstanding Term Loans pursuant to this Section 2.05(a)(ii) shall be paid to the Participating Lenders or Qualifying Lenders, as applicable, and shall be applied to the relevant Term Loans of such Lenders in accordance with their respective pro rata share.  The

 

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aggregate principal amount of the tranches and installments of the relevant Term Loans outstanding shall be deemed reduced by the full par value of the aggregate principal amount of the tranches of Term Loans prepaid on the Discounted Prepayment Effective Date in any Discounted Loan Prepayment.

 

(G)                                    To the extent not expressly provided for herein, each Discounted Loan Prepayment shall be consummated pursuant to procedures consistent with the provisions in this Section 2.05(a)(ii), established by the Auction Agent acting in its reasonable discretion and as reasonably agreed by the Borrower.

 

(H)                                   Notwithstanding anything in any Loan Document to the contrary, for purposes of this Section 2.05(a)(ii), each notice or other communication required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.

 

(I)                                        FIL and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this Section 2.05(a)(ii) by itself or through any Affiliate of the Auction Agent and expressly consents to any such delegation of duties by the Auction Agent to such Affiliate and the performance of such delegated duties by such Affiliate.  The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any Discounted Loan Prepayment provided for in this Section 2.05(a)(ii) as well as activities of the Auction Agent.

 

(J)                                        FIL shall have the right, by written notice to the Auction Agent, to revoke in full (but not in part) its offer to make a Discounted Loan Prepayment and rescind the applicable Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior to the applicable Discount Range Prepayment Response Date or Solicited Discounted Prepayment Response Date (and if such offer is revoked pursuant to the preceding clauses, any failure by FIL to make any prepayment to a Lender, as applicable, pursuant to this Section 2.05(a)(ii) shall not constitute a Default or Event of Default).

 

(b)                                 The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 10:00 a.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Company, the

 

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Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

 

(c)                                  If the Administrative Agent notifies the Company at any time that the Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that, subject to the provisions of Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect.  The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.

 

(d)                                 If the Administrative Agent notifies the Company at any time that the Outstanding Amount of all Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Loans in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.  The Administrative Agent shall make a determination of whether an excess of the kind described in Section 2.05(c) and/or Section 2.05(d) exists from time to time at its discretion, but shall in any event make such determination as of the last Business Day of each calendar quarter.

 

2.06                        Termination or Reduction of Commitments. The Company may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Credit Commitment or from time to time permanently reduce the Aggregate Revolving Credit Commitment; provided that (a) any such notice shall be received by the Administrative Agent not later than 8:00 a.m. five Business Days prior to the date of termination or reduction, (b) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (c) the Company shall not terminate or reduce the Aggregate Revolving Credit Commitment if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings would exceed the Aggregate Revolving Credit Commitment and (d) if, after giving effect to any reduction of the Aggregate Revolving Credit Commitment, the Alternative Currency Sublimit, the Letter of Credit Sublimit, the Designated Borrower Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving Credit Commitment, such Sublimit shall be automatically reduced by the amount of such excess.  The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Revolving Credit Commitment.  Except as specified in clause (d) of the second preceding sentence, the amount of any such Aggregate Revolving Credit Commitment reduction shall not be applied to the Alternative Currency Sublimit or the Letter of Credit Sublimit unless otherwise specified by the Company. Any reduction of the Aggregate Revolving Credit Commitment shall be applied to the Aggregate Revolving Credit Commitment of each Lender according to its Applicable Percentage.  All fees accrued until the effective date of any

 

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termination of the Aggregate Revolving Credit Commitment shall be paid on the effective date of such termination.

 

2.07                        Repayment of Loans.

 

(a)                                 FIL shall repay to the Term A Lenders the aggregate principal amount of all Term A Loans outstanding on the following dates in the respective amounts set forth opposite such dates (which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05(a)(i)):

 

	
Date
    	
 
    	
Amount
    	
 
    
	
June 30, 2014
    	
 
    	
$
    	
6,250,000
    	
 
    
	
September 30,   2014
    	
 
    	
$
    	
6,250,000
    	
 
    
	
December 31, 2014
    	
 
    	
$
    	
6,250,000
    	
 
    
	
March 31, 2015
    	
 
    	
$
    	
6,250,000
    	
 
    
	
June 30, 2015
    	
 
    	
$
    	
6,250,000
    	
 
    
	
September 30,   2015
    	
 
    	
$
    	
6,250,000
    	
 
    
	
December 31, 2015
    	
 
    	
$
    	
6,250,000
    	
 
    
	
March 31, 2016
    	
 
    	
$
    	
6,250,000
    	
 
    
	
June 30, 2016
    	
 
    	
$
    	
9,375,000
    	
 
    
	
September 30,   2016
    	
 
    	
$
    	
9,375,000
    	
 
    
	
December 31, 2016
    	
 
    	
$
    	
9,375,000
    	
 
    
	
March 31, 2017
    	
 
    	
$
    	
9,375,000
    	
 
    
	
June 30, 2017
    	
 
    	
$
    	
9,375,000
    	
 
    
	
September 30,   2017
    	
 
    	
$
    	
9,375,000
    	
 
    
	
December 31, 2017
    	
 
    	
$
    	
9,375,000
    	
 
    
	
March 31, 2018
    	
 
    	
$
    	
9,375,000
    	
 
    
	
June 30, 2018
    	
 
    	
$
    	
9,375,000
    	
 
    
	
September 30,   2018
    	
 
    	
$
    	
9,375,000
    	
 
    
	
December 31, 2018
    	
 
    	
$
    	
9,375,000
    	
 
    


 

provided, however, that the final principal repayment installment of the Term A Loans shall be repaid on the Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of all Term A Loans outstanding on such date.

 

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

 

(c)                                  FIL shall repay each Swing Line Loan on the earlier to occur of (i) the date 10 Business Days after such Loan is made and (ii) the Maturity Date.

 

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(d)                                 FIL shall repay to the Lenders making any Incremental Term Loans the aggregate principal amount thereof on the dates agreed pursuant to Section 2.16 or Section 2.17, as applicable.

 

2.08                        Interest.

 

(a)                                 Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate for such Facility; (ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for such Facility; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to (A) the rate agreed by the Swing Line Lender and the Company in respect of such borrowing (and notified to the Administrative Agent by the Swing Line Lender) or (B) if no such rate has been so agreed, at the Base Rate plus the Applicable Rate for the Revolving Credit Facility.

 

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

 

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

 

(iii)                               Upon the request of the Required Lenders, while any Event of Default exists (other than as set forth in clauses (b)(i) and (b)(ii) above), the Borrowers shall pay interest on the principal amount of any Loans then outstanding and all other outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Requirements of Law.

 

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

 

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

 

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

 

(a)                                 Commitment Fee.  The Company shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Applicable Percentage, a commitment fee in Dollars equal to the Applicable Rate times the actual daily amount by which the Aggregate Revolving Credit Commitment exceeds the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.19.  The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period.  The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.

 

(b)                                 Other Fees.

 

(i)                                     The Company shall pay to the Arrangers and the Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and at the times specified in the Fee Letters.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

(ii)                                  The Company shall pay to the Lenders, in Dollars, such fees as shall have been separately agreed upon in writing (if any) in the amounts and at the times so specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

2.10                        Computation of Interest and Fees. All computations of interest for Base Rate Loans (other than Base Rate Loans determined by reference to the Eurocurrency Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year), or, in the case of interest in respect of Committed Loans denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice.  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. With respect to all Non-LIBOR Quoted Currencies, the calculation of the applicable interest rate shall be determined in accordance with market practice.

 

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2.11                        Evidence of Debt.

 

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

 

(b)                                 In addition to the accounts and records referred to in subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans.  In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

 

2.12                        Payments Generally; Administrative Agent’s Clawback.

 

(a)                                 General.  All payments to be made by the Borrowers shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in an Alternative Currency, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 11:00 a.m. on the date specified herein.  Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal and interest on Loans denominated in an Alternative Currency shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in such Alternative Currency and in Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the dates specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States.  If, for any reason, any Borrower is prohibited by any Requirement of Law from making any required payment hereunder in an Alternative Currency, such Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount.  The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s

 

66











 

Lending Office.  All payments received by the Administrative Agent (i) after 11:00 a.m., in the case of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

 

(b)                                 (i)  Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of Eurocurrency Rate Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by such Borrower, the interest rate applicable to Base Rate Loans (which payment, for the avoidance of doubt, shall be in lieu of any other interest (other than interest at the Default Rate, if applicable) relating to such portion of the relevant Committed Borrowing).  If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period.  If such Lender pays its share of the applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Committed Loan included in such Committed Borrowing.  Any payment by such Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

 

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

 

67











 

including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.  A notice of the Administrative Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

 

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

 

(d)                                 Obligations of Lenders Several.  The obligations of the Lenders hereunder to make Term Loans and Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan, to purchase its participation or to make its payment under Section 10.04(c).

 

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

 

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

 

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

 

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

 

(ii)                                  the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender or a prepayment in accordance with Section 2.05(a)(ii)), (y) the application of Cash Collateral provided for in Section 2.18, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than to the Company or any Subsidiary thereof in a transaction not in compliance with Section 2.05(a)(ii) (as to which the provisions of this Section 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 setoff 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.

 

2.14                        Designated Borrowers.

 

(a)                                 Effective as of the date hereof each of the Subsidiaries identified on Schedule 2.14 shall be a “Designated Borrower” hereunder and may receive Revolving Credit Loans for its account on the terms and conditions set forth in this Agreement.

 

(b)                                 The Company may at any time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), nominate any additional Wholly-Owned Subsidiary of the Company (an “Applicant Borrower”) as a Designated Borrower to receive Revolving Credit Loans and obtain Letters of Credit for its account hereunder by delivering to the Administrative Agent (which shall promptly deliver counterparts thereof to each Revolving Credit Lender) a duly executed notice and agreement in substantially the form of Exhibit H (a “Designated Borrower Request and Assumption Agreement”).  The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming entitled to utilize the credit facilities provided for herein the Administrative Agent and the Revolving Credit Lenders shall have received such supporting resolutions, incumbency certificates, opinions of counsel and other documents or information, in form, content and scope reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent or any Revolving Credit Lender in their sole discretion, and Notes signed by such new Borrowers to the extent any Revolving Credit Lenders so require.  Following the giving of any notice pursuant to this Section 2.14(b), if the designation of such Designated Borrower obligates the Administrative Agent or any Revolving Credit Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the request of the Administrative Agent or any Revolving Credit

 

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Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Revolving Credit Lender in order for the Administrative Agent or such Revolving Credit Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations.  If the Administrative Agent and each of the Revolving Credit Lenders agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following receipt of all such requested resolutions, incumbency certificates, opinions of counsel and other documents or information, the Administrative Agent shall send a notice in substantially the form of Exhibit I (a “Designated Borrower Notice”) to the Company and the Revolving Credit Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such Designated Borrower to receive Revolving Credit Loans and obtain Letters of Credit for its account hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no Committed Loan Notice or Letter of Credit Application may be submitted by or on behalf of such Designated Borrower until the date five Business Days after such effective date.

 

(c)                                  The Obligations under this Agreement of all Designated Borrowers that are Domestic Subsidiaries shall be joint and several in nature.  The Obligations under this Agreement of all Designated Borrowers that are Foreign Subsidiaries shall be several in nature.

 

(d)                                 Each Subsidiary of the Company that is or becomes a “Designated Borrower” pursuant to this Section 2.14 hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of notices, (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, and (iii) except as otherwise requested by a Designated Borrower in the applicable Committed Loan Notice, the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower hereunder.  Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein.  Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the Company in accordance with the terms of this Agreement shall be deemed to have been delivered to each Designated Borrower.

 

(e)                                  The Company may from time to time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), terminate a Designated Borrower’s status as such, provided that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by such Designated Borrower on account of any Loans made to it, as of the effective date of such termination. The Administrative Agent will promptly notify the Lenders of any such termination of a Designated Borrower’s status.

 

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2.15                        Increase in Revolving Credit Facility.

 

(a)                                 Request for Increase.  Provided there exists no Default, upon notice to the Administrative Agent, the Company may from time to time request an increase in the Aggregate Revolving Credit Commitment by an amount (for all such requests) not exceeding the Maximum Increase Amount; provided that (i) any such request for an increase shall be in a minimum amount of $25,000,000, and (ii) the Company may make a maximum of five such requests.

 

(b)                                 Proposed Lenders.  Any proposed increase in the Aggregate Revolving Credit Commitment may be requested from existing Lenders, new prospective lenders who are Eligible Assignees (and who are approved by the Administrative Agent, the L/C Issuer and the Swing Line Lender, which approvals shall not be unreasonably withheld or delayed), or a combination thereof, as selected by, and with such allocations of committed amounts as may be determined by, the lead arranger(s) thereof and/or the Company, provided that any incremental Revolving Credit Commitment provided by an Eligible Assignee shall be in a principal amount of $5,000,000 or an integral multiple of $500,000 in excess thereof. Any Lender approached to provide all or a portion of the incremental Revolving Credit Commitment may elect or decline, in its sole discretion, to provide an incremental Revolving Credit Commitment.

 

(c)                                  Effective Date and Allocations.  If the Aggregate Revolving Credit Commitment is increased in accordance with this Section, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such increase and the Increase Effective Date.  As of the Increase Effective Date, the Credit Agreement shall be amended to reflect the incremental Revolving Credit Commitments of the Lenders or other Persons providing such incremental Revolving Credit Commitments and the joinder to the Credit Agreement of any Eligible Assignees providing such incremental Revolving Credit Commitments.  Such amendment shall be executed and delivered by the Administrative Agent, the Loan Parties and each Lender and Eligible Assignee providing such incremental Revolving Credit Commitments without the consent of any other party.  Such amendment shall be in form and substance reasonably satisfactory to the Administrative Agent.

 

(d)                                 Conditions to Effectiveness of Increase.  As a condition precedent to such increase, the Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) in the case of the Company, certifying that, before and after giving effect to such increase, (A) the representations and warranties (1) of the Borrowers contained in Article V and (2) of each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, are (x) in the case of representations and warranties that are qualified as to materiality, true and correct, and (y) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the date of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that the representations and warranties contained in Section 5.09 shall

 

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be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01, and (B) no Default exists.  The Borrowers shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.

 

(e)                                  Conflicting Provisions.  This Section shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

 

2.16                        Increase in Term A Facility.

 

(a)                                 Request for Increase.  Provided there exists no Default, upon notice to the Administrative Agent, the Company may from time to time, request an increase in the Term A Loans by an amount (for all such requests) not exceeding the Maximum Increase Amount; provided that any such request for an increase shall be in a minimum amount of $25,000,000.

 

(b)                                 Proposed Lenders.  Any proposed increase in the Term A Loans may be requested from existing Lenders, new prospective lenders who are Eligible Assignees (and who are approved by the Administrative Agent, which approval shall not be unreasonably withheld or delayed) or a combination thereof, as selected by, and with such allocations of committed amounts as may be determined by, the lead arranger(s) thereof and/or the Company, provided that any incremental Term A Loans made by an Eligible Assignee shall be in a principal amount of $1,000,000 or an integral multiple of $500,000 in excess thereof. Any Lender approached to provide all or a portion of the incremental Term A Loans may elect or decline, in its sole discretion, to provide an incremental Term A Loan.

 

(c)                                  Effective Date and Allocations.  If the Term A Loans are increased in accordance with this Section, the Administrative Agent shall promptly notify the Company and the Lenders of the amount and effective date  (the “Term Increase Effective Date”) of such increase.  As of the Term Increase Effective Date, the Credit Agreement shall be amended to (i) reflect the incremental Term A Loans being made on the Term Increase Effective Date and the joinder to the Credit Agreement of any Eligible Assignees making any such incremental Term A Loans and (ii) increase each then-remaining unpaid installment of principal of the Term A Loans payable pursuant to Section 2.07(a)  prior to the Maturity Date by an amount such that (A) the increase for each such installment equals the product of (x) the percentage of the initial principal amount of the existing Term A Loans payable on each such installment date multiplied by (y) the aggregate amount of such incremental Term A Loans and (B) the aggregate principal payments payable pursuant to Section 2.07(a) (including the proviso thereto) are increased by the aggregate amount of the incremental Term A Loans being made on the Term Increase Effective Date.  Such amendment shall be executed and delivered by the Administrative Agent, the Loan Parties and each Lender and Eligible Assignee making any such incremental Term A Loan without the consent of any other party.  Such amendment shall be in form and substance reasonably satisfactory to the Administrative Agent.  On the Term Increase Effective Date, each incremental Term A Loan made on such date shall be deemed a Term A Loan for all purposes hereof (including without limitation for purposes of the payment and amortization requirements of Section 2.07(a)) and the holder thereof shall be deemed a Term A Lender for all purposes hereof.

 

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(d)                                 Conditions to Effectiveness of Increase. Notwithstanding the foregoing, no increase to the Term A Facility shall become effective under this Section 2.16 unless (i) on the date of such effectiveness, the conditions set forth in Sections 4.02(a) and 4.02(b) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Company, (ii) after giving effect to such increase, (A) the Company would be in compliance, on a pro forma basis, with the covenants set forth in Section 7.12 and (B) no Default has occurred and is continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated the Term Increase Effective Date and executed by a Responsible Officer of the Company, (iii) all reasonable fees and expenses owing to the Administrative Agent and the Term Lenders shall have been paid, (iv) an amendment to this Agreement consistent with Section 2.16(c) and reasonably satisfactory to the Administrative Agent in form and substance shall have been executed and delivered by the applicable parties and (v) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and substantially consistent with those delivered on the Closing Date under Section 4.01.

 

(e)                                  Conflicting Provisions.  This Section shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

 

2.17                        New Term Facilities.

 

(a)                                 Request for New Term Facility.  Provided there exists no Default, upon notice to the Administrative Agent, the Company may from time to time on or after the Closing Date request a new tranche or tranches of term loans (“New Term Loans”) in an aggregate amount (for all such requests) not exceeding the Maximum Increase Amount; provided that (i) any such request for New Term Loans shall be in a minimum amount of $25,000,000, (ii) the maturity date and weighted average life to maturity (as of the effective date of the New Term Loans) of such New Term Loans shall be no earlier than, or shorter than, as the case may be, the latest Maturity Date and weighted average life to maturity (as of the effective date of the New Term Loans), as the case may be, of the Term Facility, (iii) the interest rate margins applicable to the New Term Loans shall be determined by the Company and the lenders thereof, provided that in the event the interest rate margins (other than as a result of the imposition of default interest) for any New Term Loan are higher than the interest rate margins for the Term A Loans by more than 0.50%, then the interest rate margins for the Term A Loans shall be increased to the extent necessary so that such interest rate margins shall be equal to the interest rate margins for such New Term Loans, minus 0.50%; provided further that, in determining the interest rate margins applicable to the New Term Loans and the Term A Loans (A) original issue discount or upfront fees (which shall be deemed to constitute like amounts of original issue discount) payable or paid, as the case may be, by any Loan Party to the lenders of Term A Loans or New Term Loans, as the case may be, in the initial primary syndication thereof shall be included (with original issue discount being equated to interest based on assumed 4-year life to maturity), (B) customary arrangement, structuring, underwriting or commitment fees (or similar fee, however denominated) payable or paid, as the case may be, to any of the Arrangers (or their affiliates) in connection with Term A Loans or New Term Loans, as the case may be, or to one or more arrangers (or their affiliates) thereof shall be excluded and (C) if there is a eurodollar rate floor or base rate floor applicable to the New Term Loans that is greater than such floor applicable to the

 

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Term A Loans, such increased amount at the time of such determination shall be equated to an increase in the interest rate margin for purposes of determining whether the interest rate margins for any New Term Loans are higher than the applicable interest rate margins for the Term A Loans, (iv) such New Term Loans rank pari passu in right of payment and security with the Term A Loans and the Revolving Credit Facility, (v) such New Term Loans share ratably in any prepayment with the Term A Loans, and (vi) such New Term Loans are on the same terms and conditions as those set forth in this Agreement, except as set forth in clause (ii) or (iii) above or to the extent reasonably satisfactory to the Administrative Agent.

 

(b)                                 Proposed Lenders.  Any proposed New Term Loans may be requested from existing Lenders, new prospective lenders who are Eligible Assignees or a combination thereof, as selected by, and with such allocations of committed amounts as may be determined by, the lead arranger(s) thereof and/or the Company, provided that any New Term Loans made by an Eligible Assignee shall be in a principal amount of $1,000,000 or an integral multiple of $500,000 in excess thereof. Any Lender approached to provide all or a portion of the New Term Loans may elect or decline, in its sole discretion, to provide New Term Loans.

 

(c)                                  Notification by Administrative Agent; Amendments.  The Administrative Agent shall promptly notify the Company and the Lenders of the amount and effective date (the “New Term Loans Funding Date”) of any New Term Loan. Notwithstanding anything in this Agreement to the contrary, in connection with any New Term Loan, this Agreement and the other Loan Documents may be amended in a writing executed and delivered by the Company and the Administrative Agent (without any further consent of Required Revolving Lenders or Required Term A Lenders that would otherwise be required under Section 10.01) to reflect any changes (including, without limitation, changes to Section 10.01 and the definitions related thereto) necessary to give effect to such New Term Loan in accordance with its terms as set forth herein, which may include the addition of such New Term Loans as a separate facility, permit sharing set forth in Section 2.13 in a manner consistent with the treatment hereunder of the Term A Facility, and to otherwise (subject to the proviso to Section 2.17(a)) treat such New Term Loans in a manner consistent with the Term A Loans.

 

(d)                                 Conditions to Effectiveness of New Advances.  Notwithstanding the foregoing, no New Term Loans shall be made hereunder unless (i) on the New Term Loans Funding Date, the conditions set forth in Sections 4.02(a) and 4.02(b) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Company, (ii) after giving effect to the borrowing of such New Term Loans, (A) the Company would be in compliance, on a pro forma basis, with the covenants set forth in Section 7.12 and (B) no Default has occurred and is continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated the New Term Loans Funding Date and executed by a Responsible Officer of the Company, (iii) all reasonable fees and expenses owing to the Administrative Agent and the lenders providing the New Term Loans shall have been paid and (iv) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and substantially consistent with those delivered on the Closing Date under Section 4.01.

 

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(e)                              Conflicting Provisions.  This Section shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

 

2.18                        Cash Collateral.

 

(a)                                 Certain Credit Support Events.  At any time that there shall exist a Defaulting Lender, immediately upon the request of the Administrative Agent, the L/C Issuer or the Swing Line Lender, the applicable Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.19(a)(iv) and any Cash Collateral provided by the Defaulting Lender).

 

(b)                                 Grant of Security Interest.  All Cash Collateral (other than credit support not constituting funds subject to deposit) provided pursuant to Section 2.18(a) or any other section of this Agreement shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America.  The applicable Borrower, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.18(c).  If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the applicable Borrower or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.

 

(c)                                  Application.  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any provision hereof in respect of Letters of Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

 

(d)                                 Release.  Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 10.06(b)(vi))) or (ii) the Administrative Agent’s good faith determination that there exists excess Cash Collateral; provided, however, (x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.18 may be otherwise applied in accordance with Section 8.03), and (y) the Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable,

 

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may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

 

2.19                        Defaulting Lenders.  (a)           Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Governmental Rule:

 

(i)                                     Waivers and Amendments.  That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definitions of “Required Lenders” and “Required Revolving Lenders” and Section 10.01.

 

(ii)                                  Reallocation of Payments.  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 10.08), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or requested by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or Letter of Credit; fourth, as the Company may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Company, to be held in a non-interest bearing deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.18; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (B) such Loans or L/C Borrowings were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to

 

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being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.19(a)(iv).  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.19(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

 

(iii)                               Certain Fees.  (A) That Defaulting Lender shall not be entitled to receive any commitment fee pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) for any period during which that Lender is a Defaulting Lender, (B) that Defaulting Lender shall be limited in its right to receive Letter of Credit Fees as provided in Section 2.03(i), and (C) with respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Company shall (x) pay to each non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swing Line Loans that has been reallocated to such non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the L/C Issuer and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.

 

(iv)                              Reallocation of Applicable Percentages to Reduce Fronting Exposure.  During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03 and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided, that, (A) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, the conditions set forth in Section 4.02 (a) and (b) are satisfied (and, unless the Company shall have otherwise notified the Administrative Agent at such time, the Company shall be deemed to have represented and warranted that such conditions are satisfied at such time); and (B) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1) the Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the Committed Loans of that Lender.

 

(v)                                 Cash Collateral, Repayment of Swing Line Loans.  If the reallocation described above cannot, or can only partially, be effected, the Company shall, without prejudice to any right or remedy available to it hereunder or under applicable law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.18.

 

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(b)                                 Defaulting Lender Cure.  If the Company, the Administrative Agent, Swing Line Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.19(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

ARTICLE III.
 TAXES, YIELD PROTECTION AND ILLEGALITY

 

3.01                        Taxes.

 

(a)                                 L/C Issuer.  For purposes of this Section 3.01, the term “Lender” includes any L/C Issuer.

 

(b)                                 Payments Free of Taxes.  Any and all payments by or on account of any obligation of any Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Governmental Rules.  If any applicable Governmental Rule requires the deduction or withholding of any Tax from any such payment, then the applicable Borrower and the Administrative Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Governmental Rule and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(c)                                  Payment of Other Taxes by the Borrowers.  The Borrowers shall timely pay to the relevant Governmental Authority in accordance with applicable Governmental Rule, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

 

(d)                                 Indemnification by the Borrowers.  The Borrowers shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes and Other Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or

 

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deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  Each Borrower shall also, and does hereby, indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as required by Section 3.01(e) so long as the Administrative Agent shall have in good faith made a written demand upon such Lender for the applicable payment and such payment demand has not been satisfied in full by the applicable Lender within 30 days after such written demand.  In the event of a payment to the Administrative Agent by a Borrower pursuant to the preceding sentence, upon the request of a Borrower, the Administrative Agent shall execute and deliver such documents or instruments as the applicable Borrower may reasonably request to assign to the applicable Borrower any claims that the Administrative Agent may have against the applicable Lender with respect to the payments to the Administrative Agent that were required to have been made pursuant to Section 3.01(e) below (including the right of set off provided in the last sentence of Section 3.01(e) below).  A certificate as to the amount of such payment or liability delivered to the Company by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

(e)                                  Indemnification by the Lenders.  Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes or Other Taxes attributable to such Lender (but only to the extent that any Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes or Other Taxes and without limiting the obligation of the Borrowers to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).

 

(f)                                   Evidence of Payments.  Upon request by a Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by such Borrower or by the Administrative Agent to a Governmental Authority pursuant to this Section 3.01, such Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to such Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to requesting Borrower or the Administrative Agent.

 

(g)                                  Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall

 

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deliver to the Company and the Administrative Agent (provided that the Administrative Agent shall be under no obligation to so request), at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

(ii)                                  Without limiting the generality of the foregoing, in the event that a Borrower is a U.S. Borrower,

 

(A)                                    any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

 

(B)                                    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), whichever of the following is applicable:

 

(1)                                 in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(2)                                 executed originals of IRS Form W-8ECI;

 

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(3)                                 in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit L-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the applicable Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a CFC described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN; or

 

(4)                                 to the extent a Foreign Lender is not the beneficial owner of a payment received under any of the Loan Documents, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;

 

(C)                                    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and at the time or times prescribed by law and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of any other form prescribed by applicable Governmental Rule as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Governmental Rule to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(D)                                    if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable Governmental Rule (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such

 

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Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

(iii)                               Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.  Each Lender shall promptly take such steps (at the cost and expense of the Company) as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Requirements of Law of any such jurisdiction that any Borrower make any deduction or withholding for taxes from amounts payable to such Lender.  Additionally, each Borrower shall promptly deliver to the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Requirements of Law of any jurisdiction, duly executed and completed by such Borrower, as are required to be furnished by such Lender or the Administrative Agent under such Requirements of Law in connection with any payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction.

 

(h)                                 Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund (or the amount of any credit in lieu of refund) of any Taxes as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund (or credit in lieu of refund)), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund or credit in lieu of refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) to the extent the payment of such amount would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

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(i)                               Survival.  Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

3.02                        Illegality.  If any Lender determines that any Requirements of Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurocurrency Rate (whether denominated in Dollars or an Alternative Currency), or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars or any Alternative Currency in the applicable interbank market, then, (a) on notice thereof by such Lender to the Company through the Administrative Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans in the affected currency or currencies or, in the case of Eurocurrency Rate Loans in Dollars, to convert Base Rate Committed Loans to Eurocurrency Rate Loans, shall be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable and such Loans are denominated in Dollars, convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurocurrency Rate.  Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.

 

3.03                        Inability to Determine Rates.  If the Required Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) deposits (whether in Dollars or an Alternative Currency) are not being offered to banks in the applicable offshore interbank market for such currency for the applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurocurrency Base Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or an Alternative Currency), or (c) the Eurocurrency Base Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect

 

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the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the Company and each Lender.  Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended, and in the event of a determination described in the preceding sentence with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the Company may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the affected currency or currencies or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein.

 

Notwithstanding the foregoing, if the Administrative Agent has made the determination described in this section, the Administrative Agent, in consultation with the Borrower and the Required Lenders, may establish an alternative interest rate for any Loans subject to clauses (a), (b) or (c) above (any “Impacted Loans”),  in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a) of the first sentence of this section, (2) the Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.

 

3.04                        Increased Costs.

 

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

 

(i)                                     impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurocurrency Rate) or the L/C Issuer;

 

(ii)                                  subject any Recipient to any Taxes (other than (A) Indemnified Taxes and Other Taxes covered by Section 3.01, (B) Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

 

(iii)                               [intentionally omitted]; or

 

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

 

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

 

(b)                                 Capital Requirements.  If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time upon request of such Lender or L/C Issuer, the Company will pay (or cause the applicable Designated Borrower to pay) to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.

 

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

 

(d)                                 Additional Reserve Requirements.  The Company shall pay (or cause the applicable Designated Borrower to pay) to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good

 

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faith, which determination shall be conclusive), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Company shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest or costs from such Lender.  If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest or costs shall be due and payable 10 days from receipt of such notice.

 

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

 

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

 

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

 

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

 

(d)                                 any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Company pursuant to Section 10.13;

 

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

 

Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.05 shall not constitute a waiver of such Lender’s right to demand such compensation, provided that no Borrower shall be required to compensate a Lender pursuant to this Section 3.05 for any loss, cost or expense incurred more than nine months prior to the date that such Lender notifies the

 

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Company of the act or omission giving rise to such loss, cost or expense and such Lender’s intention to claim compensation therefor.

 

For purposes of calculating amounts payable by the Company (or the applicable Designated Borrower) to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Base Rate used in determining the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.

 

3.06                        Mitigation Obligations; Replacement of Lenders; Certificates.

 

(a)                                 Designation of a Different Lending Office.  Each Lender may make any Credit Extension to any Borrower through any Lending Office, provided that the exercise of this option shall not affect the obligation of the applicable Borrower to repay the Credit Extension in accordance with the terms of this Agreement.  If any Lender requests compensation under Section 3.04, or any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Company hereby agrees to pay (or to cause the applicable Designated Borrower to pay), within 10 days of the request therefor, all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

(b)                           Replacement of Lenders.  If any Lender requests compensation under Section 3.04, or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 or there occurs any prepayment or conversion of its Loans under Section 3.02, the Company may replace such Lender, so long as such replacement will result in a reduction of such compensation or amounts in accordance with Section 10.13.

 

(c)                                  Certificates for Reimbursement.  A certificate of a Lender or the L/C Issuer setting forth the basis for and a calculation of the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of Section 3.04 or Section 3.05 and delivered to the Company shall be conclusive absent manifest error.  The Company shall pay (or cause the applicable Designated Borrower to pay) such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.

 

3.07                        Survival.  All of the Borrowers’ obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.

 

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ARTICLE IV.
 CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

 

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

 

(a)                                 The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:

 

(i)                                     executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;

 

(ii)                                  Notes executed by the Borrowers in favor of each Lender requesting Notes;

 

(iii)                               The certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);

 

(iv)                              To the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);

 

(v)                                 A certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (A) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Subsidiary as in effect (or, if any such Subsidiary is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (B) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Subsidiary (or other comparable enabling action) and continuing in effect, which (1) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such

 

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Person and the consummation of the transactions contemplated thereby and (2) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (C) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);

 

(vi)                              A certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);

 

(vii)                           Favorable written opinions from each of the following counsel for the Borrowers, the Guarantors and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:

 

(A)                                    Curtis, Mallet-Prevost, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;

 

(B)                                    Rahmat Lim & Partners, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;

 

(C)                                    Allen & Gledhill, Singapore counsel for FIL and its Subsidiaries;

 

(D)                                    Lexence N.V., Dutch counsel for FIL and its Subsidiaries;

 

(E)                                     Wolf Theiss, Hungarian counsel for FIL and its Subsidiaries;

 

(F)                                      C & A Law, Mauritius counsel for FIL and its Subsidiaries; and

 

(G)                               Such other local counsel to FIL and its Subsidiaries as the Administrative Agent may reasonably request with respect to Subsidiary Guarantors.

 

(viii)                        a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;

 

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(ix)                              a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since March 31, 2013 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) the current Debt Ratings, and (D) pro forma calculations of the Debt/EBITDA Ratio and the Interest Coverage Ratio, based upon the Company’s Financial Statements for the quarter ended December 31, 2013;

 

(x)                                 evidence that the Existing FIL Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder (other than the Existing Letters of Credit) cancelled or defeased in a manner satisfactory to the Administrative Agent, all Liens securing obligations under such credit agreement have been or concurrently with the Closing Date are being released; and

 

(xi)                              such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.

 

(b)                                 Any fees required to be paid on or before the Closing Date shall have been paid.

 

(c)                                  Unless waived by the Administrative Agent and subject to the Fee Letters, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).

 

(d)                                 The Closing Date shall have occurred on or before April 30, 2014.

 

Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

 

4.02                        Conditions to all Credit Extensions.  The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:

 

(a)                                 The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of

 

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representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01.

 

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

 

(c)                                  The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.

 

(d)                                 If the applicable Borrower is a Designated Borrower, then the conditions of Section 2.14 to the designation of such Borrower as a Designated Borrower shall have been met to the satisfaction of the Administrative Agent.

 

(e)                                  In the case of a Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in an Alternative Currency) or the L/C Issuer (in the case of any Letter of Credit to be denominated in an Alternative Currency) would make it impracticable for such Credit Extension to be denominated in the relevant Alternative Currency.

 

Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Company shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.

 

ARTICLE V.
 REPRESENTATIONS AND WARRANTIES

 

Except as otherwise provided in Section 5.20, each Borrower represents and warrants to the Administrative Agent and the Lenders that:

 

5.01                        Due Incorporation, Qualification, Etc.  Each Loan Party and each Significant Subsidiary (a) (i) is duly organized and validly existing and (ii) in any jurisdiction in which such legal concept is applicable, is in good standing under the laws of its jurisdiction of organization, (b) has the power and authority to own, lease and operate its properties and carry on its business as now conducted and (c) is duly qualified and licensed to do business as a foreign entity in each jurisdiction where the ownership, lease or operation of its properties or the conduct of its business requires such qualification or license, except in each case referred to in clauses (a)(ii) or

 

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(c), where the failure to be in good standing or so qualified or licensed is not reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect.

 

5.02                        Authority.  The execution, delivery and performance by each of the Borrowers and each Guarantor of each Loan Document executed, or to be executed, by such Person and the consummation of the transactions contemplated thereby (a) are within the power of such Person and (b) have been duly authorized by all necessary actions on the part of such Person.

 

5.03                        Enforceability.  Each Loan Document executed, or to be executed, by each of the Borrowers and each Guarantor has been, or will be, duly executed and delivered by such Person and constitutes, or when executed will constitute, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

 

5.04                        Non-Contravention.  The execution and delivery by each of the Borrowers and each Guarantor of the Loan Documents executed by such Person and the performance and consummation of the transactions contemplated thereby do not (a) violate any material Requirement of Law applicable to such Person, (b) violate any provision of, or result in the breach or the acceleration of, or entitle any other Person to accelerate (whether after the giving of notice or lapse of time or both), any material Contractual Obligation of such Person or (c) result in the creation or imposition of any material Lien (or the obligation to create or impose any Lien) upon any property, asset or revenue of such Person (other than Liens created under the Loan Documents).

 

5.05                        Approvals.  No material consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority or other Person (including the shareholders of any Person) is required in connection with the execution and delivery of the Loan Documents executed by each of the Borrowers and each Guarantor and the performance or consummation of the transactions contemplated thereby, except such as (a) have been made or obtained and are in full force and effect or (b) are being made or obtained in a timely manner and once made or obtained will be in full force and effect.

 

5.06                        No Violation or Default.  Neither any Borrower, nor any Guarantor, nor any of FIL’s Subsidiaries is in violation of or in default with respect to (a) any Requirement of Law applicable to such Person or (b) any Contractual Obligation of such Person, where, in each case or in the aggregate, such violation or default is reasonably and substantially likely to have a Material Adverse Effect. Without limiting the generality of the foregoing, neither any Borrower, nor any Guarantor nor any of FIL’s Subsidiaries (i) has violated any Environmental Laws, (ii) to the knowledge of any Borrower, any Guarantor or any of FIL’s Subsidiaries, has any liability under any Environmental Laws or (iii) has received notice or other communication of an investigation or, to the knowledge of any Borrower, any Guarantor or any of FIL’s Subsidiaries, is under investigation by any Governmental Authority having authority to enforce Environmental Laws, where such violation, liability or investigation is reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect. No Default has occurred and is continuing.

 

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5.07                        Litigation.  No actions (including derivative actions), suits, proceedings or investigations are pending or, to the knowledge of any Borrower, threatened against any Borrower, any Guarantor or any of FIL’s Subsidiaries at law or in equity in any court or before any other Governmental Authority which (a) based upon the written advice of such Person’s outside legal counsel, is reasonably likely to be determined adversely and if so adversely determined is reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect or (b) seeks to enjoin, either directly or indirectly, the execution, delivery or performance by any Borrower or any Guarantor of the Loan Documents or the transactions contemplated thereby.

 

5.08                        Title; Possession Under Leases.  Each Borrower, each Guarantor and each of FIL’s Subsidiaries own and have good and valid title, or a valid leasehold interest in, all their respective material properties and assets as reflected in the most recent Financial Statements delivered to the Administrative Agent (except those assets and properties disposed of in the ordinary course of business or otherwise in compliance with the terms of this Agreement (whether or not then in effect) since the date of such Financial Statements) and all respective material assets and properties acquired by such Borrower, each Guarantor and FIL’s Subsidiaries since such date (except those disposed of in the ordinary course of business or otherwise in compliance with the terms of this Agreement (whether or not then in effect) since such date).  Such assets and properties are subject to no Lien, except for Permitted Liens.

 

5.09                        Financial Statements.  The consolidated Financial Statements of FIL and its Subsidiaries (including, if required to be consolidated for GAAP purposes, Elementum) which have been delivered to the Administrative Agent, (a) are in accordance with the books and records of FIL and its Subsidiaries, which have been maintained in accordance with good business practice, (b) have been prepared in conformity with GAAP and (c) fairly present in all material respects the financial conditions and results of operations of FIL and its Subsidiaries (including, if required to be consolidated for GAAP purposes, Elementum) as of the dates thereof and for the periods covered thereby.  Neither FIL nor any of its Subsidiaries has any Contingent Obligations, liability for taxes or other outstanding obligations which are material in the aggregate, except as disclosed or reflected in the Financial Statements of FIL for the quarter ended December 31, 2013, furnished by FIL to the Administrative Agent prior to the date hereof, or in the Financial Statements delivered to the Administrative Agent pursuant to Section 6.01(a) or (b), or except as permitted under Articles VI and VII of this Agreement.

 

5.10                        Employee Benefit Plans.

 

(a)                                 Based on the latest valuation of each Employee Benefit Plan subject to Title IV of ERISA that any Borrower or any ERISA Affiliate maintains or contributes to, or has any obligation under (which occurred within twelve months of the date of this representation), the aggregate benefit liabilities of such plan within the meaning of section 4001 of ERISA did not exceed the aggregate value of the assets of such plan, except to the extent not reasonably and substantially likely to have a Material Adverse Effect.  Neither any Borrower nor any ERISA Affiliate has any material liability with respect to any post-retirement benefit under any Employee Benefit Plan which is a welfare plan (as defined in section 3(1) of ERISA), other than liability for health plan continuation coverage described in Part 6 of Title I(B) of ERISA, except

 

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to the extent any such liability with respect to any post-retirement benefit is not reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect.

 

(b)                                 Each Employee Benefit Plan complies, in both form and operation, in all material respects, with its terms, ERISA and the Code, and no condition exists or event has occurred with respect to any such plan which would result in the incurrence by any Borrower or any ERISA Affiliate of any material liability, fine or penalty, in each case except as is not reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect.  Each Employee Benefit Plan, related trust agreement, arrangement and commitment of any Borrower or any ERISA Affiliate is legally valid and binding and is in all material respects in full force and effect, except as is not reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect.  As of the Closing Date, no Employee Benefit Plan is being audited or investigated by any government agency or is subject to any pending or threatened claim or suit, other than any such audit, investigation, claim or suit that is not reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect.  Neither any Borrower nor any ERISA Affiliate nor, to the knowledge of any Borrower, any fiduciary of any Employee Benefit Plan has engaged in a prohibited transaction under section 406 of ERISA or section 4975 of the Code which would subject any Borrower to any material tax, penalty or other liability, including a liability to indemnify.

 

(c)                                  No Multiemployer Plan in which the Borrowers or any ERISA Affiliate participates is in critical or endangered status (as defined in ERISA and the Code) except as is not reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect. Neither any Borrower nor any ERISA Affiliate has incurred any material liability (including secondary liability) to any Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan under section 4201 of ERISA or as a result of a sale of assets described in section 4204 of ERISA. Neither any Borrower nor any ERISA Affiliate has been notified that any Multiemployer Plan is in reorganization or insolvent under and within the meaning of section 4241 or section 4245 of ERISA or that any Multiemployer Plan intends to terminate or has been terminated under section 4041A of ERISA, in each case except as is not reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect.

 

(d)                                 All employer and employee contributions required by any applicable Governmental Rule in connection with all Foreign Plans have been made, or, if applicable, accrued, in all material respects, in accordance with the country-specific or other applicable accounting practices.  The fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient, except to the extent that is not reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect, to procure or provide for the accrued benefit obligations, as of the date hereof, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions (if applicable) and valuations most recently used to determine employer contributions to such Foreign Plan, which actuarial assumptions and valuations are commercially reasonable viewed as a whole.  Each Foreign Plan required to be registered has been so registered and has been maintained in good standing with applicable Governmental Authorities except to the extent that is not reasonably and substantially likely (alone or in the aggregate) to

 

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have a Material Adverse Effect. Each Foreign Plan reasonably complies in all material respects with all applicable Governmental Rules.

 

5.11                        Other Regulations.  No Borrower or any Material Subsidiary is subject to regulation under the Federal Power Act, the Interstate Commerce Act, any state public utilities code or any other Governmental Rule that limits its ability to incur Indebtedness of the type represented by the Obligations.

 

5.12                        Patent and Other Rights.  Each Borrower and each of FIL’s Subsidiaries own, license or otherwise have the full right to use, under validly existing agreements, without known conflict with any rights of others, all patents, licenses, trademarks, trade names, trade secrets, service marks, copyrights and all rights with respect thereto, which are required to conduct their businesses as now conducted, except such patents, licenses, trademarks, trade names, trade secrets, service marks, copyrights and all rights with respect thereto which if not validly owned, licensed or used would not be reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect.

 

5.13                        Governmental Charges.  Each Borrower and each of FIL’s Subsidiaries have filed or caused to be filed all tax returns, and, in compliance with all applicable Requirements of Law, all reports and declarations which are required by any Governmental Authority to be filed by them (or, in each case, extensions thereof have been validly obtained), in each case other than to the extent that the failure to do so would not be reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect.  Each Borrower and each of FIL’s Subsidiaries have paid, or made provision for the payment of, all taxes and other Governmental Charges which have or may have become due pursuant to said returns or otherwise and all other indebtedness, except such Governmental Charges, taxes or indebtedness, if any, which are being contested in good faith and as to which if unpaid adequate reserves (determined in accordance with GAAP) have been provided or which are not reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect.

 

5.14                        Margin Stock.

 

(a)                                 No Borrower is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying any Margin Stock.  No proceeds of any Loan and no Letter of Credit will be used to purchase or carry any Margin Stock, or to extend credit to any Person for the purpose of purchasing or carrying any Margin Stock, in either case in a manner that violates or causes a violation of Regulations T, U or X of the FRB or any other regulation of the FRB.

 

(b)                                 None of the Company, any Person Controlling the Company, or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

 

5.15                        Subsidiaries, Etc.  Schedule 5.15 (as of December 31, 2013 and as thereafter updated on a quarterly basis by Borrowers in a written notice to Administrative Agent no later than the date set forth in Section 6.01(f)) sets forth each of FIL’s Significant Subsidiaries and 

 

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Material Subsidiaries, its jurisdiction of organization, the percentages of shares owned directly or indirectly by FIL and whether FIL owns such shares directly or, if not, the Subsidiary of FIL that owns such shares.

 

5.16                        Solvency, Etc.  Each of the Borrowers, each Guarantor and each Material Subsidiary is Solvent and, after the execution and delivery of the Loan Documents and the consummation of the transactions contemplated thereby, will be Solvent.

 

5.17                        No Withholding, Etc.  Except as otherwise disclosed by a Borrower to the Administrative Agent from time to time (which the Administrative Agent will deliver to the Lenders), (a) no Borrower has actual knowledge of any requirement under any Governmental Rule to make any deduction or withholding of any nature whatsoever from any payment required to be made by any Borrowers hereunder or under any other Loan Document and (b) neither this Agreement nor any of the other Loan Documents is subject to any registration or stamp tax or any other similar or like taxes payable in any relevant jurisdiction.

 

5.18                        No Material Adverse Effect.  Since March 31, 2013, no event has occurred and no condition exists which, alone or in the aggregate, (a) has had (and continues to have) or (b) is reasonably and substantially likely to have a Material Adverse Effect.

 

5.19                        Accuracy of Information Furnished.  The Loan Documents and the other certificates, statements and information (excluding projections) furnished to the Administrative Agent or any Lender in writing by or on behalf of the Borrowers, the Guarantors and FIL’s Subsidiaries in connection with the Loan Documents and the transactions contemplated thereby, taken as a whole, as of the date furnished, do not contain and will not contain any untrue statement of a material fact and do not omit and will not omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

 

5.20                        Representations as to Foreign Obligors.  The Company represents and warrants to the Administrative Agent and the Lenders, with respect to each Foreign Subsidiary that is at any time a Foreign Obligor, and each Designated Borrower at any time existing that is a Foreign Subsidiary, represents and warrants with respect to itself, that:

 

(a)                                 Such Foreign Obligor is subject to civil and commercial Requirements of Law with respect to its obligations under this Agreement and the other Loan Documents to which it is a party (collectively as to such Foreign Obligor, the “Applicable Foreign Obligor Documents”), and the execution, delivery and performance by such Foreign Obligor of the Applicable Foreign Obligor Documents constitute and will constitute private and commercial acts and not public or governmental acts.  Neither such Foreign Obligor nor any of its property has any immunity from jurisdiction of the courts or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which such Foreign Obligor is organized and existing in respect of its obligations under the Applicable Foreign Obligor Documents.

 

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(b)                                 The Applicable Foreign Obligor Documents are in all material respects in proper legal form under the Requirements of Law of the jurisdiction in which such Foreign Obligor is organized and existing for the enforcement thereof against such Foreign Obligor under the Requirements of Law of such jurisdiction, and to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor Documents.  It is not necessary to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor Documents that the Applicable Foreign Obligor Documents be filed, registered or recorded with, or executed or notarized before, any court or other authority in the jurisdiction in which such Foreign Obligor is organized and existing or that any registration charge or stamp or similar tax be paid on or in respect of the Applicable Foreign Obligor Documents or any other document, except for (i) any such filing, registration, recording, execution or notarization as has been made or is not required to be made until the Applicable Foreign Obligor Document or any other document is sought to be enforced and (ii) any charge or tax as has been timely paid.

 

(c)                                  There is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any deduction or withholding, imposed by any Governmental Authority in or of the jurisdiction in which such Foreign Obligor is organized and existing either (i) on or by virtue of the execution or delivery of the Applicable Foreign Obligor Documents or (ii) on any payment to be made by such Foreign Obligor pursuant to the Applicable Foreign Obligor Documents, except in either case as has been disclosed to the Administrative Agent.

 

(d)                                 The execution, delivery and performance of the Applicable Foreign Obligor Documents executed by such Foreign Obligor are, under applicable foreign exchange control regulations of the jurisdiction in which such Foreign Obligor is organized and existing, not subject to any notification or authorization except (i) such as have been made or obtained or (ii) such as cannot be made or obtained until a later date (provided that any notification or authorization described in clause (ii) shall be made or obtained as soon as is reasonably practicable).

 

5.21                        Taxpayer Identification Number; Other Identifying Information.  The true and correct U.S. taxpayer identification number of each Designated Borrower that is a Domestic Subsidiary and a party hereto on the Closing Date is set forth on Schedule 10.02.  The true and correct unique identification number of the Company and each Designated Borrower that is a Foreign Subsidiary and a party hereto on the Closing Date that has been issued by its jurisdiction of organization and the name of such jurisdiction (as well as any U.S. taxpayer identification number issued to such Designated Borrower, if any) are set forth on Schedule 5.21.

 

5.22                        OFAC.  Neither the Company, nor any of its Subsidiaries (including Elementum to the extent it constitutes a Subsidiary but for it being excluded from the definition of “Subsidiary”), nor, to the knowledge of the Company and its Subsidiaries (including Elementum to the extent it constitutes a Subsidiary but for it being excluded from the definition of “Subsidiary”), any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity currently the subject of any Sanctions, nor is the Company or any Subsidiary (including Elementum) located, organized or resident in a Designated Jurisdiction.

 

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ARTICLE VI.
 AFFIRMATIVE COVENANTS

 

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than unmatured contingent reimbursement and indemnification obligations) hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (other than Extended Letters of Credit):

 

6.01                        Information.  The Company shall deliver to the Administrative Agent (for distribution to the Lenders), in form and detail satisfactory to the Administrative Agent and the Required Lenders:

 

(a)                                 As soon as available and in no event later than 55 days after the last day of each fiscal quarter of FIL, a copy of the Financial Statements of FIL and its Subsidiaries (including, if required to be consolidated for GAAP purposes, Elementum) (prepared on a consolidated basis) for such quarter and for the fiscal year to date, certified by the chief executive officer, chief operating officer, chief financial officer, treasurer, assistant treasurer, controller or senior vice president of finance of FIL to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);

 

(b)                                 (i) As soon as available and in no event later than 100 days after the close of each fiscal year of FIL, (A) copies of the audited Financial Statements of FIL and its Subsidiaries (including, if required to be consolidated for GAAP purposes, Elementum) (prepared on a consolidated basis) for such year, audited by independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, and (B) copies of the unqualified opinions (or qualified opinions (other than a “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit) reasonably acceptable to the Administrative Agent) of such accountants, and (ii) if and when received from such accountants in connection with the annual audited Financial Statements of FIL (it being acknowledged and agreed that this clause (ii) imposes no obligation to so request or obtain such certificates), certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;

 

(c)                                  Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing subsections (a) and (b), a Compliance Certificate executed by the chief executive officer, chief operating officer, chief financial officer, treasurer, assistant treasurer, controller or senior vice president of finance of FIL, properly completed;

 

(d)                                 As soon as possible and in no event later than five Business Days after any Responsible Officer of such Borrower knows of the occurrence or existence of (i) any 

 

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Reportable Event under any Employee Benefit Plan or Multiemployer Plan which is reasonably and substantially likely (alone or in the aggregate) to result in liability to the Borrower or any of FIL’s Subsidiaries of $50,000,000 or more, (ii) any actual or threatened litigation or suits against any Borrower or any of FIL’s Subsidiaries involving potential monetary damages payable by any Borrower or FIL’s Subsidiaries of $50,000,000 or more alone or in the aggregate, (iii) any other event or condition which is reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect, (iv) any Default or (v) any event of the type described in Section 8.01(f) or (g) with respect to any Subsidiary, so long as such Subsidiary is determined at the time of such event to be a Significant Subsidiary, the statement of the chief executive officer, chief operating officer, chief financial officer, treasurer, assistant treasurer, controller or senior vice president of finance of such Borrower setting forth details of such event, condition or Default and the action which such Borrower proposes to take with respect thereto;

 

(e)                                  Promptly after they are sent, made available or filed, copies of (i) all registration statements and reports filed by any of the Borrowers or any of FIL’s Subsidiaries with the SEC (including all 10-Q, 10-K and 8-K reports) and (ii) all reports, proxy statements and financial statements sent or made available by any of the Borrowers or any of FIL’s Subsidiaries to its public security holders;

 

(f)                                   As soon as possible and in no event later than 55 days after the last day of each fiscal quarter (or 100 days in the case of the last fiscal quarter of each fiscal year), or 55 days after the date of any Material Subsidiary Recalculation Event that would result in an additional Material Subsidiary (based on the Pro Forma MS Test as applied as of such date), written notice of (i) any new Significant Subsidiary acquired or established during such quarter (or as a result of such Material Subsidiary Recalculation Event) or any other change in the information set forth in Schedule 5.15 during such quarter, (ii) each Subsidiary of FIL that has become a Material Subsidiary during such quarter (or as a result of such Material Subsidiary Recalculation Event) and indicating for each such new Material Subsidiary whether such Material Subsidiary is an Eligible Material Subsidiary or Ineligible Material Subsidiary and if the latter, the reason it is an Ineligible Material Subsidiary, and (iii) each Subsidiary that may have previously been an Ineligible Material Subsidiary but which became an Eligible Material Subsidiary during such quarter;

 

(g)                                  Promptly after any Borrower changes its legal name or the address of its chief executive office, written notice setting forth such Borrower’s new legal name and/or new address;

 

(h)                                 Promptly, a copy of any announcement by Moody’s or S&P of any change or possible change in a Debt Rating;

 

(i)                                     Promptly, notice of the occurrence of any Material Subsidiary Recalculation Event; and

 

(j)                                    Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) 

 

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of such Borrower or FIL’s Subsidiaries, and compliance by such Borrower with the terms of this Agreement and the other Loan Documents as Administrative Agent on behalf of itself or one or more Lenders may from time to time reasonably request.

 

Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.01(e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Company’s behalf on an internet or intranet website, if any, to which each Lender and the Administrative Agent have access, including the SEC’s EDGAR website, any commercial, third-party website or any website sponsored by the Administrative Agent; provided that: (i) the Company shall, if requested, deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Company shall use commercially reasonable efforts to notify the Administrative Agent and each requesting Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.  Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the Compliance Certificates required by Section 6.01(c) to the Administrative Agent (it being acknowledged that electronic delivery thereof pursuant to Section 10.02 shall be permitted).  Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

 

Each Borrower hereby acknowledges that (1) the Administrative Agent or the Arrangers may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (2) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.  Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 

 

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10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”  Notwithstanding the foregoing, no Borrower shall be under any obligation to mark any Borrower Materials “PUBLIC.”

 

6.02                        Books and Records.  Each Borrower and FIL’s Subsidiaries shall at all times keep proper books of record and account which shall be complete and correct in all material respects in accordance with GAAP; provided that, with respect to any Subsidiary acquired by FIL or its Subsidiaries after the Closing Date pursuant to a stock purchase or merger transaction (other than (a) a Person that is merged with or into a Subsidiary of FIL that owned assets (other than de minimis assets necessary to create an acquisition vehicle) immediately prior to such merger and (b) a Pro Forma Calculation Subsidiary), such Subsidiary shall only be required to (i) keep proper books of record and account which shall be complete and correct in all material respects in accordance with GAAP in respect of transactions occurring after the date of such acquisition, and (ii) from and after the date that is the first day of the first fiscal year of FIL that follows the date of such acquisition by more than three months, keep proper books of record and account in respect of all other matters which shall be complete and correct in all material respects in accordance with GAAP.

 

6.03                        Inspections.  Each Borrower and FIL’s Subsidiaries shall permit the Administrative Agent and each Lender, or any agent or representative thereof, upon reasonable notice and during normal business hours, to visit and inspect any of the properties and offices of such Borrower and FIL’s Subsidiaries, to examine the books and records of such Borrower and FIL’s Subsidiaries and make copies thereof and to discuss the affairs, finances and business of such Borrower and FIL’s Subsidiaries with, and to be advised as to the same by, their officers, auditors and accountants, all at such times and intervals as the Administrative Agent or any Lender may reasonably request (which visits and inspections shall be at the expense of the Administrative Agent (subject to reimbursement by the Lenders pursuant to Section 10.04(c)) or such Lender unless a Default has occurred and is continuing).

 

6.04                        Insurance.  Each Borrower and FIL’s Subsidiaries shall (a) carry and maintain insurance of the types and in the amounts customarily carried from time to time during the term of this Agreement by others engaged in substantially the same business as such Person and operating in the same geographic area as such Person, including fire, public liability, property damage and worker’s compensation, (b) carry and maintain each policy for such insurance with financially sound insurers and (c) deliver to the Administrative Agent from time to time, as the Administrative Agent may request, schedules setting forth all insurance then in effect.

 

6.05                        Taxes, Governmental Charges and Other Indebtedness.  Each Borrower and FIL’s Subsidiaries shall promptly pay and discharge when due (a) all taxes and other Governmental Charges prior to the date upon which penalties accrue thereon, (b) all indebtedness which, if unpaid, could become a Lien upon the property of such Borrower or FIL’s Subsidiaries and (c) subject to any subordination provisions applicable thereto, all other Indebtedness, which in each of cases (a) through (c) or in the aggregate, if unpaid, is reasonably and substantially likely to have a Material Adverse Effect, except such taxes, Governmental 

 

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Charges or Indebtedness as may in good faith be contested or disputed, or for which arrangements for deferred payment have been made, provided that in each such case appropriate reserves are maintained in accordance with GAAP.

 

6.06                        Use of Proceeds.  Each Borrower shall use the proceeds of the Loans and Letters of Credit for working capital, capital expenditures and other general corporate purposes, including refinancing existing Indebtedness of the Company and its Subsidiaries not in contravention of any Requirement of Law or Loan Document.  No Borrower shall use any part of the proceeds of any Loan or any Letter of Credit, directly or indirectly, in violation of the financial assistance provisions of Section 76 of the Singapore Companies Act or for the purpose of purchasing or carrying any Margin Stock, or for the purpose of purchasing or carrying or trading in any securities, in either case, under such circumstances as to involve such Borrower, any Lender or Administrative Agent in a violation of Regulations T, U or X issued by the FRB.

 

6.07                        General Business Operations.  Each of the Borrowers and FIL’s Subsidiaries shall (a) preserve and maintain its existence and all of its rights, privileges and franchises reasonably necessary to the conduct of the business of the Company and its Subsidiaries (as a whole), provided that (i) the Company and its Subsidiaries may dissolve, liquidate or terminate the existence of any Subsidiary of the Company, other than a Borrower, possessing total assets of less than $50,000,000 or serving no continuing business purpose (each, an “Excluded Subsidiary”), in either case as determined by the board of directors of the Company or such Subsidiary in its good faith reasonable discretion, (ii) neither the Company nor any of its Subsidiaries shall be required to preserve any right or franchise if the board of directors of the Company or such Subsidiary shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company or such Subsidiary, as the case may be, and that the loss thereof is not disadvantageous in any material respect to the Company and its Subsidiaries (taken as a whole) or the Lenders, and (iii) the foregoing shall not prohibit the consummation of any sale, transfer or disposition of assets otherwise permitted under Section 7.03 or any merger or consolidation otherwise permitted under Section 7.04, (b) conduct its business activities in compliance with all Requirements of Law and Contractual Obligations applicable to such Person, and (c) keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted; except, in the case of clauses (a) and (c), where any failure is not reasonably likely (alone or in the aggregate) to have a Material Adverse Effect.

 

6.08                        Pari Passu Ranking.  Each Borrower shall take, or cause to be taken, all actions necessary to ensure that the Obligations of such Borrower are and continue to rank at least pari passu in right of payment with all other unsecured and unsubordinated Indebtedness of such Borrower.

 

6.09                        PATRIOT Act.  Promptly following a request therefor, each Borrower shall provide all documentation and other information that a Lender reasonably requests in order to comply with such Lender’s ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (known as the USA PATRIOT Act) (the “Act”), provided that any Lender requesting documentation or other information under this Section 6.09 shall provide any relevant supporting 

 

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documentation reasonably requested by any Borrower responding to such request.  Each Lender that is subject to the Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Borrower that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Borrower or other Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower or other Loan Party in accordance with the Act.

 

6.10                        Subsidiary Guarantors.

 

(a)                                 Promptly after any Person is required by Section 6.01(f) to be disclosed as an Eligible Material Subsidiary (and in any event within 30 days (or such greater number of days to which the Administrative Agent may agree) thereafter), the Company shall cause such Person to (i) become a Subsidiary Guarantor by executing and delivering to the Administrative Agent a counterpart of the Subsidiary Guaranty or such other document as the Administrative Agent shall deem appropriate for such purpose, and (ii) deliver to the Administrative Agent documents of the types referred to in clauses (iii), (iv), (v) and (vi) of Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (i) of this Section 6.10(a)), all in form, content and scope reasonably satisfactory to the Administrative Agent.  If, pursuant to clauses (b) or (d) of the definition of Ineligible Material Subsidiary, the Company elects to provide a Substitute Guaranty in replacement of a Subsidiary Guaranty otherwise required hereby to be provided by a Material Subsidiary, the Company shall cause the applicable Substitute Guarantors to comply with clauses (i) and (ii) above as if such Substitute Guarantors had themselves been Eligible Material Subsidiaries.  Compliance by Substitute Guarantors with the preceding sentence in place of such Ineligible Material Subsidiary shall be deemed to satisfy the Company’s obligations under the first sentence of this Section 6.10(a) with respect to such Material Subsidiary.

 

(b)                                 (i) Upon and no later than 30 days after the delivery to the Administrative Agent of the annual Financial Statements and accompanying Compliance Certificate pursuant to Section 6.01(b) and (c), in relation to any Subsidiary Guarantor that has ceased to be a Material Subsidiary as of the end of such fiscal year (other than a Subsidiary Guarantor which was not a Material Subsidiary at the time it became a Subsidiary Guarantor), or (ii) upon and no later than 30 days after the Company receives notice that a Subsidiary Guarantor has become an Ineligible Material Subsidiary by virtue of the satisfaction of clauses (a)(i), (a)(ii) or (b) of the definition of “Ineligible Material Subsidiary” solely due to a Change in Law after the date such Person became a Guarantor hereunder and the Company is unable, with the exercise of commercially reasonable efforts, to restore such Subsidiary’s status as an Eligible Material Subsidiary (in either case, a “Releasable Subsidiary”), provided there exists no Default (other than a Subsidiary Guarantor that has become an Ineligible Material Subsidiary by virtue of clause (a)(i) of the definition of “Ineligible Material Subsidiary,” which the Company is unable, with the exercise of commercially reasonable efforts, to resolve, as to which such proviso shall not apply), the Company may deliver to the Administrative Agent a duly executed certificate of a Responsible Officer of the Company, in the form of Exhibit J (“Guarantor Release Certificate”) and, upon the receipt of such certificate by the Administrative Agent, such Releasable Subsidiary shall thereupon cease to be a Subsidiary Guarantor, subject to the possible future application of 

 

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Section 6.10(a).  The Administrative Agent shall with reasonable promptness execute and deliver such reasonable release documentation (which shall contain appropriate representations and warranties by the Company as to the circumstances underlying such release transaction, but shall require no representation, warranty or other undertaking on the part of the Administrative Agent) as the Company may reasonably request to evidence the release and termination of the Subsidiary Guaranty as to such Releasable Subsidiary.  No release of any Subsidiary Guarantor shall in any way modify, affect or impair the enforceability of the Subsidiary Guaranty in respect of any other Subsidiary Guarantor.

 

ARTICLE VII.
 NEGATIVE COVENANTS

 

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than unmatured contingent reimbursement and indemnification obligations) hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (other than Extended Letters of Credit):

 

7.01                        Indebtedness.  None of the Borrowers or any of FIL’s Subsidiaries shall create, incur, assume or permit to exist any Indebtedness except for the following (“Permitted Indebtedness”):

 

(a)                                 Indebtedness created under the Loan Documents;

 

(b)                                 Indebtedness that is not secured by a Lien in any asset or property of any of the Borrowers or any of FIL’s Subsidiaries;

 

(c)                                  (i) Indebtedness under Capital Leases (other than pursuant to sale-leaseback transactions) or under purchase money loans incurred by Borrowers or any of FIL’s Subsidiaries to finance the acquisition, construction, development or improvement by such Person of real property, fixtures, inventory or equipment or other tangible assets, provided that in each case (A) such Indebtedness is incurred by such Person at the time of, or not later than 120 days after, the acquisition, construction, development or improvement by such Person of the property so financed and (B) such Indebtedness does not exceed the purchase price of the property (or the cost of constructing, developing or improving the same) so financed, (ii) Indebtedness under initial or successive refinancings (which shall include any amendments, modifications, renewals, refundings or replacements) of any such Capital Leases or purchase money loans, provided that the principal amount of any such refinancing does not exceed the principal amount of the Indebtedness being refinanced (except to the extent necessary to pay fees, expenses, underwriting discounts and prepayment penalties in connection therewith), and (iii) to the extent constituting Indebtedness, Securitization Attributable Indebtedness arising out of transactions not resulting in a breach of Section 7.03 or Section 7.12(a);

 

(d)                                 Existing Secured Indebtedness, together with initial or successive refinancings (which shall include any amendments, modifications, renewals, refundings or replacements) thereof, provided that (i) the principal amount of any such refinancing does not exceed the principal amount of the Indebtedness being refinanced (except to the 

 

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extent necessary to pay fees, expenses, underwriting discounts and prepayment penalties in connection therewith) and (ii) the other terms and provisions of any such refinancing with respect to maturity, redemption, prepayment, default and subordination are no less favorable in any material respect to Lenders than the Indebtedness being refinanced;

 

(e)                                  (ii) Indebtedness of FIL or any of its Subsidiaries owing to any Borrower, Guarantor or Eligible Material Subsidiary and (ii) to the extent permitted by Section 7.05, Guaranty Obligations of FIL or any of its Subsidiaries of Permitted Indebtedness of FIL or any of its Subsidiaries;

 

(f)                                   Indebtedness (including Capital Leases) under sale-leaseback transactions of fixed assets and under initial or successive refinancings (which shall include any amendments, modifications, renewals, refundings or replacements) of any such sale-leaseback transactions (provided that the principal amount of any such refinancing does not exceed the principal amount of the Indebtedness being refinanced, except to the extent necessary to pay fees, expenses, underwriting discounts and prepayment penalties in connection therewith) in an aggregate amount outstanding not to exceed at any time for FIL and its Subsidiaries together $250,000,000;

 

(g)                                  Indebtedness of a Person existing at the time such Person was acquired as a new Subsidiary by the Company or any of its Subsidiaries (whether by merger, consolidation, or otherwise) or assumed in connection with the acquisition of assets by the Company or any of its Subsidiaries from a Person, in each case other than to the extent such Indebtedness was created, incurred or assumed in contemplation of or in connection with the financing of such acquisition, and provided such Indebtedness ceases to exist as to the Company and its Subsidiaries by a date no later than 180 days after the effective date of such acquisition; and

 

(h)                                 Other Indebtedness that is secured by a Lien on any assets or property of any of the Borrowers or any of FIL’s Subsidiaries (which shall (x) include, for the avoidance of doubt, Indebtedness of the type described in subsection (f) of this Section in excess of $250,000,000 and Indebtedness of the type described in clause (g) of this Section which is not repaid within such 180 day period, but (y) exclude Indebtedness owing by any Borrower, Guarantor or Eligible Material Subsidiary to any other Subsidiary of FIL which is not a Borrower, Guarantor or Eligible Material Subsidiary, other than to the extent any such Indebtedness described in this clause (y) arises pursuant to one or more securitization arrangements), provided that the aggregate principal amount of all such other secured Indebtedness (excluding Indebtedness secured by cash or cash equivalents to the extent such cash or cash equivalents are proceeds of such Indebtedness) and Rate Contracts to the extent secured by a Lien (whether or not constituting “Indebtedness”) outstanding during any fiscal quarter of FIL does not exceed the greater of (i) $500,000,000 and (ii) 5% of Consolidated Tangible Assets as of the last day of the immediately preceding fiscal quarter; and provided, further, that for purposes of this Section 7.01 only, the “principal amount” of the obligations of any Person in respect of any Rate Contract at any time shall be in the maximum aggregate amount (giving effect to any netting agreements), if any, that such Person would be required to pay if such Rate Contract were terminated at such time.

 

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7.02                        Liens.  None of the Borrowers or any of FIL’s Subsidiaries shall create, incur, assume or permit to exist any Lien on or with respect to any of their assets or property of any character, whether now owned or hereafter acquired, except for the following Liens (“Permitted Liens”):

 

(a)                                 Liens that secure only Indebtedness which constitutes Permitted Indebtedness under subsections (c) (but only to the extent such Liens are on the assets so financed, the proceeds thereof and any improvements thereon), (d), (e), (f) or (h) of Section 7.01 and Liens that secure Rate Contracts that do not constitute Indebtedness, provided that the aggregate principal amount of Indebtedness that constitutes Permitted Indebtedness under Section 7.01(h) and secured Rate Contracts that do not constitute Indebtedness shall not exceed the amount set forth in Section 7.01(h);

 

(b)                                 Liens in favor of any of the Borrowers, any Eligible Material Subsidiary or any Guarantor on all or part of the assets of Subsidiaries of any Borrower, any Eligible Material Subsidiary or any Guarantor securing Indebtedness owing by Subsidiaries of any of the Borrowers, Eligible Material Subsidiary or any Guarantor, as the case may be, to any of the Borrowers or to such other Eligible Material Subsidiary or Guarantor;

 

(c)                                  Liens to secure taxes, assessments and other government charges in respect of obligations not overdue or Liens on properties to secure claims for labor, services, materials or supplies in respect of obligations not overdue for a period of more than 60 days (taking into account applicable grace periods) or which are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are being maintained in accordance with GAAP so long as such Liens are not being foreclosed;

 

(d)                                 deposits or pledges made in connection with, or to secure payment of, workmen’s compensation, unemployment insurance, old age pensions or other social security obligations and good faith deposits in connection with tenders, contracts or leases to which any Borrower or any of FIL’s Subsidiaries is a party or deposits or pledges to secure, or in lieu of, surety, penalty or appeal bonds, performance bonds or other similar obligations;

 

(e)                                  Liens of carriers, landlords, warehousemen, mechanics and materialmen, and other like Liens on properties which would not have a Material Adverse Effect and are in respect of obligations not overdue for a period of more than 60 days (taking into account applicable grace periods), or which are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are being maintained in accordance with GAAP so long as such Liens are not being foreclosed;

 

(f)                                   encumbrances on real property consisting of easements, rights of way, zoning restrictions, restrictions on the use of real property and defects and irregularities in the title thereto, landlord’s or lessor’s or lessee’s Liens under leases to which a Borrower or any of FIL’s Subsidiaries is a party (including Synthetic Lease Obligations), and other minor Liens or encumbrances none of which interferes materially with the use of the 

 

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property, in each case which do not individually or in the aggregate have a Material Adverse Effect;

 

(g)                                  Liens in favor of the Administrative Agent for the benefit of the Lenders and the Administrative Agent under the Loan Documents;

 

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

 

(i)                                     (x) Liens arising out of cash management, netting or set off arrangements made between banks or financial institutions and FIL or any of its Subsidiaries in the ordinary course of business, or over any asset held with a clearing house, and (y) other Liens arising by operation of law or by agreement in favor of collecting or payor banks and other banks providing cash management services, in each case, having a right of setoff, revocation, refund or chargeback against money or instruments of FIL or any of its Subsidiaries on deposit with or in possession of such bank to secure the payment of bank fees and other amounts owing in the ordinary course of business;

 

(j)                                    Liens securing Indebtedness or other obligations on cash or cash equivalents to the extent such cash or cash equivalents represent proceeds from such Indebtedness or other obligations;

 

(k)                                 rights of third parties in equipment or inventory consigned to or by, or otherwise owned by such third party and which is being stored on property owned or leased by, a Borrower or any of FIL’s Subsidiaries;

 

(l)                                     Liens created pursuant to attachment, garnishee orders or other process in connection with pre-judgment court proceedings;

 

(m)                             precautionary Liens over Receivables Assets in connection with any securitization, factoring or similar sale transaction permitted under Section 7.03;

 

(n)                                 the interest of a licensor under any license of intellectual property in the ordinary course of business;

 

(o)                                 Liens on assets pursuant to merger agreements, stock or asset purchase agreements and similar purchase agreements in respect of the disposition of such assets by the Company or its Subsidiaries;

 

(p)                                 call arrangements, rights of first refusal and similar rights and customary reciprocal easements and other rights of use relating to (i) Investments in joint ventures, partnerships and the like, (ii) investments consisting of Equity Securities issued by suppliers and other venture capital or similar direct investments, (iii) ownership of undivided interests in assets subject to a joint ownership or similar agreement, or (iv) assets acquired in original equipment manufacturer divestiture transactions or other acquisitions and arising in favor of the original seller or transferor of such assets (or their 

 

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respective Affiliates) pursuant to or in connection with master services, manufacturing services or supply arrangements entered into in connection therewith;

 

(q)                                 Liens on any asset at the time the Company or any of its Subsidiaries acquired such asset and Liens on the assets of a Person existing at the time such Person was acquired by the Company or any of its Subsidiaries, including any acquisition by means of a merger, amalgamation or consolidation with or into the Company or any of its Subsidiaries; subject to the condition that (i) any such Lien may not extend to any other asset of the Company or any of its Subsidiaries; (ii) any such Lien shall not have been created in contemplation of or in connection with the transaction or series of transactions pursuant to which such asset or Person was acquired by the Company or any of its Subsidiaries; and (iii) any such Lien is released no later than 180 days after the effective date of such acquisition;

 

(r)                                    Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);

 

(s)                                   purchase money Liens upon or in any real property or equipment acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or equipment or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property or equipment, or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount; provided, however, that no such Lien shall extend to or cover any properties of any character other than the real property or equipment being acquired (and any accessions or additions thereto, and proceeds thereof), and no such extension, renewal or replacement shall extend to or cover any properties not theretofore subject to the Lien being extended, renewed or replaced; and

 

(t)                                    Liens not otherwise permitted under this Section 7.02, provided that the aggregate fair market value of all assets subject to such Liens does not at any time exceed $150,000,000.

 

7.03                        Asset Dispositions.  None of the Borrowers or any of FIL’s Subsidiaries shall sell, lease, transfer or otherwise dispose of any of their assets or property, whether now owned or hereafter acquired, except as follows:

 

(a)                                 At any time that the Debt Rating is greater than or equal to BB+ by S&P and Ba1 by Moody’s (such time, “Enabling Period”), such Persons may sell, lease, transfer or otherwise dispose of (i) assets and property for fair market value (provided that for this purpose the sale of Receivables Assets pursuant to a securitization, factoring or other sale arrangement shall be deemed to be at fair market value so long as the consideration received therefor (including any deferred purchase price) is not less than 95% of the face value of the receivables so sold); (ii) assets and property pursuant to distributions and dividends permitted by Section 7.06; (iii) assets or property to any Borrower or any Wholly-Owned Subsidiary of FIL from any other Borrower or Subsidiary of FIL; (iv) damaged, obsolete or worn-out assets and scrap in the ordinary course of business; and (v) duplicative or excess assets existing as a result 

 

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of acquisitions otherwise permitted pursuant to Section 7.04 and excess assets resulting from a restructuring not otherwise prohibited hereunder; and

 

(b)                                 At any time that is not during an Enabling Period, such Persons may sell, lease, transfer or otherwise dispose of:

 

(i)                                     assets or property in the ordinary course of business for fair market value;

 

(ii)                                  Receivables Assets in securitization, factoring or other sale transactions, provided that the aggregate outstanding balance of accounts receivable so sold by the Borrowers and FIL’s Subsidiaries and funded in cash by the unaffiliated third party purchaser(s) thereof (excluding, for the avoidance of doubt, receivables sold for a deferred purchase price or other consideration funded on a deferred basis from the proceeds of the collections on such receivable and receivables which represent a subordinated interest or a reserve) together and outstanding at any time shall not exceed 30% of the aggregate outstanding balance of accounts receivable of FIL and its Subsidiaries at such time, provided, however, that the Borrowers and FIL’s Subsidiaries shall not be in default of this clause (ii) upon the termination of an Enabling Period if, as a result of sales of accounts receivable during such Enabling Period, the outstanding balance of accounts receivable so sold by the Borrowers and FIL’s Subsidiaries exceeds 30% of the then aggregate outstanding balance of accounts receivable of FIL and its Subsidiaries;

 

(iii)                               (A) duplicative or excess assets existing as a result of transactions otherwise permitted pursuant to Section 7.04, provided that in each case the aggregate amount of any such duplicative or excess assets sold or transferred in any fiscal year (excluding sales or transfers during an Enabling Period) does not exceed (together with the aggregate amount of assets sold or transferred pursuant to clause (B) of this subsection (b)(iii)) 5% of all fixed assets (net of depreciation) held by FIL and its Subsidiaries as of the end of the most recent fiscal quarter for which Financial Statements have been delivered hereunder, and (B) duplicative or excess assets existing as a result of a restructuring of the businesses of FIL or its Subsidiaries not otherwise prohibited hereunder, provided that in each case the aggregate amount of any such duplicative or excess assets sold or transferred in any fiscal year (excluding sales or transfers during an Enabling Period) does not exceed 1% of all fixed assets (net of depreciation) held by FIL and its Subsidiaries as of the end of the immediately preceding fiscal quarter;

 

(iv)                              damaged, obsolete or worn-out assets and scrap, in each case in the ordinary course of business;

 

(v)                                 assets or property to any Borrower or any Subsidiary of FIL from any other Borrower or Subsidiary of FIL;

 

(vi)                              dispositions of Investments permitted under Section 7.05 consisting of cash equivalents and marketable securities for a purchase price that is not less than fair market value of the Investments being sold;

 

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(vii)                           fixed assets sold and leased back by FIL or its Subsidiaries for fair market value in a transaction not otherwise prohibited hereunder, provided such assets were first acquired by FIL or its Subsidiaries no earlier than 180 days prior to the date of such sale-leaseback;

 

(viii)                        sales and other dispositions of Non-Core Assets for fair market value;

 

(ix)                              sales and other dispositions of assets or Investments not constituting Non-Core Assets for fair market value, excluding sales or other dispositions during an Enabling Period, in an aggregate amount not to exceed in any fiscal year 10% of the total assets of FIL and its Subsidiaries at the end of the immediately preceding fiscal year; and

 

(x)                                 assets and property pursuant to distributions and dividends permitted by Section 7.06.

 

7.04                        Mergers, Acquisitions, Etc.  None of the Borrowers or any of FIL’s Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets of any other Person, except for the following:

 

(a)                                 The Borrowers and FIL’s Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below, provided that (i) (A) in any such amalgamation or merger involving any Borrower, such Borrower is the surviving Person and (B) in any such amalgamation or merger involving a Guarantor, the surviving Person is an Eligible Material Subsidiary and becomes a Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (ii) in each case, no Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or merger;

 

(b)                                 The Borrowers and FIL’s Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person, provided that:

 

(i)                                     No Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition;

 

(ii)                                  Such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and

 

(iii)                               In the case of an acquisition of a Person as a new Subsidiary, the Borrowers or FIL’s Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and

 

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(c)                                  Any of FIL’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets permitted under Section 7.03 or in connection with a joint venture Investment permitted under Section 7.05, provided that to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

 

7.05                        Investments.  During any time that is not an Enabling Period, none of the Borrowers or any of FIL’s Subsidiaries shall make any Investment, except for the following:

 

(a)                                 Investments, other than Investments in joint ventures or non-Wholly-Owned Subsidiaries, permitted by the investment policy of FIL delivered by FIL to the Administrative Agent on the Closing Date or, if any changes to the investment policy of FIL are hereafter duly approved by the Board of Directors of FIL, in any subsequent investment policy which is the most recent investment policy delivered by FIL to Administrative Agent with a certificate of FIL’s chief financial officer to the effect that such investment policy has been duly approved by FIL’s Board of Directors and is then in effect;

 

(b)                                 Investments listed in Schedule 7.05 committed on the Closing Date;

 

(c)                                  Investments received by Borrowers and FIL’s Subsidiaries in connection with the bankruptcy or reorganization of customers and suppliers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;

 

(d)                                 Investments by FIL or its Subsidiaries in FIL or Wholly-Owned Subsidiaries of FIL;

 

(e)                                  Investments consisting of loans to employees and officers for travel, housing, relocation and other similar expenses incurred in the ordinary course of business;

 

(f)                                   Investments of Borrowers and FIL’s Subsidiaries in interest rate protection, currency swap and foreign exchange arrangements, provided that all such arrangements are entered into in connection with bona fide hedging operations and not for speculation;

 

(g)                                  Deposit accounts;

 

(h)                                 Investments permitted by Section 7.04, other than joint venture Investments and Investments in Subsidiaries that are not Wholly-Owned Subsidiaries;

 

(i)                                     Investments made as a result of (i) the receipt of non-cash consideration from an asset disposition permitted under Section 7.03 or (ii) a retained interest in any asset disposed of in a transaction permitted under Section 7.03 (and any increases in any such Investments under clauses (i) and (ii) above);

 

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(j)                                    Provided no Default has occurred and is continuing on the date of, or will result after giving effect thereto, Investments in Elementum in an aggregate amount not to exceed $50,000,000; and

 

(k)                                 Other Investments (including joint venture Investments and Investments in Subsidiaries that are not Wholly-Owned Subsidiaries), provided that:

 

(i)                                     No Default has occurred and is continuing on the date of, or will result after giving effect to, any such Investment; and

 

(ii)                                  The aggregate consideration paid by Borrowers and FIL’s Subsidiaries for all such Investments pursuant to this clause (j) in any fiscal year (without duplication) does not exceed the sum of (1) 10% of the total assets of FIL and its Subsidiaries at the end of the immediately preceding fiscal quarter, plus (2) 75% of the Net Proceeds received from the issuance by FIL of any Equity Securities of the type described in clause (a) of the definition of “Equity Securities” during calendar year 2007 or thereafter.

 

For the avoidance of doubt, during an Enabling Period the limitations on Investments contained in this Section 7.05 shall not apply.

 

7.06                        Dividends, Redemptions, Etc.  None of the Borrowers or any of FIL’s Subsidiaries shall (a) pay any dividends or make any distributions (whether in cash, securities or other property) on its Equity Securities, including any payment to a sinking fund or similar deposit, (b) purchase, redeem, retire, defease, cancel, terminate, or otherwise acquire for value any of its Equity Securities, or (c) return any capital to any holder of its Equity Securities as such, or set apart any sum for any of the foregoing purposes, except as follows:

 

(i)                                     Any of the Borrowers or any of FIL’s Subsidiaries may pay dividends or make distributions on, or make exchanges of, its Equity Securities payable in such Person’s own Equity Securities;

 

(ii)                                  Any Subsidiary of FIL may pay dividends, make distributions (whether in cash, securities or other property) or return capital to, or repurchase, redeem, retire, defease, or otherwise acquire for value its Equity Securities from, the holders of such Subsidiary’s Equity Securities;

 

(iii)                               FIL may pay dividends on its Equity Securities payable in cash or repurchase, redeem, retire, defease, or otherwise acquire for value its Equity Securities for cash, provided that, in each case, no Default has occurred and is continuing on the date of, or will result after giving effect to, any such payment or repurchase, redemption, retirement, defeasance or other acquisition;

 

(iv)                              FIL and its Subsidiaries may make regularly scheduled payments of interest and principal on any Indebtedness which constitutes Equity Securities, and payments due upon the conversion of such Equity Securities, in accordance with the terms thereof, subject to the terms of any applicable subordination agreement; and

 

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(v)                                 Provided there exists no Default either before or after giving effect thereto, FIL and its Subsidiaries may make distributions (including dividends) in the form of Equity Securities of a Subsidiary or Subsidiaries the aggregate value of which distributions together shall not exceed $800,000,000 during the term hereof, provided, that for purposes of this clause (v), the aggregate value of any such distribution shall be deemed to be equal to the product of (A) the value of the assets of such Subsidiary (as shown on the Financial Statements of FIL most recently delivered pursuant to Section 6.01(a) or (b)) and (B) the percentage of the Equity Securities in such Subsidiary that were paid in such distribution.

 

7.07                        Change in Business.  None of the Borrowers or any of FIL’s Subsidiaries shall engage to any material extent, either directly or indirectly, in any business substantially different from (i) their present business or (ii) any business reasonably related or ancillary thereto.

 

7.08                        Employee Benefit Plans.

 

(a)                                 None of the Borrowers or any ERISA Affiliate shall (i) adopt or institute any employee pension benefit plan within the meaning of section 3(2) of ERISA that is subject to Title IV of ERISA (not including any such plan of a Person existing at the time such Person was acquired by a Borrower or any ERISA Affiliate), (ii) take any action which will result in the partial or complete withdrawal, within the meanings of sections 4203 and 4205 of ERISA, from a Multiemployer Plan, (iii) engage or permit any Person to engage in any transaction prohibited by section 406 of ERISA or section 4975 of the Code involving any Employee Benefit Plan or Multiemployer Plan which would subject any Borrower or any ERISA Affiliate to any material tax, penalty or other liability including a liability to indemnify, (iv) fail to meet the minimum funding standards of sections 412 or 430 of the Code or sections 302 or 303 of ERISA with respect to any Employee Benefit Plan, (v) fail to make full payment when due of all amounts due as contributions to any Employee Benefit Plan or Multiemployer Plan, (vi) fail to comply with the requirements of section 4980B of the Code or Part 6 of Title I(B) of ERISA, or (vii) adopt any amendment to any Employee Benefit Plan which would require the posting of security pursuant to section 436(f)(1) of the Code, where singly or cumulatively, the above would be reasonably and substantially likely to have a Material Adverse Effect.

 

(b)                                 None of the Borrowers or any of FIL’s Subsidiaries shall (i) engage in any transaction prohibited by any Governmental Rule applicable to any Foreign Plan, (ii) fail to make full payment when due of all amounts due as contributions to any Foreign Plan or (iii) otherwise fail to comply with the requirements of any Governmental Rule applicable to any Foreign Plan, where singly or cumulatively, the above would be reasonably and substantially likely to have a Material Adverse Effect.

 

7.09                        Transactions With Affiliates.  None of the Borrowers or any of FIL’s Subsidiaries shall enter into any Contractual Obligation with any Affiliate (other than one of the Borrowers, one of its Subsidiaries or Elementum, to the extent Elementum would constitute a Subsidiary at such time but for it being excluded from the definition of “Subsidiary”) or engage in any other transaction with any such Affiliate except (i) upon terms at least as favorable to such Borrower or such Subsidiary as an arms-length transaction with unaffiliated Persons, except as disclosed or reflected in the Financial Statements of FIL for the fiscal year ended March 31, 

 

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2013 and the quarter ended December 31, 2013, furnished by FIL to the Administrative Agent prior to the date hereof, or as timely disclosed or reflected (or to be timely disclosed or reflected) in the Financial Statements delivered to the Administrative Agent pursuant to Section 6.01(a) or (b), (ii) compensation arrangements, indemnification agreements and employee benefits plans for officers and directors duly approved by the board of directors of the Company or such Subsidiary, (iii) in connection with transactions made in accordance with Section 7.04 or 7.05, or (iv) dividends, distributions, redemptions, payments and other transactions permitted under Section 7.06.

 

7.10                        Accounting Changes.  FIL and its Subsidiaries shall not (a) change their fiscal year (currently April 1 through March 31), or (b) change in any material respect their accounting practices except (i) as required by GAAP, or (ii) as permitted by GAAP if such Person receives the prior written consent of the Administrative Agent to such GAAP-permitted change; provided, however, that FIL and its Subsidiaries may change their fiscal year on a one-time basis during the term of this Agreement or materially change their accounting practices to the extent permitted by GAAP without the prior written consent of the Administrative Agent if, in either event, (A) FIL shall deliver to the Administrative Agent notice (“change notice”) detailing such change in fiscal year or practice no later than 90 days prior to the intended effective date of such change, and (B) if the Required Lenders shall so request by notice delivered by the Administrative Agent to the Company no later than 30 days after the date of such change notice, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend any ratio or covenant requirement set forth in any Loan Document that would reasonably be expected to be affected (either on a one-time basis, or otherwise) by such change in fiscal year or practice, to preserve the original intent thereof in light of such change in fiscal year or practice (any such amendment to be subject to the approval of the Required Lenders), provided that, until and unless such provisions are duly amended, no such change in fiscal year or material change in accounting practice shall become effective.

 

7.11                        Burdensome Contractual Obligations.  None of the Borrowers or any of FIL’s Subsidiaries will enter into any Contractual Obligation (excluding this Agreement and the other Loan Documents) that restricts the ability of any Wholly-Owned Subsidiary of FIL or any other Subsidiary of FIL that had revenues during the immediately preceding fiscal year equal to or greater than $25,000,000 or net worth on the last day of the immediately preceding fiscal year equal to or greater than $25,000,000, to pay or make dividends or distributions in cash or kind, to make loans, advances or other payments of whatsoever nature or to make transfers or distributions of all or any part of their assets to any of the Borrowers or to any Subsidiary of such Subsidiary; provided, however, that the foregoing shall not apply to:

 

(a)                                 restrictions or conditions imposed by any Governmental Rule;

 

(b)                                 customary restrictions and conditions contained in licenses, leases and franchise agreements;

 

(c)                                  transfer or distribution restrictions or conditions arising in connection with the sale of a Subsidiary or other assets otherwise permitted hereunder, effective pending such sale, provided such restrictions and conditions apply only to such Subsidiary or assets to be sold;

 

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(d)                             restrictions or conditions in respect of transfers or distributions affecting property or assets subject to a Permitted Lien;

 

(e)                                  restrictions or conditions contained in instruments and agreements evidencing Indebtedness for borrowed money that are taken as a whole no more restrictive than such restrictions and conditions contained in this Agreement;

 

(f)                                   customary restrictions in respect of transfers or distributions contained in purchase or supply agreements entered into in the ordinary course of business, provided such restrictions are limited to the property or assets that are the subject of such agreements, and customary restrictions on the assignment of such agreements contained in agreements entered into in the ordinary course of business;

 

(g)                                  restrictions or conditions contained in any joint venture agreements, partnership agreements, organizational documents and other agreements relating to the joint ownership of assets, provided such restrictions or conditions apply only to the assets or property contained within such joint venture, partnership or other joint ownership arrangement;

 

(h)                                 restrictions or conditions relating to Receivables Assets contained in agreements relating to securitization, factoring and other similar receivables sale transactions permitted hereunder;

 

(i)                                     restrictions or conditions imposed by agreements governing Existing Secured Indebtedness (but shall not apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition); and

 

(j)                                    restrictions or conditions applicable to assets (including agreements) or a Person acquired by any of the Borrowers or any of FIL’s Subsidiaries as permitted by this Agreement, provided that the exception in this clause (j) shall cease to apply, from and after the date that is 180 days after such acquisition, to restrictions or conditions imposed by agreements governing Indebtedness of a Person to the extent such Person is or becomes a Material Subsidiary.

 

7.12                        Financial Covenants.  The Borrowers will comply, and will cause compliance, with the following financial covenants, unless the Required Lenders shall otherwise consent in writing:

 

(a)                                 Debt/EBITDA Ratio.  FIL shall not permit its Debt/EBITDA Ratio as of the last day of any fiscal quarter to exceed 4.00:1.00.

 

(b)                                 Interest Coverage Ratio.  FIL shall not permit its Interest Coverage Ratio to be less than 3.00 to 1.00 for any consecutive four-quarter period ending on the last day of any fiscal quarter.

 

7.13                        Sanctions.  Directly or indirectly, use the proceeds of any Credit Extension, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of

 

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Sanctions, or in any other manner that will result in a violation by any individual or entity (including any individual or entity participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swing Line Lender, or otherwise) of Sanctions.

 

ARTICLE VIII.
 EVENTS OF DEFAULT AND REMEDIES

 

8.01                        Events of Default.  Any of the following shall constitute an Event of Default:

 

(a)                                 Non-Payment.  Any Borrower or any other Loan Party fails to pay (i) when and as required to be paid hereunder, and in the currency required hereunder, any amount of principal of any Loan or any L/C Obligation, or (ii) within five Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or

 

(b)                                 Specific Defaults.  Any Borrower or any of FIL’s Subsidiaries (whether or not a party hereto) shall fail to observe or perform any covenant, obligation, condition or agreement set forth in 6.06 or 6.07(a) (with respect to the existence of any Borrower) or Article VII; or

 

(c)                                  Other Defaults.  Any Borrower or any of FIL’s Subsidiaries (whether or not a party hereto) shall fail to observe or perform any other covenant, obligation, condition or agreement contained in this Agreement or the other Loan Documents and such failure shall continue for 30 Business Days after the earlier of (i) any Borrower’s written acknowledgement of such failure and (ii) the Administrative Agent’s or any Lender’s written notice to the Borrowers of such failure; provided, however, that (x) if the Borrower shall have failed to provide a notice of Default within five Business Days as required under Section 6.01(d)(iv), such 30-Business Day cure period shall be reduced by the number of days that have elapsed following the expiration of such five-Business Day notice period until such notice was provided and (y) in the event that such failure cannot reasonably be cured within such 30 Business Day period, and such failure relates to the observance or performance of any of the covenants, obligations, conditions or agreements contained in Section 5.06 hereof with respect to Hazardous Materials or any Environmental Laws or any judgment, consent decree, settlement or compromise in respect of any claim based thereon, it shall not constitute an Event of Default hereunder so long as the Borrowers shall have commenced to cure such failure within such 30 Business Day period and shall thereafter diligently pursue such cure to completion, and provided, further, that such failure shall in all events be cured within 180 days after the Administrative Agent’s or such Lender’s written notice thereof; or

 

(d)                                 Representations and Warranties.  Any representation or warranty or written certificate, information or other statement (financial or otherwise) made or furnished by or on behalf of any Borrower to the Administrative Agent or any Lender in or in connection with this Agreement or any of the other Loan Documents, or as an inducement to the Administrative Agent or any Lender to enter into this Agreement, shall

 

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be false, incorrect, incomplete or misleading in any material respect when made (or deemed made) or furnished; or

 

(e)                                  Cross-Default.  (i) Any Borrower, any Guarantor or any Material Subsidiary shall fail to make any payment on account of any Indebtedness of such Person (other than the Obligations) when due (whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and such failure shall continue beyond any period of grace provided with respect thereto, if the amount of such Indebtedness exceeds $100,000,000 or the effect of such failure is to cause, or permit the holder or holders thereof to cause, Indebtedness of any Borrower, any Guarantor and any Material Subsidiary (other than the Obligations) in an aggregate amount exceeding $100,000,000 to become due (whether at scheduled maturity, by required prepayment, upon acceleration or otherwise); or (ii) any Borrower, any Guarantor or any Material Subsidiary shall otherwise fail to observe or perform any agreement, term or condition contained in any agreement or instrument relating to any Indebtedness of such Person (other than the Obligations), or any other event shall occur or condition shall exist, if the effect of such failure, event or condition is to cause, or permit the holder or holders thereof to cause, Indebtedness of any Borrower, any Guarantor and any Material Subsidiary (other than the Obligations) in an aggregate amount exceeding $100,000,000 to become due (and/or to be secured by cash collateral other than cash collateral obligations not arising from an event of default under any agreement or instrument relating to Indebtedness incurred in connection with Synthetic Lease Obligations or letters of credit); provided that, for the avoidance of doubt, so long as any acquired Person (or its successor by merger, consolidation or otherwise) is not in breach of its obligations in respect of repaying or repurchasing, or making an offer to repay or repurchase, any Indebtedness of such Person of the kind described in Section 7.01(g), which obligations in respect of repaying or repurchasing, or making an offer to repay or repurchase, result from the acquisition of such Person, neither the existence of such repayment or repurchase obligations (nor the circumstances giving rise to such obligations) shall constitute an Event of Default under this Section 8.01(e); or

 

(f)                                   Insolvency, Voluntary Proceedings.

 

(i)                                     Any Borrower or any Significant Subsidiary shall (1) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (2) be unable, or admit in writing its inability, to pay its debts generally as they mature, (3) make a general assignment for the benefit of its or any of its creditors, (4) become insolvent (as such term may be defined or interpreted under any applicable statute), (5) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (6) take any action for the purpose of effecting any of the foregoing; or FIL, any Designated Borrower or any Material Subsidiary shall be dissolved or liquidated in full or in part; provided, however, that the dissolution, liquidation or termination of the

 

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existence of an Excluded Subsidiary shall not constitute an Event of Default under this Section 8.01(f)(i); or

 

(ii)                                  Elementum (if at such time (A) it would constitute a Material Subsidiary but for it being excluded from the definition of “Subsidiary” herein and (B) it is required to be consolidated with the Company and its Subsidiaries for GAAP purposes) shall (1) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (2) be unable, or admit in writing its inability, to pay its debts generally as they mature, (3) make a general assignment for the benefit of its or any of its creditors, (4) become insolvent (as such term may be defined or interpreted under any applicable statute), (5) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, (6) take any action for the purpose of effecting any of the foregoing, or (7) be dissolved or liquidated in full or in part; or

 

(g)                                  Involuntary Proceedings.

 

(i)                                     Proceedings for the appointment of a receiver, trustee, liquidator or custodian of any Borrower or any Significant Subsidiary or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to any Borrower or any Significant Subsidiary or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within 60 days of commencement; or

 

(ii)                                  So long as Elementum (A) would constitute a Material Subsidiary but for it being excluded from the definition of “Subsidiary” herein and (B) is required to be consolidated with the Company and its Subsidiaries for GAAP purposes), proceedings for the appointment of a receiver, trustee, liquidator or custodian of Elementum or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to Elementum or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within 60 days of commencement; or

 

(h)                                 Judgments.  (i) One or more non-interlocutory judgments, orders, decrees or arbitration awards requiring Borrowers and/or FIL’s Subsidiaries to pay an aggregate amount of $100,000,000 or more (exclusive of amounts covered by insurance issued by an insurer not an Affiliate of Borrowers and otherwise satisfying the requirements set forth in Section 6.04 to which the insurer does not dispute coverage) shall be rendered against Borrowers and/or FIL’s Subsidiaries in connection with any single or related

 

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series of transactions, incidents or circumstances and the same shall not be satisfied, vacated or stayed for a period of 60 consecutive days, (ii) any non-interlocutory judgment, writ, assessment, warrant of attachment, tax lien or execution or similar process shall be issued or levied against a substantial part of the property of any Borrower or any of FIL’s Subsidiaries and the same (A) shall not be released, stayed, vacated or otherwise dismissed within 60 days after issue or levy and (B) is reasonably and substantially likely to have a Material Adverse Effect or (iii) any non-interlocutory judgments, orders, decrees, arbitration awards, writs, assessments, warrants of attachment, tax liens or executions or similar processes which do not constitute an Event of Default under Section 8.01(h)(ii) and which, alone or in the aggregate, are reasonably and substantially likely to have a Material Adverse Effect are rendered, issued or levied; or

 

(i)                                     Loan Documents.  Any Loan Document or any material term thereof shall cease to be, or be asserted by any Borrower or any Guarantor not to be, a legal, valid and binding obligation of any Borrower or any Guarantor enforceable in accordance with its terms; or

 

(j)                                    Employee Benefit Plans.  (i) Any Reportable Event which constitutes grounds for the termination of any Employee Benefit Plan by the PBGC or for the appointment of a trustee by the PBGC to administer any Employee Benefit Plan, and which is reasonably and substantially certain to result in liability to the Borrowers in excess of $50,000,000 shall occur, (ii) any Employee Benefit Plan shall be terminated within the meaning of Title IV of ERISA (x) in a distress termination, or (y) other than a distress termination and the resulting liability is in excess of $50,000,000, or (iii) any event with respect to a Foreign Plan which is reasonably and substantially certain to result in liability to the Borrowers that is not funded or reserved in excess of $100,000,000 shall occur; or

 

(k)                                 Change of Control.  Any Change of Control shall occur.

 

8.02                        Remedies Upon Event of Default.  If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:

 

(a)                                 declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;

 

(b)                                 declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers;

 

(c)                                  require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and

 

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(d)                                 exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents;

 

provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States (or any comparable event under non-U.S. Debtor Relief Laws), the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.

 

8.03                        Application of Funds.  After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.18 and 2.19, be applied by the Administrative Agent in the following order:

 

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;

 

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;

 

Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;

 

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Fourth held by them;

 

Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.18; and

 

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Company or as otherwise required by any Governmental Rule.

 

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Subject to Sections 2.03(g) and 2.18, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.

 

8.04                        Lender Rate Contract Remedies.  Notwithstanding any other provision of this Article VIII, each Lender or its Affiliate which has entered into a Rate Contract with FIL or its Subsidiaries (“Lender Rate Contract”) shall have the right, with prior notice to the Administrative Agent, but without the approval or consent of the Administrative Agent or any other Lender, to the extent provided by such Lender Rate Contracts, (a) to declare an event of default, termination event or other similar event thereunder which will result in the early termination of such Lender Rate Contract, (b) to determine net termination amounts in accordance with the terms of such Lender Rate Contract and to set-off amounts between Lender Rate Contracts of such Lender, and (c) to prosecute any legal action against any Borrower or any of FIL’s Subsidiaries to enforce net amounts owing to such Lender or its Affiliate under such Lender Rate Contracts.

 

ARTICLE IX.
 ADMINISTRATIVE AGENT

 

9.01                        Appointment and Authority.  Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and no Borrower shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

 

9.02                        Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

 

9.03                        Exculpatory Provisions.  The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its

 

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duties hereunder shall be administrative in nature.  Without limiting the generality of the foregoing, the Administrative Agent:

 

(a)                                 shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

 

(b)                                 shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and

 

(c)                                  shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any of the Borrowers or any of their respective Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

 

The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment.  The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Company, a Lender or the L/C Issuer.

 

The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (B) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (D) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (E) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

9.04                        Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message,

 

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internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the Company), 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.

 

9.05                        Delegation of Duties.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

 

9.06                        Resignation of Administrative Agent.

 

(a)                                 The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Company.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above.  Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

 

(b)                                 With effect from the Resignation Effective Date (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each

 

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Lender and the L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date), and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents  (if not already discharged therefrom as provided above in this Section).  The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor.  After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.

 

(c)                                  Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as an L/C Issuer and Swing Line Lender.  If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c).  If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c).  Upon the appointment by the Company of a successor L/C Issuer or Swing Line Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as applicable, (b) the retiring L/C Issuer and/or Swing Line Lender, as applicable, shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.

 

9.07                        Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or

 

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based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 

9.08                        No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Bookrunners, Book Managers, Arrangers, Syndication Agents or Documentation Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder.

 

9.09                        Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise

 

(a)                                 to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such judicial proceeding; and

 

(b)                                 to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

 

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04.

 

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.

 

9.10                        Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion, (a) to release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty if there occurs a Release Date (as defined in the Subsidiary Guaranty) as to such Person and (b) to release any Subsidiary Guarantor which is

 

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a Significant Subsidiary (but not a Material Subsidiary) from the Subsidiary Guaranty upon, and in exchange for, the Company causing any other Significant Subsidiary or Significant Subsidiaries not already party thereto to enter into the Subsidiary Guaranty (and comply with the documentary requirements of Section 6.10(a) applicable to Eligible Material Subsidiaries) if the Administrative Agent determines in its sole discretion that such exchange of Subsidiary Guarantors will not be disadvantageous to the Lenders in any material respect). Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty pursuant to this Section 9.10.

 

ARTICLE X.
 MISCELLANEOUS

 

10.01                 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent (which acknowledgment the Administrative Agent shall provide promptly and in any event within three Business Days following its actual receipt of an amendment or waiver countersigned by the Required Lenders, Company and other applicable Loan Party, if any), and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:

 

(a)                                 waive any condition set forth in Section 4.01(a) without the written consent of each Lender;

 

(b)                                 without limiting the generality of clause (a) above, waive any condition set forth in Section 4.02 as to any Credit Extension under a particular Facility without the written consent of the Required Revolving Lenders and/or the Required Term A Lenders, as the case may be;

 

(c)                                  extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;

 

(d)                                 postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;

 

(e)                                  reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (v) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of

 

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“Default Rate” or to waive any obligation of any Borrower to pay interest or Letter of Credit Fees at the Default Rate;

 

(f)                                   change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;

 

(g)                                  amend Section 1.06 or the definition of “Alternative Currency” without the written consent of each Lender;

 

(h)                                 change (i) any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender; or (ii) the definition of “Required Revolving Lenders” or “Required Term A Lenders” without the written consent of each Lender under the applicable Facility;

 

(i)                                     release the Company from the Company Guaranty or all or substantially all of the value of the Subsidiary Guaranty without the written consent of each Lender, except to the extent the release of any Subsidiary Guarantor is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone);

 

and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; (iv) Section 10.06(h) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification; (v) the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto and (vi)  any waiver, amendment or modification that by its terms affects the Lenders in one Facility disproportionately adversely relative to Lenders in any other Facility shall require the consent of the Required Revolving Lenders or Revolving Term A Lenders, as applicable.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) no Commitment of any Defaulting Lender may be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.

 

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Notwithstanding any provision herein to the contrary, this Agreement may be amended in accordance with and pursuant to the terms of Sections 2.15 or 2.16, as applicable, including, without limitation, to permit the Lenders providing such additional credit facilities to participate in any required vote or action required to be approved by the Required Lenders or by any other number, percentage or class of Lenders hereunder.

 

10.02                 Notices; Effectiveness; Electronic Communication.

 

(a)                                 Notices Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

 

(i)                                     if to a Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and

 

(ii)                                  if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).

 

Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient).  Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).

 

(b)                                 Electronic Communications.  Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent, the Swing Line Lender, the L/C Issuer or the Company may each, 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.

 

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Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

 

(c)                                  The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

 

(d)                                 Change of Address, Etc.  Each of the Borrowers, the Administrative Agent, the L/C Issuer and the Swing Line Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Company, the Administrative Agent, the L/C Issuer and the Swing Line Lender.  In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Requirement of Law, including United States Federal and state securities Requirements of Law, to make reference to Borrower Materials that are not made available through the “Public Side

 

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Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.

 

(e)                                  Reliance by Administrative Agent, L/C Issuer and Lenders.  The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic Committed Loan Notices, Letter of Credit Applications and Swing Line Loan Notices) purportedly given by or on behalf of any Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  The Company shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of any Borrower.  All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

 

10.03                 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

 

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

 

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10.04                 Expenses; Indemnity; Damage Waiver.

 

(a)                                 Costs and Expenses.  The Company shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer) in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.  This Section 10.04(a) shall not apply with respect to Taxes other than Taxes that represent losses or damages arising from any non-Tax claim.

 

(b)                                 Indemnification by the Company.  The Company shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender, the Swing Line Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee in respect of or arising out of or in connection with claims, damages, or liabilities asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer 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 any Borrower or any of its Subsidiaries (including, if it would constitute a Subsidiary but for it being excluded from the definition of “Subsidiary” herein, Elementum), or any environmental liability related in any way to any Borrower or any of its Subsidiaries (including, if it would constitute a Subsidiary but for it being excluded from the definition of “Subsidiary” herein,  Elementum), or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall

 

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not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Company or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Company or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.  This Section 10.04(b) shall not apply with respect to Taxes other than Taxes that represent losses or damages arising from any non-Tax claim.

 

(c)                                  Reimbursement by Lenders.  To the extent that the Company for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swing Line Lender or any Related Party of any of the foregoing, or the Administrative Agent incurs any expense pursuant to Section 6.03 that is not subject to reimbursement by the Company, but without affecting the Company’s obligation (if any) to make such payment, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer, the Swing Line Lender or such Related Party, 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 based on each Lender’s share of the Outstanding Amounts and any unused Commitments at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the Swing Line Lender or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), Swing Line Lender or L/C Issuer in connection with such capacity.  The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).

 

(d)                                 Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable law, no Borrower shall assert, and hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.

 

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(e)                                  Payments.  All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.

 

(f)                                   Survival.  The agreements in this Section and the indemnity provisions of Section 10.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

 

10.05                 Payments Set Aside. To the extent that any payment by or on behalf of any Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

 

10.06                 Successors and Assigns.

 

(a)                                 Successors and Assigns Generally.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC in accordance with the provisions of subsection (h) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

(b)                                 Assignments by Lenders.  Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all

 

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or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:

 

(i)                                     Minimum Amounts.

 

(A)                                    in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Facility and the Loans at the time owing to it under such Facility or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

 

(B)                                    in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Credit Facility, or $1,000,000, in the case of any assignment in respect of the Term A Facility unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.

 

(ii)                                  Proportionate Amounts.  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 with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans or prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis;

 

(iii)                               Required Consents.  No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:

 

(A)                                    the consent of the Company (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;

 

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(B)                                the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (1) any Term A Commitment or Revolving Credit Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the applicable Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2) any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund;

 

(C)                                    the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and

 

(D)                                    the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Credit Facility.

 

(iv)                              Assignment and Assumption.  The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.

 

(v)                                 No Assignment to Company.  No such assignment shall be made to (A) the Company or any of the Company’s Affiliates or Subsidiaries, or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person.

 

(vi)                              Certain Additional Payments.  In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage.  Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Governmental Rule without compliance with the provisions of this paragraph, then the

 

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assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

 

(vii)                           No Assignment Resulting in Additional Indemnified Taxes.  No such assignment shall be made to any Person that, through its Lending Offices, is not capable of lending the applicable Alternative Currencies to the relevant then-existing Borrowers without the imposition of any additional Indemnified Taxes.

 

Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.  Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.

 

(c)                                  Register.  The Administrative Agent, , acting solely for this purpose as an agent of the Borrowers (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall 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.  The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

 

(d)                                 Participations.  Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations

 

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and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(c) without regard to the existence of any participation.

 

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant.  Subject to subsection (e) of this Section, each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.  Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrower’s to effectuate the provisions of Section 3.06 with respect to any Participant.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

 

(e)                                  Limitations upon Participant Rights.  A Participant shall not be entitled to receive any greater payment under Section 3.01, 3.04 or 3.05 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.

 

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(f)                                   Certain Pledges.  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

(g)                                  Electronic Execution of Assignments.  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

(h)                                 Special Purpose Funding Vehicles.  Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Company (an “SPC”) the option to provide all or any part of any Committed Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Committed Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Committed Loan, the Granting Lender shall be obligated to make such Committed Loan pursuant to the terms hereof or, if it fails to do so, to make such payment to the Administrative Agent as is required under Section 2.12(b)(ii).  For the avoidance of doubt, each Borrower agrees that each SPC shall be entitled to the benefits of Section 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.06(b) provided that such SPC agrees to be subject to the obligations of Section 3.01 as though it were a Lender.  An SPC shall not be entitled to receive any greater payment under Section 3.01, 3.04 or 3.05 than the Granting Lender would have been entitled to receive, unless the grant to such SPC is made with the Company’s prior written consent.  Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrowers under this Agreement (including its obligations under Section 3.01 and Section 3.04), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder.  The making of a Committed Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Committed Loan were made by such Granting Lender.  In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United

 

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States or any state thereof.  Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Company and the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion), assign all or any portion of its right to receive payment with respect to any Committed Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Committed Loans to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC.

 

(i)                                     Resignation as L/C Issuer or Swing Line Lender after Assignment.  Notwithstanding anything to the contrary contained herein, if at any time any L/C Issuer assigns all of its Revolving Credit Commitment and Revolving Credit Loans pursuant to subsection (b) above, such L/C Issuer may, (i) upon 30 days’ notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) in the case of Bank of America, upon 30 days’ notice to the Company, resign as Swing Line Lender.  In the event of any such resignation as L/C Issuer or Swing Line Lender, the Company shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Company to appoint any such successor shall affect the resignation of the L/C Issuer as L/C Issuer or Bank of America as Swing Line Lender, as the case may be.  If any L/C Issuer resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit issued by it and outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c).  Upon the appointment of a successor L/C Issuer and/or Swing Line Lender (and their acceptance of such appointment), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the resigning L/C Issuer to effectively assume the obligations of the resigning L/C Issuer with respect to such Letters of Credit.

 

10.07                 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ Related Parties (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 required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, provided that, the Administrative Agent, any Lender or the L/C Issuer shall exercise commercially reasonable efforts to notify the Company as soon as reasonably practicable in the

 

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event of any such disclosure, unless such notification shall be prohibited by applicable law, legal process or regulatory request, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Sections 2.15(b), 2.16(b) or 2.17(b) or (ii) any actual or prospective counterparty (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to any of the Borrowers and their obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the Company or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Company, or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Company, provided that, the source of such information was not actually known by the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates, as the case may be, to be bound by a confidentiality agreement with the Company or any of its Subsidiaries with respect to such Information. For purposes of this Section, “Information” means all information received from the Company or any of its Subsidiaries relating to the Company or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any of its Subsidiaries, provided that, in the case of information received from the Company or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (A) the Information may include material non-public information concerning the Company or any of its Subsidiaries, as the case may be, (B) it has developed compliance procedures regarding the use of material non-public information and (C) it will handle such material non-public information in accordance with applicable Requirements of Law, including United States Federal and state securities Requirements of Law.

 

10.08                 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of any Borrower or any other Loan Party against any and all of the obligations of such Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such

 

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Lender or the L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Borrower or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender or the L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.19 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to notify the Company and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.

 

10.09                 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Requirements of Law (the “Maximum Rate”).  If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Company.  In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Requirements of Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

 

10.10                 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 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 that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

 

10.11                 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered

 

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pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

 

10.12                 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.  Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.

 

10.13                 Replacement of Lenders. If (v) any Lender requests compensation under Section 3.04, (w)  any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and a replacement of such Lender would result in a reduction in such compensation or amount, (x) any Lender’s Loans are prepaid or converted under Section 3.02, (y) any Lender is a Defaulting Lender, or (z) any Lender shall refuse to consent to a waiver or amendment to, or a departure from the provisions of, this Agreement or any other Loan Document which requires the consent of all the Lenders or all Lenders directly affected thereby and that has been consented to by the Required Lenders, 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, and consents required by, Section 10.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 10.04, 3.01 or 3.04) and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

 

(a)                                 the Company shall have paid (or caused a Designated Borrower to pay) to the Administrative Agent the assignment fee specified in Section 10.06(b);

 

(b)                                 such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or applicable Designated Borrower (in the case of all other amounts);

 

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(c)                                  in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; and

 

(d)                                 such assignment does not conflict with applicable Requirements of Law.

 

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.

 

10.14                 Governing Law; Jurisdiction; Etc.

 

(a)                                 GOVERNING LAW.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, WHERE SUCH OTHER LOAN DOCUMENT EXPRESSLY SETS FORTH OTHERWISE) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

(b)                                 SUBMISSION TO JURISDICTION.  EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT IN SUCH BOROUGH, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER 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.

 

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(c)                                  WAIVER OF VENUE.  EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION 10.14.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

 

(d)                                 SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.  WITHOUT LIMITING THE FOREGOING, EACH OF THE BORROWERS HEREBY APPOINTS, IN THE CASE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN THE COURTS OF OR IN THE STATE OF NEW YORK, CT CORPORATION, WITH OFFICES ON THE DATE HEREOF AT 111 EIGHTH AVENUE, NEW YORK, NEW YORK 10011, TO RECEIVE FOR IT AND ON ITS BEHALF, SERVICE OF PROCESS IN THE STATE OF NEW YORK WITH RESPECT THERETO, PROVIDED BORROWERS MAY APPOINT ANY OTHER PERSON, REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT, WITH OFFICES IN THE STATE OF NEW YORK TO REPLACE SUCH AGENT FOR SERVICE OF PROCESS UPON DELIVERY TO THE ADMINISTRATIVE AGENT OF A REASONABLY ACCEPTABLE AGREEMENT OF SUCH NEW AGENT AGREEING SO TO ACT.

 

10.15                 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.15.

 

10.16                 California Judicial Reference. If any action or proceeding is filed in a court of the State of California by or against any party hereto in connection with any of the transactions contemplated by this Agreement or any other Loan Document, (a) the court shall, and is hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear and determine all of the issues

 

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in such action or proceeding (whether of fact or of law) and to report a statement of decision, provided that at the option of any party to such proceeding, any such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section 1281.8 shall be heard and determined by the court, and (b) without limiting the generality of Section 10.04, the Company shall be solely responsible to pay all fees and expenses of any referee appointed in such action or proceeding.

 

10.17                 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a) (i) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Arrangers, are arm’s-length commercial transactions between such Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent and Arrangers, on the other hand, (ii) each of such Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) such Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b) (i) the Administrative Agent and the Arrangers each are and have been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, have not been, are not, and will not be acting as an advisor, agent or fiduciary for such Borrower, any other Loan Party or any of their respective Affiliates, or any other Person and (ii) neither the Administrative Agent nor the Arrangers have any obligation to such Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent and the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of such Borrower, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent nor the Arrangers have any obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates.  To the fullest extent permitted by law, each of the Borrowers and the other Loan Parties hereby waives and releases any claims that it may have against the Administrative Agent and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

 

10.18                 Electronic Execution of Assignments and Certain Other Documents. The words “execute,” “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

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10.19                 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given.  The obligation of each Borrower in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any Lender from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such loss.  If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable law).

 

10.20                 Bermuda Branch; Full Recourse Obligations. All Loans to and Letters of Credit for the account of FIL shall be made to or incurred by FIL at its Bermuda branch located at Canon’s Court, 22 Victoria Street, Hamilton HM 12 BERMUDA and all payments of principal and interest by FIL will be made through its Bermuda branch; provided, however, that notwithstanding the foregoing, FIL acknowledges and agrees that the Obligations hereunder are full recourse to Flextronics International Ltd., a Singapore corporation, and are in no manner limited to any extent to any branch thereof and shall in no manner impair the Administrative Agent’s or any Lender’s ability to enforce or collect any Obligation from FIL.

 

10.21                 Waiver of Notice Under Existing FIL Credit Agreement. Each Lender which is a “Lender” under the Existing FIL Credit Agreement (such Lenders hereunder collectively constituting the “Required Lenders” under the Existing FIL Credit Agreement) hereby waives the requirement set forth in Section 2.06 of the Existing FIL Credit Agreement that notice of the termination of the commitments under the Existing FIL Credit Agreement be delivered at least five Business Days prior to the effective date of such termination and agree that notice of such termination delivered as of the date hereof shall satisfy such requirement.

 

10.22                 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Borrowers and other Loan Parties, which information includes the name and address of each Borrower and other Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower or other Loan Party in accordance with the Act.  Each Borrower shall, promptly following a request

 

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by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.

 

[Remainder of this page intentionally left blank]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

	
 
    	
FLEXTRONICS   INTERNATIONAL LTD.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Manny Marimuthu
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Manny   Marimuthu
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Authorized   Signatory
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
FLEXTRONICS   INTERNATIONAL USA, INC., as Designated Borrower
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Christopher   Collier
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Senior   Vice President and Chief Financial Officer
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

	
 
    	
FLEXTRONICS   INTERNATIONAL LTD.
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Manny   Marimuthu
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Authorized   Signatory
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
FLEXTRONICS   INTERNATIONAL USA, INC., as Designated Borrower
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Christopher Collier
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Christopher   Collier
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Senior   Vice President and Chief Financial Officer
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
BANK OF AMERICA, N.A., as
    
	
 
    	
Administrative Agent
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Anthea Del Bianco
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Anthea Del Bianco
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Vice President
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
BANK OF AMERICA, N.A., as a Lender,   L/C
    
	
 
    	
Issuer and Swing Line Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Sugeet Manchanda Madan
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Sugeet Manchanda Madan
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Director
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
CITIBANK, N.A., as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Susan Olsen
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Susan Olsen
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Vice President
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 












 

	
 
    	
BNP PARIBAS,
    
	
 
    	
 
    
	
 
    	
as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Brendan Heneshan
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Brendan Heneshan
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   James Goodall
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
James Goodall
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Managing Director
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
HSBC Bank USA, National   Association
    
	
 
    	
 
    
	
 
    	
as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Thomas Rogers
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Thomas Rogers
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Managing Director, Global Banking
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
JPMORGAN CHASE BANK, N.A.,
    
	
 
    	
 
    
	
 
    	
as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   John G. Kowalczuk
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
John G. Kowalczuk
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Executive Director
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
THE BANK OF NOVA SCOTIA
    
	
 
    	
 
    
	
 
    	
as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Christopher Usas
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Christopher Usas
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Director
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
The Royal Bank of Scotland plc,   as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Alex Daw
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Alex Daw
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Director
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 




 









 

	
 
    	
The   Bank of Tokyo-Mitsubishi UFJ, Ltd.
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Richard Ong Pho
    
	
 
    	
 
    	
 
    
	
 
    	
Name:   
    	
Richard   Ong Pho
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Director
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
Bank   of China, New York Branch
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Haifeng Xu
    
	
 
    	
 
    	
 
    
	
 
    	
Name:   
    	
Haifeng   Xu
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Executive   Vice President
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
Sumitomo   Mitsui Banking Corporation,
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   David W. Kee
    
	
 
    	
 
    	
 
    
	
 
    	
Name:   
    	
David   W. Kee
    
	
 
    	
 
    	
 
    
	
 
    	
Title:   
    	
Managing   Director
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
U.S.   Bank National Association as a Lender,
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jeff Benedix
    
	
 
    	
 
    	
 
    
	
 
    	
Name:   
    	
Jeff   Benedix
    
	
 
    	
 
    	
 
    
	
 
    	
Title:   
    	
Vice   President
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
Australia   and New Zealand Banking Group Limited, as a Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Damodar Menon
    
	
 
    	
 
    	
 
    
	
 
    	
Name:   
    	
Damodar   Menon
    
	
 
    	
 
    	
 
    
	
 
    	
Title:  
    	
Executive   Director
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 




 









 

	
 
    	
DEUTSCHE   BANK AG NEW YORK BRANCH,
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Ming K. Chu
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Ming   K. Chu
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Vice   President
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Yvonne Tilden
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Yvonne   Tilden
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Director
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
UniCredit   Bank AG, New York Branch,
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Douglas Weir
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Douglas   Weir
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Pranav Surendranath
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Pranav   Surendranath
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Vice   President
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
Wells   Fargo Bank, N.A.,
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Sid Khanolkar
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Sid   Khanolkar
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Director
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
Agricultural   Bank of China Limited, Singapore Branch,
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Fan Gang
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Fan   Gang
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
General   Manager
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
BARCLAYS   BANK PLC,
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Irina Dimova
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Irina   Dimova
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Vice   President
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 












 

	
 
    	
DBS   Bank Ltd., Los Angeles Agency,
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   James McWalters
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
James   McWalters
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
General   Manager
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
KBC   BANK NV, NEW YORK BRANCH,
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Thomas Lerner
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Thomas   Lerner
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Susan M. Silver
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Susan   M. Silver
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Managing   Director
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
Mizuho   Bank, Ltd.,
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Bertram H. Tang
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Bertram   H. Tang
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
Authorized   Signatory
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 











 

	
 
    	
Skandinaviska Enskilda Banken AB (publ),
    
	
 
    	
 
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Penny Neville-Park
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Penny   Neville-Park
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Duncan Nash
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
Duncan   Nash
    


 

[SIGNATURE PAGE TO FLEXTRONICS 2014 CREDIT AGREEMENT]

 




 









 

SCHEDULE 1.01(e)

 

EXISTING LETTERS OF CREDIT

 

	
LC 
   Number
    	
 
    	
Application
    	
 
    	
Bank
    	
 
    	
Beneficiary
    	
 
    	
Amount
    	
 
    	
Maturity 
   Date
    	
 
    	
Currency
    
	
T00000001351346
    	
 
    	
Flextronics   International USA, Inc.
    	
 
    	
Bank   of America
    	
 
    	
ARGONAUT   INSURANCE
    	
 
    	
$
    	
140,000.00
    	
 
    	
9/16/2014
    	
 
    	
USD
    
	
T00000003089285
    	
 
    	
Flextronics   Manufacturing Juarez, S.DE R.L. DE C.V.
    	
 
    	
Bank   of America
    	
 
    	
DAVISA   DESARROLLOS
    	
 
    	
$
    	
884,373.00
    	
 
    	
9/6/2014
    	
 
    	
USD
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
$
    	
1,024,373.00
    	
 
    	
 
    	
 
    	
 
    


 

Schedule 1.01(e)

Page 1











 

SCHEDULE 1.01(i)

 

INELIGIBLE MATERIAL SUBSIDIARIES

 

1.              Flextronics Electronics Technology (Suzhou) Co., Ltd.

 

2.              Flextronics Technology (Malaysia) Sdn. Bhd.

 

3.              Flextronics Technology (Penang) Sdn. Bhd.

 

4.              Flextronics Manufacturing (Singapore) Pte Ltd

 

Schedule 1.01(i)

Page 1











 

SCHEDULE 1.01(ii)

 

INITIAL SUBSIDIARY GUARANTORS

 

The following Subsidiaries shall be the initial Subsidiary Guarantors:

 

	
Subsidiary Guarantors
    	
 
    	
Country
    
	
Flextronics   Marketing (L) Ltd.
    	
 
    	
Federal Territory of Labuan
    
	
Flextronics International Europe B.V.
    	
 
    	
The Netherlands
    
	
Flextronics   International Termelö és Szolgáltató Vámszabadterületi Korlátolt Felelösségü   Társaság (concise firm name, Flextronics International Kft.)
    	
 
    	
Hungary
    
	
Flextronics   America, LLC
    	
 
    	
Delaware, U.S.A.
    
	
Flextronics   Sales & Marketing (A-P) Ltd.
    	
 
    	
Mauritius
    
	
Flextronics   International USA, Inc.
    	
 
    	
California, U.S.A.
    
	
Flextronics   International Asia-Pacific Ltd.
    	
 
    	
Mauritius
    
	
Flextronics   Sales & Marketing North Asia (L) Ltd.
    	
 
    	
Federal Territory of Labuan
    
	
Flextronics   Sales and Marketing Consumer Digital Ltd.
    	
 
    	
Mauritius
    
	
Flextronics   Logistics USA, Inc.
    	
 
    	
California, U.S.A.
    
	
Flextronics   Telecom Systems Ltd
    	
 
    	
Mauritius
    


 

Schedule 1.01(ii)

Page 1











 

SCHEDULE 2.01

 

COMMITMENTS
 AND APPLICABLE PERCENTAGES

 

	
Lender
    	
 
    	
Revolving Credit
   Commitment
    	
 
    	
Revolving Credit
    Facility Applicable
   Percentage
    	
 
    	
Term A Commitment
    	
 
    	
Term A Facility
   Applicable
   Percentage
    	
 
    	
Total Commitment
    	
 
    
	
Bank of America, N.A.
    	
 
    	
$
    	
114,520,547.92
    	
 
    	
7.634703195
    	
%
    	
$
    	
37,479,452.08
    	
 
    	
7.495890416
    	
%
    	
$
    	
152,000,000
    	
 
    
	
Citibank, N.A.
    	
 
    	
$
    	
114,520,547.95
    	
 
    	
7.634703197
    	
%
    	
$
    	
37,479,452.05
    	
 
    	
7.495890410
    	
%
    	
$
    	
152,000,000
    	
 
    
	
BNP Paribas
    	
 
    	
$
    	
104,876,712.33
    	
 
    	
6.991780822
    	
%
    	
$
    	
34,323,287.67
    	
 
    	
6.864657534
    	
%
    	
$
    	
139,200,000
    	
 
    
	
HSBC Bank USA, National Association
    	
 
    	
$
    	
104,876,712.33
    	
 
    	
6.991780822
    	
%
    	
$
    	
34,323,287.67
    	
 
    	
6.864657534
    	
%
    	
$
    	
139,200,000
    	
 
    
	
JPMorgan Chase Bank, N.A.
    	
 
    	
$
    	
104,876,712.33
    	
 
    	
6.991780822
    	
%
    	
$
    	
34,323,287.67
    	
 
    	
6.864657534
    	
%
    	
$
    	
139,200,000
    	
 
    
	
The Bank of Nova Scotia
    	
 
    	
$
    	
104,876,712.33
    	
 
    	
6.991780822
    	
%
    	
$
    	
34,323,287.67
    	
 
    	
6.864657534
    	
%
    	
$
    	
139,200,000
    	
 
    
	
The Royal Bank of Scotland plc
    	
 
    	
$
    	
104,876,712.33
    	
 
    	
6.991780822
    	
%
    	
$
    	
34,323,287.67
    	
 
    	
6.864657534
    	
%
    	
$
    	
139,200,000
    	
 
    
	
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
    	
 
    	
$
    	
94,178,082.19
    	
 
    	
6.278538813
    	
%
    	
$
    	
30,821,917.81
    	
 
    	
6.164383562
    	
%
    	
$
    	
125,000,000
    	
 
    
	
Bank of China, New York Branch
    	
 
    	
$
    	
75,342,465.75
    	
 
    	
5.022831050
    	
%
    	
$
    	
24,657,534.25
    	
 
    	
4.931506850
    	
%
    	
$
    	
100,000,000
    	
 
    
	
Sumitomo Mitsui Banking Corporation
    	
 
    	
$
    	
75,342,465.75
    	
 
    	
5.022831050
    	
%
    	
$
    	
24,657,534.25
    	
 
    	
4.931506850
    	
%
    	
$
    	
100,000,000
    	
 
    
	
U.S. Bank National Association
    	
 
    	
$
    	
75,342,465.75
    	
 
    	
5.022831050
    	
%
    	
$
    	
24,657,534.25
    	
 
    	
4.931506850
    	
%
    	
$
    	
100,000,000
    	
 
    
	
Australia and New Zealand Banking Group Limited
    	
 
    	
$
    	
56,506,849.32
    	
 
    	
3.767123288
    	
%
    	
$
    	
18,493,150.68
    	
 
    	
3.698630136
    	
%
    	
$
    	
75,000,000
    	
 
    
	
Deutsche Bank AG New   York Branch
    	
 
    	
$
    	
75,000,000.00
    	
 
    	
5.000000000
    	
%
    	
$
    	
0.00
    	
 
    	
0.000000000
    	
%
    	
$
    	
75,000,000
    	
 
    
	
UniCredit Bank AG, New York Branch
    	
 
    	
$
    	
56,506,849.32
    	
 
    	
3.767123288
    	
%
    	
$
    	
18,493,150.68
    	
 
    	
3.698630136
    	
%
    	
$
    	
75,000,000
    	
 
    
	
Wells Fargo Bank, National Association
    	
 
    	
$
    	
56,506,849.32
    	
 
    	
3.767123288
    	
%
    	
$
    	
18,493,150.68
    	
 
    	
3.698630136
    	
%
    	
$
    	
75,000,000
    	
 
    
	
Agricultural Bank of China Limited, Singapore   Branch
    	
 
    	
$
    	
0.00
    	
 
    	
0.000000000
    	
%
    	
$
    	
50,000,000.00
    	
 
    	
10.000000000
    	
%
    	
$
    	
50,000,000
    	
 
    
	
Barclays Bank PLC
    	
 
    	
$
    	
50,000,000.00
    	
 
    	
3.333333333
    	
%
    	
$
    	
0.00
    	
 
    	
0.000000000
    	
%
    	
$
    	
50,000,000
    	
 
    
	
DBS Bank Ltd., Los Angeles Agency
    	
 
    	
$
    	
37,671,232.88
    	
 
    	
2.511415525
    	
%
    	
$
    	
12,328,767.12
    	
 
    	
2.465753424
    	
%
    	
$
    	
50,000,000
    	
 
    
	
KBC Bank NV
    	
 
    	
$
    	
37,671,232.88
    	
 
    	
2.511415525
    	
%
    	
$
    	
12,328,767.12
    	
 
    	
2.465753424
    	
%
    	
$
    	
50,000,000
    	
 
    
	
Mizuho Bank, Ltd.
    	
 
    	
$
    	
37,671,232.88
    	
 
    	
2.511415525
    	
%
    	
$
    	
12,328,767.12
    	
 
    	
2.465753424
    	
%
    	
$
    	
50,000,000
    	
 
    
	
Skandinaviska Enskilda   Banken AB (publ)
    	
 
    	
$
    	
18,835,616.44
    	
 
    	
1.255707763
    	
%
    	
$
    	
6,164,383.56
    	
 
    	
1.232876712
    	
%
    	
$
    	
25,000,000
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Total
    	
 
    	
$
    	
1,500,000,000
    	
 
    	
100.000000000
    	
%
    	
$
    	
500,000,000
    	
 
    	
100.000000000
    	
%
    	
$
    	
2,000,000,000
    	
 
    


 

Schedule 2.01

Page 1











 

SCHEDULE 2.14

 

DESIGNATED BORROWERS

 

Flextronics International USA, Inc., a California Corporation

 

Schedule 2.14

Page 1












 

SCHEDULE 5.15

 

SUBSIDIARIES

 

	
Material Subsidiaries
    	
 
    	
Direct Ownership Name
    	
 
    	
Direct Ownership %
    	
 
    	
Country
    
	
Flextronics   America, LLC
    	
 
    	
Flextronics   International USA, Inc.
    	
 
    	
100
    	
 
    	
Delaware,   U.S.A.
    
	
Flextronics International Europe B.V.
    	
 
    	
Flextronics   International Ltd. “A” Ordinary Shares / IEC Holdings Limited “B” Ordinary   Shares
    	
 
    	
100/100
    	
 
    	
The   Netherlands
    
	
Flextronics   International Kft.
    	
 
    	
Flextronics   International GmbH/ Flextronics Sárvár Logistics Korlátolt   Felelősségű Társaság
    	
 
    	
99.99/ 0.01
    	
 
    	
Hungary
    
	
Flextronics   Marketing (L) Ltd.
    	
 
    	
Flextronics   International Ltd.
    	
 
    	
100
    	
 
    	
Federal   Territory of Labuan
    
	
Flextronics   International USA, Inc.
    	
 
    	
Flextronics   International Holding LLC
    	
 
    	
100
    	
 
    	
California,   U.S.A.
    
	
Flextronics   Telecom Systems Ltd.
    	
 
    	
Flextronics   International Ltd.
    	
 
    	
100
    	
 
    	
Mauritius
    
	
Flextronics   Logistics USA, Inc.
    	
 
    	
Flextronics   International PA, Inc.
    	
 
    	
100
    	
 
    	
California,   U.S.A.
    


 

	
Significant Subsidiaries
    	
 
    	
Direct Ownership Name
    	
 
    	
Direct Ownership %
    	
 
    	
Country
    
	
Flextronics   (Israel) Ltd.
    	
 
    	
Flextronics   Central Europe B.V.
    	
 
    	
100
    	
 
    	
Israel
    
	
Flextronics   Electronics Technology (Suzhou) Co., Ltd.
    	
 
    	
Flextronics   Mauritius Limited
    	
 
    	
100
    	
 
    	
China
    
	
Flextronics   Funding LLC
    	
 
    	
Flextronics   America LLC/Flextronics Logistics USA Inc/Flextronics   Distribution, Inc./Flextronics International USA Inc/Avail Medical   Products/Flextronics Systems Texas Ltd
    	
 
    	
53.44/28.51/6.95/6.85/3.47/0.78
    	
 
    	
Delaware,   U.S.A.
    
	
Flextronics   Automotive USA Manufacturing Co.
    	
 
    	
Flextronics   Automotive USA, Inc.
    	
 
    	
100
    	
 
    	
Ohio   , U.S.A.
    
	
Flextronics   Industrial (Zhuhai) Co., Ltd.
    	
 
    	
Flextronics   Industrial Zhuhai (Mauritius) Co., Ltd.
    	
 
    	
100
    	
 
    	
China
    
	
Flextronics   International Asia-Pacific Ltd
    	
 
    	
Flextronics   International Ltd.
    	
 
    	
100
    	
 
    	
Mauritius
    
	
Flextronics   International Germany GmbH & Co. KG
    	
 
    	
Flextronics   Network Services GMBH/Flextronics Germany Holding GmbH
    	
 
    	
99.00/1.00
    	
 
    	
Germany
    
	
Flextronics International Gesellschaft m.b.H.
    	
 
    	
Flextronics   Central Europe B.V.
    	
 
    	
100
    	
 
    	
Austria
    
	
Flextronics   International Japan Co., Ltd
    	
 
    	
Flextronics   Corporation/Flextronics Manufacturing (Singapore) Pte. Ltd.
    	
 
    	
50.0/50.0
    	
 
    	
Japan
    
	
Flextronics   International Poland sp. z o.o.
    	
 
    	
Flextronics   International Sweden AB
    	
 
    	
100
    	
 
    	
Poland
    
	
Flextronics   International s.r.o.
    	
 
    	
Flextronics   International Cork B.V.
    	
 
    	
100
    	
 
    	
Czech   Republic
    
	
Flextronics   International Tecnologia Ltda
    	
 
    	
Flextronics Participacoes ltda./Parque de   Tecnologia Electroncia, S.A. de C.V.
    	
 
    	
99.9999999925957 / 0.00000000740427205469423
    	
 
    	
Brazil
    
	
Flextronics   Industries Marketing (L) Ltd.
    	
 
    	
Flextronics   International Ltd.
    	
 
    	
100
    	
 
    	
Labuan
    
	
Flextronics   Manufacturing (H.K.) Limited
    	
 
    	
Flextronics   International Ltd.
    	
 
    	
100
    	
 
    	
Hong   Kong
    
	
Flextronics   Manufacturing (Singapore) Pte. Ltd.
    	
 
    	
Flextronics   Investment Holding (Singapore) Pte. Ltd.
    	
 
    	
100
    	
 
    	
Singapore
    
	
Flextronics   Manufacturing (Zhuhai) Co., Ltd.
    	
 
    	
Flextronics   Manufacturing Zhuhai (Mauritius) Co., Ltd.
    	
 
    	
100
    	
 
    	
China
    
	
Flextronics   Manufacturing Europe B.V.
    	
 
    	
Flextronics   Europe Holdings CV
    	
 
    	
100
    	
 
    	
The   Netherlands
    
	
Flextronics   Automotive USA (Texas), LLC
    	
 
    	
Flextronics   Automotive USA, Inc
    	
 
    	
100
    	
 
    	
Texas   , U.S.A
    
	
Flextronics   Automotive USA, Inc.
    	
 
    	
Flextronics   International USA, Inc.
    	
 
    	
100
    	
 
    	
Michigan.   U.S.A
    


 

Schedule 5.15

Page 1











 

	
Significant Subsidiaries
    	
 
    	
Direct Ownership Name
    	
 
    	
Direct Ownership %
    	
 
    	
Country
    
	
Flextronics   Sales and Marketing Consumer Digital Ltd.
    	
 
    	
Flextronics   International Ltd.
    	
 
    	
100
    	
 
    	
Mauritius
    
	
Flextronics   Sales & Marketing (A-P) Ltd.
    	
 
    	
Flextronics   International Ltd.
    	
 
    	
100
    	
 
    	
Mauritius
    
	
Flextronics   Technology (Penang) Sdn. Bhd.
    	
 
    	
Flextronics   Global Holdings L.P.
    	
 
    	
100
    	
 
    	
Malaysia
    
	
Flextronics   Technology (Shanghai) Co., Ltd.
    	
 
    	
Flextronics   Technology Shanghai (Mauritius) Co., Ltd.
    	
 
    	
100
    	
 
    	
China
    
	
Masa da Amaz nia Ltda.
    	
 
    	
Flextronics   International Tecnologia Ltda/ Flextronics Cayman (SLR) Limited
    	
 
    	
96.71/3.29
    	
 
    	
Brazil
    
	
Multek   Flexible Circuits, Inc.
    	
 
    	
Flextronics   International Holding LLC
    	
 
    	
100
    	
 
    	
Delaware
    
	
Multek   Industries Limited
    	
 
    	
Astron   Group Limited/Flextronics International Ltd
    	
 
    	
84.91/15.09
    	
 
    	
China
    
	
Multek   Technologies Limited
    	
 
    	
Flextronics   International Ltd.
    	
 
    	
100
    	
 
    	
Mauritius
    
	
Pacific   Device, Inc.
    	
 
    	
Avail   Medical Products, Inc.
    	
 
    	
100
    	
 
    	
Delaware
    
	
Parque de Tecnologia Electronica, S.A. de C.V.
    	
 
    	
Flextronics   Holdings Mexico, S.A. de C.V. /Flextronics Manufacturing Mex, S.A. de C.V.
    	
 
    	
99.98/.02
    	
 
    	
Mexico
    
	
Power   Systems Technologies Ltd.
    	
 
    	
Flextronics   International Ltd.
    	
 
    	
100
    	
 
    	
Mauritius
    
	
Dongguan   LeiFeng Technology Co., Ltd.
    	
 
    	
Flextronics   Precision Metal (Hong Kong) Limited
    	
 
    	
100
    	
 
    	
China
    
	
Flextronics   Sales & Marketing North Asia (L) Ltd.
    	
 
    	
Flextronics   International Ltd.
    	
 
    	
100
    	
 
    	
Federal   Territory of Labuan
    
	
Flextronics   Logistics (Hong Kong) Limited
    	
 
    	
Astron   Group Limited
    	
 
    	
100
    	
 
    	
Hong   Kong
    


 

Schedule 5.15

Page 2











 

SCHEDULE 5.21

 

IDENTIFICATION NUMBER FOR THE BORROWER AND

DESIGNATED BORROWERS THAT ARE FOREIGN SUBSIDIARIES

 

	
Borrower
    	
 
    	
Identification Number
    	
 
    	
Jurisdiction of Organization
    
	
Flextronics International Ltd.
    	
 
    	
1990-02645-H
    	
 
    	
Singapore
    


 

Schedule 5.21

Page 1











 

SCHEDULE 7.01

 

EXISTING SECURED INDEBTEDNESS

 

	
Subsidiary
    	
 
    	
Lender
    	
 
    	
Type
    	
 
    	
US Dollar
   Equivalent
   Outstanding
   Amount (as of
   December 31, 2013)
    	
 
    	
Collateral Pledge
   Type
    	
 
    
	
Flextronics Systems Texas Ltd.
    	
 
    	
Yale   Financial Services
    	
 
    	
Capital   Lease
    	
 
    	
$
    	
691.71
    	
 
    	
Yale Forklift
    	
 
    
	
Flextronics International USA, Inc.
    	
 
    	
GE   Capital Lease, US Bank
    	
 
    	
Capital   Lease
    	
 
    	
$
    	
6,726,145.00
    	
 
    	
Machinery Finance Resources
    	
 
    
	
Flextronics America, LLC
    	
 
    	
Balboa Capital Corporation
    	
 
    	
Capital   Lease
    	
 
    	
$
    	
15,989.00
    	
 
    	
Real Time Spectrum Analyzer
    	
 
    
	
Flextronics Global Services Lojistik Hizmetleri   Limited Sirk
    	
 
    	
Aras Security
    	
 
    	
Capital   Lease
    	
 
    	
$
    	
168,336.96
    	
 
    	
CCTV & Security Equipment
    	
 
    
	
Multek Electronics Limited
    	
 
    	
Shenzhen   Sucess Technology Co., Ltd.
    	
 
    	
Capital   Lease
    	
 
    	
$
    	
44,338.73
    	
 
    	
ENIG Line
    	
 
    
	
RIWISA AG, Kunststoffwerke Hägglingen
    	
 
    	
Various
    	
 
    	
Capital   Lease
    	
 
    	
$
    	
2,845,271.98
    	
 
    	
Spritzgiessmaschine
    	
 
    
	
Flextronics Logistics B.V.
    	
 
    	
De Lage Landen Financial Services B.V.
    	
 
    	
Capital   Lease
    	
 
    	
$
    	
244,552.91
    	
 
    	
File Server
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Total Secured Debt
    	
 
    	
 
    	
 
    	
 
    	
 
    	
$
    	
10,045,326.29
    	
 
    	
 
    	
 
    


 

Schedule 7.01

Page 1











 

SCHEDULE 7.05

 

INVESTMENTS

 

None.

 

Schedule 7.05

Page 1











 

SCHEDULE 10.02

 

ADMINISTRATIVE AGENT’S OFFICE;
 CERTAIN ADDRESSES FOR NOTICES

 

COMPANY and DESIGNATED BORROWERS:

 

Flextronics International Ltd.

 

Flextronics International Ltd.

Century House

16 Par-la-Ville Road

Hamilton HM 08, Bermuda

 

Flextronics International Ltd.

2 Changi South Lane

Singapore 486123

Attention: Chief Financial Officer

Telephone: +1 408.576.7000

Electronic Mail: Chris.Collier@flextronics.com

Website Address:  www.flextronics.com

 

With courtesy copy to:

 

Flextronics International USA, Inc.

6201 America Center Drive

6th Floor

San Jose, CA 95002

Attention: Corporate Treasury

Telephone: +1 408.576.7000

Electronic Mail: Tony.Kwee@flextronics.com

 

Flextronics International USA, Inc.

(Taxpayer Identification Number: 94-3061570)

 

Flextronics International USA, Inc.

6201 America Center Drive

6th Floor

San Jose, CA 95002

Attention: Corporate Treasury

Telephone: +1 408.576.7000

Electronic Mail: Tony.Kwee@flextronics.com

ADMINISTRATIVE AGENT:

Administrative Agent’s Office
 (for payments and Requests for Credit Extensions):

 

Schedule 10.02

Page 1











 

Bank of America N.A.

Credit Services

ONE INDEPENDENCE CENTER
 101 N TRYON ST
 CHARLOTTE NC 28255-0001

Mail Code:  NC1-001-05-46

Attention:                                                                 Robert Garvey

Telephone:                                                           980.386.9468

Facsimile:                                                                 617.310.3288

E-Mail:                                                                               robert.garvey@baml.com

 

For US Dollars:

Bank of America

New York NY

ABA 026009593

Acct # 1366212250600

Acct Name: Corporate Credit Services

Ref: Flextronics International Ltd

 

For Euro:

Bank of America London

IBAN: GB63 BOFA 1650 5096 2720 19

Swift Address: BOFAGB22

Acct #: 96272019

Attn: Grand Cayman Unit #1207

Ref: Flextronics International Ltd

 

For Sterling:

Bank of America London

Sort Code: 165050

IBAN: GB41 BOFA 1650 5096 2720 27

Swift Address: BOFAGB22

Acct #: 96272027

Attn: Grand Cayman Unit #1207

Ref: Flextronics International Ltd

 

For Yen

Bank of America, Tokyo

SWIFT: BOFAJPJX

Acct #: 96272011

Attn: Credit Services Grand Cayman Unit 1207

Ref: Flextronics International Ltd

 

Schedule 10.02

Page 2











 

Other Notices as Administrative Agent:

 

Bank of America, N.A.
 Agency Management
 1455 Market St, 5th Floor
 Mail Code: CA5-701-05-19
 San Francisco, CA  94103
 Attention:                                         Anthea Del Bianco 
 Telephone:                                   (415) 436-2776 
 Facsimile:                                         (415) 503-5101
 E-Mail:       anthea.del_bianco@baml.com

 

L/C ISSUER:

Bank of America, N.A.

Trade Operations

1000 W. Temple Street

Mail Code:                                   CA9-705-070-05

Los Angeles, CA  90012-1514

 

SWING LINE LENDER:

Bank of America N.A.

Credit Services

ONE INDEPENDENCE CENTER
 101 N TRYON ST
 CHARLOTTE NC 28255-0001

Mail Code:  NC1-001-05-46

Attention:                                                                 Robert Garvey

Telephone:                                                           980.386.9468

Facsimile:                                                                 617.310.3288

E-Mail:                                                                               robert.garvey@baml.com

 

Wire Instructions:

Bank of America

New York NY

ABA 026009593

Acct # 1366212250600

Acct Name: Corporate Credit Services

Ref: Flextronics International Ltd.

 

Schedule 10.02

Page 3












 

EXHIBIT A

 

FORM OF COMMITTED LOAN NOTICE

 

Date:                        ,            

 

To:                             Bank of America, N.A., as Administrative Agent

 

Ladies and Gentlemen:

 

Reference is made to that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Flextronics International Ltd., a Singapore company (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender.

 

The Company hereby requests, on behalf of itself or, if applicable, the Designated Borrower referenced in item 6 below (the “Applicable Designated Borrower”) (select one):

 

	
o A Borrowing   of Committed Loans
    	
o A conversion   or continuation of Loans
    


 

1.                                      On         (a Business Day).

 

2.                                      In the amount of          .

 

3.                                      Comprised of               .

[Type of Committed Loan requested]

 

4.                                      In the following currency:

 

5.                                      For Eurocurrency Rate Loans:  with an Interest Period of         months.

 

6.                                      On behalf of                                                          [insert name of Applicable Designated Borrower].

 

The Revolving Credit Borrowing, if any, requested herein complies with the provisos to the first sentence of Section 2.01(b) of the Agreement.

 

	
 
    	
FLEXTRONICS   INTERNATIONAL LTD.
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

A-1











 

EXHIBIT B

 

FORM OF SWING LINE LOAN NOTICE

 

Date:                        ,          

 

To:                             Bank of America, N.A., as Swing Line Lender

Bank of America, N.A., as Administrative Agent

 

Ladies and Gentlemen:

 

Reference is made to that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Flextronics International Ltd., a Singapore company (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender.

 

The undersigned hereby requests a Swing Line Loan:

 

1.                                      On        (a Business Day).

 

2.                                      In the amount of $         .

 

The Swing Line Borrowing requested herein complies with the requirements of the provisos to the first sentence of Section 2.04(a) of the Agreement.

 

	
 
    	
FLEXTRONICS   INTERNATIONAL LTD.
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

B - 1











 

EXHIBIT C-1

 

FORM OF TERM NOTE

 

FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to                                            or registered assigns (the “Term Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Term Loan made by the Term Lender to the Borrower under that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Flextronics International Ltd., the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender.

 

The Borrower promises to pay interest on the unpaid principal amount of each Term Loan from the date of such Term Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement.  All payments of principal and interest shall be made to the Administrative Agent for the account of the Term Lender in the currency in which such Term Loan was denominated and in Same Day Funds at the Administrative Agent’s Office for such currency.  If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.

 

This Term Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein.  This Term Note is also entitled to the benefits of the Subsidiary Guaranty.  Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement.  Term Loans made by the Term Lender shall be evidenced by one or more loan accounts or records maintained by the Term Lender in the ordinary course of business.  The Term Lender may also attach schedules to this Term Note and endorse thereon the date, amount, currency and maturity of its Term Loans and payments with respect thereto.

 

The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Term Note.

 

C-1 - 1











 

THIS TERM NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

	
 
    	
FLEXTRONICS   INTERNATIONAL LTD.
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

C-1 - 2











 

LOANS AND PAYMENTS WITH RESPECT THERETO

 

	
Date
    	
 
    	
Type of
   Term Loan
   Made
    	
 
    	
Currency
   and
   Amount of
   Term Loan
   Made
    	
 
    	
End of
   Interest
   Period
    	
 
    	
Amount of
   Principal or
   Interest
   Paid This
   Date
    	
 
    	
Outstanding
   Principal
   Balance
   This Date
    	
 
    	
Notation
   Made By
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

C-1 - 3












 

EXHIBIT C-2

 

FORM OF REVOLVING CREDIT NOTE

 

FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to                                            or registered assigns (the “Revolving Credit Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Revolving Credit Loan from time to time made by the Revolving Credit Lender to the Borrower under that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Flextronics International Ltd., the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender.

 

The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit Loan from the date of such Revolving Credit Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement.  Except as otherwise provided in Section 2.04(f) of the Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to the Administrative Agent for the account of the Revolving Credit Lender in the currency in which such Revolving Credit Loan was denominated and in Same Day Funds at the Administrative Agent’s Office for such currency.  If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.

 

This Revolving Credit Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein.  This Revolving Credit Note is also entitled to the benefits of the [Company Guaranty][Subsidiary Guaranty].  Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Revolving Credit Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement.  Revolving Credit Loans made by the Revolving Credit Lender shall be evidenced by one or more loan accounts or records maintained by the Revolving Credit Lender in the ordinary course of business. The Revolving Credit Lender may also attach schedules to this Revolving Credit Note and endorse thereon the date, amount, currency and maturity of its Revolving Credit Loans and payments with respect thereto.

 

The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Credit Note.

 

C-2 - 1











 

THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

	
 
    	
FLEXTRONICS   INTERNATIONAL LTD.
    
	
 
    	
 
    
	
 
    	
[OR]
    
	
 
    	
 
    
	
 
    	
[APPLICABLE   DESIGNATED BORROWER]
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

C-2 - 2











 

LOANS AND PAYMENTS WITH RESPECT THERETO

 

	
Date
    	
 
    	
Type of
   Revolving
   Credit Loan
   Made
    	
 
    	
Currency
   and
   Amount of
   Revolving
   Credit Loan
   Made
    	
 
    	
End of
   Interest
   Period
    	
 
    	
Amount of
   Principal or
   Interest
   Paid This
   Date
    	
 
    	
Outstanding
   Principal
   Balance
   This Date
    	
 
    	
Notation
   Made By
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

C-2 - 3











 

EXHIBIT D

 

FORM OF COMPLIANCE CERTIFICATE

 

Financial Statement Date:              ,

 

To:                             Bank of America, N.A., as Administrative Agent

 

Ladies and Gentlemen:

 

Reference is made to that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Flextronics International Ltd., a Singapore company (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender.

 

The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                                                       of the Company, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the Company, and that:

 

[Use following paragraph 1 for fiscal year-end financial statements]

 

1.                                      The Company has delivered the year-end audited Financial Statements required by Section 6.01(b) of the Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.

 

[Use following paragraph 1 for fiscal quarter-end financial statements]

 

1.                                      The Company has delivered the unaudited Financial Statements required by Section 6.01(a) of the Agreement for the fiscal quarter of the Company ended as of the above date.  Such financial statements fairly present the financial condition, results of operations and cash flows of the Company and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.

 

2.                                      The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Company during the accounting period covered by such financial statements.

 

3.                                      A review of the activities of the Company during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Company performed and observed all its Obligations under the Loan Documents, and

 

[select one:]

 

D - 1











 

[to the best knowledge of the undersigned, during such fiscal period the Company performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]

 

—or—

 

[to the best knowledge of the undersigned, during such fiscal period the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]

 

4.                                      The representations and warranties of (i) the Borrowers contained in Article V of the Agreement and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection with the Loan Documents, are (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct or true and correct in all material respects, as the case may be, as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in Section 5.09 of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b) of Section 6.01 of the Agreement, including the statements in connection with which this Compliance Certificate is delivered.

 

5.                                      The financial covenant analyses and information set forth on Schedules 1 and 2 attached hereto are true and accurate on and as of the date of this Certificate.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                                     ,                            .

 

	
 
    	
FLEXTRONICS   INTERNATIONAL LTD.
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

D - 2











 

For the Quarter/Year ended                                    (“Statement Date”)

 

SCHEDULE 1

to the Compliance Certificate

($ in 000’s)

 

I.                                        Section 7.12(b) — Interest Coverage Ratio.

 

A.                                    EBITDA for four consecutive fiscal quarters ending on above date (“Subject Period”):

 

	
1.
    	
 
    	
Net   income or net loss (before provision for income taxes) for Subject   Period:
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
2.
    	
 
    	
All   Interest Expense for Subject Period:
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
3.
    	
 
    	
Depreciation   expenses for Subject Period:
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
4.
    	
 
    	
Amortization   expenses for Subject Period:
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
5.
    	
 
    	
Non-cash   charges for Subject Period:
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
6.
    	
 
    	
One-time   cash charges associated with merger or acquisition-related expenses which are   paid in the Subject Period:
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
7.
    	
 
    	
One-time   cash charges associated with restructuring costs which are paid in the   Subject Period:
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
8.
    	
 
    	
One-time   cash charges associated with net losses from the early extinguishment of   notes or other Indebtedness, which are paid in the Subject Period:
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
9.
    	
 
    	
Sum   of Lines I.A. 6 + 7 + 8 (not exceeding $100,000,000 for Subject Period):
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
10.
    	
 
    	
EBITDA   (Lines I.A.1 + 2 + 3 + 4 + 5 + 9):
    	
 
    	
$
    	
 
    	
 
    


 

B.                                    Interest Expense:

 

	
1.
    	
 
    	
All   “interest expense” for Subject Period:
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
2.
    	
 
    	
All   non-cash interest included in Line I.B.1:
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
3.
    	
 
    	
Total   Interest Expense (Line I.B.1 — 2):
    	
 
    	
$
    	
 
    	
 
    


 

D - 3











 

C.                                    Interest Coverage Ratio (Line I.A.10  ̧ I.B.3):

 

	
Minimum   required:
    	
 
    	
3.00 to 1.00
    	
 
    


 

II.                                   Section 7.12(a) — Debt/EBITDA Ratio.

 

	
A.
    	
 
    	
Total   Indebtedness at Statement Date:
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
B.
    	
 
    	
EBITDA   for Subject Period (Line I.A.10 above):
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
C.
    	
 
    	
Debt/EBITDA   Ratio (Line II.A  ̧ Line II.B):
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Maximum permitted:
    	
 
    	
4.00 to 1.00
    	
 
    


 

D - 4











 

For the Quarter/Year ended                                       (“Statement Date”)

 

SCHEDULE 2

to the Compliance Certificate

($ in 000’s)

 

EBITDA

(in accordance with the definition of EBITDA

as set forth in the Agreement)

 

	
EBITDA
    	
 
    	
Quarter
   Ended
    	
 
    	
Quarter
   Ended
    	
 
    	
Quarter
   Ended
    	
 
    	
Quarter
   Ended
    	
 
    	
Twelve 
   Months
   Ended
    
	
net   income or net loss for Subject Period
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
+       all Interest   Expense for Subject Period
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
+       depreciation   expenses for Subject Period
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
+       amortization   expenses for Subject Period
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
+       non-cash   charges for Subject Period
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
+       one-time cash   charges, calculated in accordance with GAAP, associated with   merger-or-acquisition related expenses which are paid in the Subject Period
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
+       one-time cash   charges, calculated in accordance with GAAP, associated with restructuring   costs which are paid in the Subject Period
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
+       one-time cash   charges, calculated in accordance with GAAP, associated with net losses from   the early extinguish-ment of notes or other Indebtedness, which are paid in   the Subject Period
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
=       EBITDA
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

D - 5












 

EXHIBIT E

 

ASSIGNMENT AND ASSUMPTION

 

This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each](1) Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each](2) Assignee identified in item 2 below ([the][each, an] “Assignee”).  [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees](3) hereunder are several and not joint.](4) Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

 

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], 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][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] 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][the respective Assignors] under the respective facilities identified below (including, without limitation, the Letters of Credit and the Swing Line 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)][the respective Assignors (in their respective capacities as Lenders)] 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, but not limited to, 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 by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”).  Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.

 

1.                                      Assignor[s]:

 




(1)  For bracket language here and elsewhere in the form relating to the Assignors(s), if the assignment is from a single Assignor, choose the first bracketed language.  If the assignment is from multiple Assignors, choose the second bracketed language.

(2)  For bracket language here and elsewhere in the form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language.  If the assignment is to multiple Assignees, choose the second bracketed language.

(3)  Select as appropriate.

(4)  Include bracketed language if there are either multiple Assignors or multiple Assignees.

 

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2.                                      Assignee[s]:

 

 

[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]

 

3.                                      Borrower(s):  Flextronics International Ltd. and Designated Borrowers.

 

4.                                      Administrative Agent:  Bank of America, N.A., as the administrative agent under the Credit Agreement.

 

5.                                      Credit Agreement:  Credit Agreement, dated as of March 31, 2014, among Flextronics International Ltd., the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender.

 

6.                                      Assigned Interest[s]:

 

	
Assignor[s](5)
    	
 
    	
Assignee[s]
   (6)
    	
 
    	
Facility
   Assigned(7)
    	
 
    	
Aggregate
   Amount of
   Commitment/
   Loans
   for all Lenders(8)
    	
 
    	
Amount of
   Commitment/
   Loans
   Assigned
    	
 
    	
Percentage
   Assigned of
   Commitment/
   Loans(9)
    	
 
    	
CUSIP
   Number
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
$
    	
 
    	
$
    	
 
    	
 
    	
%
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
$
    	
 
    	
$
    	
 
    	
 
    	
%
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
$
    	
 
    	
$
    	
 
    	
 
    	
%
    	
 
    	
 
    


 

[7.                             Trade Date:                            ](10)

 

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:

 




(5)  List each Assignor, as appropriate.

(6)  List each Assignee, as appropriate.

(7)  Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. “Revolving Credit Commitment”, “Term A Commitment”, etc.).

(8)  Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.

(9)  Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.

(10)  To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.

 

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ASSIGNOR
    
	
 
    	
 
    	
[NAME   OF ASSIGNOR]
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    	
Title:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
ASSIGNEE
    
	
 
    	
 
    	
[NAME   OF ASSIGNEE]
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    	
Title:
    
	
[Consented   to and](11) Accepted:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
BANK   OF AMERICA, N.A., as
    	
 
    	
 
    
	
Administrative Agent
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
[Consented to:](12)
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
FLEXTRONICS INTERNATIONAL LTD.
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    	
 
    


 




(11)  To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.

(12)  To be added only if the consent of the Borrower and/or other parties (e,g, Swing Line Lender, L/C Issuer) is required by the terms of the Credit Agreement.

 

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ANNEX 1 TO ASSIGNMENT AND ASSUMPTION

 

FLEXTRONICS INTERNATIONAL LTD.

 

STANDARD TERMS AND CONDITIONS FOR

 

ASSIGNMENT AND ASSUMPTION

 

1.                                      Representations and Warranties.

 

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

 

1.2.                            Assignee.  [The][Each] 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 meets all the requirements to be an assignee under Section 10.06(b)(iii), (v) and (vii) of the Credit Agreement (subject to such consents, if any, as may be required under Section 10.06(b)(iii) of the Credit Agreement), (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][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not

 

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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][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] 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.  This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

 

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EXHIBIT F

 

FORM OF COMPANY GUARANTY

 

[See attached]

 

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FORM OF

COMPANY GUARANTY

 

THIS GUARANTY (this “Guaranty”), dated as of March 31, 2014 is made by Flextronics International Ltd., a Singapore company acting, subject to Section 24 hereof, through its Bermuda branch (the “Guarantor”), in favor of the Lenders from time to time party to the Credit Agreement referred to below and Bank of America, as Administrative Agent.

 

A.                                    The Guarantor, the Designated Borrowers, the Lenders from time to time party thereto (each a “Lender” and, collectively, together with the Swing Line Lender and the L/C Issuers, the “Lenders”) and the Administrative Agent are parties to a Credit Agreement dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”).

 

B.                                    The Designated Borrowers are Subsidiaries of the Guarantor.

 

C.                                    It is a condition precedent to the making of Loans to and the issuance of Letters of Credit for the account of the Borrowers under the Credit Agreement that the Guarantor guarantee the indebtedness and other obligations of each Designated Borrower to the Guaranteed Parties under or in connection with the Credit Agreement.

 

D.                                    The Guarantor, as the parent of the Designated Borrowers, will derive substantial direct and indirect benefits from the making of the Loans to and the issuance of Letters of Credit for the account of the Designated Borrowers pursuant to the Credit Agreement (which benefits are hereby acknowledged by the Guarantor).

 

Accordingly, to induce the Administrative Agent and the Lenders to enter into the Credit Agreement, and in consideration thereof, the Guarantor hereby agrees as follows:

 

SECTION 1.                                           Definitions; Interpretation.

 

(a)                                 Terms Defined in Credit Agreement.  All capitalized terms used in this Guaranty (including in the recitals hereof) and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.

 

(b)                                 Certain Defined Terms.  As used in this Guaranty (including in the recitals hereof), the following terms shall have the following meanings:

 

“Agreement Currency” has the meaning set forth in Section 23.

 

“Bankruptcy Code”  means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended.

 

“Collateral” means any property and interests and proceeds thereof now or hereafter acquired by the Guarantor, any Designated Borrower or any other Person in which a Lien shall exist in favor of the Guaranteed Parties to secure the Guaranteed Obligations.

 

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“Collateral Documents” means any agreement pursuant to which the Guarantor, any Designated Borrower or any other Person provides a Lien on any Collateral securing any or all of the Guaranteed Obligations and all filings, documents and agreements made or delivered pursuant thereto.

 

“Credit Agreement” has the meaning specified in the recitals to this Guaranty.

 

“Guaranteed Obligations” has the meaning set forth in Section 2.

 

“Guaranteed Parties” means the Administrative Agent and each Lender.

 

“Guarantor Documents” means this Guaranty and all other certificates, documents, agreements and instruments delivered to any Guaranteed Party under or in connection with this Guaranty and the Loan Documents.

 

“Insolvency Proceeding” means, with respect to any Person, (i) any case, action or proceeding with respect to such Person before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (ii) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors; in either case undertaken under Debtor Relief Laws.

 

“Judgment Currency” has the meaning set forth in Section 23.

 

“Lenders” has the meaning specified in the recitals to this Guaranty.

 

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

 

“Other Taxes” has the meaning set forth in Section 8(c).

 

(c)                                  Interpretation.  The rules of interpretation set forth in Sections 1.02 and 1.03 of the Credit Agreement shall be applicable to this Guaranty and are incorporated herein by this reference.

 

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SECTION 2.                                           Guaranty.  The Guarantor hereby absolutely, unconditionally and irrevocably guarantees for the Guaranteed Parties, and their respective successors, endorsees, transferees and assigns, the full and prompt payment when due (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise) of all the indebtedness, liabilities and other payment obligations of each Designated Borrower (now existing or hereafter arising pursuant to Section 2.14 of the Credit Agreement) to the Guaranteed Parties under or in connection with the Credit Agreement, the Notes and the other Loan Documents, including all unpaid principal of the Loans, all interest accrued thereon, all amounts owing in respect of the L/C Obligations, all fees due under the Credit Agreement and all other amounts payable by each Designated Borrower to the Guaranteed Parties thereunder, in connection therewith, and in connection with any other Loan Document.  The terms “indebtedness,” “liabilities” and “obligations” are used herein in their most comprehensive sense and include any and all advances, debts, obligations and liabilities, whether now existing or hereafter arising, whether voluntary or involuntary and whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether recovery upon such indebtedness, liabilities and obligations may be or hereafter become unenforceable or shall be an allowed or disallowed claim under any Debtor Relief Laws, and including interest that accrues after the commencement by or against any Designated Borrower or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding.  The foregoing indebtedness, liabilities and other obligations of each Designated Borrower, and all other indebtedness, liabilities and obligations to be paid or performed by the Guarantor in connection with this Guaranty (including any and all amounts due under Section 12), shall hereinafter be collectively referred to as the “Guaranteed Obligations.”

 

SECTION 3.                                           Liability of Guarantor.  The liability of the Guarantor under this Guaranty shall be irrevocable, absolute, independent and unconditional, and shall not be affected by any circumstance which might constitute a discharge of a surety or guarantor other than the indefeasible payment and performance in full of all Guaranteed Obligations.  In furtherance of the foregoing and without limiting the generality thereof, the Guarantor agrees as follows:

 

(a)                                 the Guarantor’s liability hereunder shall be the immediate, direct, and primary obligation of the Guarantor and shall not be contingent upon any Guaranteed Party’s exercise or enforcement of any remedy it may have against any Designated Borrower or any other Person, or against any Collateral;

 

(b)                                 this Guaranty is a guaranty of payment when due and not merely of collectibility;

 

(c)                                  the Guaranteed Parties may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default notwithstanding the existence of any dispute between any of the Guaranteed Parties and any Designated Borrower with respect to the existence of such Event of Default;

 

(d)                                 the Guarantor’s payment of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge the Guarantor’s liability for any portion of the Guaranteed Obligations remaining unsatisfied; and

 

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(e)                                  the Guarantor’s liability with respect to the Guaranteed Obligations shall remain in full force and effect without regard to, and shall not be impaired or affected by, nor shall the Guarantor be exonerated or discharged by, any of the following events:

 

(i)                                     any Insolvency Proceeding with respect to any Designated Borrower, the Guarantor, any other Loan Party or any other Person;

 

(ii)                                  any limitation, discharge, or cessation of the liability of any Designated Borrower, the Guarantor, any other Loan Party or any other Person for any Guaranteed Obligations due to any statute, regulation or rule of law, or any invalidity or unenforceability in whole or in part of any of the Guaranteed Obligations or the Loan Documents;

 

(iii)                               any merger, acquisition, consolidation or change in structure of any Designated Borrower, the Guarantor or any other Loan Party or Person, or any sale, lease, transfer or other disposition of any or all of the assets or shares of any Designated Borrower, the Guarantor, any other Loan Party or other Person;

 

(iv)                              any assignment or other transfer, in whole or in part, of any Guaranteed Party’s interests in and rights under this Guaranty or the other Loan Documents, including any Guaranteed Party’s right to receive payment of the Guaranteed Obligations, or any assignment or other transfer, in whole or in part, of any Guaranteed Party’s interests in and to any of the Collateral;

 

(v)                                 any claim, defense, counterclaim or setoff, other than that of prior performance, that any Designated Borrower, the Guarantor, any other Loan Party or other Person may have or assert, including any defense of incapacity or lack of corporate or other authority to execute any of the Loan Documents;

 

(vi)                              any Guaranteed Party’s amendment, modification, renewal, extension, cancellation or surrender of any Loan Document, any Guaranteed Obligations, or any Collateral, or any Guaranteed Party’s exchange, release, or waiver of any Collateral;

 

(vii)                           any Guaranteed Party’s exercise or nonexercise of any power, right or remedy with respect to any of the Collateral, including any Guaranteed Party’s compromise, release, settlement or waiver with or of any Designated Borrower, any other Loan Party or any other Person;

 

(viii)                        any Guaranteed Party’s vote, claim, distribution, election, acceptance, action or inaction in any Insolvency Proceeding related to the Guaranteed Obligations;

 

(ix)                              any impairment or invalidity of any of the Collateral or any other collateral securing any of the Guaranteed Obligations or any failure to perfect any of the Liens of the Guaranteed Parties thereon or therein; and

 

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(x)                                 any other guaranty, whether by the Guarantor or any other Person, of all or any part of the Guaranteed Obligations or any other indebtedness, obligations or liabilities of any Designated Borrower to any Guaranteed Party.

 

SECTION 4.                                           Consents of Guarantor.  The Guarantor hereby unconditionally consents and agrees that, without notice to or further assent from the Guarantor:

 

(a)                                 the principal amount of the Guaranteed Obligations may be increased or decreased and additional Obligations of the Loan Parties under the Loan Documents may be incurred, by one or more amendments, modifications, renewals or extensions of any Loan Document or otherwise;

 

(b)                                 the time, manner, place or terms of any payment under any Loan Document may be extended or changed, including by an increase or decrease in the interest rate on any Guaranteed Obligation or any fee or other amount payable under such Loan Document, by an amendment, modification or renewal of any Loan Document or otherwise;

 

(c)                                  the time for any Designated Borrower’s (or any other Person’s) performance of or compliance with any term, covenant or agreement on its part to be performed or observed under any Loan Document may be extended, or such performance or compliance waived, or failure in or departure from such performance or compliance consented to, all in such manner and upon such terms as the Guaranteed Parties may deem proper;

 

(d)                                 any Guaranteed Party may discharge or release, in whole or in part, any other Loan Party or any other Person liable for the payment and performance of all or any part of the Guaranteed Obligations, and may permit or consent to any such action or any result of such action, and shall not be obligated to demand or enforce payment upon any of the Collateral or any other collateral, nor shall any Guaranteed Party be liable to the Guarantor for any failure to collect or enforce payment or performance of the Guaranteed Obligations from any Person or to realize on the Collateral or other collateral therefor;

 

(e)                                  in addition to the Collateral, the Guaranteed Parties may take and hold other security (legal or equitable) of any kind, at any time, as collateral for the Guaranteed Obligations, and may, from time to time, in whole or in part, exchange, sell, surrender, release, subordinate, modify, waive, rescind, compromise or extend such security and may permit or consent to any such action or the result of any such action, and may apply such security and direct the order or manner of sale thereof;

 

(f)                                   the Guaranteed Parties may request and accept other guaranties of the Guaranteed Obligations and any other indebtedness, obligations or liabilities of any Designated Borrower to any Guaranteed Party and may, from time to time, in whole or in part, surrender, release, subordinate, modify, waive, rescind, compromise or extend any such guaranty and may permit or consent to any such action or the result of any such action; and

 

(g)                                  the Guaranteed Parties may exercise, or waive or otherwise refrain from exercising, any other right, remedy, power or privilege (including the right to accelerate the maturity of any Loan and any power of sale) granted by any Loan Document or other security document or agreement, or otherwise available to any Guaranteed Party, with respect to the 

 

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Guaranteed Obligations or any of the Collateral, even if the exercise of such right, remedy, power or privilege affects or eliminates any right of subrogation or any other right of the Guarantor against the Designated Borrowers;

 

all as the Guaranteed Parties may deem advisable, and all without impairing, abridging, releasing or affecting this Guaranty.

 

SECTION 5.                                           Guarantor Waivers.

 

(a)                                 Certain Waivers.  The Guarantor waives and agrees not to assert:

 

(i)                                     any right to require any Guaranteed Party to marshal assets in favor of any Designated Borrower, the Guarantor, any other Loan Party or any other Person, to proceed against the Designated Borrowers, any other Loan Party or any other Person, to proceed against or exhaust any of the Collateral, to give notice of the terms, time and place of any public or private sale of personal property security constituting the Collateral or other collateral for the Guaranteed Obligations or comply with any other provisions of § 9-611 of the New York Uniform Commercial Code (or any equivalent provision of any other applicable law) or to pursue any other right, remedy, power or privilege of any Guaranteed Party whatsoever;

 

(ii)                                  the defense of the statute of limitations in any action hereunder or for the collection or performance of the Guaranteed Obligations;

 

(iii)                               any defense arising by reason of any lack of corporate or other authority or any other defense of the Designated Borrowers or any other Person;

 

(iv)                              any defense based upon any Guaranteed Party’s errors or omissions in the administration of the Guaranteed Obligations;

 

(v)                                 any rights to set-offs and counterclaims;

 

(vi)                              any defense based upon an election of remedies (including, if available, an election to proceed by nonjudicial foreclosure) which destroys or impairs the subrogation rights of the Guarantor or the right of the Guarantor to proceed against any Designated Borrower or any other obligor of the Guaranteed Obligations for reimbursement; and

 

(vii)                           without limiting the generality of the foregoing, to the fullest extent permitted by law, any defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, or which may conflict with the terms of this Guaranty.

 

(b)                                 Additional Waivers.

 

(i)                                     The Guarantor waives any and all notice of the acceptance of this Guaranty, and any and all notice of the creation, renewal, modification, extension or accrual of the Guaranteed Obligations, or the reliance by the Guaranteed Parties upon this Guaranty, or the exercise of any right, power or privilege hereunder.  The Guaranteed Obligations shall conclusively be deemed to have been created, contracted, incurred and permitted to exist in 

 

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reliance upon this Guaranty.  The Guarantor waives promptness, diligence, presentment, protest, demand for payment, notice of default, dishonor or nonpayment and all other notices to or upon the Designated Borrowers, the Guarantor or any other Person with respect to the Guaranteed Obligations.

 

(ii)                                  Until the Guaranteed Obligations have been paid in full in cash, the Guarantor waives (A) any defenses the Guarantor may have to the Guaranty by reason of an election of remedies by the Guaranteed Parties, (B) any rights or defenses the Guarantor may have by reason of protection afforded to any Designated Borrower or any other Loan Party pursuant to the anti-deficiency or other laws of the State of New York or other applicable law (to the extent waivable under such applicable law) limiting or discharging the Designated Borrowers’ or such other Loan Party’s indebtedness, (C) any defenses arising by reason of any disability or other defense of the Designated Borrowers or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Guaranteed Party) of the liability of any Designated Borrower, (D) any defenses based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of the Designated Borrowers, (E) any right to compel any Guaranteed Party to proceed against or exhaust any security for the Guaranteed Obligations (or to proceed against such security in a particular order) or to pursue any other remedy in such Guaranteed Party’s power whatsoever, and (F) any benefit of and any right to participate in any security now or hereafter held by the Guaranteed Parties.

 

(iii)                               The Guarantor warrants and agrees that each of the waivers set forth herein is made with full knowledge of its significance and consequences and that if any such waivers are determined to be contrary to any applicable law or public policy, such waivers shall be effective only to the maximum extent permitted by applicable law.

 

(c)                                  Independent Obligations.  The obligations of the Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of and separate from the obligations of any other guarantor of the Guaranteed Obligations, the Designated Borrowers and any other Loan Party and upon the occurrence and during the continuance of any Event of Default, a separate action or actions may be brought against the Guarantor, whether or not the Designated Borrowers or any such other Loan Party is joined therein or a separate action or actions are brought against any Designated Borrower or any such other Loan Party.

 

(d)                                 Financial Condition of Designated Borrowers.  The Guarantor shall not have any right to require any Guaranteed Party to obtain or disclose any information with respect to:  (i) the financial condition or character of the Designated Borrowers or the ability of the Designated Borrowers to pay and perform the Obligations; (ii) the Guaranteed Obligations; (iii) the Collateral; (iv) the existence or nonexistence of any other guarantees of all or any part of the Guaranteed Obligations; (v) any action or inaction on the part of any Guaranteed Party or any other Person; or (vi) any other matter, fact or occurrence whatsoever.

 

SECTION 6.                                           Subrogation.  Until the Guaranteed Obligations (other than contingent indemnification obligations) shall be satisfied in full and the Commitments shall be terminated, the Guarantor shall not have, and the Guarantor shall not directly or indirectly exercise, (a) any rights that it may acquire by way of subrogation under this Guaranty, by any payment hereunder or otherwise, (b) any rights of contribution, indemnification, reimbursement 

 

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or similar suretyship claims arising out of this Guaranty, or (c) any other right which it might otherwise have or acquire (in any way whatsoever) which could entitle it at any time to share or participate in any right, remedy or security of any Guaranteed Party as against the Designated Borrowers or any other Loan Party, whether in connection with this Guaranty, any of the other Loan Documents or otherwise.  If any amount shall be paid to the Guarantor on account of the foregoing rights at any time when all the Guaranteed Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of the Guaranteed Parties and shall forthwith be paid to the Administrative Agent to be credited and applied to the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.  Upon the indefeasible payment in full of the Guaranteed Obligations and the termination of all Commitments, the Guarantor shall be subrogated to the rights of the Guaranteed Parties against the Designated Borrowers to the extent otherwise permitted by law; provided that such subrogation shall not (i) constitute a representation or warranty, express or implied, by any Guaranteed Party as to the enforceability or collectibility of any obligations of the Designated Borrowers under the Loan Documents or as to the perfection, priority or enforceability of any lien or security interest contained in or relating to any Loan Document; (ii) grant to the Guarantor any right of recourse against any Guaranteed Party in respect thereof; (iii) give rise to any duty on the part of any Guaranteed Party to cooperate with the Guarantor in the protection, preservation or enforcement of any rights the Guarantor may have against any Designated Borrower or any other Loan Party; (iv) impair any Guaranteed Party’s unfettered discretion to settle or otherwise compromise any claims such Guaranteed Party may have against any Designated Borrower or otherwise impair or affect any of the waivers or consents contained herein; or (v) restrict any Guaranteed Party from enforcing or forbearing from enforcing any of its rights or remedies against any Designated Borrower; provided, further, that the Guarantor shall, upon demand, indemnify each Guaranteed Party against any and all costs and expenses arising directly or indirectly in connection with such right of subrogation.

 

SECTION 7.                                           Continuing Guaranty; Reinstatement.

 

(a)                                 This Guaranty is a continuing guaranty and agreement of subordination relating to any Guaranteed Obligations, including Guaranteed Obligations which may exist continuously or which may arise from time to time in connection with successive transactions consummated under the Credit Agreement and the other Loan Documents, and the Guarantor expressly acknowledges that this Guaranty shall remain in full force and effect notwithstanding that there may be periods in which no Guaranteed Obligations exist.  This Guaranty shall continue in effect and be binding upon the Guarantor until termination of the Commitments and payment and performance in full of the Guaranteed Obligations.

 

(b)                                 This Guaranty shall continue to be effective or shall be reinstated and revived, as the case may be, if, for any reason, any payment of the Guaranteed Obligations by or on behalf of any of the Borrowers (or receipt of any proceeds of Collateral) shall be rescinded, invalidated, declared to be fraudulent or preferential, set aside, voided or otherwise required to be repaid to the Borrower, its estate, trustee, receiver or any other Person (including under the Bankruptcy Code or other state or federal law), or must otherwise be restored by the Administrative Agent or any Lender, whether as a result of Insolvency Proceedings or otherwise.  To the extent any payment is so rescinded, set aside, voided or otherwise repaid or restored, the 

 

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Guaranteed Obligations shall be revived in full force and effect without reduction or discharge for such payment.

 

SECTION 8.                                           Payments.

 

(a)                                 The Guarantor hereby agrees, in furtherance of the foregoing provisions of this Guaranty and not in limitation of any other right which any Guaranteed Party or any other Person may have against the Guarantor by virtue hereof, upon the failure of any Designated Borrower to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under § 362(a) of the Bankruptcy Code or comparable provision of other applicable Debtor Relief Laws), the Guarantor shall forthwith pay, or cause to be paid, in cash, to the Administrative Agent an amount equal to the amount of the Guaranteed Obligations then due as aforesaid (including interest which, but for the filing of a petition in any Insolvency Proceeding with respect to any Designated Borrower, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against the Designated Borrower for such interest in any such Insolvency Proceeding).  The Guarantor shall make each payment hereunder, unconditionally in full without set-off, counterclaim or other defense, on the day when due in the currency in which such Guaranteed Obligations are denominated in Same Day Funds, to the Administrative Agent at such office of the Administrative Agent and to such account as is specified in the Credit Agreement.

 

(b)                                 Any and all payments by or on account of any obligation of the Guarantor hereunder shall be made without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law requires the deduction or withholding of any Tax from any such payment, then the Guarantor and, if applicable, the Administrative Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Guarantor shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.  As soon as practicable after any payment of Taxes by the Guarantor to a Governmental Authority pursuant to this Section 8, the Guarantor shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(c)                                  In addition, the Guarantor agrees to pay any and all present or future stamp, court or documentary taxes and any other excise or property taxes or charges or similar levies which arise from any payment made under the Guarantor Documents or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, the Guarantor Documents (hereinafter referred to as “Other Taxes”).

 

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(d)                                 Without limiting the provisions of subsection (c) above, the Guarantor shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

(e)                                  The Guarantor shall indemnify the Administrative Agent and each Lender, within 10 days after demand therefor, for the full amount of any Indemnified Taxes and Other Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Guarantor by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

(f)                                   Any payment by the Guarantor hereunder the application of which is not otherwise provided for herein, shall be applied in the order specified in Section 8.03 of the Credit Agreement.

 

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

 

(h)                                 The agreements in this Section 8 shall survive the payment of all Guaranteed Obligations.

 

SECTION 9.                                           Consideration.  In order to induce the Lenders to make Loans to and issue Letters of Credit for the account of the Designated Borrowers pursuant to the Credit Agreement, the Guarantor represents and warrants to each Guaranteed Party that the Guarantor has received at least “reasonably equivalent value” (as such phrase is used in § 548 of the Bankruptcy Code), and “fair consideration” (as such term is used in § 272 of the New York Uniform Fraudulent Conveyance Act) and more than sufficient consideration to support its obligations hereunder in respect of the Guaranteed Obligations and under any of the Collateral Documents to which it is a party.

 

SECTION 10.                                    Notices.  Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be delivered to the Guarantor’s attention at the address of the Company as set forth in Section 10.02 of the Credit Agreement and the terms of Section 10.02 of the Credit Agreement with respect to notices are incorporated herein by reference, mutatis mutandis, with each reference to the “Company,” “Borrower” or the “Borrowers” therein (whether express or by reference to the Company or Borrower or the Company or Borrowers as a “party” thereto) being a reference to the Guarantor and each reference to any “Loan Document” or the “Loan Documents” therein being a reference to the “Guarantor Documents”, and the parties hereto agree to such terms.

 

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SECTION 11.            No Waiver; Cumulative Remedies.  No failure by any Guaranteed Party to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Guarantor Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and provided under each other Guarantor Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

 

SECTION 12.            Costs and Expenses.

 

(a)           Costs and Expenses.  The Guarantor shall: (i) pay or reimburse the Administrative Agent and its Affiliates for all reasonable costs and expenses incurred in connection with the development, preparation, negotiation and execution of this Guaranty and the other Guarantor Documents and any amendment, waiver, consent or other modification of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including all reasonable costs and expenses of counsel for the Administrative Agent; and (ii) pay or reimburse the Administrative Agent and each other Guaranteed Party for all costs and expenses incurred in connection with the enforcement, attempted enforcement, or preservation of any rights or remedies under this Guaranty or the other Guarantor Documents (including all such costs and expenses incurred during any “workout” or restructuring in respect of the Guaranteed Obligations and during any legal proceeding, including any proceeding under any Debtor Relief Laws), including all costs and expenses of counsel for the Administrative Agent.  The foregoing costs and expenses shall include all search, filing, recording, title insurance and appraisal charges and fees and taxes related thereto, and other out-of-pocket expenses incurred by the Administrative Agent and the cost of independent public accountants and other outside experts retained by any Guaranteed Party.

 

(b)           Interest.  Any amounts payable by the Guarantor under this Section 12 or otherwise under this Guaranty if not paid upon demand shall bear interest from the date of such demand until paid in full, at a fluctuating interest rate per annum at all times equal to the Default Rate applicable to Base Rate Loans to the fullest extent permitted by applicable law.  Any such interest shall be due and payable upon demand and shall be calculated on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed.

 

(c)           Payment.  All amounts due under this Section 12 shall be payable within ten Business Days after demand therefor.

 

(d)           Survival.  The agreements in this Section 12 shall survive the termination of the Commitments and repayment of all Guaranteed Obligations.

 

SECTION 13.            Right of Set-Off.  In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and during the continuance of any Event of Default each Lender, the L/C issuer and each of their respective Affiliates is authorized at any time and from time to time, without prior notice to the Guarantor, any such notice being waived

 

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by the Guarantor to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing by, such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Guarantor against any and all Obligations owing to such Lender or the L/C Issuer, now or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender or L/C Issuer shall have made demand under this Guaranty or any other Guarantor Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or indebtedness.  Each of the Lenders and L/C Issuers agree (by its acceptance hereof) promptly to notify the Guarantor and the Administrative Agent after any such set-off and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application.  The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have.

 

SECTION 14.            Marshalling; Payments Set Aside.  Neither the Administrative Agent nor any other Guaranteed Party shall be under any obligation to marshal any assets in favor of the Guarantor or any other Person or against or in payment of any or all of the Guaranteed Obligations.  To the extent that the Guarantor makes a payment to any Guaranteed Party, or any Guaranteed Party exercises its right of set-off, and such payment or the proceeds of such set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any Guaranteed Party in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred, and (b) each of the Lenders severally agrees (by its acceptance hereof) to pay to the Administrative Agent upon demand its pro rata share of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.

 

SECTION 15.            Benefits of Guaranty.  This Guaranty is entered into for the sole protection and benefit of the Administrative Agent and each other Guaranteed Party and their respective successors and assigns, and no other Person (other than any Indemnitee specified herein) shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with, this Guaranty.  The Guaranteed Parties, by their acceptance of this Guaranty, shall not have any obligations under this Guaranty to any Person other than the Guarantor, and such obligations shall be limited to those expressly stated herein.

 

SECTION 16.            Binding Effect; Assignment.

 

(a)           Binding Effect.  This Guaranty shall be binding upon the Guarantor and its successors and assigns, and inure to the benefit of and be enforceable by the Administrative Agent and each other Guaranteed Party and their respective successors, endorsees, transferees and assigns.

 

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(b)           Assignment.  Except to the extent otherwise provided in the Credit Agreement, the Guarantor shall not have the right to assign or transfer its rights and obligations hereunder or under any other Guarantor Documents without the prior written consent of the Required Lenders.  Each Lender may, without notice to or consent by the Guarantor, sell, assign, transfer or grant participations in all or any portion of such Lender’s rights and obligations hereunder and under the other Guarantor Documents in connection with any sale, assignment, transfer or grant of a participation by such Lender in accordance with Section 10.06 of the Credit Agreement of or in its rights and obligations thereunder and under the other Loan Documents.  In the event of any grant of a participation, the participant (A) shall be deemed to have a right of setoff under Section 13 hereof in respect of its participation to the same extent as if it were such “Guaranteed Party;” and (B) shall also be entitled to the benefits of Section 12 hereof.

 

SECTION 17.            Governing Law and Jurisdiction

 

(a)           GOVERNING LAW. THIS GUARANTY AND THE OTHER GUARANTOR DOCUMENTS (EXCEPT, AS TO ANY OTHER GUARANTOR DOCUMENT, WHERE SUCH OTHER GUARANTOR DOCUMENT EXPRESSLY SETS FORTH OTHERWISE) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER GUARANTOR DOCUMENT (EXCEPT, AS TO ANY OTHER GUARANTOR DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

(b)           SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT IN SUCH BOROUGH, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER GUARANTOR DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL  BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY OR IN ANY OTHER GUARANTOR DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER GUARANTOR DOCUMENT AGAINST THE GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 

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(c)           WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER GUARANTOR DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION 17. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

 

(d)           SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10. NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, THE GUARANTOR HEREBY APPOINTS, IN THE CASE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN THE COURTS OF OR IN THE STATE OF NEW YORK, CT CORPORATION, WITH OFFICES ON THE DATE HEREOF AT 111 EIGHTH AVENUE, NEW YORK, NEW YORK 10011, TO RECEIVE FOR IT AND ON ITS BEHALF, SERVICE OF PROCESS IN THE STATE OF NEW YORK WITH RESPECT THERETO, PROVIDED THE GUARANTOR MAY APPOINT ANY OTHER PERSON, REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT, WITH OFFICES IN THE STATE OF NEW YORK TO REPLACE SUCH AGENT FOR SERVICE OF PROCESS UPON DELIVERY TO THE ADMINISTRATIVE AGENT OF A REASONABLY ACCEPTABLE AGREEMENT OF SUCH NEW AGENT AGREEING SO TO ACT.

 

SECTION 18.            Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER GUARANTOR DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER GUARANTOR DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18.

 

SECTION 19.            California Judicial Reference. If any action or proceeding is filed in a court of the State of California by or against any party hereto in connection with any of the transactions contemplated by this Guaranty or any other Guarantor Document, (a) the court shall, and is hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear and

 

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determine all of the issues in such action or proceeding (whether of fact or of law) and to report a statement of decision, provided that at the option of any party to such proceeding, any such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section 1281.8 shall be heard and determined by the court, and (b) without limiting the generality of Section 10.04 of the Credit Agreement, the Guarantor shall be solely responsible to pay all fees and expenses of any referee appointed in such action or proceeding.

 

SECTION 20.            Entire Agreement; Amendments and Waivers.  This Guaranty together with the other Guarantor Documents embodies the entire final agreement of the Guarantor with respect to the matters set forth herein and supersedes all prior or contemporaneous agreements and understandings of the Guarantor, verbal or written, relating to the subject matter hereof and thereof and shall not be amended except by written agreement of the Guarantor, the Administrative Agent and the Required Lenders.  This Guaranty and the other Guarantor Documents may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties.  There are no unwritten oral agreements among the parties.  No waiver of any rights of the Guaranteed Parties under any provision of this Guaranty or consent to any departure by the Guarantor therefrom shall be effective unless in writing and signed by the Administrative Agent  and the Required Lenders, or the Administrative Agent (with the written consent of the Required Lenders).  Any such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

SECTION 21.            Severability.  If any provision of this Guaranty or the other Guarantor Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Guaranty and the other Guarantor Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

SECTION 22.            Counterparts.  This Guaranty may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which together shall constitute one and the same instrument.

 

SECTION 23.            Judgment Currency.  If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Guarantor Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given.  The obligation of the Guarantor in respect of any such sum due from it to any Guaranteed Party hereunder or under the other Guarantor Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of the Credit Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency so

 

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purchased is less than the sum originally due to the Administrative Agent from the Guarantor in the Agreement Currency, the Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss.  If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent (by its acceptance hereof) agrees to return the amount of any excess to the Guarantor (or to any other Person who may be entitled thereto under applicable law). The agreements in this Section 23 shall survive the termination of the Commitments and repayment of all Guaranteed Obligations.

 

SECTION 24.            Bermuda Branch; Full Recourse Obligations.  All the obligations of the Guarantor hereunder are incurred by Flextronics International Ltd., a Singapore corporation (“FIL”) at its Bermuda branch located at Canon’s Court, 22 Victoria Street, Hamilton HM 12 BERMUDA, and all payments hereunder including, without limitation, payments of principal and interest, by the Guarantor of the Guaranteed Obligations will be made through its Bermuda branch; provided, however, that notwithstanding the foregoing, Guarantor acknowledges and agrees that the Guarantor’s obligations hereunder are full recourse to FIL, and are in no manner limited to any extent to any branch thereof and shall in no manner impair the Administrative Agent’s or any Lender’s ability to enforce or collect any of the Guaranteed Obligations from FIL.

 

[Remainder of page intentionally left blank]

 

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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty, as of the date first above written.

 

 

	
 
    	
FLEXTRONICS   INTERNATIONAL LTD.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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EXHIBIT G

 

FORM OF SUBSIDIARY GUARANTY

 

[See attached]

 

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FORM OF

SUBSIDIARY GUARANTY

 

THIS GUARANTY (this “Guaranty”), dated as of March 31, 2014, is made by each of the undersigned (together, the “Guarantors”; each a “Guarantor”), in favor of the Lenders from time to time party to the Credit Agreement referred to below and Bank of America, N.A., as Administrative Agent and Swing Line Lender.

 

A.            Flextronics International, Ltd., a Singapore company (the “Company”), the Designated Borrowers, the Lenders from time to time party thereto (each a “Lender” and, collectively, together with the Swing Line Lender and the L/C Issuers, the “Lenders”) and the Administrative Agent are parties to a Credit Agreement dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”).

 

B.            The Guarantors are Subsidiaries of the Company.

 

C.            It is a condition precedent to the making of Loans to and the issuance of Letters of Credit for the account of the Company and the Designated Borrowers (together, the “Borrowers”) under the Credit Agreement that the Guarantors guarantee the indebtedness and other obligations of each Borrower to the Guaranteed Parties under or in connection with the Credit Agreement.

 

D.            The Guarantors, as Subsidiaries or Affiliates of the Borrowers, will derive substantial direct and indirect benefits from the making of the Loans to and the issuance of Letters of Credit for the account of the Borrowers pursuant to the Credit Agreement (which benefits are hereby acknowledged by the Guarantors).

 

Accordingly, to induce the Administrative Agent and the Lenders to enter into the Credit Agreement, and in consideration thereof, the Guarantors hereby agree as follows:

 

SECTION 1.              Definitions; Interpretation.

 

(a)           Terms Defined in Credit Agreement.  All capitalized terms used in this Guaranty (including in the recitals hereof) and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.

 

(b)           Certain Defined Terms.  As used in this Guaranty (including in the recitals hereof), the following terms shall have the following meanings:

 

“Aggregate Guaranty Payments” shall mean, with respect to any Guarantor at any time, the aggregate amount of all payments made by such Guarantor under this Guaranty (including under Section 9 hereof) at or prior to such time.

 

“Agreement Currency” has the meaning set forth in Section 25.

 

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“Bankruptcy Code”  means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended.

 

“Collateral” means any property and interests and proceeds thereof now or hereafter acquired by the Guarantors, any Borrower or any other Person in which a Lien shall exist in favor of the Guaranteed Parties to secure the Guaranteed Obligations.

 

“Collateral Documents” means any agreement pursuant to which the Guarantors, any Borrower or any other Person provides a Lien on any Collateral securing any or all of the Guaranteed Obligations and all filings, documents and agreements made or delivered pursuant thereto.

 

“Credit Agreement” has the meaning specified in the recitals to this Guaranty.

 

“Fair Share” shall mean, with respect to any Guarantor at any time, an amount equal to (i) a fraction, the numerator which is the Maximum Guaranty Amount of such Guarantor and the denominator of which is the aggregate Maximum Guaranty Amounts of all Guarantors, multiplied by (ii) the aggregate amount paid by all Funding Guarantors under this Guaranty at or prior to such time.

 

“Fair Share Shortfall” shall mean, with respect to any Guarantor at any time, the amount, if any, by which the Fair Share of such Guarantor at such time exceeds the Aggregate Guaranty Payments of such Guarantor at such time.

 

“Funding Guarantor” has the meaning set forth in Section 9.

 

“Guaranteed Obligations” has the meaning set forth in Section 2.

 

“Guaranteed Parties” means the Administrative Agent and each Lender.

 

“Guarantor Documents” means this Guaranty and all other certificates, documents, agreements and instruments delivered to any Guaranteed Party under or in connection with this Guaranty and the Loan Documents.

 

“Insolvency Proceeding” means, with respect to any Person, (i) any case, action or proceeding with respect to such Person before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (ii) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors; in either case undertaken under Debtor Relief Laws.

 

“Judgment Currency” has the meaning set forth in Section 25.

 

“Lenders” has the meaning specified in the recitals to this Guaranty.

 

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“Maximum Guaranty Amount” shall mean, with respect to any Guarantor at any time, (i) the full amount of the Guaranteed Obligations at such time or (ii) if any court of competent jurisdiction determines in any action to enforce this Guaranty that enforcement against such Guarantor for the full amount of the Guaranteed Obligations is not lawful under or would be subject to avoidance under Section 548 of the Bankruptcy Code or any applicable provision of any comparable law of any state or other jurisdiction, then the maximum amount lawful and not subject to such avoidance.

 

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

 

“Other Taxes” has the meaning set forth in Section 8(c).

 

“Release Date” means, in respect of any Guarantor, the occurrence of any of the following:  (i) the date of receipt by the Administrative Agent of an executed Guarantor Release Certificate in compliance with Section 6.10(b) of the Credit Agreement in relation to such Guarantor, or (ii) the date the Administrative Agent receives actual notice of the consummation of any of the following in relation to such Guarantor, provided such transactions are permitted under the Credit Agreement:  (A) the sale of all or substantially all of the Equity Securities issued by, or of all or substantially all of the assets of, such Guarantor to a Person that is not FIL or any of its Affiliates, or (B) a Substantial Spin-off of such Guarantor, (C) the dissolution, liquidation or termination of the existence of such Guarantor, or (D) the merger or amalgamation of such Guarantor with or into any Person other than FIL or any of its Affiliates.

 

“Solvent” means, as to any Person at any time, that (i) the fair value of the property of such Person is greater than the amount of such Person’s liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and as such liabilities are evaluated for purposes of Section 101(32) of the Bankruptcy Code and, in the alternative, for purposes of the New York Uniform Fraudulent Conveyance Act and other applicable state law; (ii) the present fair saleable value of the property 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; (iii) such Person is able to realize upon its property and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (iv) 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 (v) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital.

 

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“Substantial Spin-off” means, in respect of any Guarantor, the sale, transfer or distribution (including by means of a dividend) of 50% or more of the Equity Securities of such Person entitled to vote for the board of directors or similar governing body of such Person pursuant to a public offering or spin-off (by means of a dividend) of such securities.

 

(c)           Interpretation.  The rules of interpretation set forth in Sections 1.02 and 1.03 of the Credit Agreement shall be applicable to this Guaranty and are incorporated herein by this reference.

 

SECTION 2.              Guaranty.

 

(a)           Each Guarantor hereby severally absolutely, unconditionally and irrevocably guarantees for the Guaranteed Parties, and their respective successors, endorsees, transferees and assigns, the full and prompt payment when due (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise) of all (and not merely a lesser or proportional part of) the indebtedness, liabilities and other obligations of each Borrower (now existing or hereafter arising pursuant to Section 2.14 of the Credit Agreement) to the Guaranteed Parties under or in connection with the Credit Agreement, the Notes and the other Loan Documents, including all unpaid principal of the Loans, all interest accrued thereon, all amounts owing in respect of L/C Obligations, all fees due under the Credit Agreement and all other amounts payable by each Borrower to the Guaranteed Parties thereunder, in connection therewith, and in connection with any other Loan Document.  The terms “indebtedness,” “liabilities” and “obligations” are used herein in their most comprehensive sense and include without limitation any and all advances, debts, obligations and liabilities, whether now existing or hereafter arising, whether voluntary or involuntary and whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether recovery upon such indebtedness, liabilities and obligations may be or hereafter become unenforceable or shall be an allowed or disallowed claim under any Debtor Relief Law, and including interest that accrues after the commencement by or against any Borrower or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding.  The foregoing indebtedness, liabilities and other obligations of each Borrower, and all other indebtedness, liabilities and obligations to be paid or performed by the Guarantors in connection with this Guaranty (including any and all amounts due under Section 14), shall hereinafter be collectively referred to as the “Guaranteed Obligations.”

 

(b)           To the extent that any court of competent jurisdiction shall impose by final judgment under applicable law (including if applicable, the New York Uniform Fraudulent Conveyance Act or other applicable state law and §§ 544 and 548 of the Bankruptcy Code) any limitations on the amount of any Guarantor’s liability with respect to the Guaranteed Obligations which any Guaranteed Party can enforce under this Guaranty, the Guaranteed Parties by their acceptance hereof accept such limitation on the amount of the Guarantor’s liability hereunder to the extent needed to make this Guaranty and the Guarantor Documents fully enforceable and nonavoidable.

 

SECTION 3.              Liability of Guarantors.  The liability of each Guarantor under this Guaranty shall be irrevocable, absolute, independent and unconditional, and shall not be affected by any circumstance which might constitute a discharge of a surety or guarantor other

 

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than the indefeasible payment and performance in full of all Guaranteed Obligations.  In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:

 

(a)           the Guarantor’s liability hereunder shall be the immediate, direct, and primary obligation of the Guarantor and shall not be contingent upon any Guaranteed Party’s exercise or enforcement of any remedy it may have against any Borrower or any other Person, or against any Collateral;

 

(b)           this Guaranty is a guaranty of payment when due and not merely of collectibility;

 

(c)           the Guaranteed Parties may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default notwithstanding the existence of any dispute between any of the Guaranteed Parties and any Borrower with respect to the existence of such Event of Default;

 

(d)           the Guarantor’s payment of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge the Guarantor’s liability for any portion of the Guaranteed Obligations remaining unsatisfied; and

 

(e)           the Guarantor’s liability with respect to the Guaranteed Obligations shall remain in full force and effect without regard to, and shall not be impaired or affected by, nor shall the Guarantor be exonerated or discharged by, any of the following events:

 

(i)            any Insolvency Proceeding with respect to any Borrower, the Guarantor, any other Guarantor or other Loan Party or any other Person;

 

(ii)           any limitation, discharge, or cessation of the liability of any Borrower, the Guarantor, any other Guarantor or other Loan Party or any other Person for any Guaranteed Obligations due to any statute, regulation or rule of law, or any invalidity or unenforceability in whole or in part of any of the Guaranteed Obligations or the Loan Documents;

 

(iii)          any merger, acquisition, consolidation or change in structure of any Borrower, the Guarantor or any other Guarantor or other Loan Party or Person, or any sale, lease, transfer or other disposition of any or all of the assets or shares of any Borrower, the Guarantor, any other Guarantor or other Loan Party or other Person (in each case, except as otherwise provided in Section 26 hereof);

 

(iv)          any assignment or other transfer, in whole or in part, of any Guaranteed Party’s interests in and rights under this Guaranty or the other Loan Documents, including any Guaranteed Party’s right to receive payment of the Guaranteed Obligations, or any assignment or other transfer, in whole or in part, of any Guaranteed Party’s interests in and to any of the Collateral;

 

(v)           any claim, defense, counterclaim or setoff, other than that of prior performance, that any Borrower, the Guarantor, any other Guarantor or other Loan Party or other

 

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Person may have or assert, including any defense of incapacity or lack of corporate or other authority to execute any of the Loan Documents;

 

(vi)          any Guaranteed Party’s amendment, modification, renewal, extension, cancellation or surrender of any Loan Document, any Guaranteed Obligations, or any Collateral, or any Guaranteed Party’s exchange, release, or waiver of any Collateral;

 

(vii)         any Guaranteed Party’s exercise or nonexercise of any power, right or remedy with respect to any of the Collateral, including any Guaranteed Party’s compromise, release, settlement or waiver with or of any Borrower, any other Guarantor or other Loan Party or any other Person;

 

(viii)        any Guaranteed Party’s vote, claim, distribution, election, acceptance, action or inaction in any Insolvency Proceeding related to the Guaranteed Obligations;

 

(ix)          any impairment or invalidity of any of the Collateral or any other collateral securing any of the Guaranteed Obligations or any failure to perfect any of the Liens of the Guaranteed Parties thereon or therein; and

 

(x)           any other guaranty, whether by the Guarantor or any other Guarantor or other Person, of all or any part of the Guaranteed Obligations or any other indebtedness, obligations or liabilities of any Borrower to any Guaranteed Party.

 

SECTION 4.              Consents of Guarantors.  Each Guarantor hereby unconditionally consents and agrees that, without notice to or further assent from the Guarantor:

 

(a)           the principal amount of the Guaranteed Obligations may be increased or decreased and additional Obligations of the Loan Parties under the Loan Documents may be incurred, by one or more amendments, modifications, renewals or extensions of any Loan Document or otherwise;

 

(b)           the time, manner, place or terms of any payment under any Loan Document may be extended or changed, including by an increase or decrease in the interest rate on any Guaranteed Obligation or any fee or other amount payable under such Loan Document, by an amendment, modification or renewal of any Loan Document or otherwise;

 

(c)           the time for any Borrower’s (or any other Person’s) performance of or compliance with any term, covenant or agreement on its part to be performed or observed under any Loan Document may be extended, or such performance or compliance waived, or failure in or departure from such performance or compliance consented to, all in such manner and upon such terms as the Guaranteed Parties may deem proper;

 

(d)           any Guaranteed Party may discharge or release, in whole or in part, any other Guarantor or other Loan Party or any other Person liable for the payment and performance of all or any part of the Guaranteed Obligations, and may permit or consent to any such action or any result of such action, and shall not be obligated to demand or enforce payment upon any of the Collateral or any other collateral, nor shall any Guaranteed Party be liable to the Guarantor

 

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for any failure to collect or enforce payment or performance of the Guaranteed Obligations from any Person or to realize on the Collateral or other collateral therefor;

 

(e)           in addition to the Collateral, the Guaranteed Parties may take and hold other security (legal or equitable) of any kind, at any time, as collateral for the Guaranteed Obligations, and may, from time to time, in whole or in part, exchange, sell, surrender, release, subordinate, modify, waive, rescind, compromise or extend such security and may permit or consent to any such action or the result of any such action, and may apply such security and direct the order or manner of sale thereof;

 

(f)            the Guaranteed Parties may request and accept other guaranties of the Guaranteed Obligations and any other indebtedness, obligations or liabilities of any Borrower to any Guaranteed Party and may, from time to time, in whole or in part, surrender, release, subordinate, modify, waive, rescind, compromise or extend any such guaranty and may permit or consent to any such action or the result of any such action; and

 

(g)           the Guaranteed Parties may exercise, or waive or otherwise refrain from exercising, any other right, remedy, power or privilege (including the right to accelerate the maturity of any Loan and any power of sale) granted by any Loan Document or other security document or agreement, or otherwise available to any Guaranteed Party, with respect to the Guaranteed Obligations or any of the Collateral, even if the exercise of such right, remedy, power or privilege affects or eliminates any right of subrogation or any other right of the Guarantor against the Borrowers;

 

all as the Guaranteed Parties may deem advisable, and all without impairing, abridging, releasing or affecting this Guaranty.

 

SECTION 5.              Guarantor Waivers.

 

(a)           Certain Waivers.  Each Guarantor waives and agrees not to assert:

 

(i)            any right to require any Guaranteed Party to marshal assets in favor of any Borrower, the Guarantor, any other Loan Party or any other Person, to proceed against the Borrowers, any other Loan Party or any other Person, to proceed against or exhaust any of the Collateral, to give notice of the terms, time and place of any public or private sale of personal property security constituting the Collateral or other collateral for the Guaranteed Obligations or comply with any other provisions of § 9-611 of the New York Uniform Commercial Code (or any equivalent provision of any other applicable law) or to pursue any other right, remedy, power or privilege of any Guaranteed Party whatsoever;

 

(ii)           the defense of the statute of limitations in any action hereunder or for the collection or performance of the Guaranteed Obligations;

 

(iii)          any defense arising by reason of any lack of corporate or other authority or any other defense of the Borrowers or any other Person;

 

(iv)          any defense based upon any Guaranteed Party’s errors or omissions in the administration of the Guaranteed Obligations;

 

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(v)           any rights to set-offs and counterclaims;

 

(vi)          any defense based upon an election of remedies (including, if available, an election to proceed by nonjudicial foreclosure) which destroys or impairs the subrogation rights of the Guarantor or the right of the Guarantor to proceed against any Borrower or any other obligor of the Guaranteed Obligations for reimbursement; and

 

(vii)         without limiting the generality of the foregoing, to the fullest extent permitted by law, any defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, or which may conflict with the terms of this Guaranty.

 

(b)           Additional Waivers.

 

(i)            Each Guarantor waives any and all notice of the acceptance of this Guaranty, and any and all notice of the creation, renewal, modification, extension or accrual of the Guaranteed Obligations, or the reliance by the Guaranteed Parties upon this Guaranty, or the exercise of any right, power or privilege hereunder.  The Guaranteed Obligations shall conclusively be deemed to have been created, contracted, incurred and permitted to exist in reliance upon this Guaranty.  Each Guarantor waives promptness, diligence, presentment, protest, demand for payment, notice of default, dishonor or nonpayment and all other notices to or upon the Borrowers, the Guarantor or any other Guarantor or other Person with respect to the Guaranteed Obligations.

 

(ii)           Until the Guaranteed Obligations have been paid in full in cash, each Guarantor waives (A) any defenses the Guarantor may have to the Guaranty by reason of an election of remedies by the Guaranteed Parties, (B) any rights or defenses the Guarantor may have by reason of protection afforded to any Borrower or any other Loan Party pursuant to the anti-deficiency or other laws of the State of New York or other applicable law (to the extent waivable under such applicable law) limiting or discharging the Borrowers’ or such other Loan Party’s indebtedness, (C) any defenses arising by reason of any disability or other defense of the Borrowers or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Guaranteed Party) of the liability of any Borrower, (D) any defenses based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of the Borrowers, (E) any right to compel any Guaranteed Party to proceed against or exhaust any security for the Guaranteed Obligations (or to proceed against such security in a particular order) or to pursue any other remedy in such Guaranteed Party’s power whatsoever, and (F) any benefit of and any right to participate in any security now or hereafter held by the Guaranteed Parties.

 

(iii)          Each Guarantor warrants and agrees that each of the waivers set forth herein is made with full knowledge of its significance and consequences and that if any such waivers are determined to be contrary to any applicable law or public policy, such waivers shall be effective only to the maximum extent permitted by applicable law.

 

(c)           Independent Obligations.  The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of and separate from the obligations of any other Guarantor or other guarantor of the Guaranteed Obligations, the

 

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Borrowers and any other Loan Party and upon the occurrence and during the continuance of any Event of Default, a separate action or actions may be brought against each Guarantor, whether or not the Borrowers or any such other Guarantor or other Loan Party is joined therein or a separate action or actions are brought against any Borrower or any such other Guarantor or other Loan Party.

 

(d)           Financial Condition of Borrowers.  No Guarantor shall have any right to require any Guaranteed Party to obtain or disclose any information with respect to:  (i) the financial condition or character of the Borrowers or the ability of the Borrowers to pay and perform the Obligations; (ii) the Guaranteed Obligations; (iii) the Collateral; (iv) the existence or nonexistence of any other guarantees of all or any part of the Guaranteed Obligations; (v) any action or inaction on the part of any Guaranteed Party or any other Person; or (vi) any other matter, fact or occurrence whatsoever.

 

SECTION 6.              Subrogation.  Until the Guaranteed Obligations (other than contingent indemnification obligations) shall be satisfied in full and the Commitments shall be terminated, no Guarantor shall have, and no Guarantor shall directly or indirectly exercise, (a) any rights that it may acquire by way of subrogation under this Guaranty, by any payment hereunder or otherwise, (b) any rights of contribution, indemnification, reimbursement or similar suretyship claims arising out of this Guaranty, or (c) any other right which it might otherwise have or acquire (in any way whatsoever) which could entitle it at any time to share or participate in any right, remedy or security of any Guaranteed Party as against the Borrowers or any other Guarantor or other Loan Party, whether in connection with this Guaranty, any of the other Loan Documents or otherwise.  If any amount shall be paid to any Guarantor on account of the foregoing rights at any time when all the Guaranteed Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of the Guaranteed Parties and shall forthwith be paid to the Administrative Agent to be credited and applied to the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.  Upon the indefeasible payment in full of the Guaranteed Obligations and the termination of all Commitments, each Guarantor shall be subrogated to the rights of the Guaranteed Parties against the Borrowers to the extent otherwise permitted by law; provided that such subrogation shall not (i) constitute a representation or warranty, express or implied, by any Guaranteed Party as to the enforceability or collectibility of any obligations of the Borrowers under the Loan Documents or as to the perfection, priority or enforceability of any lien or security interest contained in or relating to any Loan Document; (ii) grant to the Guarantor any right of recourse against any Guaranteed Party in respect thereof; (iii) give rise to any duty on the part of any Guaranteed Party to cooperate with the Guarantor in the protection, preservation or enforcement of any rights the Guarantor may have against any Borrower or any other Loan Party; (iv) impair any Guaranteed Party’s unfettered discretion to settle or otherwise compromise any claims such Guaranteed Party may have against any Borrower or otherwise impair or affect any of the waivers or consents contained herein; or (v) restrict any Guaranteed Party from enforcing or forbearing from enforcing any of its rights or remedies against any Borrower; provided, further, that each Guarantor shall, upon demand, indemnify each Guaranteed Party against any and all costs and expenses arising directly or indirectly in connection with such right of subrogation.

 

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SECTION 7.                                           Continuing Guaranty; Reinstatement.

 

(a)                                 This Guaranty is a continuing guaranty and agreement of subordination relating to any Guaranteed Obligations, including Guaranteed Obligations which may exist continuously or which may arise from time to time in connection with successive transactions consummated under the Credit Agreement and the other Loan Documents, and each Guarantor expressly acknowledges that this Guaranty shall remain in full force and effect notwithstanding that there may be periods in which no Guaranteed Obligations exist.  This Guaranty shall, subject to Section 27 hereof, continue in effect and be binding upon each Guarantor until termination of the Commitments and payment and performance in full of the Guaranteed Obligations.

 

(b)                                 This Guaranty shall continue to be effective or shall be reinstated and revived, as the case may be, if, for any reason, any payment of the Guaranteed Obligations by or on behalf of any of the Borrowers (or receipt of any proceeds of Collateral) shall be rescinded, invalidated, declared to be fraudulent or preferential, set aside, voided or otherwise required to be repaid to the Borrower, its estate, trustee, receiver or any other Person (including under the Bankruptcy Code or other state or federal law), or must otherwise be restored by the Administrative Agent or any Lender, whether as a result of Insolvency Proceedings or otherwise.  To the extent any payment is so rescinded, set aside, voided or otherwise repaid or restored, the Guaranteed Obligations shall be revived in full force and effect without reduction or discharge for such payment.

 

SECTION 8.                                           Payments.

 

(a)                                 Each Guarantor hereby agrees, in furtherance of the foregoing provisions of this Guaranty and not in limitation of any other right which any Guaranteed Party or any other Person may have against the Guarantor by virtue hereof, upon the failure of any Borrower to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under § 362(a) of the Bankruptcy Code or comparable provision of other applicable Debtor Relief Law), the Guarantor shall forthwith pay, or cause to be paid, in cash, to the Administrative Agent an amount equal to the amount of the Guaranteed Obligations then due as aforesaid (including interest which, but for the filing of a petition in any Insolvency Proceeding with respect to any Borrower, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against the Borrower for such interest in any such Insolvency Proceeding).  Each Guarantor shall make each payment hereunder, unconditionally in full without set-off, counterclaim or other defense, on the day when due in the currency in which such Guaranteed Obligations are denominated in Same Day Funds, to the Administrative Agent at such office of the Administrative Agent and to such account as is specified in the Credit Agreement.

 

(b)                                 Any and all payments by or on account of any obligation of any Guarantor hereunder shall be made without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law requires the deduction or withholding of any Tax from any such payment, then the applicable Guarantor and, if applicable, the Administrative Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Guarantor shall be increased as necessary so that after such deduction or withholding has been made (including such

 

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deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.  As soon as practicable after any payment of Taxes by any Guarantor to a Governmental Authority pursuant to this Section 8, such Guarantor shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(c)                                  In addition, each Guarantor agrees to pay any and all present or future stamp, court or documentary taxes and any other excise or property taxes or charges or similar levies which arise from any payment made under the Guarantor Documents or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, the Guarantor Documents (hereinafter referred to as “Other Taxes”).

 

(d)                                 Without limiting the provisions of subsection (c) above, each Guarantor shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

(e)                                  The Guarantors shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes and Other Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Company by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

(f)                                   Any payment by any Guarantor hereunder the application of which is not otherwise provided for herein, shall be applied in the order specified in Section 8.03 of the Credit Agreement.

 

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

 

(h)                                 The agreements in this Section 8 shall survive the payment of all Guaranteed Obligations.

 

SECTION 9.                                           Contribution among Guarantors.  Guarantors desire to allocate among themselves, in a fair and equitable manner, their rights of contribution from each other when any payment is made by any Guarantor under this Guaranty.  Accordingly, if any payment is made by any Guarantor under this Guaranty (a “Funding Guarantor”) that exceeds its Fair Share, the Funding Guarantor shall be entitled to a contribution from each other Guarantor in the amount of such other Guarantor’s Fair Share Shortfall, so that all such contributions shall cause

 

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each Guarantor’s Aggregate Guaranty Payments to equal its Fair Share.  The amounts payable as contributions hereunder shall be determined by the Funding Guarantor as of the date on which the related payment or distribution is made by the Funding Guarantor, and such determination shall be binding on the other Guarantors absent manifest error.  The allocation and right of contribution among Guarantors set forth in this Section 9 shall not be construed to limit in any way the liability of any Guarantor under this Guaranty or the amount of the Guaranteed Obligations.

 

SECTION 10.                                    Representations and Warranties.  In order to induce the Lenders to make Loans to and issue Letters of Credit for the account of the Borrowers pursuant to the Credit Agreement, each Guarantor (other than Flextronics (Netherlands)) represents and warrants to each Guaranteed Party that:

 

(a)                                 Organization and Powers.  The Guarantor (i) (A) is duly organized and validly existing and (B) in any jurisdiction in which such legal concept is applicable, is in good standing under the laws of its jurisdiction of organization, (ii) has the power and authority to own, lease and operate its properties and carry on its business as now conducted and (iii) is duly qualified and licensed to do business as a foreign entity in each jurisdiction where the ownership, lease or operation of its properties or the conduct of its business requires such qualification or license, except in each case referred to in clauses (i)(B) or (iii), where the failure to be in good stranding or so qualified or licensed is not reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect.

 

(b)                                 Authorization; No Conflict.  The execution, delivery and performance by the Guarantor of this Guaranty and any other Guarantor Documents executed, or to be executed, by such person and the consummation of the transaction contemplated thereby (i) are within the power of such person and (ii) have been duly authorized by all necessary actions on the part of such Person, and do not and will not (x) violate any material Requirement of Law applicable to the Guarantor, (y) violate any provision of, or result in the breach or the acceleration of, or entitle any other Person to accelerate (whether after the giving of notice or lapse of time or both), any material Contractual Obligation of the Guarantor or (z) result in the creation or imposition of any material Lien (or the obligation to create or impose any Lien) upon any property, asset or revenue of the Guarantor (other than Liens created under the Loan Documents).

 

(c)                                  Binding Obligation.  This Guaranty has been, and the other Guarantor Documents, when executed and delivered by the Guarantor, will have been, duly executed and delivered by the Guarantor.  This Guaranty constitutes, and each other Guarantor Document when so executed and delivered will constitute, a legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditor’s rights generally and general principles of equity.

 

(d)                                 Governmental Consents.  No material consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority or any other Person (including the shareholders of any Person) is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Guarantor of this Guaranty or any other Guarantor Documents, except such as (i) have been made or obtained and

 

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are in full force and effect or (ii) are being made or obtained in a timely manner and once made or obtained will be in full force and effect.

 

(e)                                  Consideration.  The Guarantor has received at least “reasonably equivalent value” (as such phrase is used in § 548 of the Bankruptcy Code), and at least “fair consideration” (as such term is used in § 272 of the New York Uniform Fraudulent Conveyance Act) and more than sufficient consideration to support its obligations hereunder in respect of the Guaranteed Obligations and under any of the Collateral Documents to which it is a party.

 

(f)                                   Solvency.  Immediately prior to and after and giving effect to the incurrence of the Guarantor’s obligations under this Guaranty the Guarantor is and will be Solvent.

 

(g)                                  Credit Agreement Representations.  Each representation and warranty made by the Borrowers in the Credit Agreement in reference to any Guarantor is true and correct as to such Guarantor.

 

SECTION 11.                                    Credit Agreement Covenants.  Each Guarantor shall observe, perform and comply with all covenants applicable to the Guarantor set forth in Articles VI and VII of the Credit Agreement, which by their terms the Company is required to cause the Guarantor to observe, perform and comply with (or which by the terms of such Articles are to be complied with by such Guarantor), as if such covenants were set forth in full herein.

 

SECTION 12.                                    Notices.  Unless otherwise expressly provided herein, all notices and other communications with a Guarantor provided for hereunder shall be delivered to such Guarantor’s attention at the address of the Company as set forth in Section 10.02 of the Credit Agreement and the terms of Section 10.02 of the Credit Agreement with respect to notices are incorporated herein by reference, mutatis mutandis, with each reference to the “Company,” “Borrower” or the “Borrowers” therein (whether express or by reference to the Company or Borrower or the Company or Borrowers as a “party” thereto) being a reference to each Guarantor and each reference to any “Loan Document” or the “Loan Documents” therein being a reference to the “Guarantor Documents”, and the parties hereto agree to such terms.

 

SECTION 13.                                    No Waiver; Cumulative Remedies.  No failure by any Guaranteed Party to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Guarantor Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and provided under each other Guarantor Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

 

SECTION 14.                                    Costs and Expenses.

 

(a)                                 Costs and Expenses.  Each Guarantor, severally, shall: (i) pay or reimburse the Administrative Agent and its Affiliates for all reasonable costs and expenses incurred in connection with the development, preparation, negotiation and execution of this Guaranty and the other Guarantor Documents and any amendment, waiver, consent or other modification of

 

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the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including all reasonable costs and expenses of counsel for the Administrative Agent; and (ii) pay or reimburse the Administrative Agent and each other Guaranteed Party for all costs and expenses incurred in connection with the enforcement, attempted enforcement, or preservation of any rights or remedies under this Guaranty or the other Guarantor Documents (including all such costs and expenses incurred during any “workout” or restructuring in respect of the Guaranteed Obligations and during any legal proceeding, including any proceeding under any Debtor Relief Law), including all costs and expenses of counsel for the Administrative Agent.  The foregoing costs and expenses shall include all search, filing, recording, title insurance and appraisal charges and fees and taxes related thereto, and other out-of-pocket expenses incurred by the Administrative Agent and the cost of independent public accountants and other outside experts retained by any Guaranteed Party.

 

(b)                                 Interest.  Any amounts payable by a Guarantor under this Section 14 or otherwise under this Guaranty if not paid upon demand shall bear interest from the date of such demand until paid in full, at a fluctuating interest rate per annum at all times equal to the Default Rate applicable to Base Rate Loans to the fullest extent permitted by applicable law.  Any such interest shall be due and payable upon demand and shall be calculated on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed.

 

(c)                                  Payment.  All amounts due under this Section 14 shall be payable within ten Business Days after demand therefor.

 

(d)                                 Survival.  The agreements in this Section 14 shall survive the termination of the Commitments and repayment of all Guaranteed Obligations.

 

SECTION 15.                                    Right of Set-Off.  In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and during the continuance of any Event of Default each Lender, the L/C Issuer and each of their respective Affiliates is authorized at any time and from time to time, without prior notice to the applicable Guarantor, any such notice being waived by the Guarantor to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing by, such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Guarantor against any and all Obligations owing to such Lender or the L/C Issuer, now or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender or the L/C Issuer shall have made demand under this Guaranty or any other Guarantor Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or indebtedness.  Each of the Lenders agrees (by its acceptance hereof) promptly to notify the Guarantor and the Administrative Agent after any such set-off and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application.  The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have.

 

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SECTION 16.                                    Marshalling; Payments Set Aside.  Neither the Administrative Agent nor any other Guaranteed Party shall be under any obligation to marshal any assets in favor of any Guarantor or any other Person or against or in payment of any or all of the Guaranteed Obligations.  To the extent that any Guarantor makes a payment to any Guaranteed Party, or any Guaranteed Party exercises its right of set-off, and such payment or the proceeds of such set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any Guaranteed Party in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred, and (b) each of the Lenders severally agrees (by its acceptance hereof) to pay to the Administrative Agent upon demand its pro rata share of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.

 

SECTION 17.                                    Benefits of Guaranty.  This Guaranty is entered into for the sole protection and benefit of the Administrative Agent and each other Guaranteed Party and their respective successors and assigns, and no other Person (other than any Indemnitee specified herein) shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with, this Guaranty.  The Guaranteed Parties, by their acceptance of this Guaranty, shall not have any obligations under this Guaranty to any Person other than the Guarantors, and such obligations shall be limited to those expressly stated herein.

 

SECTION 18.                                    Binding Effect; Assignment.

 

(a)                                 Binding Effect.  This Guaranty shall be binding upon each Guarantor and its successors and assigns, and inure to the benefit of and be enforceable by the Administrative Agent and each other Guaranteed Party and their respective successors, endorsees, transferees and assigns.

 

(b)                                 Assignment.  Except to the extent otherwise provided in the Credit Agreement, no Guarantor shall have the right to assign or transfer its rights and obligations hereunder or under any other Guarantor Documents without the prior written consent of the Required Lenders.  Each Lender may, without notice to or consent by any Guarantor, sell, assign, transfer or grant participations in all or any portion of such Lender’s rights and obligations hereunder and under the other Guarantor Documents in connection with any sale, assignment, transfer or grant of a participation by such Lender in accordance with Section 10.06 of the Credit Agreement of or in its rights and obligations thereunder and under the other Loan Documents.  In the event of any grant of a participation, the participant (A) shall be deemed to have a right of setoff under Section 15 hereof in respect of its participation to the same extent as if it were such “Guaranteed Party;” and (B) shall also be entitled to the benefits of Section 14 hereof.

 

SECTION 19.                                    Governing Law and Jurisdiction

 

(a)                                 GOVERNING LAW. THIS GUARANTY AND THE OTHER GUARANTOR DOCUMENTS (EXCEPT, AS TO ANY OTHER GUARANTOR

 

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DOCUMENT, WHERE SUCH OTHER GUARANTOR DOCUMENT EXPRESSLY SETS FORTH OTHERWISE) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER GUARANTOR DOCUMENT (EXCEPT, AS TO ANY OTHER GUARANTOR DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

(b)                                 SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT IN SUCH BOROUGH, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER GUARANTOR DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL  BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY OR IN ANY OTHER GUARANTOR DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER GUARANTOR DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 

(c)                                  WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER GUARANTOR DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION 19. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

 

(d)                                 SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 12. NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, EACH OF THE

 

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GUARANTORS HEREBY APPOINTS, IN THE CASE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN THE COURTS OF OR IN THE STATE OF NEW YORK, CT CORPORATION, WITH OFFICES ON THE DATE HEREOF AT 111 EIGHTH AVENUE, NEW YORK, NEW YORK 10011, TO RECEIVE FOR IT AND ON ITS BEHALF, SERVICE OF PROCESS IN THE STATE OF NEW YORK WITH RESPECT THERETO, PROVIDED THE GUARANTORS MAY APPOINT ANY OTHER PERSON, REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT, WITH OFFICES IN THE STATE OF NEW YORK TO REPLACE SUCH AGENT FOR SERVICE OF PROCESS UPON DELIVERY TO THE ADMINISTRATIVE AGENT OF A REASONABLY ACCEPTABLE AGREEMENT OF SUCH NEW AGENT AGREEING SO TO ACT.

 

SECTION 20.                                    Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER GUARANTOR DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER GUARANTOR DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 20.

 

SECTION 21.                                    California Judicial Reference. If any action or proceeding is filed in a court of the State of California by or against any party hereto in connection with any of the transactions contemplated by this Guaranty or any other Guarantor Document, (a) the court shall, and is hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear and determine all of the issues in such action or proceeding (whether of fact or of law) and to report a statement of decision, provided that at the option of any party to such proceeding, any such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section 1281.8 shall be heard and determined by the court, and (b) without limiting the generality of Section 10.04 of the Credit Agreement, the Guarantors shall be solely responsible to pay all fees and expenses of any referee appointed in such action or proceeding.

 

SECTION 22.                                    Entire Agreement; Amendments and Waivers.  This Guaranty together with the other Guarantor Documents embodies the entire, final agreement of the Guarantor with respect to the matters set forth herein and supersedes all prior or contemporaneous agreements and understandings of the Guarantors, verbal or written, relating to the subject matter hereof and thereof and shall not be amended as to any Guarantor except by written agreement of the Guarantor, the Administrative Agent and the Required Lenders.  This Guaranty and the other Guarantor Documents may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties.  There are no unwritten oral agreements among the parties.  No waiver of any rights of the Guaranteed Parties under any

 

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provision of this Guaranty or consent to any departure by any Guarantor therefrom shall be effective unless in writing and signed by the Administrative Agent  and the Required Lenders, or the Administrative Agent (with the written consent of the Required Lenders).  Any such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

SECTION 23.                                    Severability.  If any provision of this Guaranty or the other Guarantor Documents is held to be illegal, invalid or unenforceable as to any or all Guarantors, (a) the legality, validity and enforceability of the remaining provisions of this Guaranty and the other Guarantor Documents as to such affected Guarantor(s) shall not be affected or impaired thereby, (b) the legality, validity and enforceability of such provisions and any other provisions as to any other Guarantor shall not be affected or impaired thereby, and (c) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

SECTION 24.                                    Counterparts.  This Guaranty may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which together shall constitute one and the same instrument.

 

SECTION 25.                                    Judgment Currency.  If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Guarantor Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given.  The obligation of each Guarantor in respect of any such sum due from it to any Guaranteed Party hereunder or under the other Guarantor Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of the Credit Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from the Guarantor in the Agreement Currency, the Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss.  If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent (by its acceptance hereof) agrees to return the amount of any excess to the Guarantor (or to any other Person who may be entitled thereto under applicable law). The agreements in this Section 25 shall survive the termination of the Commitments and repayment of all Guaranteed Obligations.

 

SECTION 26.                                    Future Guarantors.  At such time following the date hereof as any Subsidiary of the Company (an “Acceding Subsidiary”) is required to accede hereto pursuant to the terms of Section 6.10(a) of the Credit Agreement, such Acceding Subsidiary shall execute

 

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and deliver to the Administrative Agent a Joinder Agreement substantially in the form of Annex I hereto, signifying its agreement to be bound by the provisions of this Guaranty as a Guarantor to the same extent as if such Acceding Subsidiary had originally executed this Guaranty as of the date hereof.

 

SECTION 27.                                    Guarantor Release.  Each Guarantor shall remain obligated under and bound by this Guaranty until termination of the Commitments and payment and performance in full of the Guaranteed Obligations; provided that this Guaranty shall be terminated as to any Guarantor, provided there exists no Default (except as otherwise specified in Section 6.10(b) of the Credit Agreement), upon the occurrence of a Release Date as to such released Guarantor, without affecting or impairing the obligations of any other Guarantor hereunder.

 

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IN WITNESS WHEREOF, the Guarantors have executed this Guaranty, as of the date first above written.

 

	
 
    	
[GUARANTOR]
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
[GUARANTOR]
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
[GUARANTOR]
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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[FORM OF]

 

GUARANTY JOINDER AGREEMENT

 

THIS JOINDER IN GUARANTY (this “Joinder”) is executed as of                     , 20     by                                           , a                    [corporation/limited liability company/partnership] (“Joining Party”), and delivered to BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative Agent”), for the benefit of the Lenders (as defined below).  Except as otherwise defined herein, terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as therein defined.

 

A.                                    Flextronics International Ltd., a Singapore company (“Company”) and certain Designated Borrowers (together with the Company, each referred to individually herein as a “Borrower” and collectively as the “Borrowers”), the lenders from time to time party thereto (each a “Lender” and, collectively, together with the Swing Line Lender and L/C Issuers, the “Lenders”), and the Administrative Agent are parties to a Credit Agreement, dated as of March [    ], 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”);

 

B.                                    The Joining Party is a direct or indirect Subsidiary of the Company and desires, or is required pursuant to the provisions of the Credit Agreement, to become a Guarantor under the Guaranty; and

 

C.                                    The Joining Party will obtain benefits from the incurrence of Loans by and the issuance of Letters of Credit for the account of the Borrowers, in each case pursuant to the Credit Agreement and, accordingly, desires to execute this Joinder in order to (i) satisfy the requirements described in the preceding paragraph; and (ii) induce the Lenders to continue to make Loans to and to issue Letters of Credit for the account of the Borrowers;

 

Accordingly, in consideration of the foregoing and other benefits accruing to the Joining Party, the receipt and sufficiency of which are hereby acknowledged, the Joining Party hereby makes the following representations and warranties to each Lender and the Administrative Agent and hereby covenants and agrees with each Lender and the Administrative Agent as follows:

 

1.                                      By this Joinder, the Joining Party becomes a Guarantor for all purposes under the Guaranty, pursuant to Section 26 thereof.

 

2.                                      The Joining Party agrees that, upon its execution hereof, it will become a Guarantor under the Guaranty with respect to all Guaranteed Obligations (as defined in the Guaranty), and will be bound by all terms, conditions and duties applicable to a Guarantor under the Guaranty and the other Loan Documents.  Without limitation of the foregoing, and in furtherance thereof, the Joining Party severally absolutely, unconditionally and irrevocably guarantees the full and prompt payment when due of all (and not merely a lesser or proportional part of the) Guaranteed Obligations (on the same basis as the other Guarantors under the Guaranty).

 

3.                                      The Joining Party hereby makes and undertakes, as the case may be, each covenant, representation and warranty made by, and as a Guarantor pursuant to the Guaranty, in each case as of the date hereof (except to the extent any such representation or warranty relates solely to an earlier date in which case such representation and warranty shall be true and correct as of such earlier date), and agrees to be bound by all covenants, agreements and obligations of a

 

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Guarantor and Loan Party pursuant to the Guaranty and all other Loan Documents to which it is or becomes a party.

 

4.                                      This Joinder shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of and be enforceable by each of the parties hereto and its successors and assigns, provided, however, the Joining Party may not assign any of its rights, obligations or interest hereunder or under any other Loan Document without the prior written consent of the Lenders or as otherwise permitted by the Loan Documents.  THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.  This Joinder may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument.  In the event that any provision of this Joinder shall prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other provisions of this Joinder, which shall remain binding on all parties hereto.

 

5.                                      From and after the execution and delivery hereof by the parties hereto, this Joinder shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.

 

6.                                      The effective date of this Joinder is                             , 20    .

 

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IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be duly executed as of the date first above written.

 

 

	
 
    	
[NEW   GUARANTOR]
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    	
 
    
	
 
    	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    
	
Accepted   and Acknowledged by:
    	
 
    	
 
    
	
BANK   OF AMERICA, N.A.,
    	
 
    	
 
    
	
as   Administrative Agent
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    	
 
    	
 
    


 

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EXHIBIT H

 

FORM OF DESIGNATED BORROWER
 REQUEST AND ASSUMPTION AGREEMENT

 

Date:                        ,             

 

To:                             Bank of America, N.A., as Administrative Agent

 

Ladies and Gentlemen:

 

This Designated Borrower Request and Assumption Agreement is made and delivered pursuant to Section 2.14 of that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among Flextronics International Ltd., a Singapore company (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender, and reference is made thereto for full particulars of the matters described therein.  All capitalized terms used in this Designated Borrower Request and Assumption Agreement and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.

 

Each of                                              (the “Designated Borrower”) and the Company hereby confirms, represents and warrants to the Administrative Agent and the Lenders that the Designated Borrower is a Subsidiary of the Company.

 

The documents required to be delivered to the Administrative Agent under Section 2.14 of the Credit Agreement will be furnished to the Administrative Agent in accordance with the requirements of the Credit Agreement.

 

Complete if the Designated Borrower is a Domestic Subsidiary:  The true and correct U.S. taxpayer identification number of the Designated Borrower is                           .

 

Complete if the Designated Borrower is a Foreign Subsidiary:  The true and correct unique identification number that has been issued to the Designated Borrower by its jurisdiction of organization and the name of such jurisdiction are set forth below:

 

	
Identification Number
    	
 
    	
Jurisdiction of Organization
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    


 

The parties hereto hereby confirm that with effect from the date of the Designated Borrower Notice for the Designated Borrower, the Designated Borrower shall have obligations, duties and liabilities toward each of the other parties to the Credit Agreement identical to those which the Designated Borrower would have had if the Designated Borrower had been an original party to the Credit Agreement as a Borrower.  Effective as of the date of the Designated Borrower Notice for the Designated Borrower, the Designated Borrower confirms its acceptance

 

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of, and consents to, all representations and warranties, covenants, and other terms and provisions of the Credit Agreement.

 

The parties hereto hereby request that the Designated Borrower be entitled to receive Revolving Credit Loans and obtain for its account Letters of Credit under the Credit Agreement, and understand, acknowledge and agree that neither the Designated Borrower nor the Company on its behalf shall have any right to request any Revolving Credit Loans or Letters of Credit for its account unless and until the date five Business Days after the effective date designated by the Administrative Agent in a Designated Borrower Notice delivered to the Company and the Lenders pursuant to Section 2.14 of the Credit Agreement.

 

This Designated Borrower Request and Assumption Agreement shall constitute a Loan Document under the Credit Agreement.

 

THIS DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

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

 

	
 
    	
[DESIGNATED BORROWER]
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
FLEXTRONICS   INTERNATIONAL LTD.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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EXHIBIT I

 

FORM OF DESIGNATED BORROWER NOTICE

 

Date:                        ,             

 

To:                             Flextronics International Ltd.

 

The Lenders party to the Credit Agreement referred to below

 

Ladies and Gentlemen:

 

This Designated Borrower Notice is made and delivered pursuant to Section 2.14 of that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among Flextronics International Ltd., a Singapore company (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender, and reference is made thereto for full particulars of the matters described therein.  All capitalized terms used in this Designated Borrower Notice and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.

 

The Administrative Agent hereby notifies Company and the Lenders that effective as of the date hereof [                                               ] shall be a Designated Borrower and may receive Revolving Credit Loans for its account on the terms and conditions set forth in the Credit Agreement.

 

This Designated Borrower Notice shall constitute a Loan Document under the Credit Agreement.

 

	
 
    	
BANK   OF AMERICA, N.A.,
    
	
 
    	
as   Administrative Agent
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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EXHIBIT J

 

FORM OF GUARANTOR RELEASE CERTIFICATE

 

To:                             Bank of America, N.A., as Administrative Agent

 

Ladies and Gentlemen:

 

Reference is made to that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Flextronics International Ltd., a Singapore company (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swingline Lender.

 

The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                        of the Company, and that as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on behalf of the Company pursuant to Section 6.10(b) of the Agreement and that:

 

1.                                      There exists no Default as of the date hereof.

 

[Select One]

 

2.                                      As set forth on the worksheet attached hereto as Annex I, [name of applicable Subsidiary Guarantor] has ceased to be a Material Subsidiary as of the Company’s fiscal year end dated                             , 20    .

 

2.                                      [Name of applicable Subsidiary Guarantor] has ceased to be an Eligible Material Subsidiary as of [insert date] by virtue of the satisfaction of clause (a) of the definition of “Ineligible Material Subsidiary” in the Agreement solely due to a Change in Law, and the Company is unable, with the exercise of commercially reasonable efforts, to restore the status of such Subsidiary as an Eligible Material Subsidiary.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                                   ,             .

 

	
 
    	
FLEXTRONICS   INTERNATIONAL LTD.
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    


 

J - 1











 

ANNEX I TO FORM OF GUARANTOR
 RELEASE CERTIFICATE

 

Name of Subsidiary:



 

MATERIAL SUBSIDIARY CALCULATION
  ($ in 000’s)

 

	
I.                                        Material   Subsidiary Test (“MS Test”) Based on Adjusted Revenues.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
1.
    	
Total   revenues of Subsidiary:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
2.
    	
Intercompany   Revenues:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
3.
    	
Adjusted   revenues (Line I.1 — Line I.2):
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
4.
    	
Consolidated   total revenues for FIL (other than Flextronics (Netherlands)):
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
5.
    	
5%   of Line I.4:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
6.
    	
Line   I.3 — Line I.5:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
Test   Result:
    	
MS   Test met if Line I.6 is equal to 0 or is a positive number
    	
 
    	
 
    
	
 
    	
 
    	
MS   Test Not Met (if Line I.6 is a negative number)
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
II.                                   MS   Test Based on Adjusted Assets
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
1.
    	
Total   assets of Subsidiary:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
2.
    	
Intercompany   Receivables:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
3.
    	
Intercompany   Investments:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
4.
    	
Adjusted   assets (Line II.1 — 2 — 3):
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
5.
    	
Consolidated   total assets for FIL (other than Flextronics (Netherlands)):
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
6.
    	
10%   of Line II.6:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
7.
    	
Line   II.4 — Line II.7:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
Test   Result:
    	
MS   Test met if Line II.7 is equal to 0 or a positive number
    	
 
    	
 
    
	
 
    	
 
    	
Not   Met if Line II.7 is negative number
    	
 
    	
 
    
						


 

J - 2











 

	
III.                              Pro   Forma MS Test Based on Adjusted Revenues.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
1.
    	
Total   revenues of Subsidiary determined on a pro forma basis after giving effect to   any Material Subsidiary Recalculation Event and all other Material Subsidiary   Recalculation Events occurring on or prior thereto:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
2.
    	
Intercompany   Revenues:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
3.
    	
Adjusted   revenues on a pro forma basis (Lines III.1 — Line III.2):
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
4.
    	
Consolidated   total revenues for FIL (other than Flextronics (Netherlands)):
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
5.
    	
5%   of Line III.4:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
6.
    	
Line   III.3 — Line III.5:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
Test Result:
    	
MS   Test met if Line III.6 is a positive number
    	
 
    	
 
    
	
 
    	
 
    	
MS   Test not met if Line III.6 is a negative number
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
IV.                               Pro   Forma MS Test Based on Net Assets.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
1.
    	
Total   assets of Subsidiary determined on a pro forma basis after giving effect to   any Material Subsidiary Recalculation Event and all other Material Subsidiary   Recalculation Events on or prior thereto:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
2.
    	
Intercompany   Receivables:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
3.
    	
Intercompany   Investments:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
4.
    	
Adjusted   assets (Line IV.1 — Line IV.2 — Line IV.3):
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
5.
    	
Consolidated   total assets of FIL (other than Flextronics (Netherlands)):
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
6.
    	
10%   of Line IV.5:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
7.
    	
Line   IV.4 — Line IV.6:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
Test Result:
    	
MS   Test met if Line IV.7 is equal to 0 or a positive number
    	
 
    	
 
    
	
 
    	
 
    	
MS   Test not met if Line IV.7 is a negative number
    	
 
    	
 
    
						


 

J - 3











 

EXHIBIT K

 

FORM OF ADMINISTRATIVE QUESTIONNAIRE

 

[See attached]

 

K - 1












 

	
 
    	
 
    	

    
	
ADMINISTRATIVE DETAILS REPLY FORM – (MULTI-CURRENCY)
    	
 
    	
 
    
	
CONFIDENTIAL
    	
 
    	
 
    


 

	
1.   Borrower or Deal Name Flextronics   International Ltd.
    
	
E-mail this document with your   commitment letter to:
    	
 
    	
 
    
	
E-mail   address of recipient:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
2.  Legal Name of Lender of Record for   Signature Page:
    	
 
    	
 
    
	
Markit Entity Identifier (MEI) #
    	
 
    	
 
    	
 
    
	
Fund Manager Name (if applicable)
    	
 
    	
 
    
	
Legal Address from Tax Document of Lender of Record:
    	
 
    	
 
    
	
Country
    	
 
    	
 
    
	
Address
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
City
    	
 
    	
 State/Province
    	
 
    	
 Country
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
3.  Domestic Funding Address:
    	
4. Eurodollar Funding Address:
    
	
Street Address
    	
 
    	
 
    	
Street Address
    	
 
    	
 
    
	
Suite/ Mail Code
    	
 
    	
 
    	
Suite/ Mail Code
    	
 
    	
 
    
	
City
    	
 
    	
  State
    	
 
    	
 
    	
City
    	
 
    	
  State
    	
 
    	
 
    
	
Postal Code
    	
 
    	
  Country
    	
 
    	
 
    	
Postal Code
    	
 
    	
  Country
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
5. Credit Contact Information:  

Syndicate   level information (which may contain material non-public information about   the Borrower and its related parties or their respective securities will be   made available to the Credit Contact(s).  The Credit Contacts identified   must be able to receive such information in accordance with his/her   institution’s compliance procedures and applicable laws, including Federal   and State securities laws.
    
	
 
    	
 
    	
 
    
	
Primary Credit Contact:
    	
 
    
	
First   Name
    	
 
    	
 
    
	
Middle   Name
    	
 
    	
 
    
	
Last   Name
    	
 
    	
 
    
	
Title
    	
 
    	
 
    
	
Street   Address
    	
 
    	
 
    
	
Suite/Mail   Code
    	
 
    	
 
    
	
City
    	
 
    	
 
    
	
State
    	
 
    	
 
    
	
Postal   Code
    	
 
    	
 
    
	
Country
    	
 
    	
 
    
	
Office   Telephone #
    	
 
    	
 
    
	
Office   Facsimile #
    	
 
    	
 
    
	
Work   E-Mail Address
    	
 
    	
 
    
	
IntraLinks/SyndTrak
    	
 
    	
 
    
	
E-Mail   Address
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Secondary Credit Contact:
    	
 
    
	
First   Name
    	
 
    	
 
    
	
Middle   Name
    	
 
    	
 
    
	
Last   Name
    	
 
    	
 
    
	
Title
    	
 
    	
 
    
	
Street   Address
    	
 
    	
 
    
	
Suite/Mail   Code
    	
 
    	
 
    
	
City
    	
 
    	
 
    
	
State
    	
 
    	
 
    
	
Postal   Code
    	
 
    	
 
    
	
Country
    	
 
    	
 
    
	
Office   Telephone #
    	
 
    	
 
    
	
Office   Facsimile #
    	
 
    	
 
    
	
Work   E-Mail Address
    	
 
    	
 
    
	
IntraLinks/SyndTrak
    	
 
    	
 
    
	
E-Mail   Address
    	
 
    	
 
    
																																	


 

	
1

 
    	    
Rev July 2013

Agency   Procedure 12.01.01
    
    	
 
    


 











 

	
 
    	
 
    	

    
	
ADMINISTRATIVE DETAILS REPLY FORM – (MULTI-CURRENCY)
    	
 
    	
 
    
	
CONFIDENTIAL
    	
 
    	
 
    


 

 

	
Primary Operations Contact:
    	
 
    	
Secondary   Operations Contact:
    	
 
    
	
First
    	
 
    	
 
    	
 MI
    	
 
    	
  Last
    	
 
    	
 
    	
First
    	
 
    	
 MI
    	
 
    	
 
    	
Last
    	
 
    	
 
    
	
Title
    	
 
    	
 
    	
Title
    	
 
    	
 
    
	
Street   Address
    	
 
    	
 
    	
Street   Address
    	
 
    	
 
    
	
Suite/ Mail Code
    	
 
    	
 
    	
Suite/ Mail Code
    	
 
    	
 
    
	
City
    	
 
    	
  State
    	
 
    	
 
    	
City
    	
 
    	
 
    	
State
    	
 
    	
 
    
	
Postal   Code
    	
 
    	
  Country
    	
 
    	
 
    	
Postal   Code
    	
 
    	
 
    	
Country
    	
 
    	
 
    
	
Telephone
    	
 
    	
  Facsimile
    	
 
    	
 
    	
Telephone
    	
 
    	
 
    	
Facsimile
    	
 
    	
 
    
	
E-Mail   Address
    	
 
    	
 
    	
E-Mail   Address
    	
 
    	
 
    
	
IntraLinks/SyndTrak E-Mail
    	
 
    	
IntraLinks/SyndTrak   E-Mail
    	
 
    
	
Address
    	
 
    	
 
    	
Address
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Does Secondary Operations Contact need   copy of notices?   ___YES  ___ NO
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Letter of Credit Contact:
    	
 
    	
Draft   Documentation Contact or Legal Counsel:
    	
 
    
	
First
    	
 
    	
 
    	
 MI
    	
 
    	
  Last
    	
 
    	
 
    	
First
    	
 
    	
 MI
    	
 
    	
 
    	
Last
    	
 
    	
 
    
	
Title
    	
 
    	
 
    	
Title
    	
 
    	
 
    
	
Street   Address
    	
 
    	
 
    	
Street   Address
    	
 
    	
 
    
	
Suite/ Mail Code
    	
 
    	
 
    	
Suite/ Mail Code
    	
 
    	
 
    
	
City
    	
 
    	
  State
    	
 
    	
 
    	
City
    	
 
    	
 
    	
State
    	
 
    	
 
    
	
Postal   Code
    	
 
    	
  Country
    	
 
    	
 
    	
Postal   Code
    	
 
    	
 
    	
Country
    	
 
    	
 
    
	
Telephone
    	
 
    	
  Facsimile
    	
 
    	
 
    	
Telephone
    	
 
    	
  Facsimile
    	
 
    	
 
    
	
E-Mail   Address
    	
 
    	
 
    	
E-Mail   Address
    	
 
    	
 
    
																																																						


 

	
 
    
	
PLEASE CHECK IF YOU CAN FUND IN THE CURRENCIES REQUIRED FOR THIS   TRANSACTION LISTED BELOW:
    
	
 
    
	
 
    	
 
    	
 
    	
US DOLLAR
    	
 
    	
 
    	
 
    	
JPY
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
GBP
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
EURO
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
																							


 

 

 

	
 
    
	
PLEASE CHECK IF YOU CAN FUND IN THE FOLLOWING JURISDICTIONS LISTED   BELOW:
    
	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

 

6.  Lender’s SWIFT Payment Instructions for [Foreign Currency]:

 

Pay to:

 

	
 
    	
 
    
	
 
    	
  (Bank Name)
    	
 
    
	
 
    	
 
    
	
 
    	
(SWIFT)
    	
(Country)
    


 

	
2

 
    	    
Rev July 2013

Agency   Procedure 12.01.01
    
    	
 
    


 











 

	
 
    	
 
    	

    
	
ADMINISTRATIVE DETAILS REPLY FORM – (MULTI-CURRENCY)
    	
 
    	
 
    
	
CONFIDENTIAL
    	
 
    	
 
    


 

 

	
 
    	
 
    	
 
    
	
 
    	
(Account #)
    	
(Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(FFC Account #)
    	
(FFC Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Attention)
    	
 
    


 

6.  Lender’s SWIFT Payment Instructions for [Foreign Currency]:

 

Pay to:

 

	
 
    	
 
    	
 
    
	
 
    	
 (Bank Name)
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(SWIFT)
    	
(Country)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Account #)
    	
(Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(FFC Account #)
    	
(FFC Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Attention)
    	
 
    


 

6.  Lender’s SWIFT Payment Instructions for [Foreign Currency]:

 

Pay to:

 

	
 
    	
 
    	
 
    
	
 
    	
 (Bank Name)
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(SWIFT)
    	
(Country)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Account #)
    	
(Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(FFC Account #)
    	
(FFC Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Attention)
    	
 
    


 

6.  Lender’s SWIFT Payment Instructions for [Foreign Currency]:

 

Pay to:

 

	
 
    	
 
    	
 
    
	
 
    	
 (Bank Name)
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(SWIFT)
    	
(Country)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Account #)
    	
(Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(FFC Account #)
    	
(FFC Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Attention)
    	
 
    


 

 

 

 

	
3

 
    	    
Rev July 2013

Agency   Procedure 12.01.01
    
    	
 
    


 











 

	
 
    	
 
    	

    
	
ADMINISTRATIVE DETAILS REPLY FORM – (MULTI-CURRENCY)
    	
 
    	
 
    
	
CONFIDENTIAL
    	
 
    	
 
    


 

7.  Lender’s Fed Wire Payment Instructions:

 

Pay to:

 

	
Bank   Name
    	
 
    
	
ABA #
    	
 
    
	
City
    	
 
    	
 
    	
State
    	
 
    	
 
    
	
Account   #
    	
 
    
	
Account   Name
    	
 
    
	
Attention
    	
 
    
											


 

 


 



8.  Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance Fed Wire Payment Instructions (if applicable):

 

Pay to:

 

	
Bank   Name
    	
 
    
	
ABA #
    	
 
    
	
City
    	
 
    	
 
    	
State
    	
 
    	
 
    
	
Account   #
    	
 
    
	
Account   Name
    	
 
    
	
Attention
    	
 
    
	
Can the   Lender’s Fed Wire Payment Instructions in Section 6 be used?   ___YES     ___ NO

 
    
											


 

 

 

 

 


 



9.  Lender’s Organizational Structure and Tax Status

Please refer to the enclosed withholding tax instructions below and then complete this section accordingly:

 

Lender Taxpayer Identification Number (TIN):  __  __  -  __  __  __  __  __  __

 

Tax Withholding Form Delivered to Bank of America (check applicable one):

 

___ W-9      ___ W-8BEN        ___ W-8ECI     __ W-8EXP      ___  W-8IMY

 

Tax Contact:

	
First
    	
 
    	
  MI
    	
 
    	
 
    	
Last
    	
 
    	
 
    
	
Title
    	
 
    	
 
    
	
Street   Address
    	
 
    	
 
    
	
Suite/   Mail Code
    	
 
    	
 
    
	
City
    	
 
    	
  State
    	
 
    	
 
    
	
Postal   Code
    	
 
    	
  Country
    	
 
    	
 
    
	
Telephone
    	
 
    	
  Facsimile
    	
 
    	
 
    	
 
    
	
E-Mail   Address
    	
 
    	
 
    	
 
    
																				


 

 

 

 

 

 

	
4

 
    	    
Rev July 2013

Agency   Procedure 12.01.01
    
    	
 
    


 











 

	
 
    	
 
    	

    
	
ADMINISTRATIVE DETAILS REPLY FORM – (MULTI-CURRENCY)
    	
 
    	
 
    
	
CONFIDENTIAL
    	
 
    	
 
    


 

NON–U.S. LENDER INSTITUTIONS

1. Corporations:

If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN (Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental Agency).

 

A U.S. taxpayer identification number is required for any institution submitting a Form W-8 ECI.  It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with the U.S.  Please refer to the instructions when completing the form applicable to your institution.  In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms.  An original tax form must be submitted.

 

2. Flow-Through Entities

If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form

W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches for United States Tax Withholding) must be completed by the intermediary together with a withholding statement.  Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners.

 

Please refer to the instructions when completing this form.  In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms.  Original tax form(s) must be submitted.

 

U.S. LENDER INSTITUTIONS:

If your institution is incorporated or organized within the United States, you must complete and return Form W-9 (Request for Taxpayer Identification Number and Certification).  Please be advised that we require an original form W-9.

 

Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your institution must be completed and returned on or prior to the date on which your institution becomes a lender under this Credit Agreement.  Failure to provide the proper tax form when requested will subject your institution to U.S. tax withholding.

 

 

 

 

 

*Additional guidance and instructions as to where to submit this documentation can be found at this link:

 



 

 


 



10. Bank of America’s Payment Instructions:

 

	
Pay to:
    	
Bank of   America, N.A.
    
	
 
    	
ABA #   026009593
    
	
 
    	
New   York, NY
    
	
 
    	
Account   # 1366212250600
    
	
 
    	
Attn:   Corporate Credit Services
    
	
 
    	
Ref:   Flextronics International Ltd
    


 

 

 

 

 

	
5

 
    	    
Rev July 2013

Agency   Procedure 12.01.01
    
    	
 
    


 











 

	
 
    	
 
    	

    
	
ADMINISTRATIVE DETAILS REPLY FORM – (MULTI-CURRENCY)
    	
 
    	
 
    
	
CONFIDENTIAL
    	
 
    	
 
    


 

 

11.Bank of America’s SWIFT Payment Instructions for [Foreign Currency]:

 

Pay to:

 

	
 
    	
 
    	
 
    
	
 
    	
 (Bank Name)
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(SWIFT)
    	
(Country)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Account #)
    	
(Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(FFC Account #)
    	
(FFC Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Attention)
    	
 
    
				


 

 

11.Bank of America’s SWIFT Payment Instructions for [Foreign Currency]:

 

Pay to:

 

	
 
    	
 
    	
 
    
	
 
    	
 (Bank Name)
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(SWIFT)
    	
(Country)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Account #)
    	
(Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(FFC Account #)
    	
(FFC Account Name)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Attention)
    	
 
    
				


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

	
6

 
    	    
Rev July 2013

Agency   Procedure 12.01.01
    
    	
 
    


 












 

EXHIBIT L

 

FORM OF U.S. TAX CERTIFICATES

 

[See attached]

 

L - 1











 

EXHIBIT L-1

 

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is made to that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among Flextronics International Ltd., a Singapore company (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender.

 

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.

 

The undersigned has furnished the Administrative Agent and the Company with a certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

 

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

 

	
[NAME OF LENDER]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:  
    	
 
    
	
 
    	
Title:  
    	
 
    


 

Date:                      , 20[  ]

 

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EXHIBIT L-2

 

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is made to that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among Flextronics International Ltd., a Singapore company (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender.

 

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code].

 

The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

 

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

 

	
[NAME OF PARTICIPANT]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:  
    	
 
    
	
 
    	
Title:  
    	
 
    
				


 

Date:                      , 20[  ]

 

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EXHIBIT L-3

 

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is made to that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among Flextronics International Ltd., a Singapore company (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender.

 

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.

 

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

 

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

 

	
[NAME OF PARTICIPANT]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:  
    	
 
    
	
 
    	
Title:  
    	
 
    
				


 

Date:                      , 20[  ]

 

L - 4











 

EXHIBIT L-4

 

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is made to that certain Credit Agreement, dated as of March 31, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among Flextronics International Ltd., a Singapore company (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Swing Line Lender.

 

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.

 

The undersigned has furnished the Administrative Agent and the Company with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

 

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

 

	
[NAME OF LENDER]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:  
    	
 
    
	
 
    	
Title:  
    	
 
    


 

Date:                      , 20[  ]

 

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