EX-10.1






 Exhibit 10.1




EXECUTION COPY




Borrower Name: Avnet Inc. – Syndicated LNS

Published CUSIP Number: [__________]




CREDIT AGREEMENT




Dated as of September 27, 2007,




among




AVNET, INC.,




AVNET JAPAN CO., LTD.




and




CERTAIN OTHER SUBSIDIARIES




as Borrowers,




BANK OF AMERICA, N.A.,




as Administrative Agent, Swing Line Lender




and




L/C Issuer,




ABN AMRO BANK N.V., as Syndication Agent,




and




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC,




as




Joint Lead Arranger and Sole Book Manager




ABN AMRO INCORPORATED, as Joint Lead Arranger,




THE BANK OF NOVA SCOTIA, BNP PARIBAS,

and

CREDIT SUISSE, CAYMAN ISLANDS BRANCH

as Co-Documentation Agents




1




ARTICLE I.




DEFINITIONS AND ACCOUNTING TERMS




	 	 	 	 	 	 	 	 	 
	1.01
	 	Defined Terms	 	 	1	 
	1.02
	 	Other Interpretive Provisions	 	 	25	 
	1.03
	 	Accounting Terms	 	 	25	 
	1.04
	 	Exchange Rates; Currency Equivalents	 	 	26	 
	1.05
	 	Additional Alternative Currencies	 	 	26	 
	1.06
	 	Change of Currency	 	 	27	 
	1.07
	 	Times of Day	 	 	27	 
	1.08
	 	Letter of Credit Amounts	 	 	27	 
	1.09
	 	Rounding	 	 	28	 






ARTICLE II.




THE COMMITMENTS AND CREDIT EXTENSIONS




	 	 	 	 	 	 	 	 	 
	2.01
	 	Committed Loans	 	 	28	 
	2.02
	 	Borrowings, Conversions and Continuations of Committed Loans	 	 	28	 
	2.03
	 	Letters of Credit	 	 	30	 
	2.04
	 	Swing Line Loans	 	 	39	 
	2.05
	 	Prepayments	 	 	42	 
	2.06
	 	Termination or Reduction of Commitments	 	 	43	 
	2.07
	 	Repayment of Loans	 	 	43	 
	2.08
	 	Interest	 	 	44	 
	2.09
	 	Fees	 	 	45	 
	2.10
	 	Computation of Interest and Fees	 	 	45	 
	2.11
	 	Evidence of Debt	 	 	46	 
	2.12
	 	Payments Generally; Administrative Agent’s Clawback	 	 	46	 
	2.13
	 	Sharing of Payments by Lenders	 	 	48	 
	2.14
	 	Designated Borrowers	 	 	49	 
	2.15
	 	Optional Increase in Commitments	 	 	50	 
	2.16
	 	Extension of Maturity Date	 	 	52	 






ARTICLE III.




TAXES, YIELD PROTECTION AND ILLEGALITY




	 	 	 	 	 	 	 	 	 
	3.01
	 	Taxes	 	 	53	 
	3.02
	 	Illegality	 	 	56	 
	3.03
	 	Inability to Determine Rates	 	 	56	 
	3.04
	 	Increased Costs; Reserves on Eurocurrency Rate Loans	 	 	57	 
	3.05
	 	Compensation for Losses	 	 	59	 
	3.06
	 	Mitigation Obligations; Replacement of Lenders	 	 	60	 
	3.07
	 	Survival	 	 	60	 






ARTICLE IV.




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




	 	 	 	 	 	 	 	 	 
	4.01
	 	Conditions of Initial Credit Extension	 	 	60	 
	4.02
	 	Conditions to all Credit Extensions	 	 	62	 






ARTICLE V.




REPRESENTATIONS AND WARRANTIES




	 	 	 	 	 	 	 	 	 
	5.01
	 	Existence, Qualification and Power; Compliance with Laws	 	 	63	 
	5.02
	 	Authorization; No Contravention	 	 	63	 
	5.03
	 	Governmental Authorization; Other Consents	 	 	63	 
	5.04
	 	Binding Effect	 	 	63	 
	5.05
	 	Financial Statements; No Material Adverse Effect	 	 	64	 
	5.06
	 	Litigation	 	 	64	 
	5.07
	 	No Default	 	 	64	 
	5.08
	 	Ownership of Property; Liens	 	 	65	 
	5.09
	 	Environmental Compliance	 	 	65	 
	5.10
	 	Insurance	 	 	65	 
	5.11
	 	Taxes	 	 	65	 
	5.12
	 	ERISA Compliance	 	 	65	 
	5.13
	 	Subsidiaries; Equity Interests	 	 	66	 
	5.14
	 	Margin Regulations; Investment Company Act	 	 	66	 
	5.15
	 	Disclosure	 	 	66	 
	5.16
	 	Compliance with Laws	 	 	67	 
	5.17
	 	Intellectual Property; Licenses, Etc	 	 	67	 
	5.18
	 	Solvency	 	 	67	 
	5.19
	 	Taxpayer Identification Number; Other Identifying Information	 	 	67	 
	5.20
	 	Representations as to Foreign Obligors	 	 	67	 






ARTICLE VI.




AFFIRMATIVE COVENANTS




	 	 	 	 	 	 	 	 	 
	6.01
	 	Financial Statements	 	 	68	 
	6.02
	 	Certificates; Other Information	 	 	69	 
	6.03
	 	Notices	 	 	71	 
	6.04
	 	Payment of Obligations	 	 	72	 
	6.05
	 	Preservation of Existence, Etc	 	 	72	 
	6.06
	 	Maintenance of Properties	 	 	72	 
	6.07
	 	Maintenance of Insurance	 	 	72	 
	6.08
	 	Compliance with Laws	 	 	73	 
	6.09
	 	Books and Records	 	 	73	 
	6.10
	 	Inspection Rights	 	 	73	 
	6.11
	 	Use of Proceeds	 	 	73	 
	6.12
	 	Approvals and Authorizations	 	 	73	 






ARTICLE VII.




NEGATIVE COVENANTS




	 	 	 	 	 	 	 	 	 
	7.01
	 	Liens	 	 	73	 
	7.02
	 	Investments	 	 	75	 
	7.03
	 	Indebtedness	 	 	76	 
	7.04
	 	Fundamental Changes	 	 	77	 
	7.05
	 	Restricted Payments	 	 	78	 
	7.06
	 	Payments of Certain Indebtedness	 	 	78	 
	7.07
	 	Change in Nature of Business	 	 	79	 
	7.08
	 	Transactions with Affiliates	 	 	79	 
	7.09
	 	Limitation on Restrictions Affecting the Company or any Subsidiary	 	 	79	 
	7.10
	 	Use of Proceeds	 	 	81	 
	7.11
	 	Financial Covenants	 	 	81	 
	7.12
	 	Acquisitions	 	 	81	 






ARTICLE VIII.




EVENTS OF DEFAULT AND REMEDIES




	 	 	 	 	 	 	 	 	 
	8.01
	 	Events of Default	 	 	82	 
	8.02
	 	Remedies Upon Event of Default	 	 	84	 
	8.03
	 	Application of Funds	 	 	85	 






ARTICLE IX.




ADMINISTRATIVE AGENT




	 	 	 	 	 	 	 	 	 
	9.01
	 	Appointment and Authority	 	 	85	 
	9.02
	 	Rights as a Lender	 	 	86	 
	9.03
	 	Exculpatory Provisions	 	 	86	 
	9.04
	 	Reliance by Administrative Agent	 	 	87	 
	9.05
	 	Delegation of Duties	 	 	87	 
	9.06
	 	Resignation of Administrative Agent	 	 	87	 
	9.07
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	88	 
	9.08
	 	No Other Duties, Etc	 	 	88	 
	9.09
	 	Administrative Agent May File Proofs of Claim	 	 	88	 






ARTICLE X.




MISCELLANEOUS




	 	 	 	 	 	 	 	 	 
	10.01
	 	Amendments, Etc	 	 	89	 
	10.02
	 	Notices; Effectiveness; Electronic Communication	 	 	91	 
	10.03
	 	No Waiver; Cumulative Remedies	 	 	93	 
	10.04
	 	Expenses; Indemnity; Damage Waiver	 	 	93	 
	10.05
	 	Payments Set Aside	 	 	95	 
	10.06
	 	Successors and Assigns	 	 	95	 
	10.07
	 	Treatment of Certain Information; Confidentiality	 	 	99	 
	10.08
	 	Set-off	 	 	100	 
	10.09
	 	Interest Rate Limitation	 	 	100	 
	10.10
	 	Counterparts; Integration; Effectiveness	 	 	101	 
	10.11
	 	Survival of Representations and Warranties	 	 	101	 
	10.12
	 	Severability	 	 	101	 
	10.13
	 	Replacement of Lenders	 	 	101	 
	10.14
	 	Governing Law; Jurisdiction; Etc	 	 	102	 
	10.15
	 	WAIVER OF JURY TRIAL	 	 	103	 
	10.16
	 	No advisory or Fiduciary Responsibility	 	 	103	 
	10.17
	 	USA PATRIOT Act Notice	 	 	104	 
	10.18
	 	Judgment Currency	 	 	104	 






2




	 	 	 
	SCHEDULES	 	 
	1.01(a) Existing Letters of Credit

	1.01(b)Mandatory Cost Formulae

	2.01

5.13

5.19

7.01

7.03

10.02

EXHIBITS

A

B

C

D

E

F

G

H

I-1

I-2

J

	 	Commitments and Applicable Percentages

Subsidiaries and Other Equity Investments

Designated Borrower Identification

Existing Liens

Existing Indebtedness

Administrative Agent’s Office; Certain Addresses for Notices



Form of

Committed Loan Notice

Swing Line Loan Notice

Note

Compliance Certificate

Assignment and Assumption

Guaranty

Designated Borrower Request and Assumption Agreement

Designated Borrower Notice

Form of Opinion of Squire, Sanders & Dempsey L.L.P.

Form of Opinion of General Counsel of the Company

Form of Foreign Obligor Opinion






3




CREDIT AGREEMENT




This CREDIT AGREEMENT (“Agreement”) is entered into as of September 27, 2007, among
AVNET, INC., a New York corporation (the “Company”), Avnet Japan Co., Ltd., a private
company governed under the laws of Japan (“Avnet Japan”), each other Subsidiary of the
Company party hereto pursuant to Section 2.14 (Avnet Japan and each such other Subsidiary,
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, Swing Line Lender and L/C Issuer.



The Borrowers have requested that the Lenders provide a revolving credit facility, with
swingline, letter of credit and multicurrency subfacilities, and the Lenders are willing to do so
on the terms and conditions set forth herein.



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



ARTICLE I.




DEFINITIONS AND ACCOUNTING TERMS




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



“Acquisition” means the acquisition of (i) a controlling equity or other ownership
interest in another Person (including upon the exercise of an option, warrant or convertible or
similar type security to acquire such a controlling interest), whether by purchase of such equity
or other ownership interest or upon exercise of an option or warrant for, or conversion of
securities into, such equity or other ownership interest, or (ii) assets of another Person which
constitute all or substantially all of the assets of such Person or of a line or lines of business
conducted by such Person.



“Additional Commitment Lender” has the meaning specified in Section 2.16(d).



“Adjusted Receivables Amount” means, as of any date of determination, the greater of
(a) the aggregate net book value of all Excluded Receivables minus $75,000,000, and (b) $0.



“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 a form
supplied by the Administrative Agent.



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



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



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



“Alternative Currency” means each of Euro, Sterling, Australian Dollars, Hong Kong
Dollars, Singapore Dollars, Japanese Yen, and each other currency (other than Dollars) that is
approved in accordance with Section 1.05.



“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 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 the lesser of the Aggregate
Commitments and $250,000,000. The Alternative Currency Sublimit is part of, and not in addition
to, the Aggregate Commitments.



“Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time. If the commitment of each Lender to make 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 Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in effect, giving effect
to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.



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



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 	 	 	 	 	 	 	 	 	 	Eurocurrency	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Rate +	 	 	 	 
	 	 	Debt Ratings	 	 	 	 	 	Letter of	 	Utilization	 	Base Rate for Swing
	Pricing Level	 	S&P/Moody’s	 	Facility Fee	 	Credit Fee	 	Fee	 	Line Loans
	1
	 	BBB+/Baa1 or better	 	 	0.080	%	 	 	0.295	%	 	 	0.075	%	 	 	-2.150	%
	2
	 	BBB/Baa2	 	 	0.100	%	 	 	0.375	%	 	 	0.075	%	 	 	-2.050	%
	3
	 	BBB-/Baa3	 	 	0.125	%	 	 	0.425	%	 	 	0.075	%	 	 	-2.000	%
	4
	 	BB+/Ba1	 	 	0.150	%	 	 	0.500	%	 	 	0.100	%	 	 	-1.950	%
	5
	 	BB/Ba2 or worse	 	 	0.200	%	 	 	0.650	%	 	 	0.100	%	 	 	-1.800	%







“Debt Rating” means, as of any date of determination, the rating as
determined by either S&P or Moody’s (collectively, the “Debt Ratings”) of the
Company’s non-credit-enhanced, senior unsecured long-term debt; provided that if a
Debt Rating is issued by each of the foregoing rating agencies, then 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), unless there is a split in Debt Ratings of
more than one level, in which case the Pricing Level that is one level higher than the
Pricing Level of the lower Debt Rating shall apply.



Initially, the Applicable Rate shall be determined based upon the Debt Ratings in effect on the
Closing Date, each of which shall be specified in the certificate delivered pursuant to Section
4.01(a)(vii). Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in any 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.



“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.



“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, BAS, in its capacity as joint lead arranger and sole
book manager, and ABN Amro Incorporated, in its capacity as joint lead arranger.



“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.



“Attributable Indebtedness” means, on any date:




(a) in respect of any capital lease of any Person, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such date in accordance with
GAAP;




(b) in respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP if such lease were accounted
for as a capital lease; and




(c) in respect of any asset securitization transaction of any Person, (i) the actual
amount of any unrecovered investment of purchasers or transferees of assets so transferred,
plus (ii) in the case of any other recourse, repurchase, or debt obligation described in
clause (a) of the definition of “Off-Balance Sheet Liabilities,” the capitalized amount of
such obligation that would appear on a balance sheet of such Person prepared on such date in
accordance with GAAP if such sale or transfer or assets were accounted for as a secured
loan.



“Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended June 30, 2007, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the
Company and its Subsidiaries, including the notes thereto.



“Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of all Lenders
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.



“Avnet Japan” has the meaning specified in the introductory paragraph hereto.



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



“BAS” means Banc of America Securities LLC and its successors.



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



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



“Borrower Materials” has the meaning specified in Section 6.02.



“Borrowing” means a Committed Borrowing or a Swing Line 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 on which dealings in deposits in Dollars are conducted by and between banks in the
London interbank eurodollar market;




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



“Cash Collateralize” has the meaning specified in Section 2.03(g).



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



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




(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act, except that a person or group shall
be deemed to have “beneficial ownership” of all securities that such person or group has the
right to acquire (such right, an “option right”), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of 35% or more of
the equity securities of the Company entitled to vote for members of the board of directors
or equivalent governing body of the Company on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire pursuant to
any option right); or




(b) during any period of 12 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Company cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body.



“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.



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



“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” has the meaning specified in Section 2.01.



“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) 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.



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



“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income
taxes payable by the Company and its Subsidiaries for such period, (iii) depreciation and
amortization expense and (iv) other non-cash or non-recurring expenses of the Company and its
Subsidiaries reducing such Consolidated Net Income and minus (b) all non-cash items increasing
Consolidated Net Income for such period.



“Consolidated Funded Indebtedness” means, as of any date of determination, for the
Company and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including such
Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements
or other similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations
arising under letters of credit (including standby letters of credit), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments (other than, and without expanding this clause
(c), commercial letters of credit and bankers’ acceptances incurred to support commercial or lease
transactions, bid bonds, payment bonds and performance bonds arising in the ordinary course of
business), in each case net of the amount of cash collateral securing such direct obligations, (d)
all obligations in respect of the deferred purchase price of property or services (other than trade
accounts payable in the ordinary course of business), (e) Attributable Indebtedness in respect of
capital leases, Synthetic Lease Obligations and other Off-Balance Sheet Liabilities, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) through (e) above of Persons other than the Company or any Subsidiary, and (g) all
Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint
venture (other than a joint venture that is itself a corporation or limited liability company) in
which the Company or a Subsidiary is a general partner or joint venturer, if, and to the extent
that, the fair value of the assets of such partnership or joint venture is less than its probable
liability in respect of its obligations, net of any right to contribution from other reasonably
creditworthy Persons which the Company or such Subsidiary has in respect thereof, unless such
Indebtedness is expressly made non-recourse to the Company or such Subsidiary.



“Consolidated Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum, without duplication, of (a) consolidated interest
expense determined in accordance with GAAP, (b) the portion of rent expense of the Company and its
Subsidiaries with respect to such period under capital leases that is treated as interest in
accordance with GAAP, and (c) all implicit interest in connection with Synthetic Lease Obligations
and other Off-Balance Sheet Liabilities.



“Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such
date to (b) Consolidated Interest Charges for such period.



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



“Consolidated Net Income” means, for any period, for the Company and its Subsidiaries
on a consolidated basis, the net income of the Company and its Subsidiaries (excluding
extraordinary gains but including extraordinary losses) for that period.



“Consolidated Tangible Net Worth” means, as of any date of determination, for the
Company and its Subsidiaries on a consolidated basis, Shareholders’ Equity minus Intangible Assets
on that date.



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



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



“Cost of Acquisition” means, with respect to any Acquisition, as at the date of
entering into any agreement therefor, the sum of the following (without duplication): (a)
the amount of any cash and fair market value of property (excluding capital stock, warrants or
options to acquire capital stock of the Company and the unpaid principal amount of any debt
instrument) given as consideration, (b) the amount (determined by using the face amount or the
amount payable at maturity, whichever is greater) of any Indebtedness incurred, assumed, acquired
or repaid by the Company or any Subsidiary in connection with such Acquisition, (c) all additional
purchase price amounts in the form of earnouts and other contingent obligations that should be
recorded on the balance sheet of the Company and its Subsidiaries in accordance with GAAP, (d) all
amounts paid in respect of covenants not to compete, consulting agreements that should be recorded
on financial statements of the Company and its Subsidiaries in accordance with GAAP, (e) the
aggregate fair market value of all other consideration given by the Company or any Subsidiary in
connection with such Acquisition, and (f) out-of-pocket transaction costs for the services and
expenses of attorneys, accountants and other consultants incurred in effecting such transaction,
and other similar transaction costs so incurred and capitalized in accordance with GAAP.



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



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



“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, 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 2% per annum; provided,
however, that with respect to a Eurocurrency Rate Loan or a Swing Line Loan, the Default
Rate shall be an interest rate equal to the interest rate (including any Applicable Rate and any
Mandatory Cost) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect
to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.



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



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



“Designated Borrower Sublimit” means, with respect to each Foreign Obligor for which
the Administrative Agent has not received an opinion of local counsel in form and substance and
from counsel satisfactory to it, an amount equal to the lesser of (a) the Aggregate Commitments and
(b) $50,000,000. Each Designated Borrower Sublimit is part of, and not in addition to, the
Aggregate Commitments.



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



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



“Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.



“Dollar” and “$” mean 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
political subdivision of the United States.



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



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



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



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



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



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



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



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



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



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



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



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



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



“Excluded Receivables” means, as of any date of determination, all accounts receivable
referred to in Item 1 of Schedule 7.01.



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of any
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which such Borrower is located and (c) except as provided
in the following sentence, in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Company under Section 10.13), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability
(other than as a result of a Change in Law) to comply with Section 3.01(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new Lending Office (or assignment), to receive additional amounts from the applicable Borrower
with respect to such withholding tax pursuant to Section 3.01(a). Notwithstanding anything
to the contrary contained in this definition, “Excluded Taxes” shall not include any withholding
tax imposed at any time on payments made by or on behalf of a Foreign Obligor to any Lender
hereunder or under any other Loan Document, provided that such Lender shall have complied
with the last paragraph of Section 3.01(e).



“Existing Foreign Line of Credit” means any line of credit or Indebtedness in effect
on the date hereof listed on Schedule 7.03.



“Existing Foreign Line of Credit Limit” means, with respect to any Existing Foreign
Line of Credit, the maximum amount thereof in effect on the Closing Date as set forth on
Schedule 7.03.



“Existing Lender” has the meaning specified in Section 2.16(e).



“Existing Letters of Credit” means the letters of credit listed on Schedule
1.01(a).



“Existing Maturity Date” has the meaning specified in Section 2.16(a).



“Existing Securitization Facility” means the account receivable securitization
pursuant to the amended and restated receivables purchase agreement dated as of February 6, 2002,
among Avnet Receivables Corporation, the Company as servicer, the financial institutions party
thereto as purchasers, and JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA) as agent
for the purchasers, as amended, restated, supplemented or otherwise modified from time to time,
including any extensions, renewals, replacements and refinancings thereof; provided, that
each such agreement (as amended, restated, supplemented or otherwise modified from time to time) or
extension, renewal, replacement or refinancing, as the case may be, satisfies the requirements set
forth in clause (b) of the definition of Permitted Securitization Facility.



“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 Letter” means the letter agreement, dated August 31, 2007, among the Company, the
Administrative Agent and BAS.



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



“Foreign Obligor” means a Loan Party that is a Foreign Subsidiary.



“Foreign Obligor Opinion” has the meaning specified in Section 2.14(b).



“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.



“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 the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the 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).



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



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



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



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




(a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




(b) all direct or contingent obligations of such Person arising under letters of credit
(including standby letters of credit), bankers’ acceptances, bank guaranties, surety bonds
and similar instruments (other than commercial letters of credit and bankers’ acceptances
incurred to support commercial transactions, bid bonds, payment bonds and performance bonds
arising in the ordinary course of business);




(c) net obligations of such Person under Swap Contracts;




(d) all obligations of such Person to pay the deferred purchase price of property or
services (other than current trade accounts payable in the ordinary course of business);




(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




(f) capital leases, Synthetic Lease Obligations and other Off-Balance Sheet
Liabilities;




(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest 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




(h) all Guarantees of such Person in respect of any of the foregoing.



For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, if, and to the
extent that, the fair value of the assets of such partnership or joint venture is less than its
probable liability in respect of its obligations, net of any right to contribution from other
reasonably creditworthy Persons which the Company or such Subsidiary has in respect thereof, unless
such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation
under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of
such date. The amount of any capital lease, Synthetic Lease Obligation or other Off-Balance Sheet
Liability as of any date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.



Notwithstanding the foregoing, for purposes of this Agreement, the term Indebtedness shall not
include any liability of the Company or a Subsidiary under any deferred compensation plan or
similar arrangement covering employees or members of the board of directors of the Company.



“Indemnified Taxes” means Taxes other than Excluded Taxes.



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



“Information” has the meaning specified in Section 10.07.



“Intangible Assets” means assets that are classified as intangible assets under GAAP.



“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; and (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.



“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 (a) in the case of any such Loan denominated in Dollars, on the date one,
two, three or six months thereafter, or (b) in the case of any such Loan denominated in an
Alternative Currency, on the date one, two, or three months thereafter, in each case as selected by
the Company in its Committed Loan Notice; provided that:




(i) 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;




(ii) 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




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



“Investment” means, as to any Person, any direct or indirect investment by such
Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.



“IP Rights” has the meaning specified in Section 5.17.



“IRS” means the United States Internal Revenue Service.



“ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, 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 any such Letter of
Credit.



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



“L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances
shall be denominated in 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 Committed
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 in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



“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 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” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the L/C Issuer and the Swing Line Lender.



“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.



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



“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 the lesser of (a) $100,000,000,
and (b) the Aggregate Commitments. The Letter of Credit Sublimit is part of, and not in addition
to, the Aggregate Commitments.



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



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



“Loan Documents” means this Agreement, each Designated Borrower Request and Assumption
Agreement, each Note, each Issuer Document, the Fee Letter and the Guaranty.



“Loan Parties” means, collectively, the Company, Avnet Japan and each other Designated
Borrower.



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



“Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties or condition (financial or otherwise) of
the Company or the Company and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Company individually, or the Loan Parties taken as a whole, to perform its (or
their) obligations under the respective Loan Documents to which it is (or they are) a party; (c) a
material adverse effect upon the rights or remedies of the Administrative Agent or any Lender under
the Loan Documents; or (d) a material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of the Loan Documents to which it is a party.



“Material Subsidiary” means, at any time, any Subsidiary which had total revenues in
the four fiscal quarter period most recently ended in excess of 5% of the total revenues of the
Company and its Subsidiaries on a consolidated basis.



“Maturity Date” means the later of (a) September 27, 2012 and (b) if the maturity is
extended pursuant to Section 2.16, such extended maturity date as determined pursuant to
such Section; provided, however, that, in each case, if such date is not a Business
Day, the Maturity Date shall be the immediately preceding Business Day.



“MNPI Information” has the meaning specified in Section 6.02.



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



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



“Non-Extending Lender” has the meaning specified in Section 2.16(b).



“Non-Material Subsidiary” means any Subsidiary which is not a Material Subsidiary or a
Designated Borrower.



“Note” means a promissory note made by a Borrower in favor of a Lender evidencing
Loans made by such Lender to such Borrower, substantially in the form of Exhibit C.



“Notice Date” has the meaning specified in Section 2.16(b).



“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.



“Off-Balance Sheet Liabilities” means, with respect to any Person as of any date of
determination thereof, without duplication and to the extent not included as a liability on the
consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP: (a) with
respect to any asset securitization transaction (including any accounts receivable purchase
facility), the unrecovered investment of purchasers or transferees of assets so transferred and the
principal amount of any recourse, repurchase or debt obligations incurred in connection therewith;
and (b) the monetary obligations under any financing lease or so-called “synthetic,” tax retention
or off-balance sheet lease transaction which, upon the application of any Debtor Relief Law to such
Person or any of its Subsidiaries, would be characterized as indebtedness.



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



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



“Outstanding Amount” means (a) with respect to Committed 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 such Committed Loans occurring on such date; (b) with
respect to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of such Swing Line Loans occurring on
such date; and (c) with respect to any L/C Obligations on any date, 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).



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



“PBGC” means the Pension Benefit Guaranty Corporation.



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



“Permitted Acquisition” means any Acquisition that is permitted by the terms of
Section 7.12.



“Permitted Business” means any type of business in which the Company and its
Subsidiaries were engaged on the Closing Date and any business reasonably related or incidental
thereto.



“Permitted Securitization Facilities” means, collectively, (a) the Existing
Securitization Facility and (b) any other account receivable securitization facility so long as the
Indebtedness thereunder and other payment obligations with respect thereto are nonrecourse to the
Company and its Subsidiaries (other than any Special Purpose Finance Subsidiary), other than
limited recourse provisions that are customary for transactions of such type and do not have the
effect of Guaranteeing the repayment of any such Indebtedness or limiting the loss or credit risk
of lenders or purchasers with respect to payment or performance by the obligors of the accounts
receivable so transferred; provided, that (i) the aggregate outstanding Attributable
Indebtedness under the Existing Securitization Facility and any other account receivable
securitization facilities described in clause (b) plus (ii) the Adjusted Receivables Amount, shall
not at any time exceed the greater of (x) $350,000,000, and (y) 35% of the aggregate net book
value of all accounts receivable of the Company and its Subsidiaries (including those accounts
receivable subject to the Existing Securitization Facility or any other account receivable
securitization facilities described in clause (b)).



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



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



“Platform” has the meaning specified in Section 6.02.



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



“Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Company as prescribed by the Securities Laws.



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



“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



“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 Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the 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.



“Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of a Loan Party. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such
Loan Party.



“Restricted Lender” has the meaning specified in Section 2.14(b).



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



“Revaluation Date” means, with respect to any Loan, each of the following: (a) each
date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (b) each
date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant
to Section 2.02, and (c) such additional dates as the Administrative Agent shall determine
or the Required Lenders shall require.



“S&P” means Standard & Poor’s Ratings Services, a division 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 to be customary
in the place of disbursement or payment for the settlement of international banking transactions in
the relevant Alternative Currency.



“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



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



“Securities Exchange Act” means the Securities Exchange Act of 1934.



“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act,
Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public Company Accounting
Oversight Board, as each of the foregoing may be amended and in effect on any applicable date
hereunder.



“Senior Indebtedness” means Indebtedness other than Subordinated Indebtedness.



“Senior Notes” means the Company’s U.S.$300,000,000 senior notes due March 20, 2034,
which were issued pursuant to the Senior Notes Indenture.



“Senior Notes Indenture” means the Indenture dated as of October 1, 2000, between the
Company and Bank One Trust Company, N.A., Trustee.



“Shareholders’ Equity” means, as of any date of determination, consolidated
shareholders’ equity of the Company and its Subsidiaries as of that date determined in accordance
with GAAP.



“Solvent” means, with respect to any Person, that the value of the assets of such
Person (both at fair value and present fair saleable value) is, on the date of determination,
greater than the total amount of liabilities (including contingent and unliquidated liabilities) of
such Person as of such date and that, as of such date, such Person is able to pay all liabilities
of such Person as such liabilities mature and does not have unreasonably small capital. In
computing the amount of contingent or unliquidated liabilities at any time, such liabilities will
be computed at the amount which, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or matured liability.



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



“Special Purpose Finance Subsidiary” means any Subsidiary of the Company created
solely for the purposes of, and whose sole activity shall consist of, acquiring and financing
accounts receivable of the Company and its Subsidiaries pursuant to a Permitted Securitization
Facility.



“Spot Rate” for a currency means the rate determined by the Administrative Agent 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 9:00 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 may obtain such spot
rate from another financial institution designated by the Administrative Agent if the Person acting
in such capacity does not have as of the date of determination a spot buying rate for any such
currency.



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



“Subordinated Indebtedness” means Indebtedness with regard to which the instrument or
agreement creating or evidencing such Indebtedness or pursuant to which such Indebtedness is
outstanding expressly provides that such Indebtedness is subordinated in right of payment to the
Obligations.



“Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity (a) of which a majority of the shares of securities or
other interests having ordinary voting power for the election of directors or other governing body
(other than securities or interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both, by such Person, or
(b) the accounts of which are consolidated with those of the Company in its consolidated financial
statements. Unless otherwise specified, all references herein to a “Subsidiary” or to
“Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.



“Swap Contract” means any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement.



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



“Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.



“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.



“Swing Line Sublimit” means an amount equal to the lesser of (a) $75,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



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



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



“Total Outstandings” means the aggregate Outstanding Amount of all 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.



"Unencumbered Cash and Cash Equivalents” means cash or cash equivalents owned by
Company and its Subsidiaries on a consolidated basis (excluding assets of any retirement plan)
which (a) are not the subject of any Lien, and (b) may be converted to cash within thirty (30)
days.



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



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



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



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



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



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



(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, except as
otherwise specifically prescribed herein.



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



1.04 Exchange Rates; Currency Equivalents. (a) The Administrative Agent 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.



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



1.05 Additional Alternative Currencies.



(a) The Company may from time to time request that Eurocurrency Rate Loans be made 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. Any such request shall be
subject to the approval of the Administrative Agent and the Lenders.



(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 20
Business Days prior to the date of the desired Credit Extension (or such other time or date as may
be agreed by the Administrative Agent). In the case of any such request, the Administrative Agent
shall promptly notify each Lender thereof. Each Lender shall notify the Administrative Agent, not
later than 11:00 a.m., 10 Business Days after receipt of such request whether it consents, in its
sole discretion, to the making of Eurocurrency Rate Loans in such requested currency.



(c) Any failure by a Lender to respond to such request within the time period specified in the
preceding sentence shall be deemed to be a refusal by such Lender to permit Eurocurrency Rate Loans
to be made in such requested currency. If the Administrative Agent and all the 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 Committed Borrowings of Eurocurrency Rate Loans. If the
Administrative Agent shall fail to obtain consent to any request for an additional currency under
this Section 1.05, the Administrative Agent shall promptly so notify the Company.



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



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



1.08 Letter of Credit Amounts. Unless otherwise specified, all references herein to the
amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such
Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit
or the Issuer Documents related thereto, whether or not such maximum face amount is in effect at
such time.



1.09 Rounding. Any financial ratios required to be maintained by the Company and its
Subsidiaries 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).



ARTICLE II.




THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed 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 Commitment; provided, however, that after giving effect to any
Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, (ii)
the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Commitment, (iii) the aggregate Outstanding Amount of all Committed Loans made to any
Designated Borrower that is a Foreign Obligor shall not exceed the Designated Borrower Sublimit, if
any, applicable to such Foreign Obligor, and (iv) the aggregate Outstanding Amount of all Committed
Loans denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit.
Within the limits of each Lender’s 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. Committed Loans may be Base Rate Loans or
Eurocurrency Rate Loans, as further provided herein.



2.02 Borrowings, Conversions and Continuations of Committed Loans.



(a) Each Committed Borrowing, each conversion of Committed 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 8:00 a.m. (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to
Base Rate Committed Loans, (ii) three Business Days (or four Business Days in the case of a Special
Notice Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency Rate
Loans denominated in Alternative Currencies, and (iii) on the requested date of any Borrowing of
Base Rate Committed 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 $5,000,000 or a whole multiple of $1,000,000
in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i)
whether the Company is requesting a Committed Borrowing, a conversion of Committed Loans from one
Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii)
the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be converted, (v) if
applicable, the duration of the Interest Period with respect thereto, (vi) the currency of the
Committed Loans to be borrowed, and (vii) 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 Committed 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 of the applicable
Committed 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 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 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; provided, however, that if, on the date the
Committed Loan Notice with respect to such Borrowing denominated in Dollars is given by the
Company, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first,
shall be applied to the payment in full of any such L/C Borrowings, and, second, shall be
made available to the applicable Borrower as provided above.



(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of 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 Committed Borrowings, all conversions of Committed Loans from
one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than ten Interest Periods in effect with respect to Committed Loans.



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 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 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, (x) the Total Outstandings shall not exceed the Aggregate
Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding
Amount of the L/C Obligations shall not exceed the Letter of Credit 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 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 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 Lenders have approved such expiry date;




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




(C) such Letter of Credit is to be denominated in a currency other than
Dollars.




(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 Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental 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;




(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial face 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) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




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




(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 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 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 prior to the proposed issuance date or date of amendment, as the case may be, 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. 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 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; and (G) 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 (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the 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 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 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 Lender’s Applicable Percentage times the amount of such Letter of Credit.




(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 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 five 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 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 five Business Days before the Non-Reinstatement
Deadline (A) from the Administrative Agent that the Required 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 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. Not later than 8:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (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 Dollars. If the Company fails to so reimburse the L/C Issuer
by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date,
the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount
of such Lender’s Applicable Percentage thereof. In such event, the Company shall be deemed
to have requested a Committed 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 Commitments 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 Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent 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 Day specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each 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.




(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed 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 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 Lender funds its Committed 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 Lender’s obligation to make Committed 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 Lender’s obligation to make Committed 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 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 Federal Funds Rate
from time to time in effect. If such Lender pays such amount (with interest 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 Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent
manifest error.



(d) Repayment of Participations.




(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any 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
promptly distribute to such Lender its Applicable Percentage thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time during which such
Lender’s L/C Advance was outstanding) 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 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 Federal
Funds 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 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;




(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; or




(v) 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 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 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 and the Company 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 Lenders or the Required 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 hereby assumes 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 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 may have a claim against the L/C Issuer, and the L/C Issuer
may be liable to the Company, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company which the Company 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.



(g) Cash Collateral. Upon the request of the Administrative Agent, (i) 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 (ii) 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. Sections 2.05 and
8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.05 and Section 8.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in form and substance satisfactory to
the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the
Lenders). Derivatives of such term have corresponding meanings. The Company hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all
such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.



(h) Applicability of ISP and UCP. 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 Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of issuance shall apply to each
commercial Letter of Credit.



(i) Letter of Credit Fees. The Company shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the actual daily maximum amount available to be drawn under such Letter of Credit
(whether or not such maximum amount is then in effect under such Letter of Credit). Letter of
Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the
first Business Day after the end 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. If there is any change in the Applicable Rate during any
quarter, the daily maximum amount of 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 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 a fronting fee (i) with respect to
each commercial Letter of Credit, at the rate specified in the Fee Letter, computed on 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 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 Fee Letter, computed on the actual daily maximum
amount available to be drawn under such Letter of Credit (whether or not such maximum amount is
then in effect under such Letter of Credit) and on a quarterly basis in arrears, and due and
payable on the first Business Day after the end 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. In addition, the Company shall pay
directly to the L/C Issuer for its own account 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.



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



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 Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed
the amount of such Lender’s Commitment; provided, however, that after giving effect
to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and
(ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Commitment, and provided, further, that (i) the Company shall not use
the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. 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. 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 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, 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 $1,000,000, 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
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
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 noon 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 immediately available 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 Lender make a Base Rate Committed 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 Aggregate
Commitments 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 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 immediately available 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 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 Swing Line Lender.




(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Committed
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 Lenders fund its risk participation in the
relevant Swing Line Loan and each 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 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 Federal
Funds Rate from time to time in effect. If such Lender pays such amount (with interest 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 Lender’s obligation to make Committed 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 Committed 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 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 promptly distribute to such Lender its Applicable
Percentage of such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender’s risk participation was funded) 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 Lender shall pay
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 Federal Funds 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 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) Each Borrower may, upon notice from the Company to the Administrative
Agent, at any time or from time to time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 8:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) 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 (C) on the date of
prepayment of Base Rate Committed Loans; (ii) 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; (iii) 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 (iv) any prepayment of Base Rate Committed Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 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
Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s
Applicable Percentage of such prepayment. If such notice is given by 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 shall be applied to the Committed
Loans of the Lenders in accordance with their respective Applicable Percentages.



(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 $1,000,000. Each such
notice shall specify the date and amount of such prepayment. If such notice is given by the
Company, the 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 102% 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 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 102% of
the Alternative Currency Sublimit then in effect, then, within four 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.



2.06 Termination or Reduction of Commitments. The Company may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) 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, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or reduce the
Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to
any reduction of the Aggregate Commitments, the Alternative Currency Sublimit, the Letter of Credit
Sublimit, any Designated Borrower Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Commitments, such Sublimit shall be automatically reduced by the amount of such excess.
The Administrative Agent will promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be
applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued
until the effective date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.



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



(b) The Company shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
days after such Loan is made and (ii) the Maturity Date.



(c) The Borrowers shall repay to any Non-Extending Lenders any amounts required to be paid to
such Lenders pursuant to Section 2.16(f).



2.08 Interest. (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency
Rate Loan 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 plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent
from a Lending Office in the United Kingdom or a Participating Member State) the Mandatory Cost;
(ii) each 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; 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 the Base Rate plus the Applicable Rate.



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




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




(iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrowers shall pay interest on the principal amount of all 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 Laws.




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



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



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



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



(a) Facility Fee. The Company shall pay to the Administrative Agent for the account
of each Lender in accordance with its Applicable Percentage, a facility fee in Dollars equal to the
Applicable Rate times the actual daily amount of the Aggregate Commitments (or, if the
Aggregate Commitments have terminated, on the Outstanding Amount of all Committed Loans, Swing Line
Loans and L/C Obligations), regardless of usage. The facility fee shall accrue at all times during
the Availability Period (and thereafter so long as any Committed Loans, Swing Line Loans or L/C
Obligations remain outstanding), 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 Maturity Date (and, if applicable, thereafter on demand).
The facility 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) Utilization Fee. The Company shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a utilization fee in Dollars
equal to the Applicable Rate times the Total Outstandings on each day that the Total
Outstandings exceed 50% of the actual daily amount of the Aggregate Commitments then in effect (or,
if terminated, in effect immediately prior to such termination). The utilization fee 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 Maturity
Date. The utilization fee shall be calculated quarterly in arrears. The utilization fee shall
accrue at all times, including at any time during which one or more of the conditions in
Article IV is not met.



(c) Other Fees. (i) The Company shall pay to Banc of America Securities LLC and the
Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and at the
times specified in the Fee Letter. 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 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 when
the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees
and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year),
or, in the case of interest in respect of 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.



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 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 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 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 (or, in the case of any Base Rate Committed Loan requested on the same day that
the applicable Committed Loan Notice is delivered, by 9:00 a.m. on the date of such Committed Loan
Notice) 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 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, and (B) in the case of a payment to be made
by such Borrower, the interest rate applicable to Base Rate Loans. If such Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an overlapping period,
the Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by
such Borrower 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 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 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 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 promptly 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
Committed 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.



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:




(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 a Borrower pursuant to and in accordance with the express terms of this Agreement or
(y) 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 (as to which the provisions of this Section shall apply).



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



2.14 Designated Borrowers. (a) Effective as of the date hereof Avnet Japan shall be a
“Designated Borrower” hereunder and may receive 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), designate any additional direct or indirect, wholly-owned Subsidiary of the
Company acceptable to the Administrative Agent, in its reasonable discretion, as a Designated
Borrower (an “Applicant Borrower”) to receive Loans hereunder by delivering to the
Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly
executed notice and agreement in substantially the form of Exhibit G (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 Lenders shall have received such supporting resolutions,
incumbency certificates, opinions of counsel and other documents or information, in form and
content satisfactory to the Administrative Agent, as may be required by the Administrative Agent or
the Required Lenders in their reasonable discretion, and Notes signed by such new Borrowers to the
extent any Lenders so require. If the Administrative Agent agrees 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 H (a
“Designated Borrower Notice”) to the Company and the 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 Loans hereunder,
on the terms and conditions set forth herein, except to the extent (i) it is unlawful for any such
Lender to do so, (ii) any Governmental Authority has asserted that it is unlawful for any Lender to
do so or (iii) any Lender has determined in good faith that it is unlawful to do so (any such
Lender described in the above clauses (i) through (iii), a “Restricted Lender”), and each
of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes
of this Agreement; provided (x) 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; (y) if the Dollar Equivalent of Credit Extensions to be
made available to an Applicant Borrower that will be a Foreign Obligor are to exceed $50,000,000 in
the aggregate, or, when added to the Dollar Equivalent of Credit Extensions extended or available
to all Foreign Obligors, exceed $75,000,000 in the aggregate, such Applicant shall, as a condition
precedent to becoming a Designated Borrower, cause, at its sole cost and expense, such local
counsel opinions to be delivered to the Administrative Agent in the form attached hereto as
Exhibit J or such other form and substance as is reasonably acceptable to the
Administrative Agent and from counsel satisfactory to the Administrative Agent (a “Foreign
Obligor Opinion”); and (z) if, at any time, the Dollar Equivalent of the Credit Extensions to
be made available to a Designated Borrower that is a Foreign Obligor exceed $50,000,000 in the
aggregate or, when added to the Dollar Equivalent of Credit Extensions extended or available to all
Foreign Obligors, exceed $75,000,000, in the aggregate, then such Designated Borrower shall, as a
condition precedent to obtaining any Credit Extension, cause, at its sole cost and expense, a
Foreign Obligor Opinion to be delivered to the Administrative Agent (unless such Foreign Obligor
Opinion with respect to such Designated Borrower have previously been delivered to the
Administrative Agent pursuant to and in accordance with this Agreement). Each Subsidiary that is
or becomes a Designated Borrower pursuant to this Section 2.14 shall at all times remain a
direct or indirect, wholly-owned Subsidiary of the Company for so long as such Person is a
Designated Borrower.



(c) The Obligations of all Designated Borrowers shall be several in nature with respect to the
repayment of principal and interest, letter of credit fronting fees, and reimbursement and other
similar obligations with respect to only the Borrowings made by, and Letters of Credit issued on
behalf of, such Designated Borrower, provided, that (i) the foregoing shall not limit the
unconditional and irrevocable obligation of the Company with respect thereto pursuant to the
Guaranty, and (ii) all of the Borrowers shall be responsible, jointly and severally, for facility
fees, indemnification obligations, reimbursement of costs and other similar obligations hereunder.



(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) 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 10 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.



2.15 Optional Increase in Commitments.



(a) Proposal of Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Company may from time to time,
propose an increase in the Aggregate Commitments by an amount (for all such requests) not
exceeding $100,000,000; provided that (i) there shall have been no prior reduction of the
Aggregate Commitments, (ii) any such proposal of an increase shall be in a minimum amount of
$5,000,000, (iii) the Company may make a maximum of two such proposals, (iv) the Borrowers shall
inform existing Lenders of such proposed increase and existing Lenders may offer to commit to such
increased amount and (iv) no such increase in the Aggregate Commitments shall increase the Letter
of Credit Sublimit, the Swing Line Sublimit or the Alternative Currency Sublimit; provided
further, however, that neither the Administrative Agent nor the Borrowers shall be
required to accept any such offer from any existing Lender; and provided, further,
that the Borrowers may also allow any other Person or Persons that constitute Eligible Assignees to
offer to commit to such increased amount. At the time of sending such notice, the Company (in
consultation with the Administrative Agent) shall specify the time period within which each
existing Lender and each other Person is requested to respond (which shall in no event be less than
ten Business Days from the date of delivery of such notice to the Lenders).



(b) Lender Offers to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it offers to increase its Commitment and, if so, whether by
an amount equal to, greater than, or less than its Applicable Percentage of such requested
increase. Any Lender not responding within such time period shall be deemed to have declined to
offer to increase its Commitment.



(c) Notification by Administrative Agent. The Administrative Agent shall notify the
Company of the Lenders’ responses to each request made hereunder.



(d) Effective Date and Allocations. If the Aggregate Commitments are 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
(which allocation may or may not include any of the existing Lenders that have offered to increase
their Commitments). The Administrative Agent shall promptly notify the Company and the Lenders of
the final allocation of such increase and the Increase Effective Date.



(e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase,




(i) the Company shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed
by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions
adopted by such Loan Party approving or consenting to such increase, and (B) in the case of
the Company, certifying that, before and after giving effect to such increase, (1) the
representations and warranties contained in Article V and the other Loan Documents
are true and correct on and as 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 as of such earlier date, and except that for purposes of this
Section 2.15, the representations and warranties contained in subsections (a) and
(b) of Section 5.05 shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 6.01, and (2) no Default
exists; and




(ii) and each Person (other than an existing Lender) that will (in accordance with the
allocation described in clause (d) above) commit to any of such increase shall
deliver to the Administrative Agent a joinder agreement in form and substance satisfactory
to the Administrative Agent and its counsel, whereby such Person shall agree to be bound by
this Credit Agreement as a Lender.



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.



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



2.16 Extension of Maturity Date.



(a) Requests for Extension. The Company may, by notice to the Administrative Agent
(who shall promptly notify the Lenders) not earlier than 120 days and not later than 45 days prior
to the Maturity Date then in effect hereunder (the “Existing Maturity Date”), request that
each Lender extend such Lender’s Maturity Date for an additional one year period from the Existing
Maturity Date; provided that (i) no Default exists (as certified by a Responsible Officer
of the Company on the date of any such request), (ii) the Company may make a maximum of two such
requests, and (iii) in no event shall the Maturity Date be extended beyond September 27, 2014.



(b) Lender Elections to Extend. Each Lender, acting in its sole and individual
discretion, shall, by notice to the Administrative Agent given not later than the date (the
“Notice Date”) that is 10 Business Days after such Lender’s receipt of such request, advise
the Administrative Agent whether or not such Lender agrees to such extension (and each Lender that
determines not to so extend its Maturity Date (a “Non-Extending Lender”) shall notify the
Administrative Agent of such fact promptly after such determination (but in any event no later than
the Notice Date) and any Lender that does not so advise the Administrative Agent on or before the
Notice Date shall be deemed to be a Non-Extending Lender. The election of any Lender to agree to
such extension shall not obligate any other Lender to so agree.



(c) Notification by Administrative Agent. The Administrative Agent shall notify the
Company of each Lender’s determination under this Section no later than the date 5 Business Days
after the Notice Date (or, if such date is not a Business Day, on the next occurring Business Day).



(d) Additional Commitment Lenders. The Company shall have the right to replace each
Non-Extending Lender with, and add as “Lenders” under this Agreement in place thereof, one or more
Eligible Assignees (each, an “Additional Commitment Lender”) as provided in Section
10.13; provided that each of such Additional Commitment Lenders shall enter into an
Assignment and Assumption with one or more Non-Extending Lenders pursuant to which such Additional
Commitment Lender shall, effective as of the Existing Maturity Date, undertake a Commitment (and,
if any such Additional Commitment Lender is already a Lender, its Commitment shall be in addition
to such Lender’s Commitment hereunder on such date).



(e) Minimum Extension Requirement. If (and only if) the total of the Commitments of
the Lenders that have agreed so to extend their Maturity Date (each, an “Extending Lender”)
and the additional Commitments of the Additional Commitment Lenders shall be more than 50% of the
aggregate amount of the Commitments in effect immediately prior to the Existing Maturity Date,
then, effective as of the Existing Maturity Date, the Maturity Date of each Extending Lender and of
each Additional Commitment Lender (but not of any Non-Extending Lender) shall be extended to the
date falling one year after the Existing Maturity Date (except that, if such date is not a Business
Day, such Maturity Date as so extended shall be the next preceding Business Day) and each
Additional Commitment Lender shall thereupon become a “Lender” for all purposes of this Agreement.



(f) Conditions to Effectiveness of Extensions. As a condition precedent to such
extension, the Company shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Existing Maturity Date (in sufficient copies for each Extending Lender and each
Additional Commitment Lender) 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 extension and
(ii) in the case of the Company, certifying that, before and after giving effect to such extension,
(A) the representations and warranties contained in Article V and the other Loan Documents
are true and correct on and as of the Existing Maturity Date and after giving effect to any such
extension, except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date, and except that for
purposes of this Section 2.16, the representations and warranties contained in subsections
(a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no
Default exists. In addition, on the Maturity Date of each Non-Extending Lender, the Borrowers
shall prepay any Committed Loans outstanding on such date (and pay any additional amounts required
pursuant to Section 3.05) to the extent necessary to keep outstanding Committed Loans
ratable with any revised Applicable Percentages of the respective Lenders effective as of such
date.



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



ARTICLE III.




TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.



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



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



(c) Indemnification by the Borrowers. Each Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to a
Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.



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



(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a Borrower is resident for
tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Company (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Company or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the 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. Nothing in this subsection shall require any Lender to make
available its tax returns (or any other information related to its taxes that it deems to be
confidential) except as required by any applicable Law or Governmental Authority.



Without limiting the generality of the foregoing, in the event that a Borrower is resident for
tax purposes in the United States, any Foreign Lender shall deliver to 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 request of the Company or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party,




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




(iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the applicable Borrower within the meaning of
section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in
section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service
Form W-8BEN, or




(iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Company to
determine the withholding or deduction required to be made.



Without limiting the obligations of the Lenders set forth above regarding delivery of certain forms
and documents to establish each Lender’s status for U.S. withholding tax purposes, each Lender
agrees promptly to deliver to the Administrative Agent or the Company, as the Administrative Agent
or the Company shall reasonably request, on or prior to the Closing Date, and in a timely fashion
thereafter, such other documents and forms required by any relevant taxing authorities under the
Laws of any other jurisdiction, duly executed and completed by such Lender, as are required under
such Laws to confirm, if applicable, such Lender’s entitlement to any available exemption from, or
reduction of, applicable withholding taxes in respect of all payments to be made to such Lender
outside of the U.S. by the Borrowers pursuant to this Agreement or otherwise to establish such
Lender’s status for withholding tax purposes in such other jurisdiction. Each Lender shall
promptly (i) notify the Administrative Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement
of applicable Laws of any such jurisdiction that any Borrower make any deduction or withholding for
taxes from amounts payable to such Lender. Additionally, each of the Borrowers shall promptly
deliver to the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall
reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such
documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction,
duly executed and completed by such Borrower, as are required to be furnished by such Lender or the
Administrative Agent under such Laws in connection with any payment by the Administrative Agent or
any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with
respect to such jurisdiction.



(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by any Borrower or with respect to which any Borrower has
paid additional amounts pursuant to this Section, it shall pay to such Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such
Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer, as
the case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Borrower, upon the request of
the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to
such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to any Borrower or any other Person.



3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in 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, 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 until such Lender notifies the
Administrative Agent and the Company 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, either on the
last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the 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 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 Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency
Rate Loan, the Administrative Agent will promptly so notify the 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 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.



3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.



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




(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except (A) any reserve requirement
contemplated by Section 3.04(e) and (B) the requirements of the Bank of England and
the Financial Services Authority or the European Central Bank reflected in the Mandatory
Cost, other than as set forth below) or the L/C Issuer;




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




(iii) cause the Mandatory Cost, as calculated hereunder, not to represent the cost to
any Lender of complying with the requirements of the Bank of England and/or the Financial
Services Authority or the European Central Bank in relation to its making, funding or
maintaining Eurocurrency Rate Loans; or




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



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Rate Loan (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 (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 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 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 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) Certificates for Reimbursement. A certificate (which shall include calculations
in reasonable detail) of a Lender or the L/C Issuer setting forth 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 this Section (which notice shall contain an explanation of
the computation of the requested compensation) shall be delivered to the Company and 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 Business Days after receipt thereof.



(d) 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).



(e) Reserves on Eurocurrency Rate Loans. The Company shall pay (or cause the
applicable Designated Borrower to pay) to each Lender, (i) as long as such Lender shall be
required, as a result of a Change of Law, to maintain reserves other than those required on the
date hereof 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 faith, which
determination shall be conclusive), and (ii) as long as such Lender shall be required, as a result
of a Change of Law, to comply with any reserve ratio requirement or analogous requirement (other
than those in effect on the date hereof) 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 reasonably 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 Business Days’ prior notice (with a copy to the Administrative Agent) of such additional
interest or costs from such Lender, and an explanation of the computation thereof. If a Lender
fails to give notice 10 Business Days prior to the relevant Interest Payment Date, such additional
interest or cost shall be due and payable 10 Business Days from receipt of such notice and
explanation.



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, but excluding any conversion,
payment or prepayment to the extent such Lender, pursuant to Section 3.03, has required any
Borrower to make such conversion, payment or prepayment before the end of the applicable Interest
Period with respect to such Loan);



(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 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 foreign exchange losses and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the
deposits from which such funds were obtained or from the performance of any foreign exchange
contract, but excluding any loss of anticipated profits. The 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.



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 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.



(a) Designation of a Different Lending Office. 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) all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.



(b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Company
may replace such Lender in accordance with Section 10.13.



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.



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 its 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, 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 Guaranty, 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) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may require evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;




(iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each of the
Company and Avnet Japan is validly existing, in good standing and qualified to engage in
business in each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect;




(v) favorable opinions of Squire, Sanders & Dempsey L.L.P., counsel to the Loan
Parties, and of the General Counsel of the Company, each addressed to the Administrative
Agent and each Lender, in substantially the forms of Exhibits I-1 and I-2,
respectively;




(vi) 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 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;




(vii) 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 the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;




(viii) a certificate signed by a Responsible Officer of the Company, certifying that
all insurance required to be maintained pursuant to the Loan Documents has been obtained and
is in effect;




(ix) evidence that the Amended and Restated Credit Agreement dated as of October 13,
2005 among the Company, Avnet Logistics U.S., L.P., a Texas limited partnership, the other
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, L/C Issuer and Swing Line
Lender has been or concurrently with the Closing Date is being terminated and any loans
outstanding thereunder repaid in full, together with all accrued interest and fees
thereunder; and




(x) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent 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) The Company shall have paid all reasonable fees and disbursements of Helms Mulliss &
Wicker, PLLC, as counsel to the Administrative Agent, and of special and local counsel to the
Lenders retained by the Administrative Agent with respect to any Foreign Obligors, in each case to
the extent invoiced prior to or on the Closing Date (provided that the Company shall remain liable
for any additional reasonable fees and expenses of such counsel to the Administrative Agent in
accordance with Section 10.04).



(d) The Closing Date shall have occurred on or before October 31, 2007.



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 (including any Designated Borrower Request and
Assumption Agreement), shall be true and correct on and as of the date of such Credit Extension,
except to the extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct as of such earlier date, and except that for
purposes of this Section 4.02, the representations and warranties contained in subsections
(a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, 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 or the Required Lenders 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




Each Borrower represents and warrants to the Administrative Agent and the Lenders that:



5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each
Subsidiary thereof (a) is duly organized or formed, validly existing and (to the extent the concept
of “good standing” exists under such Laws) in good standing under the Laws of the jurisdiction of
its incorporation or organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on
its business and (ii) execute, deliver and perform its obligations under the Loan Documents to
which it is a party, (c) is duly qualified and is licensed and in good standing under the Laws of
each jurisdiction where its ownership, lease or operation of properties or the conduct of its
business requires such qualification or license, and (d) is in compliance with all Laws; except in
each case referred to in clause (b)(i), (c) or (d) (or, with respect to any Subsidiary that is not
a Loan Party, in each case referred to in clause (a), (b), (c) or (d)), to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect.



5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to be made under (i)
any Contractual Obligation to which such Person is a party or to which such Person or the
properties of such Person or any of its Subsidiaries is subject or (ii) any order, injunction, writ
or decree of any Governmental Authority or any arbitral award to which such Person or its property
is subject; or (c) violate any Law. Each Loan Party and each Subsidiary thereof is in compliance
with all Contractual Obligations referred to in clause (b)(i), except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect.



5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Party of this Agreement or any other Loan Document.



5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms.



5.05 Financial Statements; No Material Adverse Effect.



(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present the financial condition of the Company and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or contingent, of the Company
and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments
and Indebtedness. From the date of the Audited Financial Statements through the Closing Date, the
Company and its consolidated Subsidiaries have not incurred any additional material indebtedness or
other liabilities, direct or contingent, including liabilities for taxes, material commitments and
Indebtedness, except for such indebtedness and liabilities reflected on Schedule 7.03 and
other indebtedness and liabilities incurred in the ordinary course of business.



(b) The unaudited consolidated and consolidating balance sheet of the Company and its
Subsidiaries dated March 31, 2007, and the related consolidated and consolidating statements of
income or operations for the fiscal quarter ended on that date (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present the financial condition of the Company and its Subsidiaries
as of the date thereof and their results of operations for the period covered thereby, subject, in
the case of clauses (i) and (ii), to normal year-end audit adjustments.



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



(d) The consolidated forecasted balance sheet and statements of income and cash flows of the
Company and its Subsidiaries delivered pursuant to Section 6.01(c) were prepared in good
faith on the basis of the assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and represented, at the time of
delivery, the Company’s reasonable best estimate of its future financial performance.



(e) Schedule 7.03 sets forth all Indebtedness owed by any Borrower to any Subsidiary
as of the Closing Date (other than Indebtedness owed by the Borrower to Avnet Receivables
Corporation in connection with the Existing Securitization Facility).



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



5.07 No Default. No Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other Loan Document.



5.08 Ownership of Property; Liens. Each of the Company and each Subsidiary has good record
and marketable title in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Company and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.



5.09 Environmental Compliance. The Company and its Material Subsidiaries conduct in the
ordinary course of business a review of the effect of existing Environmental Laws and claims
alleging potential liability or responsibility for violation of any Environmental Law on their and
the other Subsidiaries, respective businesses, operations and properties, and as a result thereof
the Company has reasonably concluded that such Environmental Laws and claims could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



5.10 Insurance. The Company and its Subsidiaries maintain, with financially sound and
responsible insurance companies or through self-insurance, insurance on all their respective
properties in at least such amounts and against such risks (and with such risk retention) as are
usually insured against in the same general area by companies of established repute engaged in the
same or a similar business.



5.11 Taxes. The Company and its Subsidiaries have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate reserves have
been provided in accordance with GAAP, and except (in the case of Non-Material Subsidiaries) where
the failure to file such returns or reports or to make such payments could not reasonably be
expected to have a Material Adverse Effect. There is no proposed tax assessment against the
Company or any Subsidiary that would, if made, have a Material Adverse Effect. Neither any Loan
Party nor any Material Subsidiary thereof is party to any tax sharing agreement. No Non-Material
Subsidiary is a party to any tax sharing agreement that could reasonably be expected to have a
Material Adverse Effect.



5.12 ERISA Compliance.



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



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



(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) to the best
knowledge of the Responsible Officers of the Loan Parties, no Pension Plan has any Unfunded Pension
Liability other than Unfunded Pension Liabilities in an aggregate amount not greater than
$50,000,000 for all Pension Plans; (iii) as of the December 31st that falls within the
most recent fiscal year for which audited financial statements have been prepared for the Company
and its Subsidiaries, no Pension Plan had any Unfunded Pension Liability other than Unfunded
Liabilities in an aggregate amount not greater than $50,000,000 for all Pension Plans; (iv) neither
the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (v) neither the Company nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (vi) neither the Company nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.



5.13 Subsidiaries; Equity Interests. As of the Closing Date, the Company has no Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by a Loan Party in the amounts specified on Part (a) of Schedule
5.13 free and clear of all Liens. As of the Closing Date, the Company has no equity
investments in any other corporation or entity other than (a) those specifically disclosed in Part
(b) of Schedule 5.13 and (b) equity investments in any corporation or entity where the
aggregate amount invested in such Person by the Company is less than $5,000,000. All of the
outstanding Equity Interests in the Company have been validly issued, and are fully paid and
nonassessable.



5.14 Margin Regulations; Investment Company Act.



(a) No Borrower is engaged or will engage, principally or as one of its important activities,
in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued
by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.



(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 Disclosure. No report, financial statement, certificate or other information furnished
(whether orally by a Responsible Officer or in writing) by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case
as modified or supplemented by other information so furnished) contains any material misstatement
of fact or omits to state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Company represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the time.



5.16 Compliance with Laws. Each of the Company and each Subsidiary is in compliance in all
material respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.



5.17 Intellectual Property; Licenses, Etc. The Company and its Subsidiaries own, or possess
the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the best knowledge of the Company, no
slogan or other advertising device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Company or any Subsidiary infringes upon any
rights held by any other Person. No claim or litigation regarding any of the foregoing is pending
or, to the best knowledge of the Company, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



5.18 Solvency. On the Closing Date, each Borrower and each Material Subsidiary of the Company
(other than Avnet Europe CVA so long as it is not a Designated Borrower) is Solvent, both before
and after giving effect to any Credit Extension and the disbursements of the proceeds thereof on
such date. On the date of each Credit Extension, each Borrower is Solvent, both before and after
giving effect to such Credit Extension and the disbursements of the proceeds thereof on such date.



5.19 Taxpayer Identification Number; Other Identifying Information. The true and correct U.S.
taxpayer identification number of the Company is set forth on Schedule 10.02. The true and
correct unique identification number of 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 are set forth on Schedule 5.19.



5.20 Representations as to Foreign Obligors. Each of the Company and each Foreign Obligor
represents and warrants to the Administrative Agent and the Lenders that:



(a) Such Foreign Obligor is subject to civil and commercial Laws 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 any
court 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.



(b) The Applicable Foreign Obligor Documents are in proper legal form under the Laws of the
jurisdiction in which such Foreign Obligor is organized and existing for the enforcement thereof
against such Foreign Obligor under the Laws of such jurisdiction, and to ensure the legality,
validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor
Documents, except to the extent that the failure to be in such proper legal form could not
reasonably be expected to adversely affect the enforceability of the Guaranty against the Company.
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, (i) except for (A) 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 (B) any
charge or tax as has been timely paid, and (ii) except to the extent that the failure so to file,
register, record, execute, or notarize such documents, or to make such payments, could not
reasonably be expected to adversely affect the enforceability of the Guaranty against the Company.



(c) 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 (A) any notification or authorization
described in clause (ii) shall be made or obtained as soon as is reasonably practicable and (B)
such failure or delay could not reasonably be expected to adversely affect the enforceability of
the Guaranty against the Company).



ARTICLE VI.




AFFIRMATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Company shall, and shall (except in the case of the covenants set forth in Sections 6.01,
6.02, and 6.03) cause each Subsidiary to:



6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:



(a) as soon as available, but in any event within fifteen days after the date on which
consolidated financial statements for such year are required to be delivered to the SEC under the
Securities Exchange Act, a consolidated balance sheet of the Company and its Subsidiaries as at the
end of each fiscal year of the Company, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion of a Registered Public
Accounting Firm of nationally recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with audit standards of the Public Company
Accounting Oversight Board and applicable Securities Laws and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to the scope of
such audit or with respect to the absence of material misstatement;



(b) as soon as available, but in any event within fifteen days after the date on which
consolidated financial statements for such period are required to be delivered to the SEC under the
Securities Exchange Act, a consolidated balance sheet of the Company and its Subsidiaries as at the
end of each fiscal quarter of the Company (commencing with the fiscal quarter ended September 30,
2007), and the related consolidated statements of income or operations, shareholders’ equity and
cash flows for such fiscal quarter and for the portion of the Company’s fiscal year then ended,
setting forth in each case in comparative form the figures for the corresponding fiscal quarter of
the previous fiscal year and the corresponding portion of the previous fiscal year, all in
reasonable detail, such statements to be certified by a Responsible Officer of the Company as
fairly presenting the financial condition and results of operations of the Company and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes; and



(c) as soon as available, but in any event on the date on which the financial statements
referred to in Sections 6.01(a) and (b) for such period are required to be
delivered to the Administrative Agent and the Lenders, a consolidating balance sheet of the Company
and its Subsidiaries, based on each geographic region, as at the end of such period and the related
consolidating statements of income or operations, for such period, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, such statements to be certified by a Responsible Officer of the Company to
the effect that such statements are fairly stated in all material respects when considered in
relation to the applicable consolidated financial statements of the Company and its Subsidiaries.



As to any information contained in materials furnished pursuant to Section 6.02(d), the
Company shall not be separately required to furnish such information under clause (a) or (b) above,
but the foregoing shall not be in derogation of the obligation of the Company to furnish the
information and materials described in clauses (a) and (b) above at the times specified therein.



6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in
form and detail satisfactory to the Administrative Agent and the Required Lenders:



(a) concurrently with the delivery of the financial statements referred to in Section
6.01(a), a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary therefor no knowledge was
obtained of any Default under the financial covenants set forth herein or, if any such Default
shall exist, stating the nature and status of such event;



(b) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b) (commencing with the fiscal quarter ended September 30, 2007) (i) a
duly completed Compliance Certificate signed by a Responsible Officer of the Company, and (ii) if
the aggregate outstanding principal of all Indebtedness owed by the Company to the Subsidiaries
(including all Indebtedness owed by the Company to any Subsidiary) is greater than $25,000,000, a
schedule of all such Indebtedness, stating the outstanding principal amount of Indebtedness owed by
the Company to each Subsidiary (on a Subsidiary-by-Subsidiary basis) and whether each such item of
Indebtedness is subordinated to the Obligations;



(c) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports or recommendations submitted to the board of directors (or the audit
committee of the board of directors) of the Company by independent accountants in connection with
any audit of the accounts or books of the Company;



(d) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Company, and copies of
all annual, regular, periodic and special reports and registration statements (other than
registration statements on Form S-8 or any successor form thereto) which the Company may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and
not otherwise required to be delivered to the Administrative Agent pursuant hereto;



(e) promptly after the furnishing thereof, copies of any correspondence, notice, statement or
report furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof with
respect to any default or event of default under any indenture, loan or credit or similar agreement
and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any
other clause of this Section 6.02;



(f) promptly, and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or
possible investigation or other inquiry by such agency regarding financial or other operational
results of any Loan Party or any Subsidiary thereof; and



(g) promptly, such additional information regarding the business, financial or corporate
affairs of the Company or any Subsidiary, or compliance with the terms of the Loan Documents, as
the Administrative Agent or any Lender may from time to time reasonably request.



Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02 (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 (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided that: (i)
the Company shall 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 notify
the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any
such documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every
instance the Company shall be required to provide paper copies of the Compliance Certificates
required by Section 6.02(b) to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the 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.



The Borrowers hereby acknowledge that (a) the Administrative Agent and/or BAS, as an Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information (within the meaning of the United States Federal and state
securities laws) with respect to any of the Borrowers or their respective Affiliates, or the
respective securities of any of the foregoing (“MNPI Information”), and who may be engaged
in investment and other market related activities with respect to such Persons’ securities. Each
Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC”, the 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 MNPI
Information with respect to the Borrowers or their 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 10.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor”; and (z) the Administrative Agent and BAS, as Arranger, 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 Investor”. Notwithstanding the
foregoing, no Borrower shall be under any obligation to mark any Borrower Materials “PUBLIC.”



6.03 Notices. Promptly notify the Administrative Agent and each Lender:



(a) of the occurrence of any Default;



(b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Company or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Company or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or proceeding affecting
the Company or any Subsidiary, including pursuant to any applicable Environmental Laws, in each
case that has resulted or could reasonably be expected to result in a Material Adverse Effect;



(c) of the occurrence of any ERISA Event;



(d) of any material change in accounting policies or financial reporting practices by the
Company and its Subsidiaries on a Consolidated basis; and



(e) of any public announcement by (or announcement received by the Company from) Moody’s or
S&P of any change or probable change in a Debt Rating.



Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Company setting forth details of the occurrence referred to therein and stating what
action the Company has taken and proposes to take with respect thereto. Each notice pursuant to
Section 6.03(a) shall describe with particularity any and all provisions of this Agreement
and any other Loan Document that have been breached.



6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Company or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness, except, in the case of clauses (b) and (c), where the failure to do
so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.



6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and (to the extent the concept of “good standing” exists under such
Laws) good standing under the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.04; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its
business, except to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.



6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its properties and
equipment in good working order and condition, ordinary wear and tear excepted; and (b) make all
necessary repairs thereto and renewals and replacements thereof, in each case except where the
failure to do so could not reasonably be expected to have a Material Adverse Effect.



6.07 Maintenance of Insurance. Maintain, with financially sound and responsible insurance
companies or through self-insurance, insurance on all their respective properties in at least such
amounts and against such risks (and with such risk retention) as are usually insured against in the
same general area by companies of established repute engaged in the same or a similar business; and
furnish to the Lenders, upon request from the Administrative Agent, information presented in
reasonable detail as to the insurance so carried.



6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
(including Environmental Laws and ERISA) and all orders, writs, injunctions and decrees applicable
to it or to its business or property, except in such instances in which (a) such requirement of Law
or order, writ, injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.



6.09 Books and Records. (a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Company or such Subsidiary, as
the case may be; and (b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory jurisdiction over the
Company or such Subsidiary, as the case may be.



6.10 Inspection Rights. Permit representatives of the Administrative Agent and each Lender to
visit and inspect any of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts
with its directors, officers, and independent public accountants, all at such reasonable times
during normal business hours and as often as may be reasonably desired, upon reasonable advance
notice to the Company; provided, however, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Company at any time during normal
business hours and without advance notice.



6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate
purposes not in contravention of any Law or of any Loan Document.



6.12 Approvals and Authorizations. Maintain all authorizations, consents, approvals and
licenses from, exemptions of, and filings and registrations with, each Governmental Authority of
the jurisdiction in which each Foreign Obligor is organized and existing, and all approvals and
consents of each other Person in such jurisdiction, in each case that are required in connection
with the Loan Documents.



ARTICLE VII.




NEGATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Company shall not, nor shall it permit any Subsidiary to, directly or indirectly:



7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:



(a) Liens pursuant to any Loan Document;



(b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the
amount secured or benefited thereby is not increased, and (iii) any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 7.03(b);



(c) Liens for taxes, assessments or other governmental charges not yet due or which are being
contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;



(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business;



(e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;



(f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like nature incurred in the ordinary
course of business;



(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;



(h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;



(i) Liens securing Indebtedness permitted under Section 7.03(d); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness, (ii) the Indebtedness secured thereby does not exceed the cost of the property being
acquired on the date of acquisition, and (iii) such Lien attached concurrently with, or within 180
days after, the acquisition of the property encumbered thereby;



(j) Liens on accounts receivable subject to Permitted Securitization Facilities which Liens
secure (or encumber such accounts receivable to provide credit support for) such facilities;



(k) Liens on inventory acquired in the ordinary course of business to secure the purchase
price of such inventory or to secure Indebtedness incurred solely for the purpose of financing the
acquisition of such inventory, provided that the Indebtedness secured thereby does not
exceed the cost of such inventory;



(l) any Lien arising out of the refinancing, extension, renewal or refunding of any secured
Indebtedness, provided that (i) prior to such refinancing, extension, renewal or refunding,
the collateral for such secured Indebtedness (the “original Indebtedness”) is permitted by this
Section 7.01, (ii) after giving effect to such refinancing, extension, renewal or
refunding, the property covered by such Lien is not changed from the property securing the original
Indebtedness, (iii) the amount secured or benefited by such Lien is not increased above the amount
secured by such property under the original Indebtedness, and (iv) any such refinancing, extension,
renewal or refunding of Indebtedness is permitted by Section 7.03;



(m) Liens on cash collateral supporting the repayment of the Senior Notes in accordance with
the defeasance provisions of the Senior Notes Indenture or pursuant to a binding agreement with the
Trustee under the Senior Notes Indenture;



(n) Liens on cash collateral or government securities to secure Swap Contracts,
provided that the aggregate fair market value of such cash collateral and government
securities does not exceed $25,000,000 at any time;



(o) Liens on assets of Foreign Subsidiaries (other than Foreign Obligors, except to the extent
that such Liens are limited to Liens on cash deposits to secure cash pooling arrangements or other
cash management transactions) to secure Indebtedness of such Foreign Subsidiaries, provided
that the aggregate principal amount of Indebtedness secured by such Liens does not exceed
$50,000,000 at any time; and



(p) Liens not otherwise permitted under clauses (a)-(o) of this Section 7.01,
provided that the aggregate fair market value of all assets subject to such Liens does not
exceed 7.50% of Consolidated Tangible Net Worth at any time.



7.02 Investments. Make any Investments, except:



(a) Investments held by the Company or such Subsidiary in the form of cash equivalents;



(b) advances to officers, directors and employees of the Company and Subsidiaries in an
aggregate amount not to exceed $2,500,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;



(c) (i) Investments by the Company in any Designated Borrower, (ii) Investments by any
Subsidiary in the Company or in any Designated Borrower, (iii) Investments by any Subsidiary (other
than a Designated Borrower) in any other Subsidiary (other than a Designated Borrower); and (iv)
any other Investment so long as (both before and after giving effect to such Investment) either (A)
the Consolidated Leverage Ratio is less than 3.75 to 1.00 or (B) the sum of (1) the Company’s
Unencumbered Cash and Cash Equivalents plus (2) the aggregate amounts available to the
Company under Permitted Securitization Facilities with regard to which the Company has the present
ability to satisfy all conditions precedent plus (3) so long as the Company has the present
ability to satisfy all conditions precedent set forth in Section 4.02, the amount, if any,
by which the Aggregate Commitments exceed the Total Outstandings, exceeds $500,000,000;



(d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;



(e) Guarantees permitted by Section 7.03;



(f) Swap Contracts permitted by Section 7.03(c);



(g) Permitted Acquisitions; and



(h) other Investments not exceeding $25,000,000 in the aggregate in any fiscal year of the
Company.



7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



(a) Indebtedness under the Loan Documents;



(b) Indebtedness outstanding on the date hereof listed on Schedule 7.03;



(c) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising
under any Swap Contract, provided that (i) such obligations are (or were) entered into by
such Person in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person, and not
for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain
any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;



(d) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in Section
7.01(i);



(e) unsecured Indebtedness of Foreign Subsidiaries (other than Designated Borrowers);
provided, no Borrower is directly or indirectly liable for such Indebtedness, whether
through any Guarantee or otherwise except as expressly permitted by clause (m) below;



(f) secured Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to
exceed $50,000,000 at any time outstanding;



(g) Indebtedness under Permitted Securitization Facilities;



(h) Indebtedness arising from Investments permitted by Section 7.02(c);
provided that (i) such Indebtedness is noted on the books and records of the Company and
its Subsidiaries, and (ii) in the case of any Indebtedness incurred after the Closing Date and owed
by any Borrower to any Subsidiary, such Debt is subordinated (to the extent permitted by applicable
Law, as determined in good faith by the Company) to the Obligations on terms and conditions, and
pursuant to documentation, in form and a substance satisfactory to the Administrative Agent in its
reasonable discretion;



(i) Indebtedness of a Person, or in respect of assets, acquired pursuant to a Permitted
Acquisition and existing at the time of such Acquisition; provided that (I) such
Indebtedness (x) shall not have been incurred in contemplation of such Acquisition, (y) may not be
extended, renewed or refunded except as otherwise permitted by this Agreement, and (z) in the case
of Indebtedness secured by a Lien on the assets acquired pursuant to a Permitted Acquisition (or on
the assets of a Person that becomes a Subsidiary as a result of a Permitted Acquisition), such
Indebtedness, together with any other secured Indebtedness permitted by this clause (i), shall not
exceed $50,000,000 in the aggregate outstanding at any time and (II) neither the Company nor any
Subsidiary (other than a Person acquired as part of such Permitted Acquisition) is directly or
indirectly liable for such Indebtedness, whether through any Guarantee or otherwise, other than
liability with respect to which recourse is limited to the assets so acquired (or Investment in the
Person so acquired);



(j) unsecured Indebtedness of the Company;



(k) Indebtedness not otherwise permitted under clauses (a)-(j) of this Section 7.03,
provided that the aggregate outstanding amount of Indebtedness permitted by this clause (k)
shall not exceed $25,000,000 at any time;



(l) unsecured Indebtedness not otherwise permitted under clauses (a)-(k) of this Section
7.03, provided that (i) no principal repayments on such Indebtedness are due until
after the Maturity Date and (ii) after giving effect to any Indebtedness under this clause (l), the
Consolidated Leverage Ratio is less than 4.00 to 1.00, provided that if such Indebtedness
is incurred simultaneously with, and in connection with, an Acquisition, then for the purpose of
determining compliance with this clause (ii) at the time of incurrence of such Indebtedness, the
Consolidated Leverage Ratio shall be determined on a pro forma basis (giving effect to such
Indebtedness, and giving effect to such Acquisition as if such Acquisition occurred on the first
day of the period of four fiscal quarters most recently ended); and



(m) guaranties by the Borrowers of Indebtedness permitted by clause (b) or (e)
above in an aggregate amount for all Borrowers for all such Indebtedness not to exceed at any time
the sum of (i) the amount identified on Schedule 7.03 as the “Closing Guarantied Amount”
and (ii) $125,000,000.



7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:



(a) any Subsidiary may merge with (i) the Company, provided that the Company shall be
the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any Designated Borrower is merging with another Subsidiary, a Designated Borrower shall
be the continuing or surviving Person;



(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Company or to another Subsidiary; provided that if the
transferor in such a transaction is a Designated Borrower, then the transferee must either be the
Company or a Designated Borrower; and



(c) any Subsidiary (other than a Loan Party or a Material Subsidiary) may dissolve or be
dissolved or may Dispose of all or substantially all of its assets (upon voluntary liquidation or
otherwise).



7.05 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation to do so, except that, so long as no Default shall have occurred and be
continuing at the time of any action described below or would result therefrom:



(a) each Subsidiary may make Restricted Payments to the Company, the Designated Borrowers and
any other Person that owns an Equity Interest in such Subsidiary, ratably according to their
respective holdings of the type of Equity Interest in respect of which such Restricted Payment is
being made;



(b) the Company and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such Person;



(c) the Company and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests
with the proceeds received from the substantially concurrent issue of new shares of its common
stock or other common Equity Interests;



(d) the Company may declare and pay cash dividends and purchase, redeem or otherwise acquire
for cash Equity Interests issued by it so long as the Consolidated Leverage Ratio is less than or
equal to 3.50 to 1.00 (both before and after giving effect to such payment, purchase redemption or
acquisition); and



(e) in addition to the Restricted Payments permitted by clause (d) of this Section
7.05, the Company may (when Consolidated Leverage Ratio is greater than 3.50 to 1.00) declare
and pay cash dividends and purchase, redeem or otherwise acquire for cash Equity Interests issued
by it; provided that, the aggregate of such dividends plus the aggregate consideration paid
for all such purchases, redemptions and acquisitions after the Closing Date at times when the
Consolidated Leverage Ratio is greater than 3.50 to 1.00 (other than in respect of shares purchased
for the purpose of satisfying the Company’s obligations under employee or director stock purchase,
stock grant and stock option plans) shall not exceed $15,000,000.



7.06 Payments of Certain Indebtedness. The Company will not, and will not permit any
Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash securities or other property) of or in respect of principal of or
interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:



(a) payment of Indebtedness created under the Loan Documents;



(b) (i) payment of regularly scheduled principal and interest payments and required payments
under Swap Contracts as and when due in respect of any Indebtedness permitted by Section
7.03, which Indebtedness is (A) existing on the date hereof, (B) any refinancing, refunding,
renewal or extension of Indebtedness existing on the date hereof or (C) Subordinated Indebtedness;
provided, that the applicable terms thereof shall not be amended to increase such payments
without the consent of the Required Lenders; and (ii) payment of principal and interest payments
and required payments under Swap Contracts in respect of any Indebtedness permitted by Section
7.03, other than Indebtedness described in clause (i); provided that such
payment will not cause an Event of Default or have a Material Adverse Effect;



(c) so long as no Event of Default has occurred and is continuing or will exist immediately
thereafter, prepayments of Senior Indebtedness of the Company if the aggregate L/C Obligations do
not exceed $40,000,000 and there are no outstanding Loans;



(d) so long as no Event of Default has occurred and is continuing or will exist immediately
thereafter, (i) payments or prepayments of any Permitted Securitization Facility (x) made with the
proceeds of collections on accounts receivable subject thereto or (y) if the Total Outstandings
(other than the undrawn amount of outstanding Letters of Credit) do not exceed $50,000,000, or (ii)
payments or prepayments of any Permitted Securitization Facility which exists to finance accounts
receivables generated by Foreign Subsidiaries, provided that (in the case of this clause (ii)) the
Subsidiary making such payments or prepayments is a Foreign Subsidiary;



(e) refinancings of Indebtedness permitted by clauses (b), (d), (e), (f), (g), (i), (j) (k)
and (l) of Section 7.03 to the extent that the incurrence of such refinancing Indebtedness
is otherwise permitted under this Agreement, but provided further that, in the case
of the refinancing of any Indebtedness permitted by Section 7.03(l), no principal payments
on the respective refinancing Indebtedness are due until after the Maturity Date;



(f) repayments of Indebtedness arising from Investments permitted by Section 7.02(c)
to the extent permitted by any subordination provisions thereof (other than, if any Event of
Default exists or will exist after making such payment, Indebtedness of the Company or any
Designated Borrower to any Subsidiary of the Company); and



(g) so long as no Event of Default has occurred and is continuing or will exist immediately
thereafter, other prepayments in respect of Indebtedness; provided, that (i) immediately
thereafter there are no outstanding Committed Loans and the Outstanding Amount of L/C Obligations
(excluding the aggregate undrawn amount of outstanding Letters of Credit) is zero, and (ii) no
proceeds of any Credit Extension are used to make or finance such payment.



7.07 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Company and its Subsidiaries on the date
hereof or any business reasonably related or incidental thereto.



7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Company, whether or not in the ordinary course of business, other than (a) on fair and
reasonable terms substantially as favorable to the Company or such Subsidiary as would be
obtainable by the Company or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than an Affiliate, or (b) transactions among the Company and its Subsidiaries
so long as such transactions do not, either individually or in the aggregate, have a Material
Adverse Effect.



7.09 Limitation on Restrictions Affecting the Company or any Subsidiary. Enter into any
Contractual Obligation (other than this Agreement or any other Loan Document) that limits the
ability (a) of any Subsidiary to make Restricted Payments to the Company or any Designated Borrower
or to otherwise transfer property to the Company or any Designated Borrower, or (b) of the Company
or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person;
provided, however, that this Section 7.09 shall not prohibit:




(i) any negative pledge incurred or provided in favor of any holder of Indebtedness
permitted under Section 7.03(d) solely to the extent any such negative pledge
relates to the property financed by or the subject of such Indebtedness;




(ii) restrictions imposed by other permitted Indebtedness ranking pari passu
with the Obligations, provided that such restrictions are no more restrictive than
those imposed by this Agreement;




(iii) restrictions imposed by applicable Law;




(iv) restrictions imposed by Indebtedness outstanding on the date hereof and listed on
Schedule 7.03;




(v) restrictions imposed by Indebtedness relating to any property acquired by the
Company or any Subsidiary (or restrictions imposed by Indebtedness of a third party which
third party is acquired by the Company or any Subsidiary) in an acquisition permitted by
this Agreement, provided in each case that such restrictions existed at the time of
such acquisition, were not put in place in connection with or in anticipation of such
acquisition and are not applicable to any Person other than the Person so acquired, or to
any property other than the property so acquired;




(vi) restrictions with respect solely to any Subsidiary imposed pursuant to a binding
agreement which has been entered into for the sale of all or substantially all of the Equity
Interests or assets of such Subsidiary, provided that such restrictions apply solely
to the Equity Interests or assets of such Subsidiary which are being sold;




(vii) in connection with and pursuant to any refinancing of Indebtedness, replacements
of restrictions imposed pursuant to clauses (ii), (iv), (v) or (vii) of this Section,
provided that (A) such refinancing is permitted by Section 7.03, and (B) the
replacement restrictions are not more restrictive than those being replaced and do not apply
to any Person or assets other than those that would have been covered by the restrictions in
the Indebtedness so refinanced;




(viii) restrictions on any Special Purpose Finance Subsidiary and assets of such
Special Purpose Finance Subsidiary, which restrictions are contained in the applicable
Permitted Securitization Facility for which such Subsidiary was created;




(ix) in connection with any permitted lease of property entered into in the ordinary
course of business, customary provisions restricting the subletting or assignment of, or
Liens on, the property subject to such lease, consistent with industry practice; and




(x) in connection with any Lien permitted by Section 7.01, customary
restrictions on the transfer or disposition of, or imposition of further Liens on, the asset
subject to such Lien.



7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose,
in each case in violation of, or for a purpose which violates or would be inconsistent with,
Regulation T, U or X of the FRB.



7.11 Financial Covenants.



(a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as
of the end of any period of four fiscal quarters of the Company (determined on a pro forma basis,
giving effect to any Permitted Acquisition consummated during such period, and to the incurrence,
repayment, prepayment, redemption or defeasance of any Indebtedness in connection therewith, as if
such Permitted Acquisition and such incurrence, repayment, prepayment, redemption or defeasance
occurred on the first day of such period) to be less than 3.00 to 1.00.



(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at any time during
any period set forth below (determined on a pro forma basis, giving effect to any Permitted
Acquisition consummated during such period, and to the incurrence, repayment, prepayment,
redemption or defeasance of any Indebtedness in connection therewith, as if such Permitted
Acquisition and such incurrence, repayment, prepayment, redemption or defeasance occurred on the
first day of such period) to be greater than the ratio set forth below opposite such period:



	 	 	 
	Period	 	Maximum Consolidated Leverage Ratio
	Closing Date through

June 30, 2008

	 	

4.50 to 1.00
	July 1, 2008 through

December 31, 2008

	 	

4.25 to 1.00
	January 1, 2009

and thereafter

	 	

4.00 to 1.00






7.12 Acquisitions. Enter into any agreement, contract, binding commitment or other
arrangement providing for any Acquisition, or take any action to solicit the tender of securities
or proxies in respect thereof in order to effect any Acquisition, unless (i) the Person to be (or
whose assets are to be) acquired does not oppose such Acquisition and the line or lines of business
of the Person to be acquired are a Permitted Business, (ii) no Default or Event of Default shall
have occurred and be continuing either immediately prior to or immediately after giving effect to
such Acquisition and, if the Cost of Acquisition is in excess of $25,000,000, the Company shall
have furnished to the Administrative Agent (A) pro forma historical financial statements as of the
end of the most recently completed fiscal year of the Company and most recent interim fiscal
quarter, if applicable, giving effect to such Acquisition and (B) a certificate in the form of
Exhibit D prepared on a historical pro forma basis as of the date of the Audited Financial
Statements or, if later, as of the most recent date for which financial statements have been
furnished pursuant to Section 6.01(a) or (b), giving effect to such Acquisition, which
certificate shall demonstrate that no Default or Event of Default would exist immediately after
giving effect thereto, (iii) the Person acquired shall be a Subsidiary, or be merged into a
Subsidiary, immediately upon consummation of the Acquisition (or if assets are being acquired, the
acquiror shall be a Subsidiary), and (iv) after giving effect to such Acquisition, the aggregate
Costs of Acquisition incurred in any fiscal year (on a noncumulative basis, with the effect that
amounts not incurred in any fiscal year may not be carried forward to a subsequent period) shall
not exceed $100,000,000 in the aggregate unless (in the case of clause (iv)) both
immediately before and immediately after such Acquisition (giving pro forma effect to the
consummation of such Acquisition as if such Acquisition occurred on the first day of the four
fiscal quarters most recently ended, and giving pro forma effect to the incurrence, repayment,
prepayment, redemption or defeasance of any Indebtedness in connection therewith) either
(Y) the Consolidated Leverage Ratio is less than 3.75 to 1.00 or (Z) the sum of (1) the
Company’s Unencumbered Cash and Cash Equivalents, plus (2) the aggregate amounts available
to the Company under Permitted Securitization Facilities with regard to which the Company has the
present ability to satisfy all conditions precedent to its ability to obtain such amounts
immediately thereunder, plus (3) so long as the Company has the present ability to satisfy
all conditions precedent set forth in Section 4.02, the amount, if any, by which the
Aggregate Commitments exceed the Total Outstandings, exceeds $500,000,000.



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 herein, and in the currency required hereunder, any amount of principal of any
Loan or any L/C Obligation, or (ii) within three (3) 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 (5)
Business Days after the same becomes due, any other amount payable hereunder or under any other
Loan Document; or



(b) Specific Covenants. The Company fails to perform or observe any term, covenant or
agreement contained in any of Section 6.01, 6.02, 6.03, 6.05,
6.10, or 6.11 or Article VII; or



(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for 30 days after the Company or such Loan
Party has knowledge thereof; or



(d) Representations and Warranties. Any representation or warranty of the Company or
any other Loan Party, or any written certification or other material written statement of fact made
or deemed made by the Company or any Loan Party or by a Responsible Officer on behalf of the
Company or any other Loan Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading when made or deemed made; or



(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment of
principal when due (whether at scheduled maturity, by required prepayment, acceleration, demand or
otherwise) in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness under
Swap Contracts) having an aggregate principal amount (including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than $50,000,000, or (B) fails to
observe or perform any other agreement or condition (including any obligation to make any payment
of interest, fees or other amounts) relating to any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than $50,000,000 or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the
effect of which default or other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased
or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from any event of default under such
Swap Contract as to which the Company or any Subsidiary is the Defaulting Party (as defined in such
Swap Contract) and the Swap Termination Value owed by the Company or such Subsidiary as a result
thereof is greater than $50,000,000; or



(f) Insolvency Proceedings, Etc. Any Loan Party or any Material Subsidiary institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 60 calendar days as to any
Loan Party or 90 calendar days as to any Material Subsidiary that is not a Loan Party; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days as to any Loan Party or 90 calendar days as to any Material
Subsidiary that is not a Loan Party, or an order for relief is entered in any such proceeding; or



(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any Material Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or



(h) Judgments. One or more judgments or orders are entered against the Company or any
Subsidiary for the payment of money in an aggregate amount exceeding $25,000,000 (to the extent not
covered by independent third-party insurance as to which the insurer does not dispute coverage)
that either (i) remain unsatisfied for a period of 30 days or more, or (ii) with regard to which
(A) enforcement proceedings are commenced by the holder thereof, or (B) there is a period of 30
consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal
or otherwise, is not in effect; or



(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Company under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $50,000,000, or (ii) the Company or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess
of $25,000,000; or



(j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or satisfaction in full
of all the Obligations, ceases to be in full force and effect; or any Loan Party or any Subsidiary
of the Company contests in any manner the validity or enforceability of any Loan Document; or any
Loan Party denies that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or



(k) Change of Control. There occurs any Change of Control.



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



(d) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders 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, 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 by the Administrative Agent on account of the
Obligations shall 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 and interest) 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
(including fees and time charges for attorneys who may be employees of any Lender or the L/C
Issuer) and amounts payable under Article III), ratably among them in proportion to the
amounts described in this clause Second payable to them;



Third, to payment of that portion of the Obligations constituting accrued and unpaid
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; 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 Law.



Subject to Section 2.03(c), 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.



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 neither any Borrower nor any other Loan Party shall have rights as a third
party beneficiary of any of such provisions.



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, 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. Without
limiting the generality of the foregoing, the Administrative Agent:



(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and



(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
any 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. 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 (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



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,
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 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.



9.06 Resignation of Administrative Agent. 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, then the retiring Administrative
Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that if the Administrative Agent shall notify
the Company and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Loan Documents and (2) all payments, communications and determinations provided to be made
by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent
as provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the 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.



Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender 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 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, Arrangers, Co-Documentation Agents or Syndication 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 the
L/C Issuer hereunder.



9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or 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 to, and shall, at the direction of the Required Lenders:



(a) 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) 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 to
authorize the Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.



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, 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) 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;



(c) 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;



(d) reduce the principal of, or the rate or amount of interest specified herein on, any Loan
or L/C Borrowing, or (subject to clause (iv) 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 “Default Rate” or to
waive any obligation of any Borrower to pay interest or Letter of Credit Fees at the Default Rate;



(e) 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;



(f) amend Section 1.06 or the definition of “Alternative Currency” without the written
consent of each Lender;



(g) change 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



(h) release the Company from the Guaranty without the written consent of each Lender
(including by virtue of consenting to any assignment of the Guaranty that includes a release of the
Company from its obligations thereunder);



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; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender.



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 telecopier 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 the Borrowers, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier 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, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.



Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).



(b) Electronic Communications. Notices and other communications to the Lenders and
the L/C 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 or the Company may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to particular
notices or communications. Promptly upon request therefor, the Administrative Agent shall provide
any Lender requesting same with a hard copy of any particular notice or other communication
delivered by the Administrative Agent hereunder by electronic communication; provided that
the failure to deliver any such hard copy shall not render any electronic notice or communication
ineffective.



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. Any Person shall be permitted to provide more than one e-mail
address if it so requires and all matters notified by e-mail shall be sent to each such address so
specified; provided that (x) the deemed receipt by any intended recipient shall be
sufficient notice hereunder to such Person, whether or not such e-mail notification shall have been
deemed received by all intended recipients, and (y) the foregoing shall not apply to any notice or
communication pursuant to Article II.



(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 the 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, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the 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,
telecopier 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 Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made available through the
“Public Side 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 Committed Loan Notices 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. No failure by any Lender, the L/C Issuer or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder 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 are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.



10.04 Expenses; Indemnity; Damage Waiver.



(a) Costs and Expenses. The Company shall pay (i) all reasonable and documented out
of pocket expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out of
pocket expenses incurred by 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), and shall pay all fees and time charges for attorneys who may be employees of 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.



(b) Indemnification by the Company. The Company shall indemnify the Administrative
Agent (and any sub-agent thereof), each 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), and
shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements
for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or 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 or the consummation
of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and
the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by 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, or any Environmental Liability related in any way to any Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, 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, in all cases, whether or not caused by or arising, in whole or in
part, out of the comparative, contributory or sole negligence of the Indemnitee; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by 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.



(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 or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or 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) 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, 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
nonappealable judgment of a court of competent jurisdiction.



(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 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 Loan Party 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, or (iii) by way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the L/C 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 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) except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund no
minimum amount need be assigned; 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 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;




(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;




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to a
Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender;




(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.




(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 proceeding
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 the Company
or any of the Company’s Affiliates or Subsidiaries.




(vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.



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.
Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (d) of
this Section.



(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by each of the Borrowers and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition, at any time that
a request for a consent for a material or substantive change to the Loan Documents is pending, any
Lender wishing to consult with other Lenders in connection therewith may request and receive from
the Administrative Agent a copy of the Register.



(d) Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the 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 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. 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. 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 such Participant agrees to be subject to Section 2.13
as though it were a Lender.



(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Company’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Company is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 3.01(e) as though it were a Lender.



(f) Certain Pledges. Any Lender may at any time, without notice to or consent of any
Person, 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; provided that no such pledge
or assignment shall release such Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.



(g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



(h) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’
notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) 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 Bank of America as L/C Issuer or Swing Line Lender,
as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights and
obligations of the L/C Issuer hereunder with respect to all Letters of Credit 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, (a) such successor shall
succeed to and become vested with all of the rights and obligations 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 Bank of America to effectively assume the
obligations of Bank of America 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’ respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee
invited to be a Lender pursuant to Section 2.16(d) or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to a Borrower and its
obligations, (g) with the consent of the Company or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Company.



For purposes of this Section, “Information” means all information received from the
Company or any Subsidiary relating to the Company or any Subsidiary 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
Subsidiary, 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 a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including Federal and state securities Laws.



10.08 Set-off. 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 Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer 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 or office of such Lender or the L/C
Issuer different from the branch or office holding such deposit or obligated on such indebtedness.
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 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 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 and the other Loan Documents
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 and the other Loan Documents 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 and any
other Loan Document by telecopy shall be effective as delivery of a manually executed counterpart
of this Agreement and the other Loan Documents.



10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other 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.



10.13 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 if any Lender is a
Defaulting Lender, or if any Lender is a Non-Extending Lender under Section 2.16, or if any
Lender is a Restricted Lender under Section 2.14(b) 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 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 Subsidiary 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 Subsidiary (in the case of all other amounts);



(c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



(d) such assignment does not conflict with applicable Laws.



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 SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



(b) SUBMISSION TO JURISDICTION. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR 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 ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



(c) WAIVER OF VENUE. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.



(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02(a). NOTHING IN THIS AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW; PROVIDED, THAT NO ELECTRONIC COMMUNICATION SHALL CONSTITUTE SERVICE OF PROCESS
HEREUNDER.



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.



10.16 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 Loan Party acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arrangers are arm’s-length
commercial transactions between each Loan Party and its Affiliates, on the one hand, and the
Administrative Agent and the Arrangers, on the other hand, (B) each Loan Party has consulted its
own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C)
each 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; (ii) (A), the
Administrative Agent and each Arranger is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting
as an advisor, agent or fiduciary for such Loan Party or any of its Affiliates or any other Person
and (B) neither the Administrative Agent nor any Arranger has any obligation to any Loan Party or
any of its Affiliates with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and
the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Loan Parties and their respective Affiliates, and
neither the Administrative Agent nor any Arranger has any obligation to disclose any of such
interests to any Loan Party or its Affiliates. To the fullest extent permitted by law, each Loan
Party 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. Nothing contained herein shall
relieve any Person of its written contractual obligations under the Loan Documents.



10.17 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined)
and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrowers, which information includes the name and address
of each Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.



10.18 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligation of each Borrower
in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or
under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent
that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so
due in the Judgment Currency, the Administrative Agent may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to the Administrative Agent
from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess to such Borrower (or to any other
Person who may be entitled thereto under applicable law).



[Remainder of page is intentionally left blank; signature pages follow]




4




IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed
as of the date first above written.




AVNET, INC.




By:

Name: Raymond Sadowski

Title:    Senior Vice President and Chief Financial

Officer





AVNET JAPAN CO., LTD.




By:

Name: Raymond Sadowski

Title:    Director




5




BANK OF AMERICA, N.A., as




Administrative Agent




By:

Name: Robert J. Rittelmeyer

Title: Vice President




6




BANK OF AMERICA, N.A., as a Lender, L/C Issuer and




Swing Line Lender




By:

Name:

Title:




7




ABN AMRO BANK N.V.




By:

Name:

Title:





By:

Name:

Title:




8




THE BANK OF NOVA SCOTIA




By:

Name:

Title:




9




BNP PARIBAS




By:

Name:

Title:





By:

Name:

Title:




10




CREDIT SUISSE, CAYMAN ISLANDS BRANCH




By:

Name:

Title:




11




JPMORGAN CHASE BANK, N.A.




By:

Name:

Title:




12




THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.




By:

Name:

Title:




13




FORTIS CAPITAL CORP.




By:

Name:

Title:





By:

Name:

Title:




14




STANDARD CHARTERED BANK




By:

Name:

Title:




15




WELLS FARGO BANK, N.A.




By:

Name:

Title:




16




BANK OF CHINA, LOS ANGELES BRANCH




By:

Name:

Title:




17




CALYON NEW YORK BRANCH




By:

Name:

Title:





By:

Name:

Title:




18




DRESDNER BANK AG, MUNICH BRANCH




By:

Name:

Title:





By:

Name:

Title:




19




KEYBANK NATIONAL ASSOCIATION




By:

Name:

Title:




20




NATIXIS




By:

Name:

Title:





By:

Name:

Title:




21




SKANDINAVISKA ENSKILDA BANKEN AB (PUBL.)




By:

Name:

Title:





By:

Name:

Title:




22




SUMITOMO MITSUI BANKING CORPORATION




By:

Name:

Title:





23