exv10w1



 





	 	 
	 	Exhibit 10.1 
	 
	 	EXECUTION VERSION 



















$1,759,000,000




TERM LOAN AGREEMENT




Dated as of October 1, 2007




among




FLEXTRONICS INTERNATIONAL LTD.

and

FLEXTRONICS INTERNATIONAL USA, INC.

as Borrowers,




CITICORP NORTH AMERICA, INC.,

as Administrative Agent,




The Lenders Party Hereto




CITIGROUP GLOBAL MARKETS INC.,

as Sole Lead Arranger, Bookrunner and Syndication Agent




Cahill Gordon & Reindel llp

80 Pine Street

New York, New York 10005




879300




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE I. 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	DEFINITIONS AND ACCOUNTING TERMS  	 	 	 	 
	 
	 	 	 	 	 	 
	1.01
	 	Defined Terms	 	 	1	 
	1.02
	 	Other Interpretive Provisions	 	 	27	 
	1.03
	 	Accounting Terms	 	 	28	 
	1.04
	 	Rounding	 	 	29	 
	1.05
	 	Times of Day	 	 	29	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE II.    	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	THE COMMITMENTS AND CREDIT EXTENSIONS  	 	 	 	 
	 
	 	 	 	 	 	 
	2.01
	 	Loans	 	 	29	 
	2.02
	 	Borrowings, Conversions and Continuations of Loans	 	 	30	 
	2.03
	 	Amortization of Borrowings	 	 	32	 
	2.04
	 	[Reserved]	 	 	32	 
	2.05
	 	Prepayments	 	 	32	 
	2.06
	 	Termination or Reduction of A Delayed Draw Commitments	 	 	33	 
	2.07
	 	Repayment of Loans	 	 	33	 
	2.08
	 	Interest	 	 	33	 
	2.09
	 	Fees	 	 	34	 
	2.10
	 	Computation of Interest and Fees	 	 	35	 
	2.11
	 	Evidence of Debt	 	 	35	 
	2.12
	 	Payments Generally; Administrative Agent’s Clawback	 	 	36	 
	2.13
	 	Sharing of Payments by Lenders	 	 	37	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE III. 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	TAXES, YIELD PROTECTION AND ILLEGALITY 	 	 	 	 
	 
	 	 	 	 	 	 
	3.01
	 	Taxes	 	 	38	 
	3.02
	 	Illegality	 	 	40	 
	3.03
	 	Inability to Determine Rates	 	 	41	 
	3.04
	 	Increased Costs	 	 	41	 
	3.05
	 	Compensation for Losses	 	 	42	 
	3.06
	 	Mitigation Obligations; Replacement of Lenders; Certificates	 	 	43	 
	3.07
	 	Survival	 	 	44	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE IV. 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 	 	 	 	 
	 
	 	 	 	 	 	 
	4.01
	 	Conditions of Initial Credit Extension	 	 	44	 
	4.02
	 	Conditions to All Credit Extensions	 	 	47	 






-i-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE V.  	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	REPRESENTATIONS AND WARRANTIES  	 	 	 	 
	 
	 	 	 	 	 	 
	5.01
	 	Due Incorporation, Qualification, Etc	 	 	48	 
	5.02
	 	Authority	 	 	48	 
	5.03
	 	Enforceability	 	 	48	 
	5.04
	 	Non-Contravention	 	 	48	 
	5.05
	 	Approvals	 	 	48	 
	5.06
	 	No Violation or Default	 	 	49	 
	5.07
	 	Litigation	 	 	49	 
	5.08
	 	Title; Possession Under Leases	 	 	49	 
	5.09
	 	Financial Statements	 	 	49	 
	5.10
	 	Employee Benefit Plans	 	 	50	 
	5.11
	 	Other Regulations	 	 	51	 
	5.12
	 	Patent and Other Rights	 	 	52	 
	5.13
	 	Governmental Charges	 	 	52	 
	5.14
	 	Margin Stock	 	 	52	 
	5.15
	 	Subsidiaries, Etc	 	 	52	 
	5.16
	 	Solvency, Etc	 	 	53	 
	5.17
	 	Senior Debt	 	 	53	 
	5.18
	 	No Withholding, Etc	 	 	53	 
	5.19
	 	No Material Adverse Effect; No Acquired Business Material Adverse Effect	 	 	53	 
	5.20
	 	Accuracy of Information Furnished	 	 	53	 
	5.21
	 	Representations as to Foreign Obligors	 	 	53	 
	5.22
	 	Taxpayer Identification Number; Other Identifying Information	 	 	54	 
	5.23
	 	Acquisition Agreement	 	 	55	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VI.  	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	AFFIRMATIVE COVENANTS  	 	 	 	 
	 
	 	 	 	 	 	 
	6.01
	 	Information	 	 	55	 
	6.02
	 	Books and Records	 	 	58	 
	6.03
	 	Inspections	 	 	58	 
	6.04
	 	Insurance	 	 	59	 
	6.05
	 	Taxes, Governmental Charges and Other Indebtedness	 	 	59	 
	6.06
	 	Use of Proceeds	 	 	59	 
	6.07
	 	General Business Operations	 	 	59	 
	6.08
	 	Pari Passu Ranking	 	 	60	 
	6.09
	 	Designated Senior Debt	 	 	60	 
	6.10
	 	PATRIOT Act	 	 	60	 
	6.11
	 	Guarantors	 	 	60	 
	6.12
	 	Notes Repayments	 	 	61	 
	6.13
	 	Company Notice	 	 	61	 






-ii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VII.  	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	NEGATIVE COVENANTS  	 	 	 	 
	 
	 	 	 	 	 	 
	7.01
	 	Indebtedness	 	 	61	 
	7.02
	 	Liens	 	 	63	 
	7.03
	 	Asset Dispositions	 	 	66	 
	7.04
	 	Mergers, Acquisitions, Etc	 	 	68	 
	7.05
	 	Investments	 	 	69	 
	7.06
	 	Dividends, Redemptions, Etc	 	 	70	 
	7.07
	 	Change in Business	 	 	71	 
	7.08
	 	Employee Benefit Plans	 	 	71	 
	7.09
	 	Transactions with Affiliates	 	 	71	 
	7.10
	 	Accounting Changes	 	 	72	 
	7.11
	 	Burdensome Contractual Obligations	 	 	72	 
	7.12
	 	Senior Debt	 	 	73	 
	7.13
	 	Financial Covenant	 	 	73	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VIII.  	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	EVENTS OF DEFAULT AND REMEDIES  	 	 	 	 
	 
	 	 	 	 	 	 
	8.01
	 	Events of Default	 	 	74	 
	8.02
	 	Remedies upon Event of Default	 	 	76	 
	8.03
	 	Application of Funds	 	 	77	 
	8.04
	 	Lender Rate Contract Remedies	 	 	77	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE IX. 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	ADMINISTRATIVE AGENT 	 	 	 	 
	 
	 	 	 	 	 	 
	9.01
	 	Appointment and Authority	 	 	78	 
	9.02
	 	Rights as a Lender	 	 	78	 
	9.03
	 	Exculpatory Provisions	 	 	78	 
	9.04
	 	Reliance by Administrative Agent	 	 	79	 
	9.05
	 	Delegation of Duties	 	 	79	 
	9.06
	 	Resignation of Administrative Agent	 	 	79	 
	9.07
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	80	 
	9.08
	 	No Other Duties, Etc	 	 	80	 
	9.09
	 	Administrative Agent May File Proofs of Claim	 	 	80	 
	9.10
	 	Guaranty Matters	 	 	81	 
	9.11
	 	Withholding Tax	 	 	81	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE X.  	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	MISCELLANEOUS 	 	 	 	 
	 
	 	 	 	 	 	 
	10.01
	 	Amendments, Etc	 	 	82	 
	10.02
	 	Notices; Effectiveness; Electronic Communication	 	 	83	 






-iii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	10.03
	 	No Waiver; Cumulative Remedies	 	 	85	 
	10.04
	 	Expenses; Indemnity; Damage Waiver	 	 	85	 
	10.05
	 	Payments Set Aside	 	 	87	 
	10.06
	 	Successors and Assigns	 	 	87	 
	10.07
	 	Treatment of Certain Information; Confidentiality	 	 	92	 
	10.08
	 	Right of Setoff	 	 	92	 
	10.09
	 	Interest Rate Limitation	 	 	93	 
	10.10
	 	Counterparts; Integration; Effectiveness	 	 	93	 
	10.11
	 	Survival of Representations and Warranties	 	 	93	 
	10.12
	 	Severability	 	 	94	 
	10.13
	 	Replacement of Lenders	 	 	94	 
	10.14
	 	Governing Law; Jurisdiction; Etc	 	 	95	 
	10.15
	 	Waiver of Jury Trial	 	 	96	 
	10.16
	 	California Judicial Reference	 	 	96	 
	10.17
	 	No Advisory or Fiduciary Responsibility	 	 	96	 
	10.18
	 	Judgment Currency	 	 	97	 
	10.19
	 	Bermuda Branch; Full Recourse Obligations	 	 	97	 






	 	 	 
	 
	SCHEDULES
	 
	 	 
	1.01(m)
	 	Mandatory Cost Formulae
	2.01
	 	Commitments
	5.07
	 	Litigation
	5.15(i)
	 	Subsidiaries
	5.15(ii)
	 	Acquired Business Organizational Chart
	5.22
	 	Identification Numbers for the Company and each Subsidiary Guarantor that is a 
	 
	 	Domestic Subsidiary
	7.01
	 	Existing Secured Indebtedness
	7.05
	 	Investment Policy; Investments
	10.02
	 	Administrative Agent’s Office; Certain Addresses for Notices





EXHIBITS



	 	 	 	 
	Exhibit A
	 	Form of Loan Notice	 
	Exhibit B
	 	[Reserved]	 
	Exhibit C-1
	 	Form of A Closing Date Note	 
	Exhibit C-2
	 	Form of B Closing Date Note	 
	Exhibit C-3
	 	Form of A-1 Delayed Draw Note	 
	Exhibit C-4
	 	Form of A-2 Delayed Draw Note	 
	Exhibit C-5
	 	Form of A-3 Delayed Draw Note	 
	Exhibit D
	 	Form of Compliance Certificate	 
	Exhibit E
	 	Form of Assignment and Assumption	 
	Exhibit F
	 	Form of Company Guaranty	 






-iv- 









 






	 	 	 	 
	 	 	 	Page
	Exhibit G
	 	Form of Subsidiary Guaranty	 
	Exhibit H
	 	[Reserved]	 
	Exhibit I
	 	[Reserved]	 
	Exhibit J
	 	Form of Guarantor Release Certificate	 







-v-











 





TERM LOAN AGREEMENT




          This TERM LOAN AGREEMENT (this “Agreement”) is entered into as of October 1, 2007,
among FLEXTRONICS INTERNATIONAL LTD., a Singapore corporation (the “Company” or
“FIL”), acting, subject to Section 10.19 hereof, through its Bermuda branch, FLEXTRONICS
INTERNATIONAL USA, INC., a California corporation (the “U.S. 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
CITICORP NORTH AMERICA, INC., as Administrative Agent.




          The Company has requested that the Lenders provide a term credit facility, which is intended
to be used to finance the acquisition of Solectron Corporation (the “Acquired Business”) by
a newly-formed, Wholly-Owned Subsidiary of the Company (the “Acquiror”), 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:




          “A Closing Date Commitment” means, with respect to each A Closing Date Lender, the
commitment, if any, of such A Closing Date Lender to make an A Closing Date Loan hereunder on the
Closing Date in the amount set forth in Schedule 2.01. The aggregate amount of the A
Closing Date Lenders’ A Closing Date Commitments is $609,000,000.




          “A Closing Date Lender” means a Lender with an A Closing Date Commitment or an
outstanding A Closing Date Loan.




          “A Closing Date Loans” means the term loans made by the A Closing Date Lenders to the
Company pursuant to Section 2.01(a)(i). Each A Closing Date Loan will either be a Base Rate
Closing Date Loan or a Eurocurrency Rate Closing Date Loan.




          “A Closing Date Note” means a promissory note of the Company payable to any A Closing
Date Lender or its registered assigns, in substantially the form of Exhibit C-1 hereto,
evidencing the aggregate Indebtedness of the Company to such A Closing Date Lender resulting from
the A Closing Date Loans made by such A Closing Date Lender.




          “A Delayed Draw Commitment” means, with respect to any Lender, such Lender’s A-1
Delayed Draw Commitment, A-2 Delayed Draw Commitment or A-3 Delayed Draw Commitment, as the context
may require, and are referred to collectively as the “A Delayed Draw Commitments”. The aggregate amount of the A Delayed Draw Commitments as of
the Closing Date is $650,000,000.




 









 








          “A Lender” means an A Closing Date Lender, an A-1 Delayed Draw Lender, an A-2 Delayed
Draw Lender or an A-3 Delayed Draw Lender, as the context may require, and are referred to
collectively as the “A Lenders”.




          “A Loan” means an A Closing Date Loan, an A-1 Delayed Draw Loan, an A-2 Delayed Draw
Loan or an A-3 Delayed Draw Loan as the context may require, and are referred to collectively as
the “A Loans”.




          “A Maturity Date” means October 1, 2014; provided, however, that if such date is not a
Business Day, the A Maturity Date shall be the next preceding Business Day.




          “A-1 Delayed Draw Availability Period” means the period commencing on the Closing Date
and ending on January 1, 2008; provided, that if the A-1 Delayed Draw Commitments are
terminated pursuant to Section 2.06, the A-1 Delayed Draw Availability Period shall end on the date
of such termination.




          “A-1 Delayed Draw Commitment” means, with respect to each A-1 Delayed Draw Lender, the
commitment, if any, of such A-1 Delayed Draw Lender to make A-1 Delayed Draw Loans hereunder from
time to time during the A-1 Delayed Draw Availability Period up to the amount set forth on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such A-1 Delayed Draw
Lender assumed its A-1 Delayed Draw Commitment, as applicable, as the same may be (a) reduced from
time to time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to
assignments by or to such A-1 Delayed Draw Lender pursuant to Section 10.06. The aggregate amount
of the A-1 Delayed Draw Lenders’ A-1 Delayed Draw Commitments on the Closing Date is $300,000,000.




          “A-1 Delayed Draw Commitment Fee” has the meaning specified in Section 2.09(a).




          “A-1 Delayed Draw Lender” means a Lender with an A-1 Delayed Draw Commitment or an
outstanding A-1 Delayed Draw Loan.




          “A-1 Delayed Draw Loan” means a term loan made by an A-1 Delayed Draw Lender to the
U.S. Borrower pursuant to Section 2.01(b)(i) (it being understood and agreed that any conversion or
continuation of a Closing Date Loan shall not constitute an “A-1 Delayed Draw Loan”). Each A-1
Delayed Draw Loan will either be a Base Rate Delayed Draw Loan or a Eurocurrency Rate Delayed Draw
Loan.




          “A-1 Delayed Draw Note” means a promissory note of the U.S. Borrower payable to any
A-1 Delayed Draw Lender or its registered assigns, in substantially the form of Exhibit C-3
hereto, evidencing the aggregate Indebtedness of the U.S. Borrower to such A-1 Delayed Draw Lender
resulting from the A-1 Delayed Draw Loans made by such A-1 Delayed Draw Lender.




          “A-2 Delayed Draw Availability Period” means the period commencing on the Closing Date
and ending on January 1, 2008; provided, that if the A-2 Delayed Draw Commitments are terminated pursuant to Section 2.06, the A-2 Delayed Draw Availability Period shall
end on the date of such termination.




2









 








          “A-2 Delayed Draw Commitment” means, with respect to each A-2 Delayed Draw Lender, the
commitment, if any, of such A-2 Delayed Draw Lender to make A-2 Delayed Draw Loans hereunder from
time to time during the A-2 Delayed Draw Availability Period up to the amount set forth on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such A-2 Delayed Draw
Lender assumed its A-2 Delayed Draw Commitment, as applicable, as the same may be (a) reduced from
time to time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to
assignments by or to such A-2 Delayed Draw Lender pursuant to Section 10.06. The aggregate amount
of the A-2 Delayed Draw Lenders’ A-2 Delayed Draw Commitments on the Closing Date is $150,000,000.




          “A-2 Delayed Draw Commitment Fee” has the meaning specified in Section 2.09(b).




          “A-2 Delayed Draw Lender” means a Lender with an A-2 Delayed Draw Commitment or an
outstanding A-2 Delayed Draw Loan.




          “A-2 Delayed Draw Loan” means a term loan made by an A-2 Delayed Draw Lender to the
Company pursuant to Section 2.01(b)(ii) (it being understood and agreed that any conversion or
continuation of a Closing Date Loan shall not constitute an “A-2 Delayed Draw Loan”). Each A-2
Delayed Draw Loan will either be a Base Rate Loan or a Eurocurrency Rate Loan.




          “A-2 Delayed Draw Note” means a promissory note of the Company payable to any A-2
Delayed Draw Lender or its registered assigns, in substantially the form of Exhibit C-4
hereto, evidencing the aggregate Indebtedness of the Company to such A-2 Delayed Draw Lender
resulting from the A-2 Delayed Draw Loans made by such A-2 Delayed Draw Lender.




          “A-3 Delayed Draw Availability Period” means the period commencing on the Closing Date
and ending on January 1, 2008; provided, that if the A-3 Delayed Draw Commitments are
terminated pursuant to Section 2.06, the A-3 Delayed Draw Availability Period shall end on the date
of such termination.




          “A-3 Delayed Draw Commitment” means, with respect to each A-3 Delayed Draw Lender, the
commitment, if any, of such A-3 Delayed Draw Lender to make A-3 Delayed Draw Loans hereunder from
time to time during the A-3 Delayed Draw Availability Period up to the amount set forth on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such A-3 Delayed Draw
Lender assumed its A-3 Delayed Draw Commitment, as applicable, as the same may be (a) reduced from
time to time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to
assignments by or to such A-3 Delayed Draw Lender pursuant to Section 10.06. The aggregate amount
of the A-3 Delayed Draw Lenders’ A-3 Delayed Draw Commitments on the Closing Date is $200,000,000.




          “A-3 Delayed Draw Commitment Fee” has the meaning specified in Section 2.09(c).




          “A-3 Delayed Draw Lender” means a Lender with an A-3 Delayed Draw Commitment or an
outstanding A-3 Delayed Draw Loan.




3









 





          “A-3 Delayed Draw Loan” means a term loan made by an A-3 Delayed Draw Lender to the
Company pursuant to Section 2.01(b)(iii) (it being understood and agreed that any conversion or
continuation of a Closing Date Loan shall not constitute an “A-3 Delayed Draw Loan”). Each A-3
Delayed Draw Loan will either be a Base Rate Delayed Draw Loan or a Eurocurrency Rate Delayed Draw
Loan.




          “A-3 Delayed Draw Note” means a promissory note of the Company payable to any A-3
Delayed Draw Lender or its registered assigns, in substantially the form of Exhibit C-5
hereto, evidencing the aggregate Indebtedness of the Company to such A-3 Delayed Draw Lender
resulting from the A-3 Delayed Draw Loans made by such A-3 Delayed Draw Lender.




          “Acquired Business” has the meaning specified in the preamble hereto.




          “Acquired Business Material Adverse Effect” means any change, event, development,
violation, inaccuracy, circumstance or effect (any such item, an “Effect”) that
individually or when taken together with all other Effects that have occurred since August 25, 2006
and that are not otherwise disclosed in the Company Disclosure Letter (as defined in the
Acquisition Agreement) has had or would reasonably be likely to be materially adverse to the
business, operations, financial condition or results of operations of the Acquired Business taken
as a whole with its Subsidiaries; provided, however, that no Effect resulting from,
related to or arising out of any of the following shall be deemed to be or constitute an Acquired
Business Material Adverse Effect, and no Effect resulting from, relating to or arising out of the
following (by themselves or when aggregated with any other facts, circumstances, changes or
effects) shall be taken into account when determining whether an Acquired Business Material Adverse
Effect has occurred or may, would or could occur: (a) general economic, political or financial
market conditions in the United States or any other jurisdiction in which the Acquired Business or
any of its Subsidiaries has substantial business or operations, and any changes therein (including
any changes arising out of acts of terrorism, war, weather conditions or other force majeure
events), to the extent that such conditions and/or changes do not have a material disproportionate
affect on the Acquired Business taken as a whole with its Subsidiaries as compared to other
similarly situated participants in the industry in which the Acquired Business and its Subsidiaries
operate; (b) conditions in the industry in which the Acquired Business and its Subsidiaries
operate, and any changes therein (including any changes arising out of acts of terrorism, war,
weather conditions or other force majeure events), to the extent that such conditions and/or
changes do not have a material disproportionate effect on the Acquired Business taken as a whole
with its Subsidiaries as compared to other similarly situated participants in the industry in which
the Acquired Business and its Subsidiaries operate; (c) changes in Legal Requirements (as defined
in the Acquisition Agreement), GAAP (as defined in the Acquisition Agreement) or international
accounting standards, or interpretations thereof; (d) acts of terrorism, war, weather conditions or
other force majeure events; (e) compliance with the express terms of the Acquisition Agreement
which require that the Acquired Business take actions in furtherance of the transactions
contemplated by the Acquisition Agreement or any of its Subsidiaries take actions or the failure of
the Acquired Business or any of its Subsidiaries to take any action that is prohibited by the
Acquisition Agreement; (f) any legal claims made or brought by any current or former stockholders
of the
Acquired Business (on their own behalf or on behalf of the Acquired Business) or other legal
proceedings arising out of or related to the Acquisition Agreement or any of the transactions
con-





4









 







templated thereby; (g) the announcement or pendency of the Acquisition Agreement and the
transactions contemplated thereby, including, without limitation, (1) shortfalls or any decline in
revenue, margins or profitability, (2) the loss or departure of officers or other employees, (3)
the termination or potential termination of (or the failure or potential failure to renew) any
contracts with customers, suppliers, distributors or other business partners, and (4) any other
negative development in customer, supplier, distributor or other business partner relationships,
whether as a direct or indirect result of the loss or departure of officers or employees or
otherwise; (h) any actions taken, or failure to take action, or such other Effects, in each case,
which the Company has approved, consented to or requested in writing; (i) changes in the Acquired
Business’ stock price or the trading volume of the Acquired Business’ stock, in and of itself; or
(j) any failure to meet any published analyst estimates or expectations of revenue, earnings or
other financial performance or results of operations for any period, in and of itself, or any
failure to meet its internal budgets, plans or forecasts of its revenues, earnings or other
financial performance or results of operations, in and of itself (it being understood and hereby
agreed that the facts or occurrences giving rise or contributing to such failure that are not
otherwise excluded from the definition of an “Acquired Business Material Adverse Effect” may be
deemed to constitute, or be taken unto account in determining whether there has been, is or would
be, an “Acquired Business Material Adverse Effect”).




          “Acquiror” has the meaning specified in the preamble hereto.




          “Acquisition” means the acquisition by the Acquiror of the Acquired Business pursuant
to the Acquisition Agreement.




          “Acquisition Agreement” means the Agreement and Plan of Merger among the Acquired
Business, the Company and Saturn Merger Corp., dated as of June 4, 2007.




          “Acquisition Related Agreements” has the meaning specified in Section 5.23.




          “Act” has the meaning specified in Section 6.10.




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




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




          “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02.




          “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.




5









 








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




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




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




          “Applicable Foreign Obligor Documents” has the meaning specified in Section 5.21(a).




          “Applicable Margin” means the following percentages per annum equal to: (a) with
respect to Loans that are Eurocurrency Rate Loans, 2.25%, and (b) with respect to Loans that are
Base Rate Loans, 1.25%.




          “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.




          “Applicable Rate” means (i) for the period commencing on the Closing Date and ending
on the 45th calendar day following the Closing Date, 0.25% per annum and (ii) for the period
commencing on the 46th calendar day following the Closing Date, 0.50% per annum.




          “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.




          “Arranger” means Citigroup Global Markets Inc., in its capacity as sole lead arranger
and bookrunner.




          “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.




          “B Closing Date Commitment” means, with respect to each B Closing Date Lender, the
commitment, if any, of such B Closing Date Lender to make a B Closing Date Loan hereunder on the
Closing Date in the amount set forth in Schedule 2.01. The aggregate amount of the B
Closing Date Lenders’ B Closing Date Commitments is $500,000,000.




          “B Closing Date Lender” means a Lender with a B Closing Date Commitment or an
outstanding B Closing Date Loan.




          “B Closing Date Loans” means the term loans made by the B Closing Date Lenders to the
Company pursuant to Section 2.01(a)(ii). Each B Closing Date Loan will either be a Base Rate
Closing Date Loan or a Eurocurrency Rate Closing Date Loan.




6









 








          “B Closing Date Note” means a promissory note of the Company payable to any B Closing
Date Lender or its registered assigns, in substantially the form of Exhibit C-2 hereto,
evidencing the aggregate Indebtedness of the Company to such B Closing Date Lender resulting from
the B Closing Date Loans made by such B Closing Date Lender.




          “B
Maturity Date” means October 1, 2012; provided, however, that if such date is not a
Business Day, the B Maturity Date shall be the next preceding Business Day.




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




          “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 Citibank, N.A. as its “prime rate.” The “prime rate” is a
rate set by Citibank, N.A. based upon various factors including Citibank, N.A.’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 Citibank, N.A. shall take effect at the opening of business on the day specified in
the public announcement of such change.




          “Base Rate Closing Date Loan” means any Closing Date Loan that bears interest at a
rate determined by reference to the Base Rate.




          “Base Rate Delayed Draw Loan” means any Delayed Draw Loan that bears interest at a
rate determined by reference to the Base Rate.




          “Base Rate Loan” means any Base Rate Closing Date Loan or Base Rate Delayed Draw Loan.




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




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




          “Borrowing” means a borrowing consisting of simultaneous A Closing Date Loans, B
Closing Date Loans, A-1 Delayed Draw Loans, A-2 Delayed Draw Loans or A-3 Delayed Draw Loans of the
same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each
of the applicable Lenders pursuant to Section 2.01.




          “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 is located and if such day relates to any interest rate
settings as to a Eurocurrency Rate Loan, any fundings, disbursements, settlements and payments in
respect of any such Eurocurrency Rate Loan, or any other dealings 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.




7









 








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




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




          “Class”, when used in reference to, (i) any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are A Closing Date Loans, B Closing Date Loans, A-1
Delayed Draw Loans, A-2 Delayed Draw Loans or A-3 Delayed Draw Loans and (ii) any Lender, refers to
such Lender in its capacity as a holder of A Closing Date Loans, B Closing Date Loans, A-1 Delayed
Draw Loans, A-2 Delayed Draw Loans or A-3 Delayed Draw Loans, as applicable.




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




          “Closing Date Commitment” means an A Closing Date Commitment or a B Closing Date
Commitment, as the context may require, and are referred to collectively as the “Closing Date
Commitments”.




          “Closing Date Loan” means an A Closing Date Loan or B Closing Date Loan as the context
may require, and are referred to collectively as the “Closing Date Loans”.




          “Closing Date Pro Forma Consolidated Balance Sheet” has the meaning specified in
Section 5.09(c).




          “Closing Date Refinancing” means the repayment in full and termination of the
Solectron Credit Agreement on the Closing Date.




          “Closing Date Transaction” means the Acquisition, the Closing Date Refinancing, the
execution and delivery of the Loan Documents and the Borrowings made hereunder on the



8









 






Closing Date and the payment of all fees and expenses to be paid on or prior to the Closing
Date and owing in connection with the foregoing.




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




          “Commitment” means an A Closing Date Commitment, B Closing Date Commitment, A-1
Delayed Draw Commitment, A-2 Delayed Draw Commitment or an A-3 Delayed Draw Commitment, as the
context may require, and are referred to collectively as the “Commitments”.




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




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




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




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




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




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




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




          “Credit Extension” means a Borrowing.




9









 








          “Debt Rating” means, as of any date of determination, either the long term issuer
credit rating of FIL as determined by S&P, or the issuer rating (PDR) of FIL as determined by
Moody’s (or, if no such issuer rating is in effect, then the corporate family rating of FIL as
determined by Moody’s) (collectively, the “Debt Ratings”).




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





       (a)     The total Indebtedness of FIL and its Subsidiaries on such date; provided, however,
that in computing the foregoing sum, there shall be excluded therefrom any Indebtedness to
the extent the proceeds of which are (1) legally segregated from FIL’s or such Subsidiaries’
other assets and (2) either (A) only held in the form of cash or cash equivalents or (B)
used by FIL or its Subsidiaries for any such purpose as may be approved in advance from time
to time by the Required Lenders; to




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



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




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




          “Default Rate” means an interest rate equal to the Base Rate plus 2% per annum;
provided, however, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Margin and any Mandatory Cost)
otherwise applicable to such Loan plus 2% per annum.




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




          “Delayed Draw Availability Period” means, collectively, the A-1 Delayed Draw
Availability Period, the A-2 Delayed Draw Availability Period and the A-3 Delayed Draw Availability
Period.




          “Delayed Draw Borrowing Date” means each occurrence of a Credit Extension in the form
of a Delayed Draw Loan.





10












 





          “Delayed Draw Lender” means an A-1 Delayed Draw Lender, an A-2 Delayed Draw Lender or
an A-3 Delayed Draw Lender, as the context may require, and are referred to collectively as the
“Delayed Draw Lenders”.




          “Delayed Draw Loan” means an A-1 Delayed Draw Loan, an A-2 Delayed Draw Loan or an A-3
Delayed Draw Loan, as the context may require, and are referred to collectively as the “Delayed
Draw Loans”.




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




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




          “EBITDA” means, with respect to FIL and its Subsidiaries for any period, the sum,
determined on a consolidated basis in accordance with GAAP, of the following:





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




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




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



          If FIL or any of its Subsidiaries acquires (whether by purchase, merger, consolidation or
otherwise) any Person as a new Subsidiary or all or substantially all of the assets or




11









 







property of any Person, during any period in respect of which EBITDA is to be determined, such
EBITDA may, in the sole discretion of FIL, be determined on a pro forma basis as if such
acquisition occurred as of the first day of such period.




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




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




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




          “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.




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




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




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




          “ERISA” means the Employee Retirement Income Security Act of 1974, as the same may
from time to time be amended or supplemented, including any rules or regulations issued in
connection therewith.




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




          “Eurocurrency Base Rate” means, for such Interest Period, 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 Dollars (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 Base Rate” for such Interest Period
shall be the rate per annum determined by the Administrative Agent to be




12









 







the rate at which deposits
in Dollars 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 Citibank, N.A. and with a term equivalent to such Interest Period would be
offered by Citibank, N.A.’s London Branch (or other Citibank, N.A. branch or Affiliate) to major
banks in the London or other offshore interbank market for Dollars at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest
Period.




          “Eurocurrency Rate” means for any Interest Period with respect to a Eurocurrency Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:




	 	 	 	 	 	 	 
	 
	 	Eurocurrency Rate =	 	Eurocurrency Base Rate	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	1.00 - Eurocurrency Reserve Percentage	 	 






          “Eurocurrency Rate Closing Date Loan” means any Closing Date Loan that bears interest
at a rate determined by reference to the Eurocurrency Rate.




          “Eurocurrency Rate Delayed Draw Loan” means any Delayed Draw Loan that bears interest
at a rate determined by reference to the Eurocurrency Rate.




          “Eurocurrency Rate Loan” means any Eurocurrency Rate Closing Date Loan or Eurocurrency
Rate Delayed Draw Loan.




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




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




          “Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations
of the SEC promulgated thereunder.




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




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of any Loan Party
hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of overall net income taxes), in each case (i) 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 or (ii) by reason of any connection between the jurisdiction
imposing such tax and the Administrative Agent or such Lender (or its applicable Lending Of-




13









 







fice) or other recipient other than a connection arising solely from the Administrative Agent or such Lender
(or its applicable Lending Office) or other recipient having executed, delivered or performed its
obligations under, or received payment under or enforced, this Agreement or any
other Loan Document, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any jurisdiction described in (a) above, (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by either Borrower under Section 10.13), with respect to an
A-1 Delayed Draw Loan made to the U.S. Borrower, any United States federal withholding tax that is
imposed on amounts payable to such Foreign Lender under the law in effect at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office), 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 U.S. Borrower with respect to such
withholding tax pursuant to Section 3.01(a) and (d) any Taxes that are 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).




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




          “FASB” means the Financial Accounting Standards Board.




          “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 Citibank, N.A. on such day on such transactions as determined by the Administrative
Agent.




          “Fee Letter” means that certain Senior Credit Facility Fee Letter dated June 4, 2007,
between FIL and Citigroup Global Markets Inc.




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




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




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




14









 





          “Flextronics (Netherlands)” means Flextronics International Europe B.V., a Netherlands
company.




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




          “Foreign Lender” means, with respect to either 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 the Company and any Loan Party that is a Foreign Subsidiary.




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




          “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 FASB 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).




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





15









 








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




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




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




          “Guarantor Release Certificate” has the meaning specified in Section 6.11(b).




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




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




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




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





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



16









 







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




      (b)     All obligations of such Person for the deferred purchase price of property or
services (including obligations under letters of credit and other credit facilities which
secure or finance such purchase price), and the capitalized amount reported for income tax
purposes with respect to Synthetic Lease Obligations; provided that “Indebtedness”
shall not at any date of determination include obligations consisting of accounts payable
for property or services or the deferred purchase price of property to the extent (i) such
obligations have a regularly-scheduled maturity date or payment due date that is less than
one year after such date, and (ii) solely for purposes of Section 8.01(e), the non-payment
of such obligations as of such date is subject to a good faith dispute, including by virtue
of a bona fide right of setoff by such Person;




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




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




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




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




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



17









 




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




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




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




          “Ineligible Material Subsidiary” means, at any time of determination, any Material
Subsidiary (a) that is then prohibited by any applicable Governmental Rule from acting as a
Subsidiary Guarantor under the Guaranty, and the Company is unable, with the exercise of
commercially reasonable efforts, to cause such Material Subsidiary to comply with such Governmental
Rule and become a Subsidiary Guarantor, (b) that is a “controlled foreign corporation” (within the
meaning of Section 957(a) of the Code) and that then would cause any Borrower (if such Borrower
were a U.S. Person within the meaning of Section 7701(a)(30) of the Code) or any Domestic
Subsidiary to incur or suffer an inclusion of income under Section 951(a)(1)(B) of the Code that is
reasonably and substantially likely to result in a significant tax liability or significant adverse
effect on the Company’s consolidated financial accounting results, as a result of acting as a
Subsidiary Guarantor under the Subsidiary Guaranty (other than in the case of a Person that,
immediately prior to becoming a Subsidiary of such a Domestic Subsidiary, was a Subsidiary
Guarantor), or (c) that is a Foreign Subsidiary as to which the representations and warranties set
forth in Section 5.21 (other than subsection (c) thereof), after the exercise of commercially
reasonable efforts by the Company and such Subsidiary, would not be true and correct were it to
execute the Guaranty. Notwithstanding the foregoing, until such time as Flextronics (Netherlands)
shall become a Subsidiary Guarantor (as such term is defined in the Revolving Credit Agreement)
under the Revolving Credit Agreement, Flextronics (Netherlands) shall be deemed to be an Ineligible
Material Subsidiary. Notwithstanding the foregoing, with respect to any Material Subsidiary (as at
any date of determination) of the Company organized under the laws of The People’s Republic of
China, until the earlier to occur of (x) such Material Subsidiary becoming a Guarantor (as such
term is defined in the Revolving Credit Agreement) under the Revolving Credit Agreement and (y)
March 31, 2008 (it being understood that if such Subsidiary otherwise constitutes an Eligible
Material Subsidiary as of such date, the Company shall thereafter comply with Sections 6.01(f) and
6.11(a) hereof with respect to such Subsidiary), such Material Subsidiary shall be deemed to be an
Ineligible Material Subsidiary.




          “Information” has the meaning specified in Section 10.07.




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




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





18









 








          “Interest Expense” shall mean, with respect to any Person for any period, the sum,
determined on a consolidated basis in accordance with GAAP, of (a) all interest expense of such
Person during such period (including interest attributable to Capital Leases) plus (b) all fees in
respect of outstanding letters of credit paid, accrued or scheduled for payment by such Person
during such period.




          “Interest Payment Date” means (a)(i) as to any Eurocurrency Rate Loan that is an A
Loan, the last day of each Interest Period applicable to such Loan and the A Maturity Date and (ii)
as to any Eurocurrency Rate Loan that is a B Closing Date Loan, the last day of each Interest Period applicable to such Loan and the B 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)(i) as to any Base Rate Loan that is an A Loan, the last Business Day of each March,
June, September and December and the A Maturity Date and (ii) as to any Base Rate Loan that is a B
Closing Date Loan, the last Business Day of each March, June, September and December and the B
Maturity Date.




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





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




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




       (c)     with respect to any A Loan, no Interest Period shall extend beyond the A Maturity
Date; and




       (d)     with respect to any B Closing Date Loan, no Interest Period shall extend beyond the
B Maturity Date.



          “Investment” of any Person means any loan or advance of funds by such Person to any
other Person (other than advances to employees of such Person for moving and travel expenses,
drawing accounts, advances to employees of such Person for indemnification, and similar
expenditures in the ordinary course of business), any purchase or other acquisition of any Equity
Securities or Indebtedness of any other Person, any capital contribution by such Person to or any
other investment by such Person in any other Person (including any Guaranty Obligations of such
Person and any indebtedness of such Person of the type described in clause (f) of the defini-





19









 





tion of “Indebtedness” on behalf of any other Person); provided, however, that Investments shall not
include (a) accounts receivable or other indebtedness owed by customers of such Person which are
current assets and arose from sales of goods or services in the ordinary course of such Person’s
business or (b) prepaid expenses of such Person incurred and prepaid in the ordinary course of
business.




          “Judgment Currency” has the meaning specified in Section 10.18.




          “Lender” or “Lenders” each have the meaning specified in the introductory
paragraph hereto; and, as the context requires, includes, without limitation, any A Closing Date
Lender, any B Closing Date Lender, any A-1 Delayed Draw Lender, any A-2 Delayed Draw
Lender, any A-3 Delayed Draw Lender, and their respective successors and assigns as permitted
hereunder, each of which is referred to as a “Lender”; provided, that for purposes of
making Loans to the Borrowers, any Lender may from time to time delegate in its stead one or more
of its Affiliates as such lenders, duly authorized to engage in such lending activities in the
jurisdiction of such Borrower, in which event the term “Lender” shall also include any such
designated Affiliate as in effect from time to time, provided further, that, for all purposes of
voting or consenting with respect to (a) any amendment, supplementation or modification of any Loan
Document, (b) any waiver of any requirements of any Loan Document or any Default or Event of
Default and its consequences, or (c) any other matter as to which a Lender may vote or consent
pursuant to this Agreement, the Lender making such delegation shall be deemed the “Lender” rather
than such Affiliate, which shall not be entitled to vote or consent.




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




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




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




          “Loan” means an extension of credit by a Lender to a Borrower under Article II in the
form of a Closing Date Loan or a Delayed Draw Loan.




          “Loan Documents” means this Agreement, each Note, the Fee Letter and the Guaranties.




          “Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of 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.





20












 





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




          “Loan Repayment Date” has the meaning specified in Section 2.03.




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




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




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




          “Material Subsidiary” means, at any time of determination, (a) any Subsidiary of FIL
that (i) had Adjusted Revenues during the immediately preceding fiscal year equal to or greater
than 5% of the consolidated total revenues of FIL and its Subsidiaries during such preceding year
or (ii) held assets, excluding Intercompany Receivables and Investments in FIL or any other
Subsidiary of FIL, on the last day of the immediately preceding fiscal year equal to or greater
than 10% of the consolidated total assets of FIL and its Subsidiaries on such date, in each case as
set forth or reflected in the audited Financial Statements dated March 31, 2007 or the then
most-recently available audited Financial Statements provided pursuant to Section 6.01 hereof; and
(b) following any Material Subsidiary Recalculation Event, any Subsidiary of FIL that, on a pro
forma basis (after giving effect to such Material Subsidiary Recalculation Event and all other
Material Subsidiary Recalculation Events occurring on or prior to the date thereof), (1) had
Adjusted Revenues during the twelve-month period ended as of the last day of the immediately
preceding fiscal quarter for which Financial Statements are available, greater than 5% of the
consolidated total revenues of FIL and its Subsidiaries during such twelve-month period or (2)
holds assets, excluding Intercompany Receivables and Investments in FIL or any other Subsidiary of
FIL, equal to or greater than 10% of the consolidated total assets of FIL and its Subsidiaries
(including the assets of such Subsidiary and any other Subsidiaries acquired) (other than
Flextronics (Netherlands)) as of the last day of the immediately preceding fiscal quarter for which
Financial Statements are available (such tests in this clause (b), together, the “Pro Forma MS
Test”). For purposes of the Pro Forma MS Test in clause (b)(1), a Material Subsidiary
Recalculation Event shall be deemed to have occurred as of the first day of the applicable twelve


21









 







month period. Notwithstanding the foregoing, for purposes of this definition, (i) the Adjusted
Revenues and assets of Flextronics (Netherlands) shall be excluded from the calculation of the
consolidated total revenues of FIL and its Subsidiaries and the consolidated total assets of FIL
and its Subsidiaries, respectively, for so long as Flextronics (Netherlands) is an Ineligible
Material Subsidiary and (ii) each of Flextronics (Hungary) and Flextronics Sales (Mauritius) shall
at all times be deemed to be a Material Subsidiary notwithstanding the fact that the amount of its
Adjusted Revenues or assets is less than the thresholds set forth above.




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




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




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




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




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




          “Non-Consenting Lender” shall have the meaning specified in Section 10.13.




          “Non-Core Assets” means those assets and businesses (including the Equity Securities
of any Subsidiary engaged exclusively in such businesses) designated in good faith by FIL’s board
of directors from time to time as “Non-Core Assets” and set forth in a certificate or certificates
delivered by FIL to Administrative Agent of FIL’s chief financial officer to the effect


22









 







that FIL’s board of directors has duly designated such assets and businesses as “Non-Core Assets” in good
faith.




          “Note” means an A Closing Date Note, B Closing Date Note, A-1 Delayed Draw Note, A-2 Delayed Draw Note or A-3 Delayed Draw Note as the context may require, and are
referred to collectively as the “Notes”.




          “Notes Repayments” means the redemption, repurchase, discharge or defeasance of the
Solectron Senior Subordinated Notes and the conversion or repurchase of the Solectron Convertible
Senior Notes (to the extent such Solectron Convertible Senior Notes are duly and validly
surrendered by the holders thereof for conversion or repurchase).




          “Obligations” means (i) 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, 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 and (ii) unless
otherwise agreed upon in writing by the applicable Lender party thereto, all obligations of the
Borrowers, monetary or otherwise, under each Lender Rate Contract.




          “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.




          “Overnight Rate” means, for any day, the greater of (i) the Federal Funds Rate and
(ii) an overnight rate determined by the Administrative Agent, in accordance with banking industry
rules on interbank compensation.




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




          “Participant Register” 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.




          “Permitted Expenses” means (i) any portion of the merger consideration for the
Acquisition not funded in cash on the Closing Date from the proceeds of a Closing Date Loan
hereunder (including expenses relating to (x) the payment of merger consideration to the holders of
outstanding stock options of the Acquired Business exercised on or prior to the Closing Date, (y)
the payment of cash in lieu of fractional shares of the Acquired Business and (z) any increase in
the cash portion of the Acquisition consideration resulting from adjustments in the calculation of
such Acquisition consideration made subsequent to the delivery of Loan Notices for Closing


23









 







Date Loans hereunder), (ii) fees and expenses incurred by the Company and its Subsidiaries in connection
with the consummation of the Acquisition and (iii) fees and expenses in connection with the Notes
Repayments incurred by the Company and its Subsidiaries following the Closing Date.




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




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




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




          “Platform” has the meaning specified in Section 6.01.




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




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




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




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




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




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




          “Reportable Event” has the meaning specified in ERISA and applicable regulations
thereunder.




          “Request for Credit Extension” means, with respect to a Borrowing, conversion or
continuation of Loans, a Loan Notice.




          “Required Lenders” means Lenders having more than 50% of the sum of all outstanding
Loans and, (i) prior to the termination of the A-1 Delayed Draw Availability Period, the unused A-1
Delayed Draw Commitments, (ii) prior to the termination of the A-2 Delayed Draw


24









 







Availability Period, the unused A-2 Delayed Draw Commitments and (iii) prior to the termination of the A-3
Delayed Draw Availability Period, the unused A-3 Delayed Draw Commitments.




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




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




          “Revolving Credit Agreement” means the Credit Agreement dated as of May 9, 2007, among
FIL acting through its Bermuda branch, certain Subsidiaries of FIL party thereto, each lender from
time to time party thereto, Bank of America, N.A., as administrative agent and swing line lender,
Bank of America, N.A. and The Bank of Nova Scotia, as L/C issuers, and the other agents party
thereto, as amended, amended and restated, modified, supplemented, renewed, replaced or refinanced
from time to time.




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




          “Same Day Funds” means immediately available funds.




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




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




          “Solectron Convertible Senior Notes” means, collectively (i) the 0.5% Convertible
Senior Notes due 2034 and (ii) the 0.5% Convertible Notes Series B due 2034, each issued by the
Acquired Business.




25









 








          “Solectron Credit Agreement” means that certain Credit Agreement dated as of August
28, 2006, among the Acquired Business, certain Subsidiaries of the Acquired Business party thereto,
each issuer of letters of credit from time to time party thereto, Bank of America, N.A., as
administrative agent and collateral agent, and the other agents and lending institutions from time
to time party thereto, as amended, amended and restated, supplemented or otherwise modified from
time to time.




          “Solectron Notes” means, collectively, the Solectron Convertible Senior Notes and the
Solectron Senior Subordinated Notes.




          “Solectron Senior Subordinated Notes” means the 8.00% Senior Subordinated Notes due
2016 issued by Solectron Global Finance Ltd. and guaranteed by the Acquired Business.




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




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




          “Subordinated Indebtedness” means Indebtedness of either Borrower or any Subsidiary of
either Borrower that is subordinated to the Obligations.




          “Subordinated Indenture” means, for so long as any Indebtedness shall be outstanding
under any such Subordinated Indenture, collectively, (a) the Indenture dated as of June 29, 2000 by
and between FIL and Chase Manhattan Bank and Trust Company, National Association with respect to up
to $1,000,000,000 of 9 7/8% Senior Subordinated Notes due 2010, (b) the Indenture dated as of May
8, 2003 by and between FIL and J.P. Morgan Trust Company, National Association with respect to up
to $400,000,000 of 6 1/2% Senior Subordinated Notes due 2013, (c) the Indenture dated as of August
5, 2003 by and between FIL and J.P. Morgan Trust Company, National Association with respect to up
to $500,000,000 of 1% Convertible Subordinated Notes due 2010, (d) the Indenture dated as of
November 17, 2004 by and between FIL and J.P. Morgan Trust Company, National Association with
respect to up to $500,000,000 of 6 1/4% Senior Subordinated Notes due 2014 and (e) any other
document, instrument or agreement evidencing Subordinated Indebtedness.




          “Subsidiary” of any Person means (a) any corporation of which more than 50% of the
issued and outstanding Equity Securities having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting power upon the occurrence of
any contingency) are at the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such Person’s other


26









 







Subsidiaries, (b) any partnership, joint venture, limited liability company or other association of
which more than 50% of the equity interest having the power to vote, direct or control the
management of such partnership, joint venture or other association is at the time owned and
controlled by such Person, by such Person and one or more of the other Subsidiaries or by one or
more of such Person’s other Subsidiaries, or (c) any other Person included in the Financial
Statements of such Person on a consolidated basis. All references in this Agreement and the other
Loan Documents to Subsidiaries of FIL shall, unless otherwise indicated, include all direct and
indirect Subsidiaries of FIL.




          “Subsidiary Guarantors” means, collectively, each Person that is now or hereafter
becomes an Eligible Material Subsidiary.




          “Subsidiary Guaranty” means the Subsidiary Guaranty made by the Subsidiary Guarantors
in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit
G.




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




          “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 the claim for which, upon the insolvency or bankruptcy of such Person, would be characterized
consistently with indebtedness of such Person (without regard to accounting treatment).




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




          “Transactions” means, collectively, the Closing Date Transaction and the Notes
Repayments.




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




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




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




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




          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:




27









 









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




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




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



          1.03   Accounting Terms.




          (a)     Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the audited Financial Statements dated as of March
31, 2007, 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


28









 







computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative
Agent and the Lenders financial statements and other documents as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP.




          (c)     Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Company and its Subsidiaries or to the determination of
any amount for the Company and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be deemed to include each variable interest entity that the Company is
required to consolidate pursuant to FASB Interpretation No. 46 — Consolidation of Variable
Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest
entity were a Subsidiary as defined herein.




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




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




ARTICLE II.




THE COMMITMENTS AND CREDIT EXTENSIONS




          2.01   Loans. Subject to the terms and conditions and relying upon the representations and warranties
herein set forth, each Lender agrees, severally and not jointly:





      (a)     (i) to make an A Closing Date Loan to the Company on the Closing Date in the
principal amount not to exceed its A Closing Date Commitment; and




               (ii) to make a B Closing Date Loan to the Company on the Closing Date in the principal
amount not to exceed its B Closing Date Commitment; and




      (b)     (i) to make an A-1 Delayed Draw Loan to the U.S. Borrower from time to time during
the A-1 Delayed Draw Availability Period in a principal amount not exceeding its A-1 Delayed
Draw Commitment for the purpose of (x) paying the applicable repurchase, conversion (solely
with respect to the Solectron Convertible Senior Notes), redemption, discharge or defeasance
amount, as applicable, in connection with the Notes Repayments (and to pay fees and expenses
incurred in connection therewith) and (y) funding any Permitted Expenses in an amount,
together with any amounts funded pursuant to Section 2.01(b)(ii)(y) and Section
2.01(b)(iii)(y), not to exceed $50,000,000;




               (ii) to make an A-2 Delayed Draw Loan to the Company from time to time during the A-2
Delayed Draw Availability Period in a principal amount not exceeding its A-2 Delayed Draw
Commitment for the purpose of (x) paying the applicable repurchase,



29









 







conversion (solely with respect to the Solectron Convertible Senior Notes), redemption, discharge or defeasance
amount, as applicable, in connection with the Notes Repayments (and to pay fees and expenses incurred in connection therewith) and (y) funding any
Permitted Expenses in an amount, together with any amounts funded pursuant to Section
2.01(b)(i)(y) and Section 2.01(b)(iii)(y), not to exceed $50,000,000;




               (iii)      so long as no A-1 Delayed Draw Commitments or A-2 Delayed Draw Commitments are
then outstanding, to make an A-3 Delayed Draw Loan to the Company from time to time during
the A-3 Delayed Draw Availability Period in a principal amount not exceeding its A-3 Delayed
Draw Commitment for the purpose of (x) paying the applicable repurchase, conversion (solely
with respect to the Solectron Convertible Senior Notes), redemption, discharge or defeasance
amount, as applicable, in connection with the Notes Repayments (and to pay fees and expenses
incurred in connection therewith) and (y) funding any Permitted Expenses in an amount,
together with any amounts funded pursuant to Section 2.01(b)(i)(y) and Section
2.01(b)(ii)(y), not to exceed $50,000,000.


It is understood and agreed that Delayed Draw Loans under clause (b) above shall be made on no more
than three occasions in the aggregate; provided that if multiple Delayed Draw Loans are
made on the same day (whether consisting of one or more Classes or Types of Loans or whether made
to one or both Borrowers), such combined Credit Extension shall be deemed to be a single occasion.



Amounts paid or prepaid in respect of Loans may not be reborrowed.




          2.02   Borrowings, Conversions and Continuations of Loans.




          (a)      Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurocurrency Rate Loans shall be made upon the Company’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than (i) 10:00 a.m. three Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or of any conversion
of Eurocurrency Rate Loans to Base Rate Loans and (ii) 4:00 p.m. on the Business Day prior to the
date of any Borrowing of Base Rate 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
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. Each Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (A)
whether the Borrowers are requesting a Borrowing of Closing Date Loans or Delayed Draw Loans, a
conversion of Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (B)
the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be
a Business Day), (C) the principal amount of Loans to be borrowed, converted or continued, (D) the
Type of Loans to be borrowed or to which existing Loans are to be converted, (E) the Class of Loans
to be borrowed and (F) if applicable, the duration of the Interest Period with respect thereto. If
the Com-


30









 







pany fails to specify a Type of Loan in a Loan Notice or if the Company fails to give a
timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or
converted to, Base Rate Loans. 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 Loan Notice, but fails to specify an Interest Period, it will be deemed to
have specified an Interest Period of one month. Notwithstanding the foregoing or anything to the
contrary elsewhere herein, any Loan Notice that is in respect of a Borrowing of Delayed Draw Loans
(but not in respect of any conversion or continuation thereof) shall provide for one or more
Borrowings aggregating to not less than $15,000,000 under such Loan Notice (aggregating, for this
purpose, all related Loan Notices for Borrowings on the same date which, pursuant to Section 2.01,
constitute one occasion) unless such lesser amount represents the entire amount of all Delayed Draw
Commitments then outstanding.




          (b)     Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
applicable Lender (i.e., A Closing Date Lender, B Closing Date Lender, A-1 Delayed Draw Lender, A-2
Delayed Draw Lender or A-3 Delayed Draw Lender) of the ratable amount of the applicable Loans, and
if no timely notice of a conversion or continuation is provided by the Company, the Administrative
Agent shall notify each applicable Lender of the details of any automatic conversion to Base Rate
Loans, as described in the preceding subsection. In the case of a Borrowing, each applicable
Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at
the Administrative Agent’s Office not later than 10:00 a.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02
(and if such Borrowing is in respect of the Closing Date Loans, Section 4.01), the Administrative
Agent shall make all funds so received available to the applicable Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of such Borrower on the
books of the Administrative Agent 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 such Borrower.




          (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 without the consent of the Required Lenders.




          (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 the Administrative Agent’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.




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





31











 





          2.03    Amortization of Borrowings. Each Borrower shall pay to the Administrative Agent,
for the account of the Lenders, on the last day of each March, June, September and December,
beginning with December 31, 2007, or if any such date is not a Business Day, on the immediately
preceding Business Day (each such date, a “Loan Repayment Date”), a principal amount of
(i)(x) the A Closing Date Loans made to such Borrower equal to 0.25% per calendar quarter of the
original principal amount thereof (as adjusted from time to time pursuant to Section 2.05(a)) and
(y) the outstanding Delayed Draw Loans made to such Borrower (if any) equal to 0.25% per calendar
quarter of the aggregate principal amount thereof drawn on each Delayed Draw Borrowing Date that
has occurred on or prior to the date of each scheduled amortization payment (as adjusted from time
to time pursuant to Section 2.05(a)) and (ii) the B Closing Date Loans made to such Borrower equal
to 0.25% per calendar quarter of the original principal amount thereof (as adjusted from time to
time pursuant to Section 2.05(a)) in each case, with the balance of such A Loans due at the A
Maturity Date and the balance of such B Closing Date Loans due at the B Maturity Date, together in
each case with accrued and unpaid interest on the principal amount to be paid to but excluding the
date of such payment. To the extent not previously paid, all A Loans shall be due and payable on
the A Maturity Date and all B Closing Date Loans shall be due and payable on the B Maturity Date.




          2.04    [Reserved].




          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 A Loans and/or B Closing Date Loans in whole or in part;
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 and
(B) on the date of prepayment of Base Rate Loans; (ii) any prepayment 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;
and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount
thereof then outstanding. Each such notice shall specify (i) the date and amount of such
prepayment, (ii) the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be
prepaid, the Interest Period(s) of such Loans and (iii) whether the Loans to be prepaid are A Loans
or B Closing Date Loans. The Administrative Agent will promptly notify each Lender of its receipt
of each such notice, and of the ratable amount of such prepayment owing to each Lender. 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 prepayment
of A Loans pursuant to this Section 2.05(a) made prior to the first anniversary of the Closing Date
shall be accompanied by a premium payable by the applicable Borrower equal to one percent (1%) of
the principal amount of the A Loans so prepaid.




          (b)      Any prepayment of A Loans pursuant to Section 2.05(a) shall be applied to A Loans then
outstanding on a pro rata basis, in each case to reduce scheduled repayments required under Section
2.03, first, in direct order to such scheduled repayments due on the next four Loan Repayment Dates
occurring following such repayment and, second (to the extent of any balance), on a pro rata basis
among the repayments remaining to be made on each other




32









 







Loan Repayment Date. Any prepayment of B Closing Date Loans pursuant to Section 2.05(a) shall
be applied to B Closing Date Loans then outstanding on a pro rata basis, in each case to reduce
scheduled repayments required under Section 2.03, first, in direct order to such scheduled
repayments due on the next four Loan Repayment Dates occurring following such repayment and, second
(to the extent of any balance), on a pro rata basis among the repayments remaining to be made on
each other Loan Repayment Date.




          2.06    Termination or Reduction of A Delayed Draw Commitments. The Company may, upon
notice to the Administrative Agent, terminate the A Delayed Draw Commitments, or from time to time
permanently reduce the A Delayed Draw Commitments; provided that (i) any such notice shall
be received by the Administrative Agent not later than 8:00 a.m. three Business Days prior to the
date of termination or reduction and (ii) any such partial reduction shall be in an aggregate
amount of $1,000,000 or any whole multiple of $100,000 in excess thereof. The Administrative Agent
will promptly notify the Lenders of any such notice of termination or reduction of the A Delayed
Draw Commitments. Any reduction of the A Delayed Draw Commitments shall be applied, first, to the
A-3 Delayed Draw Commitment of each A-3 Delayed Draw Lender according to its ratable amount of such
A-3 Delayed Draw Commitments and second, in accordance with the request of the Company specified in
such notice of termination or reduction of the A Delayed Draw Commitments (or, if not so specified,
on a pro rata basis), to either the A-1 Delayed Draw Commitment of each A-1 Delayed Draw Lender
according to its ratable amount of such A-1 Delayed Draw Commitments or to the A-2 Delayed Draw
Commitment of each A-2 Delayed Draw Lender according to its ratable amount of such A-2 Delayed Draw
Commitments. All fees accrued until the effective date of any termination of the A Delayed Draw
Commitments shall be paid on the effective date of such termination.




          2.07    Repayment of Loans. The applicable Borrower shall repay to the A Lenders on the
A Maturity Date the aggregate principal amount of A Loans made to such Borrower outstanding on such
date. The Company shall repay to the B Closing Date Lenders on the B Maturity Date the aggregate
principal amount of B Closing Date Loans made to the Company outstanding on such date.




          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 Margin 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; and (ii) each Base Rate Loan
shall bear interest on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the Applicable Margin.




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




33









 








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




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




          (iv)     Interest accruing under this Section 2.08(b) shall be due and payable upon demand by any
Lender.




          (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; provided that (i)
interest accrued pursuant to Section 2.08(b) shall to the extent set forth therein be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Eurocurrency Rate Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of
such conversion. 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.




          2.09   Fees.




          (a)     A-1 Delayed Draw Commitment Fee. The Company shall pay to the Administrative
Agent for the account of each A-1 Delayed Draw Lender a commitment fee (the “A-1 Delayed Draw
Commitment Fee”) equal to the Applicable Rate times the actual daily unused amount of the A-1
Delayed Draw Commitment of such Lender during the period from and including the Closing Date to but
excluding the last day of the A-1 Delayed Draw Availability Period. Accrued A-1 Delayed Draw
Commitment Fees shall be payable in arrears (A) on December 31, 2007, and (B) on the last day of
the A-1 Delayed Draw Availability Period, commencing on the first such date to occur after the date
hereof (without duplication), provided, that if such day is not a Business Day, the accrued
A-1 Delayed Draw Commitment Fees shall be payable on the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such A-1 Delayed Draw Commitment Fees
shall be payable on the next preceding Business Day.




          (b)     A-2 Delayed Draw Commitment Fee. The Company shall pay to the Administrative
Agent for the account of each A-2 Delayed Draw Lender a commitment fee (the “A-2 Delayed Draw
Commitment Fee”) equal to the Applicable Rate times the actual daily unused amount of the A-2
Delayed Draw Commitment of such Lender during the period from and including the Closing Date to but
excluding the last day of the A-2 Delayed Draw Availability Pe-




34









 







riod. Accrued A-2 Delayed Draw Commitment Fees shall be payable in arrears (A) on
December 31, 2007, and (B) on the last day of the A-2 Delayed Draw Availability Period, commencing
on the first such date to occur after the date hereof (without duplication), provided, that
if such day is not a Business Day, the accrued A-2 Delayed Draw Commitment Fees shall be payable on
the next succeeding Business Day unless such Business Day falls in another calendar month, in which
case such A-2 Delayed Draw Commitment Fees shall be payable on the next preceding Business Day.




          (c)      A-3 Delayed Draw Commitment Fee. The Company shall pay to the Administrative
Agent for the account of each A-3 Delayed Draw Lender a commitment fee (the “A-3 Delayed Draw
Commitment Fee”) equal to the Applicable Rate times the actual daily unused amount of the A-3
Delayed Draw Commitment of such Lender during the period from and including the Closing Date to but
excluding the last day of the A-3 Delayed Draw Availability Period. Accrued A-3 Delayed Draw
Commitment Fees shall be payable in arrears (A) on December 31, 2007, and (B) on the last day of
the A-3 Delayed Draw Availability Period, commencing on the first such date to occur after the date
hereof (without duplication), provided, that if such day is not a Business Day, the accrued
A-3 Delayed Draw Commitment Fees shall be payable on the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such A-3 Delayed Draw Commitment Fees
shall be payable on the next preceding Business Day.




          (d)      Other Fees. The Company shall pay to the Arranger 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.




          2.10    Computation of Interest and Fees. All computations of interest for Base Rate
Loans when the Base Rate is determined by Citibank, N.A.’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). 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. 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




35









 







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
and maturity of its Loans and payments with respect thereto.




          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, 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. The Administrative Agent will promptly distribute to each Lender its
ratable amount of such payment in like funds as received by wire transfer to such Lender’s Lending
Office. All payments received by the Administrative Agent after 11:00 a.m. shall in each case be
deemed received on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by any Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.




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





36









 







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




          (ii)      Payments by Borrowers; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders 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 the amount due. In such event, if such Borrower has not in fact made
such payment, then each of the Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender, 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 return such funds (in like funds as received from such Lender) to such Lender, without
interest.




          (d)      Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of
any Lender to make any Loan, to fund any such participation or to make any payment under Section
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 Loan 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 Loans made by it resulting in such Lender’s receiving payment of a proportion of the
aggregate amount of such Loans or participations and accrued interest thereon greater than its pro
rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a)
notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans of the other Lenders, or make such other adjustments as shall




37









 







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 Loans
and other amounts owing them, provided that the provisions of this Section shall not be
construed to apply to (x) any payment made by either 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 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 Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Borrower in the amount
of such participation.




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 any Loan Party 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 Loan Party or the Administrative Agent shall be required by applicable law to
deduct any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum
payable by the applicable Loan Party shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable under this Section)
the Administrative Agent or Lender receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the applicable Loan Party or the Administrative Agent shall make
such deductions and (iii) the applicable Loan Party or the Administrative Agent 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 and each Lender, within 20 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
or such Lender, as the case may be, 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 (with a copy to the Administrative




38









 







Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.




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




          (e)     Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a Borrower is resident for
tax purposes, or from which payments are made to such Foreign Lender, or under any treaty to which
any 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 (provided the Administrative Agent shall be under no obligation to so request), 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. Any Lender’s
obligation under the prior sentence when a Borrower is a Foreign Obligor or when the withholding
tax in question is not a U.S. federal withholding tax, shall apply only if the Company has made a
request for such documentation. Each Lender shall promptly notify the Company and the
Administrative Agent of any change in circumstances which would modify or render invalid any
previously claimed exemption or reduction. In addition, any Lender, if requested by the Company or
the Administrative Agent (provided the Administrative Agent shall be under no obligation to
so request), shall deliver such other documentation prescribed by applicable law or reasonably
requested by the Company or the Administrative Agent (provided the Administrative Agent
shall be under no obligation to so request) 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.




          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 the Company and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Company or the Administrative Agent) 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
(A) such Foreign Lender is not a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) such Foreign Lender is not a “10 percent shareholder” of the Company within



39









 






the meaning of section 881(c)(3)(B) of the Code, (C) any interest payment received by such
Foreign Lender hereunder or under any other Loan Document is not effectively connected with
the conduct of a trade or business in the United States, or (D) such Foreign Lender is not 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.



          (f)      Treatment of Certain Refunds. If the Administrative Agent or any Lender
determines, in its sole discretion, that it has received a refund of any Indemnified 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 3.01, 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 3.01 with respect to the Indemnified Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender, 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 or such Lender, agrees to repay the amount paid over to such
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such
Lender is required to repay such refund to such Governmental Authority. This subsection (f) shall
not be construed to require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes that it deems confidential) to such
Borrower or any other Person.




          3.02   Illegality. If any Lender determines that any Requirements of Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans 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 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 Dollars, or to convert Base Rate 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,
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.




40









 








          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 are not being offered to banks in the applicable offshore
interbank market for Dollars for the applicable amount and Interest Period of such Eurocurrency
Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurocurrency Base
Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan, or (c)
the Eurocurrency Base Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the Company
and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate
Loans 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 or, failing
that, will be deemed to have converted such request into a request for a Borrowing of Base Rate
Loans in the amount specified therein.




          3.04   Increased Costs.




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





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




      (ii)       subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Loan made by it, or change the basis of taxation of payments to such Lender
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);




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




      (iv)      impose on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurocurrency Rate Loans made by such Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Rate Loan (or any Loan in the case of clause (a)(ii) above), or of
maintaining its obligation to make any such Loan, or to increase the cost to such Lender, or to
reduce the amount of any sum received or receivable by such Lender hereunder with respect to




41









 







any Eurocurrency Rate Loan (whether of principal, interest or any other amount), then, upon request of
such Lender, the Company will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.




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




          (c)      Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lender’s right to demand such compensation, provided that neither Borrower shall be
required to compensate a Lender 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 notifies the Company of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).




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





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




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




      (c)      [reserved]; or




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


including any loss of anticipated profits, any foreign exchange losses and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from




42









 







fees payable to terminate the deposits from which such funds were obtained or from the performance
of any foreign exchange contract. The Company shall also pay or cause the U.S. Borrower to pay any
customary administrative fees charged by such Lender in connection with the foregoing.




          Failure or delay on the part of any Lender to demand compensation pursuant to this Section
3.05 shall not constitute a waiver of such Lender’s right to demand such compensation,
provided that neither Borrower shall be required to compensate a Lender pursuant to this
Section 3.05 for any loss, cost or expense incurred more than nine months prior to the date that
such Lender notifies the Company of the act or omission giving rise to such loss, cost or
expense and such Lender’s intention to claim compensation therefor.




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




          3.06    Mitigation Obligations; Replacement of Lenders; Certificates.




          (a)       Designation of a Different Lending Office. 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, or take other steps, if,
in the judgment of such Lender, such designation or assignment or steps (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 U.S. Borrower to
pay, within 10 days of the request therefor, all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.




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




          (c)       Certificates for Reimbursement. A certificate of a Lender setting forth the basis
for and a calculation of the amount or amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in subsection (a) or (b) of Section 3.04 or Section 3.05
and delivered to the Company shall be conclusive absent manifest error. The Company




43









 







shall pay (or cause the U.S. Borrower to pay) such Lender the amount shown as due on any such certificate within
10 days after receipt thereof.




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




ARTICLE IV.




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




          4.01   Conditions of Initial Credit Extension. The obligation of each Lender to make
the initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the
following conditions precedent:





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




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




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




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




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



44









 






           (v)    a certificate of the secretary or an assistant secretary (or comparable
officer) or a director of each Loan Party certifying (a) that attached thereto is a
true and correct copy of the by-laws (or comparable document) of such Loan Party as
in effect (or, if any such Loan Party is organized under the laws of any
jurisdiction outside the United States, any comparable document provided for in the
respective corporate laws of that jurisdiction), (b) that attached thereto are true
and correct copies of resolutions duly adopted by the board of directors of such
Loan Party (or other comparable enabling action) and continuing in effect,
which (i) authorize the execution, delivery and performance by such Person of the
Loan Documents to be executed by such Person and the consummation of the
transactions contemplated thereby and (ii) designate the officers, directors and
attorneys authorized so to execute, deliver and perform on behalf of such Person and
(c) that there are no proceedings for the dissolution or liquidation of such Person,
together with a certified English translation thereof (if appropriate);




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




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




	 	(1)	 	Curtis, Mallet-Prevost, Colt & Mosle LLP, U.S.
counsel for FIL and its Subsidiaries;
	 
	 	(2)	 	Paul, Chong & Nathan, Malaysian (including
Labuan) counsel for FIL and its Subsidiaries;
	 
	 	(3)	 	Allen & Gledhill, Singapore counsel for FIL and
its Subsidiaries;
	 
	 	(4)	 	Muhammad R C Uteem LLM TEP, Mauritius counsel
for FIL and its Subsidiaries;
	 
	 	(5)	 	Heenan Blaikie LLP, Canadian counsel for FIL
and its Subsidiaries; and
	 
	 	(6)	 	Nagy És Trócsányi, Hungarian counsel for FIL
and its Subsidiaries;






           (viii)   a certificate of a Responsible Officer of each Loan Party either (A)
attaching copies of all consents, licenses and approvals required in connection



45









 






with the execution, delivery and performance by such Loan Party and the validity against
such Loan Party of the Loan Documents to which it is a party, and stating that such
consents, licenses and approvals shall be in full force and effect, or (B) stating
that no such consents, licenses or approvals are so required;




           (ix)    a certificate signed by a Responsible Officer of the Company certifying
(A) that the conditions specified in Section 4.01(e) and Section 4.02(a) have
been satisfied, (B) no Acquired Business Material Adverse Effect has occurred
and (C) the current Debt Ratings;




           (x)    evidence that (1) the Solectron Credit Agreement has been or concurrently
with the Closing Date is being terminated and all letters of credit thereunder
cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all
Liens securing obligations under such credit agreements have been or concurrently
with the Closing Date are being released and (3) arrangements satisfactory to the
Administrative Agent relating to the Notes Repayments have been made;




           (xi)    evidence satisfactory to the Administrative Agent that the Obligations (to
the extent constituting principal and interest) are “Designated Senior Debt” for
purposes of and as defined in each of the Subordinated Indentures;




           (xii)   the executed copy of the Acquisition Agreement and all other related
documentation (without amendment, modification or waiver thereof which is adverse to
the Lenders (as reasonably determined by the Administrative Agent) without the prior
consent of the Lenders);




           (xiii)   true correct and complete copies of the Financial Statements, Closing
Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section
5.09; and




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



46









 






      (d)      Evidence that the Closing Date Transaction shall have been consummated
substantially concurrently with the Closing Date on the terms set forth in the Acquisition
Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders
(as reasonably determined by the Administrative Agent) without the prior consent of the
Lenders).




      (e)      The representations and warranties of (i) the Borrowers contained in Article V and
(ii) each Loan Party contained in each other Loan Document or in any document furnished at
any time under or in connection herewith or therewith, shall be (A) in
the case of representations and warranties that are qualified as to materiality, true
and correct, and (B) in the case of representations and warranties that are not qualified as
to materiality, true and correct in all material respects, in each case on and as of the
Closing Date, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct or true and correct
in all material respects, as the case may be, as of such earlier date; provided that
(x) the representations and warranties contained in Section 5.09 shall be deemed to refer to
the most recent Financial Statements furnished pursuant to subsections (a) and (b) of
Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section
5.19(a) shall not be a condition precedent to the funding of any Loans.


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 Loan Notice requesting only a conversion of Loans to the
other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions
precedent:





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




      (b)      The Administrative Agent shall have received a Request for Credit Extension in
accordance with the requirements hereof.


Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of 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 condition specified in Section 4.02(a) has been
satisfied on and as of the date of the applicable Credit Extension.





47












 





ARTICLE V.




REPRESENTATIONS AND WARRANTIES




          Except as otherwise provided in Section 5.21, each Borrower represents and warrants to the
Administrative Agent and the Lenders as of the Closing Date after giving effect to the Closing Date
Transactions and as of each Delayed Draw Borrowing Date that:




          5.01     Due Incorporation, Qualification, Etc. Each Loan Party and each Significant
Subsidiary (i) is duly organized, validly existing and, in any jurisdiction in which such legal
concept is applicable, in good standing under the laws of its jurisdiction of organization, (ii)
has the power and authority to own, lease and operate its properties and carry on its business as
now conducted and (iii) is duly qualified and licensed to do business as a foreign entity in each
jurisdiction where the failure to be so qualified or licensed is reasonably and substantially
likely (alone or in the aggregate) to have a Material Adverse Effect.




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




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




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




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




48









 





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




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




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




          5.09     Financial
Statements.




          (a)        The consolidated Financial Statements of FIL and its Subsidiaries which have been
delivered to the Administrative Agent, (i) are in accordance with the books and records of FIL and
its Subsidiaries, which have been maintained in accordance with good business practice, (ii) have
been prepared in conformity with GAAP and (iii) fairly present in all material respects the
financial conditions and results of operations of FIL and its Subsidiaries as of the dates thereof
and for the periods covered thereby. Neither FIL nor any of its Subsidiaries has any Contingent
Obligations, liability for taxes or other outstanding obligations which are material in the
aggregate, except as disclosed or reflected in the Financial Statements of FIL dated




49









 







June 29, 2007, furnished by FIL to the Administrative Agent prior to the date hereof, or in the
Financial Statements delivered to the Administrative Agent pursuant to Section 6.01(a) or (b)
or except as permitted under Article VII of this Agreement.




          (b)       The consolidated Financial Statements of the Acquired Business which have been delivered
to the Administrative Agent, (i) are in accordance with the books and records of the Acquired
Business and its Subsidiaries, which have been maintained in accordance with good business
practice, (ii) have been prepared in conformity with GAAP and (iii) fairly present in all material
respects the financial conditions and results of operations of the Acquired Business and its
Subsidiaries as of the dates thereof and for the periods covered thereby. Neither the Acquired
Business nor any of its Subsidiaries has any Contingent Obligations, liability for taxes or other
outstanding obligations which are material in the aggregate, except as disclosed or reflected in
the Financial Statements of the Acquired Business dated June 1, 2007, furnished by FIL to the
Administrative Agent prior to the date hereof or except as permitted under Article VII of this
Agreement.




          (c)       The pro forma consolidated balance sheet of FIL as of June 29, 2007, after giving effect
to the Closing Date Transaction, which has been prepared based on the consolidated balance sheet of
FIL as of June 29, 2007 and financial information of the Acquired Business as of June 1, 2007 (the
“Closing Date Pro Forma Consolidated Balance Sheet”) has been prepared in good faith by
FIL, based on the assumptions stated therein (which assumptions are believed by FIL on the date
hereof and on the Closing Date to be reasonable), is based on the best information available to the
Loan Parties as of the date of delivery thereof and presents fairly in all material respects the
pro forma consolidated financial position of the Company as of such date, assuming that the Closing
Date Transaction had occurred at such date.




          (d)       On and as of the Closing Date, the projections of FIL and its Subsidiaries for the period
of Fiscal Year 2007 through and including Fiscal Year 2014 (the “Projections”) are based on
good faith estimates made by the management of FIL based on assumptions believed to be reasonable
when made, it being acknowledged and agreed that the Projections are not to be viewed as facts and
the actual results during the period or periods covered thereby may differ from the projected
results.




          5.10     Employee Benefit Plans.




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




50









 








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




          (c)     Neither any Borrower nor any ERISA Affiliate contributes to or has any material contingent
obligations to any Multiemployer Plan. Neither any Borrower nor any ERISA Affiliate has incurred
any material liability (including secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under section 4201 of ERISA or as a
result of a sale of assets described in section 4204 of ERISA. Neither any Borrower nor any ERISA
Affiliate has been notified that any Multiemployer Plan is in reorganization or insolvent under and
within the meaning of section 4241 or section 4245 of ERISA or that any Multiemployer Plan intends
to terminate or has been terminated under section 4041A of ERISA, in each case except as is not
reasonably and substantially likely (alone or in the aggregate) to have a Material Adverse Effect.




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




          5.11     Other Regulations. No Borrower or any Material Subsidiary is subject to
regulation under the Investment Company Act of 1940, the Federal Power Act, the Interstate





51









 







Commerce Act, any state public utilities code or any other Governmental Rule that limits its
ability to incur Indebtedness of the type represented by the Obligations.




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




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




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




          5.15     Subsidiaries,
Etc.





          (a)       On the Closing Date, (i) Schedule 5.15(i), as of June 29, 2007 (without giving
effect to the Acquisition), sets forth each of the Company’s Significant Subsidiaries and Material
Subsidiaries, its jurisdiction of organization, the percentages of shares owned directly or
indirectly by the Company and whether the Company owns such shares directly or, if not, the
Subsidiary of the Company that owns such shares and (ii) Schedule 5.15(ii) sets forth an
organizational chart of the Acquired Business and its Subsidiaries as of July 31, 2007, which, to
the Company’s knowledge, is true and correct in all material respects.





          (b)       After the Closing Date, Schedule 5.15(i), as updated on a quarterly basis and
following any Material Subsidiary Recalculation Event by the Borrowers in a written notice to the
Administrative Agent no later than the date set forth in Section 6.01(f)) sets forth each of FIL’s
Significant Subsidiaries and Material Subsidiaries, its jurisdiction of organization, the per-




52









 







centages of shares owned directly or indirectly by FIL and whether FIL owns such shares
directly or, if not, the Subsidiary of FIL that owns such shares.




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




          5.17     Senior Debt. The Obligations (to the extent constituting principal and interest)
constitute “Designated Senior Debt” for the purposes of and as defined in each Subordinated
Indenture.




          5.18     No Withholding, Etc. Except as otherwise disclosed by a Borrower to the
Administrative Agent from time to time (which the Administrative Agent will deliver to the
Lenders), no Borrower has actual knowledge (i) of any requirement under any Governmental Rule to
make any deduction or withholding of any nature whatsoever from any payment required to be made by
any Loan Party hereunder or under any other Loan Document or (ii) that either this Agreement or any
of the other Loan Documents is subject to Other Taxes.




          5.19     No
Material Adverse Effect; No Acquired Business Material Adverse
Effect.




          (a) Since March 31, 2007, no event has occurred and no condition exists which, alone or in the
aggregate, (i) has had (and continues to have) or (ii) is reasonably and substantially likely to
have a Material Adverse Effect.




          (b) As of the Closing Date, no Acquired Business Material Adverse Effect has occurred or is
continuing.




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





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






      (a)       Such Foreign Obligor is subject to civil and commercial Requirements of Law with
respect to its obligations under this Agreement and the other Loan Documents to which it is
a party (collectively as to such Foreign Obligor, the “Applicable Foreign Obligor
Documents”), and the execution, delivery and performance by such Foreign
Ob-



53









 






ligor of the Applicable Foreign Obligor Documents constitute and will constitute private
and commercial acts and not public or governmental acts. Neither such Foreign Obligor
nor any of its property has any immunity from jurisdiction of the courts or from any legal
process (whether through service or notice, attachment prior to judgment, attachment in aid
of execution, execution or otherwise) under the laws of the jurisdiction in which such
Foreign Obligor is organized and existing in respect of its obligations under the Applicable
Foreign Obligor Documents.




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




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




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



          5.22     Taxpayer Identification Number; Other Identifying Information. The true and
correct U.S. taxpayer identification number of each Subsidiary Guarantor that is a Domestic
Subsidiary and a party hereto on the Closing Date is set forth on Schedule 5.22. The true
and correct unique identification number of the Company that has been issued by its jurisdiction of
organization and the name of such jurisdiction are set forth on Schedule 5.22.





54









 








          5.23     Acquisition Agreement. The Company has furnished the Administrative Agent with
true and correct copies of the Acquisition Agreement and all other material agreements, documents and instruments, entered into or delivered in connection with the Acquisition
(the “Acquisition Related Agreements”). Each of the Company and, to the Company’s
knowledge, each other party to the Acquisition Agreement and the other Acquisition Related
Agreements, has duly taken all necessary organizational action to authorize the execution, delivery
and performance of the Acquisition Agreement and the other Acquisition Related Agreements and the
consummation of transactions contemplated thereby. As of the Closing Date, the Closing Date
Transaction has been consummated (or is being consummated substantially contemporaneously with the
initial credit extension hereunder) in accordance with the terms of the Acquisition Agreement. As
of the Closing Date, the representations and warranties contained in the Acquisition Agreement or
any other Acquisition Related Agreements by the Company or any other Loan Party or, to the
Company’s knowledge, any other Person, shall have been true and correct in all material respects
except for (A) any failure to be so true and correct which has not had and would not reasonably be
excepted to have, individually or in the aggregate, a Material Adverse Effect and (B) for those
representations and warranties which address matters only as of a particular date (which
representations shall have been true and correct as of such particular date, except for any failure
to be so true and correct which has not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect).




ARTICLE VI.




AFFIRMATIVE COVENANTS




          So long as any Lender shall have any Commitment hereunder or any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied:




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





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




      (b)       (i) As soon as available and in no event later than 100 days after the close of
each fiscal year of FIL, (A) copies of the audited Financial Statements of FIL (prepared on
a consolidated basis) for such year, audited by independent certified public accountants of
recognized national standing reasonably acceptable to the Administrative Agent, and (B)
copies of the unqualified opinions (or qualified opinions (other than a “going concern” or
like qualification or exception or any qualification or exception as to



55









 






the scope of such
audit) reasonably acceptable to the Administrative Agent) of such accountants, and (ii) if
and when received from such accountants in connection with the annual audited Financial
Statements of FIL (it being acknowledged and agreed that this
clause (ii) imposes no obligation to so request or obtain such certificates),
certificates of such accountants to the Administrative Agent stating that in making the
examination necessary for their opinion they have reviewed this Agreement and have obtained
no knowledge of any Default which has occurred and is continuing, or if, in the opinion of
such accountants, a Default has occurred and is continuing, a statement as to the nature
thereof;




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




     (d)       As soon as possible and in no event later than five Business Days after any
Responsible Officer of such Borrower knows of the occurrence or existence of (i) any
Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (ii) any actual or
threatened litigation or suits against any Borrower or any of FIL’s Subsidiaries involving
potential monetary damages payable by any Borrower or FIL’s Subsidiaries of $50,000,000 or
more alone or in the aggregate, (iii) any other event or condition which is reasonably and
substantially likely (alone or in the aggregate) to have a Material Adverse Effect, (iv) any
Default or (v) any event of the type described in Section 8.01(f) or (g) with respect to any
Subsidiary, so long as such Subsidiary is determined at the time of such event to be a
Significant Subsidiary, the statement of the chief executive officer, chief operating
officer, chief financial officer, treasurer, assistant treasurer, controller or senior vice
president of finance of such Borrower setting forth details of such event, condition or
Default and the action which such Borrower proposes to take with respect thereto;




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




     (f)       As soon as possible and in no event later than 55 days after the last day of each
fiscal quarter (or 100 days in the case of the last fiscal quarter of each fiscal year), or
55 days after the date of any Material Subsidiary Recalculation Event (including, for the
avoidance of doubt, the Acquisition) that would result in an additional Material Subsidiary
(based on the Pro Forma MS Test as applied as of such date), written notice of (i) any new
Significant Subsidiary acquired or established during such quarter (or as a result of such
Material Subsidiary Recalculation Event) or any other change in the information set forth in
Schedule 5.15(i) during such quarter, (ii) each Subsidiary of FIL that has become a
Material Subsidiary during such quarter (or as a result of such Material Subsidiary
Recalculation Event) and indicating for each such new Material Subsidiary whether such



56









 






Material Subsidiary is an Eligible Material Subsidiary or Ineligible Material Subsidiary and
if the latter, the reason it is an Ineligible Material Subsidiary, and (iii) each Subsidiary
that may have previously been an Ineligible Material Subsidiary but which became an Eligible
Material Subsidiary during such quarter;




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




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




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




     (j)       Such other instruments, agreements, certificates, opinions, statements, documents
and information relating to the operations or condition (financial or otherwise) of such
Borrower or FIL’s Subsidiaries, and compliance by such Borrower with the terms of this
Agreement and the other Loan Documents as Administrative Agent on behalf of itself or one or
more Lenders may from time to time reasonably request.


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




          Each Borrower hereby acknowledges that (1) the Administrative Agent will make available to the
Lenders materials and/or information provided by or on behalf of such Borrower






57









 







hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or
another similar electronic system (the “Platform”) and (2) certain of the Lenders (each, a
“Public Lender”) may have personnel who do not wish to receive material non-public
information with respect to any of the Borrowers or their respective Affiliates, or the respective
securities of any of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as
such Borrower is the issuer of any outstanding debt or equity securities that are registered
or issued pursuant to a private offering or is actively contemplating issuing any such securities
(w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers
shall be deemed to have authorized the Administrative Agent, the Arranger and the Lenders to treat
such Borrower Materials as not containing any material non-public information with respect to the
Borrowers or their respective securities for purposes of United States Federal and state securities
laws (provided, however, that to the extent such Borrower Materials constitute Information, they
shall be treated as set forth in Section 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 the Arrangers shall be entitled to treat any Borrower Materials
that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor.” Notwithstanding the foregoing, no Borrower shall be under any
obligation to mark any Borrower Materials “PUBLIC.”




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




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




58









 





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




          6.05     Taxes, Governmental Charges and Other Indebtedness. Each Borrower and FIL’s
Subsidiaries shall promptly pay and discharge when due (i) all Taxes and other Governmental Charges
prior to the date upon which penalties accrue thereon, (ii) all Indebtedness which, if unpaid,
could become a Lien upon the property of such Borrower or FIL’s Subsidiaries and (iii) subject to
any subordination provisions applicable thereto, all other Indebtedness, which in each case, alone
or in the aggregate, if unpaid, is reasonably and substantially likely to have a Material Adverse
Effect, except such Taxes, Governmental Charges or Indebtedness as may in good faith be contested
or disputed, or for which arrangements for deferred payment have been made, provided that
in each such case adequate reserves are maintained in accordance with GAAP.




          6.06     Use of Proceeds. The Borrowers shall use the proceeds of the Closing Date Loans
to consummate the Acquisition and the Closing Date Refinancing and to pay all fees and expenses in
connection therewith. The Borrowers shall use the proceeds of the Delayed Draw Loans to consummate
the Notes Repayments and to pay fees and expenses incurred in connection therewith and for the
other purposes specified in Section 2.01.




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




59









 








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




          6.09     Designated Senior Debt. The Company shall take all additional actions that may
be necessary for the Obligations (to the extent constituting principal and interest) to continue at
all times to constitute “Designated Senior Debt” or otherwise to be entitled to all the benefits of
being “senior debt” under each Subordinated Indenture.




          6.10     PATRIOT Act. Promptly following a request therefor, each Borrower shall provide
all documentation and other information that a Lender reasonably requests in order to comply with
such Lender’s ongoing obligations under applicable “know your customer” and anti-money laundering
rules and regulations, including the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (known as the USA PATRIOT Act) (the
“Act”), provided that any Lender requesting documentation or other information
under this Section 6.10 shall provide any relevant supporting documentation reasonably requested by
any Borrower responding to such request. Each Lender that is subject to the Act and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Borrower
that pursuant to the requirements of the Act, it is required to obtain, verify and record
information that identifies such Borrower, which information includes the name and address of such
Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.




          6.11     Guarantors.




          (a)       Promptly after any Person (x) is required by Section 6.01(f) to be disclosed as an
Eligible Material Subsidiary (and in any event within 30 days thereafter), or (y) becomes a
Guarantor (as defined in the Revolving Credit Agreement) or a Borrower (as defined in the Revolving
Credit Agreement) under the Revolving Credit Agreement, the Company, in each case, shall cause such
Person to (i) become a Subsidiary Guarantor by executing and delivering to the Administrative Agent
a counterpart of the Subsidiary Guaranty or such other document as the Administrative Agent shall
deem appropriate for such purpose, and (ii) deliver to the Administrative Agent documents of the
types referred to in clauses (iii), (iv), (v) and (vi) of Section 4.01(a) and favorable opinions of
counsel to such Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to in clause (i) of this Section 6.11(a)),
all in form, content and scope reasonably satisfactory to the Administrative Agent.




          (b)     (i) Upon and no later than 30 days after the delivery to the Administrative Agent of the
annual Financial Statements and accompanying Compliance Certificate pursuant to Section 6.01(b) and
(c), in relation to any Subsidiary Guarantor that has ceased to be a Material Subsidiary as of the
end of such fiscal year, or (ii) upon and no later than 30 days after the Company receives notice
that a Subsidiary Guarantor has become an Ineligible Material Subsidiary by virtue of the
satisfaction of clause (a) or (b) of the definition of “Ineligible Material Subsidiary” solely due
to a Change in Law after the date such Person became a Foreign Obligor here-





60









 







under and the Company is
unable, with the exercise of commercially reasonable efforts, to restore such Subsidiary’s status
as an Eligible Material Subsidiary (in either case, a “Releasable Subsidiary”),
provided there exists no Default (other than a Subsidiary Guarantor that has become an
Ineligible Material Subsidiary by virtue of clause (a) of the definition of “Ineligible Material
Subsidiary,” which the Company is unable, with the exercise of commercially reasonable efforts, to
resolve, as to which such proviso shall not apply), the Company may deliver to the
Administrative Agent a duly executed certificate of a Responsible Officer of the Company, in
the form of Exhibit J (“Guarantor Release Certificate”) and, upon the receipt of
such certificate by the Administrative Agent, such Releasable Subsidiary shall thereupon cease to
be a Subsidiary Guarantor, subject to the possible future application of Section 6.11(a). The
Administrative Agent shall with reasonable promptness execute and deliver such reasonable release
documentation (which shall contain appropriate representations and warranties by the Company as to
the circumstances underlying such release transaction, but shall require no representation,
warranty or other undertaking on the part of the Administrative Agent) as the Company may
reasonably request to evidence the release and termination of the Subsidiary Guaranty as to such
Releasable Subsidiary. No release of any Subsidiary Guarantor shall in any way modify, affect or
impair the enforceability of the Subsidiary Guaranty in respect of any other Subsidiary Guarantor.




          6.12     Notes Repayments. Within 91 days following the Closing Date, the Borrowers shall
have caused to be consummated the Notes Repayments, in each case in accordance with the terms of
the indentures relating thereto (without waiver, modification or other agreement materially adverse
to the Lenders).




          6.13     Company Notice. If any Solectron Convertible Senior Notes are then outstanding,
within 30 days following the Closing Date, the Borrowers shall have caused the Acquired Business to
distribute each Company Notice (as such term is defined in the indentures relating to the Solectron
Convertible Senior Notes) to the holders of the Solectron Convertible Senior Notes, in each case in
accordance with the terms of such indentures (without waiver, modification or other agreement
materially adverse to the Lenders).




ARTICLE VII.




NEGATIVE COVENANTS




          So long as any Lender shall have any Commitment hereunder or any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied:




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




          (a)       Indebtedness created under the Loan Documents;




61









 





     (b)       Indebtedness (including, for the avoidance of doubt, Indebtedness under the
Revolving Credit Agreement) that is not secured by a Lien in any asset or property of any of
the Borrowers or any of FIL’s Subsidiaries;




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




     (d)       Existing Secured Indebtedness, together with initial or successive refinancings
(which shall include any amendments, modifications, renewals, refundings or replacements)
thereof, provided that (i) the principal amount of any such refinancing does not
exceed the principal amount of the Indebtedness being refinanced (except to the extent
necessary to pay fees, expenses, underwriting discounts and prepayment penalties in
connection therewith) and (ii) the other terms and provisions of any such refinancing with
respect to maturity, redemption, prepayment, default and subordination are no less favorable
in any material respect to Lenders than the Indebtedness being refinanced;




     (e)       Indebtedness of FIL or any of FIL’s Subsidiaries owing to any Borrower, any
Guarantor or any Eligible Material Subsidiary;




     (f)       Indebtedness (including Capital Leases) under sale-leaseback transactions of fixed
assets and under initial or successive refinancings (which shall include any amendments,
modifications, renewals, refundings or replacements) of any such sale-leaseback transactions
(provided that the principal amount of any such refinancing does not exceed the
principal amount of the Indebtedness being refinanced, except to the extent necessary to pay
fees, expenses, underwriting discounts and prepayment penalties in connection therewith) in
an aggregate amount outstanding not to exceed at any time for FIL and its Subsidiaries
together $100,000,000;




     (g)     Indebtedness of a Person existing at the time such Person was acquired as a new
Subsidiary by the Company or any of its Subsidiaries (whether by merger, consolidation, or
otherwise) or assumed in connection with the acquisition of assets by the Company or any of
its Subsidiaries from a Person, in each case other than to the extent such Indebtedness was
created, incurred or assumed in contemplation of or in connection with the financing of such
acquisition, and provided such Indebtedness (other than Indebted-




62











 






ness under the Solectron Notes) ceases to exist as to the Company and its Subsidiaries by a
date no later than 180 days after the effective date of such acquisition; provided,
further, that, with respect to Indebtedness under the Solectron Notes, the Company
shall have complied with the provisions of Section 6.13; and




     (h)     Other Indebtedness that is secured by a Lien on any assets or property of any of
the Borrowers or any of FIL’s Subsidiaries (which shall (x) include, for the avoidance of
doubt, Indebtedness of the type described in subsection (f) of this Section in excess of
$100,000,000 and Indebtedness of the type described in clause (g) of this Section which is
not repaid within such 180 day period, but (y) exclude Indebtedness owing by any Borrower,
Guarantor or Eligible Material Subsidiary to any other Subsidiary of FIL which is not a
Borrower, Guarantor or Eligible Material Subsidiary, other than to the extent any such
Indebtedness described in this clause (y) arises pursuant to one or more securitization
arrangements which in the aggregate do not exceed $225,000,000 outstanding at any time),
provided that the aggregate principal amount of all such other secured Indebtedness
(excluding Indebtedness secured by cash or cash equivalents to the extent such cash or cash
equivalents are proceeds of such Indebtedness) and secured Rate Contracts (whether or not
constituting “Indebtedness”) outstanding during any fiscal quarter of FIL does not exceed
the greater of (i) $750,000,000 or (ii) 10% of Consolidated Tangible Assets as of the last
day of the immediately preceding fiscal quarter (or, if such date of determination is prior
to the date for which consolidated Financial Statements for FIL and its Subsidiaries and the
Acquired Business and its Subsidiaries are required to be available pursuant to Section
6.01(a) or (b), 10% of Consolidated Tangible Assets as determined by reference to the
Closing Date Pro Forma Consolidated Balance Sheet), and provided, further,
that for purposes of this Section 7.01 only, the “principal amount” of the obligations of
any Person in respect of any Rate Contract at any time shall be in the maximum aggregate
amount (giving effect to any netting agreements), if any, that such Person would be required
to pay if such Rate Contract were terminated at such time.



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





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




     (b)     Liens in favor of any of the Borrowers, any Eligible Material Subsidiary or any
Guarantor on all or part of the assets of Subsidiaries of any Borrower, any Eligible
Material Subsidiary or any Guarantor securing Indebtedness owing by Subsidiaries of



63









 







any of the Borrowers, any Eligible Material Subsidiary or any Guarantor, as the case may be, to
any of the Borrowers or to such other Eligible Material Subsidiary or Guarantor;




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




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




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




     (f)     encumbrances on real property consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and irregularities in the
title thereto, landlord’s or lessor’s or lessee’s Liens under leases to which a Borrower or
any of FIL’s Subsidiaries is a party (including Synthetic Lease Obligations), and other
minor Liens or encumbrances none of which interferes materially with the use of the
property, in each case which do not individually or in the aggregate have a Material Adverse
Effect;




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




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




     (i)     (x) Liens arising out of cash management, netting or set off arrangements made
between banks or financial institutions and FIL or any of its Subsidiaries in the ordinary
course of business, or over any asset held with a clearing house, and (y) other Liens
arising by operation of law or by agreement in favor of collecting or payor banks and other
banks providing cash management services, in each case, having a right of set-



64









 







off, revocation, refund or chargeback against money or instruments of FIL or any of its
Subsidiaries on deposit with or in possession of such bank to secure the payment of bank
fees and other amounts owing in the ordinary course of business;




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




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




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




     (m)     precautionary Liens over assets securitized in connection with any securitization
transaction permitted under Section 7.03;




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




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




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




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



65









 






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




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




      (t)       Liens not otherwise permitted under this Section 7.02, provided that the
aggregate fair market value of all assets subject to such Liens does not at any time exceed
$75,000,000.



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





      (a)      At any time that the Debt Rating is greater than or equal to BB+ by S&P and Ba1 by
Moody’s (such time, “Enabling Period”), such Persons may sell, lease, transfer or
otherwise dispose of (i) assets and property for fair market value (provided that
for this purpose the sale of accounts receivable pursuant to a securitization arrangement
may be sold for not less than 95% of face value); (ii) assets and property pursuant to
distributions and dividends permitted by Section 7.06; (iii) assets or property to any
Borrower or any Wholly-Owned Subsidiary of FIL from any other Borrower or any other
Subsidiary of FIL; (iv) damaged, obsolete or worn-out assets and scrap in the ordinary
course of business; and (v) duplicative or excess assets existing as a result of
acquisitions otherwise permitted pursuant to Section 7.04 and excess assets resulting from a
restructuring not otherwise prohibited hereunder; and




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




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




           (ii)     accounts receivable in securitization or financing transactions,
provided that the aggregate outstanding balance of accounts receivable so
sold by the Borrowers and FIL’s Subsidiaries together and outstanding at any time
shall not exceed 30% of the aggregate outstanding balance of accounts receivable of
FIL and FIL’s Subsidiaries at such time, provided, however, that the Borrowers and
FIL’s Subsidiaries shall not be in default of this clause (ii) upon the termination of



66









 







an Enabling Period if, as a result of sales of accounts receivable during such
Enabling Period, the outstanding balance of accounts receivable so sold by the Borrowers and FIL’s Subsidiaries exceeds 30% of the then aggregate outstanding
balance of accounts receivable of FIL and its Subsidiaries;




        (iii)     (A) duplicative or excess assets existing as a result of transactions
otherwise permitted pursuant to Section 7.04, provided that in each case the
aggregate amount of any such duplicative or excess assets sold or transferred in any
fiscal year (excluding sales or transfers during an Enabling Period) does not exceed
(together with the aggregate amount of assets sold or transferred pursuant to clause
(B) of this subsection (b)(iii)) 5% of all fixed assets (net of depreciation) held
by FIL and its Subsidiaries (including, for the avoidance of doubt, the Acquired
Business and its Subsidiaries) as of the end of the most recent fiscal quarter for
which Financial Statements have been delivered hereunder (or, if such date of
determination is prior to the date for which consolidated Financial Statements for
FIL and its Subsidiaries and the Acquired Business and its Subsidiaries are required
to be available pursuant to Section 6.01(a) or (b), 5% of all fixed assets (net of
depreciation) held by the Company and its Subsidiaries as determined by reference to
the Closing Date Pro Forma Consolidated Balance Sheet), and (B) duplicative or
excess assets existing as a result of a restructuring of the businesses of FIL or
its Subsidiaries not otherwise prohibited hereunder, provided that in each
case the aggregate amount of any such duplicative or excess assets sold or
transferred in any fiscal year (excluding sales or transfers during an Enabling
Period) does not exceed 1% of all fixed assets (net of depreciation) held by FIL and
its Subsidiaries as of the end of the immediately preceding fiscal quarter;




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




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




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




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




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




        (ix)     sales and other dispositions of assets or Investments not constituting
Non-Core Assets for fair market value, excluding sales or other dispositions



67









 







during an Enabling Period, in an aggregate amount not to exceed in any fiscal year 10% of
the total assets of FIL and its Subsidiaries at the end of the immediately preceding
fiscal year (or, if such date of determination is prior to the date for which consolidated Financial Statements for FIL and its Subsidiaries and the
Acquired Business and its Subsidiaries are required to be available pursuant to
Section 6.01(b), 10% of the total assets of FIL and its Subsidiaries (including, for
the avoidance of doubt, the Acquired Business and its Subsidiaries) determined by
reference to the Closing Date Pro Forma Consolidated Balance Sheet); and




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



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





     (a)     The Borrowers and FIL’s Subsidiaries may amalgamate or merge with each other and
with any other Person permitted to be acquired as a new Subsidiary under clause (b) below,
provided that (A) (1) in any such amalgamation or merger involving any Borrower,
such Borrower is the surviving Person and (2) in any such amalgamation or merger involving a
Guarantor, the surviving Person is an Eligible Material Subsidiary and becomes a Guarantor
by executing and delivering such documents of assumption, and related certificates and legal
opinions as the Administrative Agent may reasonably request, and (B) in each case, no
Default has occurred and is continuing on the date of, or will result after giving effect
to, any such amalgamation or merger;




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




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




           (ii)     Such Person (or line or division) is not primarily engaged in any business
substantially different from (1) the present business of the Company or any
Subsidiary (other than any such acquired Subsidiary) or (2) any business reasonably
related or ancillary thereto; and




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




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



68









 







any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving
entity.



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





      (a)      Investments, other than Investments in joint ventures or non-Wholly-Owned
Subsidiaries, permitted by the investment policy of FIL set forth in Schedule 7.05
or, if any changes to the investment policy of FIL are hereafter duly approved by the Board
of Directors of FIL, in any subsequent investment policy which is the most recent investment
policy delivered by FIL to Administrative Agent with a certificate of FIL’s chief financial
officer to the effect that such investment policy has been duly approved by FIL’s Board of
Directors and is then in effect;




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




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




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




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




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




      (g)      Deposit accounts;




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




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




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




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



69









 







            (ii)     The aggregate consideration paid by the Borrowers and FIL’s Subsidiaries
for all such Investments pursuant to this clause (j) in any fiscal year (without
duplication) does not exceed the sum of (1) 10% of the total assets of FIL and its
Subsidiaries at the end of the immediately preceding fiscal quarter (or, if such
date of determination is prior to the date for which consolidated Financial
Statements for FIL and its Subsidiaries and the Acquired Business and its
Subsidiaries are required to be available pursuant to Section 6.01(a) or (b), 10% of
the total assets of FIL and its Subsidiaries (including, for the avoidance of doubt,
the Acquired Business and its Subsidiaries) as determined by reference to the
Closing Date Pro Forma Consolidated Balance Sheet), plus (2) 75% of the Net Proceeds
received from the issuance by FIL of any Equity Securities of the type described in
clause (a) of the definition of “Equity Securities” during calendar year 2007 or
thereafter.


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




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





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




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




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




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




      (e)      Provided there exists no Default either before or after giving effect
thereto, FIL and its Subsidiaries may make distributions (including dividends) in the form
of Eq-



70









 







uity Securities of a Subsidiary or Subsidiaries the aggregate value of which
distributions together shall not exceed $800,000,000 during the term hereof,
provided that, for purposes of this clause (e), the aggregate value of any such
distribution shall be deemed to be equal to the product of (A) the value of the assets of
such Subsidiary (as shown on the Financial Statements of FIL most recently delivered
pursuant to Section 6.01(a) or (b)) and (B) the percentage of the Equity Securities in such
Subsidiary that were paid in such distribution.



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




          7.08   Employee Benefit Plans.




           (a)     None of the Borrowers or any ERISA Affiliate shall (i) adopt or institute any employee
pension benefit plan within the meaning of section 3(2) of ERISA that is subject to Title IV of
ERISA (not including any such plan of a Person existing at the time such Person was acquired by a
Borrower), (ii) take any action which will result in the partial or complete withdrawal, within the
meanings of sections 4203 and 4205 of ERISA, from a Multiemployer Plan, (iii) engage or permit any
Person to engage in any transaction prohibited by section 406 of ERISA or section 4975 of the Code
involving any Employee Benefit Plan or Multiemployer Plan which would subject any Borrower or any
ERISA Affiliate to any material tax, penalty or other liability including a liability to indemnify,
(iv) incur or allow to exist any accumulated funding deficiency (within the meaning of section 412
of the Code or section 302 of ERISA), (v) fail to make full payment when due of all amounts due as
contributions to any Employee Benefit Plan or Multiemployer Plan, (vi) fail to comply with the
requirements of section 4980B of the Code or Part 6 of Title I(B) of ERISA, or (vii) adopt any
amendment to any Employee Benefit Plan which would require the posting of security pursuant to
section 401(a)(29) of the Code, where singly or cumulatively, the above would be reasonably and
substantially likely to have a Material Adverse Effect.




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




          7.09   Transactions with Affiliates. None of the Borrowers or any of FIL’s Subsidiaries shall enter into any Contractual
Obligation with any Affiliate (other than one of the Borrowers or one of its Subsidiaries) or
engage in any other transaction with any such Affiliate except (i) upon terms at least as favorable
to such Borrower or such Subsidiary as an arm’s-length transaction with unaffiliated Persons, except as disclosed or reflected in the Financial Statements of FIL dated June 29, 2007,
furnished by FIL to the Administrative Agent prior to the date hereof, or as timely disclosed or
reflected (or to be timely disclosed or reflected) in the Financial Statements delivered to the
Administrative Agent pursuant to Section 6.01(a) or (b), (ii) compen-



71









 






sation arrangements, indemnification agreements and employee benefits plans for officers and directors duly approved by
the board of directors of the Company or such Subsidiary, or (iii) in connection with transactions
made in accordance with Section 7.04 or 7.05.




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




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





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




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




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




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



72









 






      (v)      (A) restrictions or conditions contained in the Subordinated Indenture
substantially the same as those set forth in the Subordinated Indenture existing on the
Closing Date, (B) restrictions or conditions contained in the Revolving Credit Agreement
substantially the same as those in the Revolving Credit Agreement existing on the Closing
Date, and (C) restrictions or conditions contained in instruments and agreements evidencing
Indebtedness for borrowed money, other than Subordinated Indebtedness, that are taken as a
whole no more restrictive than such restrictions and conditions contained in this Agreement;




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




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




      (viii)      restrictions or conditions contained in agreements relating to the
securitization and other similar transactions, provided that such restrictions and
conditions are limited to the property or assets that are the subject of such transactions;




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




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



          7.12   Senior Debt. None of the Borrowers or any of FIL’s Subsidiaries will designate or permit to exist any
other Indebtedness as “Designated Senior Debt” for the purposes of and as defined in each
Subordinated Indenture, other than (i) the Obligations arising under this Agreement and the
other Loan Documents, (ii) the obligations arising under the Revolving Credit Agreement and
(iii) obligations arising under facilities providing at least $50,000,000 in the aggregate of loans
or other debt or Synthetic Lease Obligations, it being acknowledged and agreed that the
Administrative Agent shall, upon the Company’s request, consent to the designation of any such debt
as “Designated Senior Debt”.




          7.13   Financial Covenant. Until the termination of this Agreement and the satisfaction in full by the Loan Parties of
all Obligations, unless the Required Lenders shall otherwise



73









 






consent in writing, FIL shall not permit its Debt/EBITDA Ratio as of the last day of any fiscal quarter to exceed 4.00:1.00.




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, in Dollars, any amount of principal of any Loan, or (ii)
within five Business Days after the same becomes due, any interest on any Loan, or any fee
due hereunder, or (iii) within five Business Days after the same becomes due, any other
amount payable hereunder or under any other Loan Document; or




      (b)      Specific Defaults. Any Borrower or any of FIL’s Subsidiaries shall fail to
observe or perform any covenant, obligation, condition or agreement set forth in Article
VII; or




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




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




      (e)      Cross-Default. (i) Any Borrower, any Guarantor or any Material Subsidiary
shall fail to make any payment on account of any Indebtedness of such Person (other



74









 







than the Obligations) when due (whether at scheduled maturity, by required prepayment, upon
acceleration or otherwise) and such failure shall continue beyond any period of grace
provided with respect thereto, if the amount of such Indebtedness exceeds $100,000,000 or
the effect of such failure is to cause, or permit the holder or holders thereof to cause,
Indebtedness of any Borrower, any Guarantor and any Material Subsidiary (other than the
Obligations) in an aggregate amount exceeding $100,000,000 to become due (whether at
scheduled maturity, by required prepayment, upon acceleration or otherwise); or (ii) any
Borrower, any Guarantor or any Material Subsidiary shall otherwise fail to observe or
perform any agreement, term or condition contained in any agreement or instrument relating
to any Indebtedness of such Person (other than the Obligations), or any other event shall
occur or condition shall exist, if the effect of such failure, event or condition is to
cause, or permit the holder or holders thereof to cause, Indebtedness of any Borrower, any
Guarantor and any Material Subsidiary (other than the Obligations) in an aggregate amount
exceeding $100,000,000 to become due (and/or to be secured by cash collateral other than
cash collateral obligations not arising from an event of default under any agreement or
instrument relating to Indebtedness incurred in connection with Synthetic Lease Obligations
or letters of credit); or




      (f)      Insolvency, Voluntary Proceedings. Any Borrower or any Significant
Subsidiary shall (i) apply for or consent to the appointment of a receiver, trustee,
liquidator or custodian of itself or of all or a substantial part of its property, (ii) be
unable, or admit in writing its inability, to pay its debts generally as they mature, (iii)
make a general assignment for the benefit of its or any of its creditors, (iv) become
insolvent (as such term may be defined or interpreted under any applicable statute), (v)
commence a voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or consent to any such relief or to the appointment of or
taking possession of its property by any official in an involuntary case or other proceeding
commenced against it, or (vi) take any action for the purpose of effecting any of the
foregoing; or any Borrower or any Material Subsidiary shall be dissolved or liquidated in
full or in part; provided, however, that the dissolution, liquidation or termination of the
existence of an Excluded Subsidiary shall not constitute an Event of Default under this
Section 8.01(f); or




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




      (h)      Judgments. (i) One or more non-interlocutory judgments, orders, decrees or
arbitration awards requiring the Borrowers and/or FIL’s Subsidiaries to pay an aggregate
amount of $100,000,000 or more (exclusive of amounts covered by insurance issued



75









 







by an insurer not an Affiliate of the Borrowers and otherwise satisfying the requirements set
forth in Section 6.04 to which the insurer does not dispute coverage) shall be rendered
against the Borrowers and/or FIL’s Subsidiaries in connection with any single or related
series of transactions, incidents or circumstances and the same shall not be satisfied,
vacated or stayed for a period of 60 consecutive days, (ii) any non-interlocutory judgment,
writ, assessment, warrant of attachment, tax lien or execution or similar process shall be
issued or levied against a substantial part of the property of any Borrower or any of FIL’s
Subsidiaries and the same (A) shall not be released, stayed, vacated or otherwise dismissed
within 60 days after issue or levy and (B) is reasonably and substantially likely to have a
Material Adverse Effect or (iii) any other non-interlocutory judgments, orders, decrees,
arbitration awards, writs, assessments, warrants of attachment, tax liens or executions or
similar processes which, alone or in the aggregate, are reasonably and substantially likely
to have a Material Adverse Effect are rendered, issued or levied; or




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




      (j)      Employee Benefit Plans. (i) Any Reportable Event which constitutes grounds
for the termination of any Employee Benefit Plan by the PBGC or for the appointment of a
trustee by the PBGC to administer any Employee Benefit Plan shall occur, or (ii) any
Employee Benefit Plan shall be terminated within the meaning of Title IV of ERISA (x) in a
distress termination, or (y) other than a distress termination and the resulting liability
is in excess of $50,000,000, or a trustee shall be appointed by the PBGC to administer any
Employee Benefit Plan; or




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



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





      (a)      declare the commitment of each Lender to make Loans to be terminated, whereupon
such commitments and obligation shall be terminated; and




      (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;


provided, however, that upon the occurrence of an actual or deemed entry of an order for relief
with respect to any Borrower under the Bankruptcy Code of the United States (or any comparable
event under non-U.S. Debtor Relief Laws), the obligation of each Lender to make Loans shall
automatically terminate, and the unpaid principal amount of all outstanding Loans and all


76









 






interest and other amounts as aforesaid shall automatically become due and payable 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), any amounts received 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 (including
fees, charges and disbursements of counsel to the respective Lenders and amounts payable
under Article III), ratably among them in proportion to the respective amounts described in
this clause Second payable to them;




     Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and other Obligations, ratably among the Lenders 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, ratably among the Lenders in proportion to the respective amounts described in
this clause Fourth held by them; and




     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Company or as otherwise required by Law.



        8.04   Lender Rate Contract Remedies. Notwithstanding any other provision of this Article VIII, each Lender or its Affiliate
which has entered into a Rate Contract with FIL or its Subsidiaries with respect to their interest
payment obligations hereunder (“Lender Rate Contract”) shall have the right, with prior
notice to the Administrative Agent, but without the approval or consent of the Administrative Agent
or any other Lender, to the extent provided by such Lender Rate Contracts, (a) to declare
an event of default, termination event or other similar event thereunder which will result in
the early termination of such Lender Rate Contract, (b) to determine net termination amounts in
accordance with the terms of such Lender Rate Contract and to set-off amounts between Lender Rate
Contracts of such Lender, and (c) to prosecute any legal action against any Borrower or any of
FIL’s Subsidiaries to enforce net amounts owing to such Lender or its Affiliate under such Lender
Rate Contracts.




77











 





ARTICLE IX.




ADMINISTRATIVE AGENT




          9.01   Appointment and Authority. Each of the Lenders hereby irrevocably appoints Citicorp
North America, Inc. 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 and the Lenders, and no 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.



78









 





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 or a Lender.




          The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (A) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (B) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (C) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (D) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (E) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.




          9.04     Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
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 that by its terms must be fulfilled
to the satisfaction of a Lender, the Administrative Agent may presume that such condition is
satisfactory to such Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan. 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 and the Company. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the






79









 







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, 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 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.




          9.07     Non-Reliance on Administrative Agent and Other Lenders. Each Lender 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 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 Bookrunner, Sole Lead Arranger
and Syndication Agent 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 or a Lender hereunder.




          9.09     Administrative Agent May File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party,
the Administrative Agent (irrespective of whether the principal of any Loan 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 enti-




80









 







tled and empowered, by intervention in such proceeding or otherwise (a) to file and prove a claim for the whole amount
of the principal and interest owing and unpaid in respect of the Loans 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 and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative
Agent and their respective agents and counsel and all other amounts due the Lenders and the
Administrative Agent under Sections 2.09 and 10.04) allowed in such judicial proceeding; and (b) to
collect and receive any monies or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by each Lender 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, 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 any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.




          9.10     Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion, to release any Guarantor from its obligations under the Subsidiary
Guaranty if there occurs a Release Date (as defined in the Subsidiary Guaranty) as to such Person.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release any Subsidiary Guarantor from its obligations under
the Subsidiary Guaranty pursuant to this Section 9.10.




          9.11     Withholding Tax. To the extent required by any applicable law, the Administrative
Agent may withhold from any payment to any Lender an amount equivalent to any applicable
withholding tax. If the Internal Revenue Service or any other authority of the United States or other
jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender for any reason (including, without limitation,
because the appropriate form was not delivered or not property executed, or because such Lender
failed to notify the Administrative Agent of a change in circumstance that rendered the exemption
from, or reduction of withholding tax ineffective), such Lender shall indemnify and hold harmless
the Administrative Agent (to the extent that the Administrative Agent has not already been
reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so) for all
amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including
any interest, additions to tax or penalties thereto, together with all expenses incurred, including
legal expenses and any other out-of-pocket expenses, whether or not such tax were correctly or
legally imposed or asserted by the relevant Government Authority. A certificate as to the amount
of such payment or liability delivered to any Lender by the Administrative Agent shall be
conclusive absent manifest error.






81









 








ARTICLE X.




MISCELLANEOUS




          10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Company or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or
the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent (which
acknowledgment the Administrative Agent shall provide promptly and in any event within three
Business Days following its actual receipt of an amendment or waiver countersigned by the Required
Lenders, the Company and other applicable Loan Party, if any), and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:





     (a)     waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;




     (b)     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 of interest specified herein on, any Loan, or
(subject to clause (iii) of the second proviso to this Section 10.01) any premium payable
pursuant to Section 2.05(a) or 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 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)     [reserved];




     (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



82









 






        (h)       release the Company from the Company Guaranty or all or substantially all of the
value of the Subsidiary Guaranty without the written consent of each Lender, except to the
extent the release of any Subsidiary Guarantor is permitted pursuant to Section 9.10 (in
which case such release may be made by the Administrative Agent acting alone);


and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the 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;
(ii) Section 10.06(h) may not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such
amendment, waiver or other modification; (iii) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto; and (iv) any
waiver, amendment or modification of this Agreement that by its terms affects the rights or duties
under this Agreement of one or more Classes of Lenders (but not other Classes of Lenders) may be
effected by an agreement or agreements in writing entered into by the Company and the requisite
percentage in interest of the affected Class (or Classes) of Lenders that would be required to
consent thereto under this Section if such Class (or Classes) of Lenders were the only Class (or
Classes) of Lenders hereunder at the time. 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 a Borrower or the Administrative Agent, 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).





83









 








          (b)     Electronic Communications. Notices and other communications to the Lenders
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 pursuant to Article II if such Lender,
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.




          Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.




          (c)     The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any
Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission
of Borrower Materials through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Agent Party; provided, however, that in no event shall any Agent Party have any liability to any
Borrower, any Lender 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 and the Administrative Agent may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the Company and the
Administrative Agent. In addition, each Lender agrees to notify the Adminis-





84









 







trative 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 Requirement of Law,
including United States Federal and state securities Requirements of Law, to make reference to
Borrower Materials that are not made available through the “Public Side Information” portion of the
Platform and that may contain material non-public information with respect to the Company or its
securities for purposes of United States Federal or state securities laws.




          (e)        Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic 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, 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 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. Each Borrower shall pay (i) all reasonable out-of-pocket expenses (other than Taxes) incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated) and (ii) all reasonable out-of-pocket expenses (other than Taxes)
incurred by the Administrative Agent or any Lender (including the fees, charges and disbursements
of any counsel for the Administrative Agent or any Lender) 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 Sec-





85









 







tion, or (B) in connection with the Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.




          (b)     Indemnification by the Borrowers. Each Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof) and each Lender and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any Indemnitee),
incurred by any Indemnitee in respect of or arising out of or in connection with claims, damages,
or liabilities asserted against any Indemnitee by any third party or by any Borrower or any other
Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of
the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed
use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by any Borrower or any of FIL’s Subsidiaries,
or any liability under any Environmental Laws related in any way to any Borrower or any of FIL’s
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; 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. This Section 10.04(b) shall not
apply with respect to any Taxes (including, without limitation, Indemnified Taxes or any
Other Taxes indemnifiable under Section 3.01) other than Taxes that represent losses or
damages arising from any non-Tax claim.




          (c)     Reimbursement by Lenders. To the extent that a Borrower 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) or any Related Party of any of the
foregoing, or the Administrative Agent incurs any expense pursuant to Section 6.03 that is not
subject to reimbursement by such Borrower, but without affecting such Borrower’s obligation (if
any) to make such payment, each Lender severally agrees to pay to the Administrative Agent (or any
such sub-agent) 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) in its capacity as such, or against any Related Party
of any of the foregoing acting for the Administrative Agent (or any such sub-




86









 







agent) 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 the use of the proceeds thereof. No Indemnitee
referred to in subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.




          (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 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 or any Lender, or the Administrative Agent 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 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 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. The obligations of the Lenders
under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and
the termination of this Agreement.




          10.06  Successors and Assigns.




          (a)       Successors and Assigns Generally. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written consent of the
Administrative Agent





87









 







and each Lender, and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (f) of this Section, or (iv) to an SPC in accordance with the
provisions of subsection (h) of this Section (and any other attempted assignment or transfer by any
party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of the Administrative Agent
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 at the time owing to it); provided that any such
assignment shall be subject to the following conditions:





      (i)     Minimum Amounts.




      (A)    in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the 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 and 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 $1,000,000 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.




      (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) a Default has occurred and is



88









 







continuing at the time of such assignment, (2) such assignment is to a Lender, an Affiliate of a
Lender, an Approved Fund or a Federal Reserve Bank or (3) such assignment is in
connection with the primary syndication of the Closing Date Commitments, A Delayed
Draw Commitments, Closing Date Loans or Delayed Draw Loans (as determined by the
Administrative Agent in is sole discretion).




          (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.




      (iv)   Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such processing and
recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.




      (v)    No Assignment to Company. No such assignment shall be made to 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 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 shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a




89









 







Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.




          (d)     Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the 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 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 and the Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.




          Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, 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 (subject to the requirements and limitations therein) 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. Each Lender that sells a participation shall, acting solely for
this purpose as an agent of the Borrowers, maintain a register on which it enters the name and
address of each Participant and the principal amounts (and stated interest) of each participant’s
interest in the Loans or other obligations under this Agreement (the “Participant
Register”). The entries in the Participant Register shall be conclusive absent manifest error,
and such Lender shall treat each person whose name is recorded in the Participant Register as the
owner of such Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement notwithstanding any
notice to the contrary.




          (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 (not to be
unreasonably withheld or delayed).




          (f)     Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note(s), if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such




90









 







Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.




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




          (h)     Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Company (an “SPC”) the option to provide all or any part of
any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof
or, if it fails to do so, to make such payment to the Administrative Agent as is required under
Section 2.12(b)(ii). Each party hereto hereby agrees that (i) each SPC shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements or limitations therein) to
the same extent as if it were a Lender; provided that neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or
change the obligations of the Company under this Agreement (including its obligations under Section
3.04) except, in the case of Section 3.01, if the grant to any SPC or the exercise by any SPC of
such option (as the case may be) was made with the Company’s prior written consent (not to be
unreasonably withheld or delayed), (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender
shall for all purposes, including the approval of any amendment, waiver or other modification of
any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by
an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior debt of any SPC, it will not institute against, or
join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or any state thereof.
Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but
without prior consent of the Company and the Administrative Agent and with the payment of a
processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative
Agent in its sole discretion), assign all or any portion of its right to receive payment with
respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial paper dealer or
provider of any surety or Guaranty or credit or liquidity enhancement to such SPC.





91












 





          
10.07  Treatment of Certain Information; Confidentiality. Each of the Administrative
Agent and the Lenders 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,
provided that, the Administrative Agent or any Lender shall exercise commercially
reasonable efforts to notify the Company as soon as reasonably practicable in the event of any such
disclosure, unless such notification shall be prohibited by applicable law, legal process or
regulatory request, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (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 or any of their respective Affiliates on a nonconfidential basis
from a source other than the Company, provided that, the source of such information was not
actually known by the Administrative Agent, any Lender or any of their respective Affiliates, as
the case may be, to be bound by a confidentiality agreement with the Company or any of its
Subsidiaries with respect to such Information. For purposes of this Section, “Information” means
all information received from the Company or any of its Subsidiaries relating to the Company or any
of its Subsidiaries or any of their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender on a non-confidential basis prior to disclosure
by the Company or any of its Subsidiaries, provided that, in the case of information
received from the Company or any Subsidiary after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.




          Each of the Administrative Agent and the Lenders acknowledges that (A) the Information may
include material non-public information concerning the Company or any of its Subsidiaries, as the
case may be, (B) it has developed compliance procedures regarding the use of material non-public
information and (C) it will handle such material non-public information in accordance with
applicable Requirements of Law, including United States Federal and state securities Requirements
of Law.




          
10.08  Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender 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


92









 







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 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, irrespective of whether or
not such Lender 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 different from the branch or office holding such deposit
or obligated on such indebtedness. The rights of each Lender and their respective Affiliates under
this Section are in addition to other rights and remedies (including other rights of setoff) that
such Lender or its respective Affiliates may have. Each Lender agrees to notify the Company and
the Administrative Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and application.





          10.09  Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Requirements of Law (the
“Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an
amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the
Loans or, if it exceeds such unpaid principal, refunded to the Company. In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by applicable Requirements of Law, (a)
characterize any payment that is not principal as an expense, fee, or premium rather than interest,
(b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the contemplated term of
the Obligations hereunder.





          10.10  Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.





          10.11  Survival of Representations and Warranties. All representations and warranties
made hereunder and in any other Loan Document or other document delivered 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



93









 








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.





          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 (v) any Lender requests compensation under Section 3.04, (w) any Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01, (x) any Lender’s Loans are prepaid or converted under Section 3.02, (y)
any Lender is a Defaulting Lender, or (z) any Lender shall refuse to consent to a waiver or
amendment to, or a departure from the provisions of, this Agreement or any other Loan Document
which requires the consent of all the Lenders or all Lenders directly affected thereby and that has
been consented to by the Required Lenders (a “Non-Consenting Lender”) 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 the U.S. Borrower to pay to the
Administrative Agent the assignment fee specified in Section 10.06(b);





      (b)     
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Loan Documents (including any amounts under Section
3.05) from the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the applicable Borrower (in the case of all other amounts);





      (c)     
with respect to any Non-Consenting Lender referred to in clause (z) above, the
Company shall pay or cause the U.S. Borrower to pay to such Non-Consenting Lender a
prepayment premium, if applicable, with respect to the Loans so replaced as if such
replacement were a prepayment subject to the provisions of Section 2.05(a);





      (d)     
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



94









 







        (e)       such assignment does not conflict with applicable Requirements of Law.


No Lender shall 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 OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES
DISTRICT COURT IN SUCH BOROUGH, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR
ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.





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





           (d)      SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY


95









 







PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
WITHOUT LIMITING THE FOREGOING, EACH OF THE BORROWERS HEREBY APPOINTS, IN THE CASE OF ANY SUCH
ACTION OR PROCEEDING BROUGHT IN THE COURTS OF OR IN THE STATE OF NEW YORK, CT CORPORATION, WITH
OFFICES ON THE DATE HEREOF AT 111 EIGHTH AVENUE, NEW YORK, NEW YORK 10011, TO RECEIVE FOR IT AND ON
ITS BEHALF, SERVICE OF PROCESS IN THE STATE OF NEW YORK WITH RESPECT THERETO, PROVIDED THE
BORROWERS MAY APPOINT ANY OTHER PERSON, REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT, WITH
OFFICES IN THE STATE OF NEW YORK TO REPLACE SUCH AGENT FOR SERVICE OF PROCESS UPON DELIVERY TO THE
ADMINISTRATIVE AGENT OF A REASONABLY ACCEPTABLE AGREEMENT OF SUCH NEW AGENT AGREEING SO TO ACT.





          10.15  Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.15.





          10.16  California Judicial Reference. If any action or proceeding is filed in a court
of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Agreement or any other Loan Document, (a) the court shall, and is
hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section
638 to a referee (who shall be a single active or retired judge) to hear and determine all of the
issues in such action or proceeding (whether of fact or of law) and to report a statement of
decision, provided that, at the option of any party to such proceeding, any such issues
pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section
1281.8 shall be heard and determined by the court, and (b) without limiting the generality of
Section 10.04, the Company shall be solely responsible to pay all fees and expenses of any referee
appointed in such action or proceeding.





          10.17  No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (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 such Borrower, each other Loan Party and their
respective Affiliates, on the one hand, and the Administrative Agent and Arrangers, on the other


96









 








hand, (B) each of such Borrower and the other Loan Parties has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) such Borrower and each
other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative Agent and the Arrangers each are and have been acting solely as a principal and,
except as expressly agreed in writing by the relevant parties, have not been, are not, and will not
be acting as an advisor, agent or fiduciary for such Borrower, any other Loan Party or any of their
respective Affiliates, or any other Person and (B) neither the Administrative Agent nor the
Arrangers have any obligation to such Borrower, any other Loan Party or any of their respective
Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Loan Documents; and (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 such Borrower, the other Loan Parties and their
respective Affiliates, and neither the Administrative Agent nor the Arrangers have any obligation
to disclose any of such interests to such Borrower, any other Loan Party or any of their respective
Affiliates. To the fullest extent permitted by law, each of the Borrowers and the other Loan
Parties hereby waives and releases any claims that it may have against the Administrative Agent and
the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.





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





          10.19  Bermuda Branch; Full Recourse Obligations. All Loans to the account of FIL
shall be made to or incurred by FIL at its Bermuda branch located at Canon’s Court, 22 Victoria Street, Hamilton HM 12 BERMUDA and all payments of principal and interest by FIL will be
made through its Bermuda branch; provided, however, that notwithstanding the foregoing, FIL
acknowledges and agrees that the Obligations hereunder are full recourse to Flextronics
International Ltd., a Singapore corporation, and are in no manner limited to any extent to any


97









 








branch thereof and shall in no manner impair the Administrative Agent’s or any Lender’s ability to
enforce or collect any Obligation from FIL.




[Remainder of this page intentionally left blank]




98









 





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




	 	 	 	 	 
	 	FLEXTRONICS INTERNATIONAL LTD.,

as Borrower

 	 
	 	By:  	/s/ Manny Marimuthu
 	 
	 	 	Name:  	Manny Marimuthu 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	FLEXTRONICS INTERNATIONAL USA, INC.,

as Borrower

 	 
	 	By:  	/s/ Christopher Collier
 	 
	 	 	Name:  	Christopher Collier 	 
	 	 	Title:  	Director 	 



 









 





	 	 	 	 	 
	 	CITICORP NORTH AMERICA, INC., as

Administrative Agent and Lender

 	 
	 	By:  	/s/ Timothy P. Dilworth
 	 
	 	 	Name:  	Timothy P. Dilworth 	 
	 	 	Title:  	Vice President 	 



2









 





	 	 	 	 	 
	 	CITIBANK, N.A., as Lender

 	 
	 	By:  	/s/ Timothy P. Dilworth
 	 
	 	 	Name:  	Timothy P. Dilworth 	 
	 	 	Title:  	Vice President 	 



3









 







	 	 	 	 	 
	 	CITIGROUP GLOBAL MARKETS INC., as Sole Lead Arranger, Bookrunner and Syndication Agent

 	 
	 	By:  	/s/ Timothy P. Dilworth
 	 
	 	 	Name:  	Timothy P. Dilworth 	 
	 	 	Title:  	Director 	 
	 




4











 






EXHIBIT A




FORM OF LOAN NOTICE




Date:                                        ,




To: Citicorp North America, Inc.,

as Administrative Agent




Ladies and Gentlemen:




          Reference is made to that certain Term Loan Agreement, dated as of October 1, 2007 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement”; the terms defined therein being used herein as therein defined), among
Flextronics International Ltd., a Singapore corporation (the “Company”) Flextronics
International USA, Inc., a California corporation (the “U.S. Borrower” and, together with
the Company, the “Borrowers” and each a “Borrower”), each Lender from time to time
party thereto and Citicorp North America, Inc., as Administrative Agent.




          The Company hereby requests, on behalf of itself or, if applicable, the U.S. Borrower (select
one):





	 	o	 	A Borrowing of Loans
	 
	 	o	 	A conversion or continuation of Loans
	 
	 	1.	 	On                                          (a Business Day).
	 
	 	2.	 	In the amount of                                         .
	 
	 	3.	 	Comprised of                                              .

[Class of Loan requested]
	 
	 	4.	 	Comprised of                                              .

[Type of Loan requested]
	 
	 	5.	 	For Eurocurrency Rate Loans: with an interest period of                      months
	 
	 	6.	 	On behalf of                                         .

[Borrower]





[Remainder of page intentionally left blank]




A-1









 








	 	 	 	 	 
	 	FLEXTRONICS INTERNATIONAL LTD.

 	 
	 	By:  	 	 
	 	 	 	Name:  	 	 
	 	 	 	Title:  	 	 



A-2









 







EXHIBIT C-1




FORM OF A CLOSING DATE NOTE




          FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to                                          
or its registered assigns (the “A Closing Date Lender”), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal amount of each A
Closing Date Loan from time to time made by the A Closing Date Lender to the Borrower under that
certain Term Loan Agreement, dated as of October 1, 2007 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms
defined therein being used herein as therein defined), among Flextronics International Ltd.,
Flextronics International USA, Inc., a California corporation, the Lenders from time to time party
thereto and Citicorp North America, Inc., as Administrative Agent.




          The Borrower promises to pay interest on the unpaid principal amount of each A Closing Date
Loan from the date of such A Closing Date Loan until such principal amount is paid in full, at such
interest rates and at such times as provided in the Agreement. All payments of principal and
interest shall be made to the Administrative Agent for the account of the A Closing Date Lender in
Same Day Funds at the Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.




          This A Closing Date Note is one of the A Closing Date Notes referred to in the Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. This A Closing Date Note is also entitled to the benefits of the
Subsidiary Guaranty. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this A Closing Date Note shall
become, or may be declared to be, immediately due and payable all as provided in the Agreement.
Loans made by the A Closing Date Lender shall be evidenced by one or more loan accounts or records
maintained by the A Closing Date Lender in the ordinary course of business. The A Closing Date
Lender may also attach schedules to this A Closing Date Note and endorse thereon the date, amount,
currency and maturity of its A Closing Date Loans and payments with respect thereto.




          The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this A Closing Date
Note.




C-1-1

Form of A Closing Date Note




 









 








          THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.




	 	 	 	 	 
	 	FLEXTRONICS INTERNATIONAL LTD.

 	 
	 	By:  	 	 
	 	 	 	Name:  	 	 
	 	 	 	Title:  	 	 



C-1-2

Form of A Closing Date Note




 









 








EXHIBIT C-2




FORM OF B CLOSING DATE NOTE




          FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to                                          
or its registered assigns (the “B Closing Date Lender”), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal amount of each B
Closing Date Loan from time to time made by the B Closing Date Lender to the Borrower under that
certain Term Loan Agreement, dated as of October 1, 2007 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms
defined therein being used herein as therein defined), among Flextronics International Ltd.,
Flextronics International USA, Inc., a California corporation, the Lenders from time to time party
thereto and Citicorp North America, Inc., as Administrative Agent.




          The Borrower promises to pay interest on the unpaid principal amount of each B Closing Date
Loan from the date of such B Closing Date Loan until such principal amount is paid in full, at such
interest rates and at such times as provided in the Agreement. All payments of principal and
interest shall be made to the Administrative Agent for the account of the B Closing Date Lender in
Same Day Funds at the Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.




          This B Closing Date Note is one of the B Closing Date Notes referred to in the Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. This B Closing Date Note is also entitled to the benefits of the
Subsidiary Guaranty. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this B Closing Date Note shall
become, or may be declared to be, immediately due and payable all as provided in the Agreement.
Loans made by the B Closing Date Lender shall be evidenced by one or more loan accounts or records
maintained by the B Closing Date Lender in the ordinary course of business. The B Closing Date
Lender may also attach schedules to this B Closing Date Note and endorse thereon the date, amount,
currency and maturity of its B Closing Date Loans and payments with respect thereto.




          The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this B Closing Date
Note.




C-2-1

Form of B Closing Date Note




 









 








          THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.




	 	 	 	 	 
	 	FLEXTRONICS INTERNATIONAL LTD.

 	 
	 	By:  	 	 
	 	 	 	Name:  	 	 
	 	 	 	Title:  	 	 



C-2-2

Form of B Closing Date Note




 









 








EXHIBIT C-3




FORM OF A-1 DELAYED DRAW NOTE




          FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to                                          
or its registered assigns (the “A-1 Delayed Draw Lender”), in
accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of
each A-1 Delayed Draw Loan from time to time made by the A-1 Delayed Draw Lender to the Borrower
under that certain Term Loan Agreement, dated as of October 1, 2007 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement”;
the terms defined therein being used herein as therein defined), among Flextronics International
Ltd., Flextronics International USA, Inc., a California corporation, the Lenders from time to time
party thereto and Citicorp North America, Inc., as Administrative Agent.




          The Borrower promises to pay interest on the unpaid principal amount of each A-1 Delayed Draw
Loan from the date of such A-1 Delayed Draw Loan until such principal amount is paid in full, at
such interest rates and at such times as provided in the Agreement. All payments of principal and
interest shall be made to the Administrative Agent for the account of the A-1 Delayed Draw Lender
in Same Day Funds at the Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.




          This A-1 Delayed Draw Note is one of the A-1 Delayed Draw Notes referred to in the Agreement,
is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. This A-1 Delayed Draw Note is also entitled to the benefits of the
Company Guaranty and the Subsidiary Guaranty. Upon the occurrence and continuation of one or more
of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this A-1
Delayed Draw Note shall become, or may be declared to be, immediately due and payable all as
provided in the Agreement. Loans made by the A-1 Delayed Draw Lender shall be evidenced by one or
more loan accounts or records maintained by the A-1 Delayed Draw Lender in the ordinary course of
business. The A-1 Delayed Draw Lender may also attach schedules to this A-1 Delayed Draw Note and
endorse thereon the date, amount, currency and maturity of its A-1 Delayed Draw Loans and payments
with respect thereto.




          The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this A-1 Delayed Draw
Note.




C-3-1

Form of A-1 Delayed Draw Note




 









 








          THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.




	 	 	 	 	 
	 	FLEXTRONICS INTERNATIONAL USA, INC.

 	 
	 	By:  	 	 
	 	 	 	Name:  	 	 
	 	 	 	Title:  	 	 



C-3-2

Form of A-1 Delayed Draw Note





 











 





EXHIBIT C-4




FORM OF A-2 DELAYED DRAW NOTE




          FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
                                         or its registered assigns (the “A-2 Delayed Draw Lender”), in
accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of
each A-2 Delayed Draw Loan from time to time made by the A-2 Delayed Draw Lender to the Borrower
under that certain Term Loan Agreement, dated as of October 1, 2007 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement”;
the terms defined therein being used herein as therein defined), among Flextronics International
Ltd., Flextronics International USA, Inc., a California corporation, the Lenders from time to time
party thereto and Citicorp North America, Inc., as Administrative Agent.




          The Borrower promises to pay interest on the unpaid principal amount of each A-2 Delayed Draw
Loan from the date of such A-2 Delayed Draw Loan until such principal amount is paid in full, at
such interest rates and at such times as provided in the Agreement. All payments of principal and
interest shall be made to the Administrative Agent for the account of the A-2 Delayed Draw Lender
in Same Day Funds at the Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.




          This A-2 Delayed Draw Note is one of the A-2 Delayed Draw Notes referred to in the Agreement,
is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. This A-2 Delayed Draw Note is also entitled to the benefits of the
Subsidiary Guaranty. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this A-2 Delayed Draw Note shall
become, or may be declared to be, immediately due and payable all as provided in the Agreement.
Loans made by the A-2 Delayed Draw Lender shall be evidenced by one or more loan accounts or
records maintained by the A-2 Delayed Draw Lender in the ordinary course of business. The A-2
Delayed Draw Lender may also attach schedules to this A-2 Delayed Draw Note and endorse thereon the
date, amount, currency and maturity of its A-2 Delayed Draw Loans and payments with respect
thereto.




          The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this A-2 Delayed Draw
Note.




C-4-1

Form of A-2 Delayed Draw Note











 





          THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.




	 	 	 	 	 
	 	FLEXTRONICS INTERNATIONAL LTD.

 	 
	 	By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 



C-4-2

Form of A-2 Delayed Draw Note












 





EXHIBIT C-5




FORM OF A-3 DELAYED DRAW NOTE




          FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
                                         or its registered assigns (the “A-3 Delayed Draw Lender”), in
accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of
each A-3 Delayed Draw Loan from time to time made by the A-3 Delayed Draw Lender to the Borrower
under that certain Term Loan Agreement, dated as of October 1, 2007 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement”;
the terms defined therein being used herein as therein defined), among Flextronics International
Ltd., Flextronics International USA, Inc., a California corporation, the Lenders from time to time
party thereto and Citicorp North America, Inc., as Administrative Agent.




          The Borrower promises to pay interest on the unpaid principal amount of each A-3 Delayed Draw
Loan from the date of such A-3 Delayed Draw Loan until such principal amount is paid in full, at
such interest rates and at such times as provided in the Agreement. All payments of principal and
interest shall be made to the Administrative Agent for the account of the A-3 Delayed Draw Lender
in Same Day Funds at the Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.




          This A-3 Delayed Draw Note is one of the A-3 Delayed Draw Notes referred to in the Agreement,
is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. This A-3 Delayed Draw Note is also entitled to the benefits of the
Subsidiary Guaranty. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this A-3 Delayed Draw Note shall
become, or may be declared to be, immediately due and payable all as provided in the Agreement.
Loans made by the A-3 Delayed Draw Lender shall be evidenced by one or more loan accounts or
records maintained by the A-3 Delayed Draw Lender in the ordinary course of business. The A-2
Delayed Draw Lender may also attach schedules to this A-3 Delayed Draw Note and endorse thereon the
date, amount, currency and maturity of its A-3 Delayed Draw Loans and payments with respect
thereto.




          The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this A-3 Delayed Draw
Note.




C-5-1

Form of A-3 Delayed Draw Note











 








          THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.




	 	 	 	 	 
	 	FLEXTRONICS INTERNATIONAL LTD.

 	 
	 	By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 



C-5-2

Form of A-3 Delayed Draw Note




 









 








EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:




	 	 	 
	To:

	 	Citicorp North America, Inc.

as Administrative Agent






Ladies and Gentlemen:




          Reference is made to that certain Term Loan Agreement, dated as of October 1, 2007 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement”; the terms defined therein being used herein as therein defined), among
Flextronics International Ltd., a Singapore corporation (the “Company”), Flextronics
International USA, Inc., a California corporation, the Lenders from time to time party thereto and
Citicorp North America, Inc., as Administrative Agent.




          The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                                         of the Company, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Company, and that:




          [Use following paragraph 1 for fiscal year-end financial statements]




          1. The Company has delivered the year-end audited Financial Statements required by Section
6.01(b) of the Agreement for the fiscal year of the Company ended as of the above date, together
with the report and opinion of an independent certified public accountant required by such section.




          [Use following paragraph 1 for fiscal quarter-end financial statements]




          1.     The Company has delivered the unaudited Financial Statements required by Section 6.01(a) of
the Agreement for the fiscal quarter of the Company ended as of the above date. Such financial
statements fairly present the financial condition, results of operations and cash flows of the
Company and its Subsidiaries in accordance with GAAP as at such date and for such period, subject
only to normal year-end audit adjustments and the absence of footnotes.




          2.     The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Company during the accounting period covered by such
financial statements.




          3.     A review of the activities of the Company during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period the
Company performed and observed all its Obligations under the Loan Documents, and [select one:]




D-1









 





          [to the best knowledge of the undersigned, during such fiscal period the Company performed and
observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]




--or--




          [to the best knowledge of the undersigned, during such fiscal period the following covenants
or conditions have not been performed or observed and the following is a list of each such Default
and its nature and status:]




          4.     The representations and warranties of (i) the Borrowers contained in Article V of the
Agreement and (ii) each Loan Party contained in each other Loan Document or in any document
furnished at any time under or in connection with the Loan Documents, are (A) in the case of
representations and warranties that are qualified as to materiality, true and correct, and (B) in
the case of representations and warranties that are not qualified as to materiality, true and
correct in all material respects, in each case on and as of the date hereof, except to the extent
that such representations and warranties specifically refer to an earlier date, in which case they
are true and correct or true and correct in all material respects, as the case may be, as of such
earlier date, and except that for purposes of this Compliance Certificate, the representations and
warranties contained in Section 5.09 of the Agreement shall be deemed to refer to the most recent
statements furnished pursuant to subsections (a) and (b) of Section 6.01 of the Agreement,
including the statements in connection with which this Compliance Certificate is delivered.




          5.     The financial covenant analyses and information set forth on Schedules 1 and 2 attached
hereto are true and accurate on and as of the date of this Certificate.




          IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                    .




	 	 	 	 	 
	 	FLEXTRONICS INTERNATIONAL LTD.

 	 
	 	By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 



D-2









 






	 	 	 	 	 



			
	For the Quarter/Year ended
	 	(“Statement Date”)






SCHEDULE 1

to the Compliance Certificate

($ in 000’s)




	 	 	 	 	 	 	 
	I.

	 	Section 7.13 Debt/EBITDA Ratio	 	 	 	 
	 
	 	 	 	 	 	 
	A.	 	EBITDA for four consecutive fiscal quarters ending on above date (“Subject Period”):	 	 
	 
	 	 	 	 	 	 
	1.

	 	Net income or net loss (before provision for income taxes) for Subject
 Period:
	 	$
	 
	 	 	 	 	 	 
	2.

	 	All Interest Expense for Subject Period:
	 	$
	 
	 	 	 	 	 	 
	3.

	 	Depreciation expenses for Subject Period:
	 	$
	 
	 	 	 	 	 	 
	4.

	 	Amortization expenses for Subject Period:
	 	$
	 
	 	 	 	 	 	 
	5.

	 	Non-cash charges for Subject Period:
	 	$
	 
	 	 	 	 	 	 
	6.

	 	One-time cash charges associated with merger or acquisition-related

expenses which are
paid in the Subject Period:
	 	$
	 
	 	 	 	 	 	 
	7.

	 	One-time cash charges associated with restructuring costs which are

paid in the
Subject Period:
	 	$
	 
	 	 	 	 	 	 
	8.

	 	One-time cash charges associated with net losses from the early extin-

guishment of
notes or other Indebtedness, which are paid in the Subject
 Period:
	 	$
	 
	 	 	 	 	 	 
	9.

	 	Sum of Lines I.A. 6 + 7 + 8 (not exceeding $100,000,000 for Subject

Period):
	 	$
	 
	 	 	 	 	 	 
	10.

	 	EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 9):
	 	$
	 
	 	 	 	 	 	 
	B.	 	Debt:	 	 
	 
	 	 	 	 	 	 
	1.

	 	Total Indebtedness at Statement Date:
	 	$
	 
	 	 	 	 	 	 
	C.	 	Debt/EBITDA Ratio	 	 
	 
	 	 	 	 	 	 
	1.

	 	Total Indebtedness at Statement Date (Line B.1 above)
	 	$
	 
	 	 	 	 	 	 
	2

	 	EBITDA for Subject Period (Line I.A.10 above):
	 	$
	 
	 	 	 	 	 	 
	3.

	 	Debt/EBITDA Ratio (Line C.1 to Line C.2)	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	          Maximum permitted
	 	4.00 to 1.00







Schedule I-1









 






			
	For the Quarter/Year ended
	 	(“Statement Date”)






SCHEDULE 2

to the Compliance Certificate

($ in 000’s)

EBITDA

(in accordance with the definition of EBITDA

as set forth in the Agreement)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Quarter	 	Quarter	 	Quarter	 	Twelve
	 	 	Ended	 	Ended	 	Ended	 	Months
	net income or net loss
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ all Interest Expense
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ depreciation expenses
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ amortization expenses
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ non-cash charges for Subject Period
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ one-time cash charges, calculated
in accordance
    with GAAP, associated
with merger-or-
   acquisition related
expenses which are paid in
    the
Subject Period
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ one-time cash charges, calculated
in accordance
    with GAAP, associated
with restructuring costs
    which are
paid in the Subject Period
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ one-time cash charges, calculated
in accordance
    with GAAP, associated
with net losses from the
    early
extinguishment of notes or other
Indebt-
   edness, which are paid in the
Subject Period
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	= EBITDA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







Schedule 2-1











 





EXHIBIT E




ASSIGNMENT AND ASSUMPTION




          This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each] Assignor identified
in item 1 below ([the][each, an] “Assignor”) and [the][each] Assignee identified in item 2
below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees] hereunder are several and not joint.] Capitalized
terms used but not defined herein shall have the meanings given to them in the Term Loan Agreement
identified below (the “Agreement”), receipt of a copy of which is hereby acknowledged by
the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby
agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as
if set forth herein in full.



          For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Agreement and any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such outstanding rights
and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below and (ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the
respective Assignors (in their respective capacities as Lenders)] against any Person, whether known
or unknown, arising under or in connection with the Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and
assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being
referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and
assignment is without recourse to [the][any] Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by [the][any] Assignor.




	1.	 	Assignor[s]:
	 
	2.	 	Assignee[s]:
	 
	 	 	[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
	 
	3.	 	Borrower(s)
	 
	 	 	:     [Flextronics International Ltd.] [and] [Flextronics International USA, Inc.]




E-1









 






	4.	 	Administrative Agent
	 
	 	 	:     Citicorp North America, Inc., as the administrative agent under the Agreement.
	 
	5.	 	Agreement
	 
	 	 	:     Term Loan Agreement, dated as of October 1, 2007, among Flextronics International Ltd.,
Flextronics International USA, Inc. the Lenders from time to time party thereto and Citicorp
North America, Inc., as Administrative Agent
	 
	6.	 	Assigned Interest[s]:





	 	 	 	 	 	 	 
	 	 	Amount of	 	Aggregate amount	 	Amount of Commitments and
	Class of Loans Assigned	 	Commitment and	 	of Commitments and	 	Loans of such Class being
	Assignor[s] Assignee[s]	 	Loans of such Class	 	Loans of such Class	 	Assigned, as a Percentage
	 	 	being Assigned	 	for all Lenders	 	of the Aggregate Amount of
	 	 	 	 	 	 	commitments and Loans of
	 	 	 	 	 	 	such Class for all Lenders
	$
	 	$
	 	$
	 	%
	$
	 	$
	 	$
	 	%
	$
	 	$
	 	$
	 	%







	[7. 	 	Trade Date
	 
	 	 	:                               ]




Effective Date:                     , 20      [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




          The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 



E-2









 






	 	 	 	 	 
	[Consented to and] Accepted:

CITICORP NORTH AMERICA, INC., as

Administrative Agent

 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 
	[Consented to:]



FLEXTRONICS INTERNATIONAL LTD.

 	 	 
	By:  	 	 	 
	 	Title: 	 	 




E-3









 








ANNEX 1 TO ASSIGNMENT AND ASSUMPTION

FLEXTRONICS INTERNATIONAL LTD.

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION





          1.      Representations and Warranties.



          1.1.   Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents, (iii) the financial
condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Company, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.



          1.2.   Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Agreement, (ii) it meets all the requirements to be an assignee under Section 10.06(b)(iii), (v),
(vi) and (vii) of the Agreement (subject to such consents, if any, as may be required under Section
10.06(b)(iii) of the Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Agreement as a Lender thereunder and, to the extent of [the][the relevant]
Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with
respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and
either it, or the Person exercising discretion in making its decision to acquire [the][such]
Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of
the Agreement, and has received or has been accorded the opportunity to receive copies of the most
recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such
other documents and information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase
[the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Agreement, duly completed
and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without
reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be performed by it as a Lender.



Annex 1-1









 








          2.     Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of principal, interest,
fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but
excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.



          3.     General Provisions. This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.




Annex 1-2











 





EXHIBIT F




[FORM OF COMPANY GUARANTY]




          THIS GUARANTY (this “Guaranty”), dated as of October 1, 2007, is made by Flextronics
International Ltd., a Singapore corporation acting, subject to Section 23 hereof, through its
Bermuda branch (the “Guarantor”), in favor of the Lenders from time to time party to the
Term Loan Agreement referred to below and Citicorp North America, Inc. as Administrative Agent.



          A.     The Guarantor, Flextronics International USA, Inc. (“U.S. Borrower”, and together
with the Guarantor, the “Borrowers”), the Lenders from time to time party thereto (each a
“Lender” and, collectively, the “Lenders”) and the Administrative Agent are parties
to a Term Loan Agreement dated as of October 1, 2007 (as amended, modified, renewed or extended
from time to time, the “Term Loan Agreement”).



          B.     The U.S. Borrower is a Subsidiary of the Guarantor.



          C.     It is a condition precedent to the making of Loans to the account of the U.S. Borrower
under the Term Loan Agreement that the Guarantor guarantee the indebtedness and other obligations
of the U.S. Borrower to the Guaranteed Parties under or in connection with the Term Loan Agreement.



          D.     The Guarantor, as the parent of the U.S. Borrower, will derive substantial direct and
indirect benefits from the making of the Loans to the U.S. Borrower pursuant to the Term Loan
Agreement (which benefits are hereby acknowledged by the Guarantor).



          Accordingly, to induce the Administrative Agent and the Lenders to enter into the Term Loan
Agreement, and in consideration thereof, the Guarantor hereby agrees as follows:



          SECTION 1.  Definitions; Interpretation.



          (a)     Terms Defined in Term Loan Agreement. All capitalized terms used in this Guaranty
(including in the recitals hereof) and not otherwise defined herein shall have the meanings
assigned to them in the Term Loan Agreement.



          (b)     Certain Defined Terms. As used in this Guaranty (including in the recitals hereof), the
following terms shall have the following meanings:



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



          “Collateral” means any property and interests and proceeds thereof now or hereafter acquired
by the Guarantor, the U.S. Borrower or any other Person in which a Lien shall exist in favor of the
Guaranteed Parties to secure the Guaranteed Obligations.



 









 





          “Collateral Documents” means any agreement pursuant to which the Guarantor, the U.S. Borrower
or any other Person provides a Lien on any Collateral securing any or all of the Guaranteed
Obligations and all filings, documents and agreements made or delivered pursuant thereto.



          “Guaranteed Obligations” has the meaning set forth in Section 2.



          “Guaranteed Parties” means the Administrative Agent and each Lender.



          “Guarantor Documents” means this Guaranty and all other certificates, documents, agreements
and instruments delivered to any Guaranteed Party under or in connection with this Guaranty and the
Loan Documents.



          “Insolvency Proceeding” means, with respect to any Person, (a) any case, action or proceeding
with respect to such Person before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or
relief of debtors, or (b) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; in either case undertaken under Debtor
Relief Laws.



          “Judgment Currency” has the meaning set forth in Section 22.



          “Lenders” has the meaning specified in the recitals to this Guaranty.



          “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.



          “Term Loan Agreement” has the meaning specified in the recitals to this Guaranty.



          (c) Interpretation. The rules of interpretation set forth in Sections 1.02 and 1.03 of the
Term Loan Agreement shall be applicable to this Guaranty and are incorporated herein by this
reference.



          SECTION 2.  Guaranty. The Guarantor hereby absolutely, unconditionally and irrevocably
guarantees for the Guaranteed Parties, and their respective successors, endorsees, transferees and
assigns, the full and prompt payment when due (whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise) and performance of the Obligations and any
indebtedness, liabilities and other obligations of the U.S. Borrower to the



-2-









 







Guaranteed Parties under or in connection with the Term Loan Agreement, the Notes and the
other Loan Documents, including all unpaid principal of the Loans, all interest accrued thereon,
all fees due under the Term Loan Agreement and all other amounts payable by the U.S. Borrower to
the Guaranteed Parties thereunder, in connection therewith, and in connection with any other Loan
Document. The terms “indebtedness,” “liabilities” and “obligations” are used herein in their most
comprehensive sense and include any and all advances, debts, obligations and liabilities, whether
now existing or hereafter arising, whether voluntary or involuntary and whether due or not due,
absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether
recovery upon such indebtedness, liabilities and obligations may be or hereafter become
unenforceable or shall be an allowed or disallowed claim under any Debtor Relief Laws, and
including interest that accrues after the commencement by or against the U.S. Borrower or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding. The foregoing Obligations, indebtedness, liabilities and other obligations of
the U.S. Borrower, and all other indebtedness, liabilities and obligations to be paid or performed
by the Guarantor in connection with this Guaranty (including any and all amounts due under Section
12), shall hereinafter be collectively referred to as the “Guaranteed Obligations.”



          SECTION 3.  Liability of Guarantor. The liability of the Guarantor under this Guaranty
shall be irrevocable, absolute, independent and unconditional, and shall not be affected by any
circumstance which might constitute a discharge of a surety or guarantor other than the
indefeasible payment and performance in full of all Guaranteed Obligations. In furtherance of the
foregoing and without limiting the generality thereof, the Guarantor agrees as follows:




      (a)     the Guarantor’s liability hereunder shall be the immediate, direct, and primary
obligation of the Guarantor and shall not be contingent upon any Guaranteed Party’s exercise
or enforcement of any remedy it may have against the U.S. Borrower or any other Person, or
against any Collateral;




      (b)     this Guaranty is a guaranty of payment when due and not merely of collectibility;




      (c)     the Guaranteed Parties may enforce this Guaranty upon the occurrence and during the
continuance of an Event of Default notwithstanding the existence of any dispute between any
of the Guaranteed Parties and the U.S. Borrower with respect to the existence of such Event
of Default;




      (d)     the Guarantor’s payment of a portion, but not all, of the Guaranteed Obligations
shall in no way limit, affect, modify or abridge the Guarantor’s liability for any portion
of the Guaranteed Obligations remaining unsatisfied; and




      (e)     the Guarantor’s liability with respect to the Guaranteed Obligations shall remain
in full force and effect without regard to, and shall not be impaired or affected by, nor
shall the Guarantor be exonerated or discharged by, any of the following events:




        (i)     any Insolvency Proceeding with respect to the U.S. Borrower, the Guarantor,
any other Loan Party or any other Person;



-3-









 






        (ii)     any limitation, discharge, or cessation of the liability of the U.S.
Borrower, the Guarantor, any other Loan Party or any other Person for any Guaranteed
Obligations due to any statute, regulation or rule of law, or any invalidity or
unenforceability in whole or in part of any of the Guaranteed Obligations or the
Loan Documents;




        (iii)    any merger, acquisition, consolidation or change in structure of the U.S.
Borrower, the Guarantor or any other Loan Party or Person, or any sale, lease,
transfer or other disposition of any or all of the assets or shares of the U.S.
Borrower, the Guarantor, any other Loan Party or other Person;




        (iv)    any assignment or other transfer, in whole or in part, of any Guaranteed
Party’s interests in and rights under this Guaranty or the other Loan Documents,
including any Guaranteed Party’s right to receive payment of the Guaranteed
Obligations, or any assignment or other transfer, in whole or in part, of any
Guaranteed Party’s interests in and to any of the Collateral;




        (v)     any claim, defense, counterclaim or setoff, other than that of prior
performance, that the U.S. Borrower, the Guarantor, any other Loan Party or other
Person may have or assert, including any defense of incapacity or lack of corporate
or other authority to execute any of the Loan Documents;




        (vi)    any Guaranteed Party’s amendment, modification, renewal, extension,
cancellation or surrender of any Loan Document, any Guaranteed Obligations, or any
Collateral, or any Guaranteed Party’s exchange, release, or waiver of any
Collateral;




        (vii)    any Guaranteed Party’s exercise or nonexercise of any power, right or
remedy with respect to any of the Collateral, including any Guaranteed Party’s
compromise, release, settlement or waiver with or of the U.S. Borrower, any other
Loan Party or any other Person;




        (viii)   any Guaranteed Party’s vote, claim, distribution, election, acceptance,
action or inaction in any Insolvency Proceeding related to the Guaranteed
Obligations;




        (ix)    any impairment or invalidity of any of the Collateral or any other
collateral securing any of the Guaranteed Obligations or any failure to perfect any
of the Liens of the Guaranteed Parties thereon or therein; and




        (x)     any other guaranty, whether by the Guarantor or any other Person, of all or
any part of the Guaranteed Obligations or any other indebtedness, obligations or
liabilities of the U.S. Borrower to any Guaranteed Party.



          SECTION 4.  Consents of Guarantor. The Guarantor hereby unconditionally consents and
agrees that, without notice to or further assent from the Guarantor:



-4-









 






     (a)     the principal amount of the Guaranteed Obligations may be increased or decreased
and additional Obligations of the Loan Parties under the Loan Documents may be incurred, by
one or more amendments, modifications, renewals or extensions of any Loan Document or
otherwise;




     (b)     the time, manner, place or terms of any payment under any Loan Document may be
extended or changed, including by an increase or decrease in the interest rate on any
Guaranteed Obligation or any fee or other amount payable under such Loan Document, by an
amendment, modification or renewal of any Loan Document or otherwise;




     (c)     the time for the U.S. Borrower’s (or any other Person’s) performance of or
compliance with any term, covenant or agreement on its part to be performed or observed
under any Loan Document may be extended, or such performance or compliance waived, or
failure in or departure from such performance or compliance consented to, all in such manner
and upon such terms as the Guaranteed Parties may deem proper;




     (d)     any Guaranteed Party may discharge or release, in whole or in part, any other Loan
Party or any other Person liable for the payment and performance of all or any part of the
Guaranteed Obligations, and may permit or consent to any such action or any result of such
action, and shall not be obligated to demand or enforce payment upon any of the Collateral
or any other collateral, nor shall any Guaranteed Party be liable to the Guarantor for any
failure to collect or enforce payment or performance of the Guaranteed Obligations from any
Person or to realize on the Collateral or other collateral therefor;




     (e)     in addition to the Collateral, the Guaranteed Parties may take and hold other
security (legal or equitable) of any kind, at any time, as collateral for the Guaranteed
Obligations, and may, from time to time, in whole or in part, exchange, sell, surrender,
release, subordinate, modify, waive, rescind, compromise or extend such security and may
permit or consent to any such action or the result of any such action, and may apply such
security and direct the order or manner of sale thereof;




     (f)     the Guaranteed Parties may request and accept other guaranties of the Guaranteed
Obligations and any other indebtedness, obligations or liabilities of the U.S. Borrower to
any Guaranteed Party and may, from time to time, in whole or in part, surrender, release,
subordinate, modify, waive, rescind, compromise or extend any such guaranty and may permit
or consent to any such action or the result of any such action; and




     (g)     the Guaranteed Parties may exercise, or waive or otherwise refrain from exercising,
any other right, remedy, power or privilege (including the right to accelerate the maturity
of any Loan and any power of sale) granted by any Loan Document or other security document
or agreement, or otherwise available to any Guaranteed Party, with respect to the Guaranteed
Obligations or any of the Collateral, even if the exercise of such right, remedy, power or
privilege affects or eliminates any right of subrogation or any other right of the Guarantor
against the U.S. Borrower; all as the Guaranteed Parties may



-5-









 







deem advisable, and all without impairing, abridging, releasing or affecting this
Guaranty.



          SECTION 5.  Guarantor Waivers.




       (a)     Certain Waivers. The Guarantor waives and agrees not to assert:




       (i)     any right to require any Guaranteed Party to marshal assets in favor of the U.S.
Borrower, the Guarantor, any other Loan Party or any other Person, to proceed against the
U.S. Borrower, any other Loan Party or any other Person, to proceed against or exhaust any
of the Collateral, to give notice of the terms, time and place of any public or private sale
of personal property security constituting the Collateral or other collateral for the
Guaranteed Obligations or comply with any other provisions of § 9-611 of the New York
Uniform Commercial Code (or any equivalent provision of any other applicable law) or to
pursue any other right, remedy, power or privilege of any Guaranteed Party whatsoever;




      (ii)     the defense of the statute of limitations in any action hereunder or for the
collection or performance of the Guaranteed Obligations;




      (iii)     any defense arising by reason of any lack of corporate or other authority or any
other defense of the U.S. Borrower or any other Person;




      (iv)     any defense based upon any Guaranteed Party’s errors or omissions in the
administration of the Guaranteed Obligations;




      (v)     any rights to set-offs and counterclaims;




      (vi)     any defense based upon an election of remedies (including, if available, an
election to proceed by nonjudicial foreclosure) which destroys or impairs the subrogation
rights of the Guarantor or the right of the Guarantor to proceed against the U.S. Borrower
or any other obligor of the Guaranteed Obligations for reimbursement; and




      (vii)     without limiting the generality of the foregoing, to the fullest extent permitted
by law, any defenses or benefits that may be derived from or afforded by applicable law
limiting the liability of or exonerating guarantors or sureties, or which may conflict with
the terms of this Guaranty.




      (b)     Additional Waivers.




      (i)     The Guarantor waives any and all notice of the acceptance of this Guaranty, and any
and all notice of the creation, renewal, modification, extension or accrual of the
Guaranteed Obligations, or the reliance by the Guaranteed Parties upon this Guaranty, or the
exercise of any right, power or privilege hereunder. The Guaranteed Obligations shall
conclusively be deemed to have been created, contracted, incurred and permitted to exist in
reliance upon this Guaranty. The Guarantor waives promptness, diligence, presentment,
protest, demand for payment, notice of default, dishonor or nonpayment and all



-6-









 







other notices to or upon the U.S. Borrower, the Guarantor or any other Person with
respect to the Guaranteed Obligations.




     (ii)     Until the Guaranteed Obligations have been paid in full in cash, the Guarantor
waives (A) its rights of subrogation and reimbursement, (B) any defenses the Guarantor may
have to the Guaranty by reason of an election of remedies by the Guaranteed Parties, (C) any
rights or defenses the Guarantor may have by reason of protection afforded to the U.S.
Borrower or any other Loan Party pursuant to the anti-deficiency or other laws of the State
of New York limiting or discharging the U.S. Borrower’s or such other Loan Party’s
indebtedness, (D) any defenses arising by reason of any disability or other defense of the
U.S. Borrower or any other guarantor, or the cessation from any cause whatsoever (including
any act or omission of any Guaranteed Party) of the liability of the U.S. Borrower, (E) any
defenses based on any claim that the Guarantor’s obligations exceed or are more burdensome
than those of the U.S. Borrower, (F) any right to compel any Guaranteed Party to proceed
against or exhaust any security for the Guaranteed Obligations (or to proceed against such
security in a particular order) or to pursue any other remedy in such Guaranteed Party’s
power whatsoever, and (G) any benefit of and any right to participate in any security now or
hereafter held by the Guaranteed Parties.




     (iii)     The Guarantor warrants and agrees that each of the waivers set forth herein is
made with full knowledge of its significance and consequences and that if any such waivers
are determined to be contrary to any applicable law or public policy, such waivers shall be
effective only to the maximum extent permitted by applicable law.



          (c)     Independent Obligations. The obligations of the Guarantor hereunder are independent of and
separate from the obligations of any other guarantor of the Guaranteed Obligations, the U.S.
Borrower and any other Loan Party and upon the occurrence and during the continuance of any Event
of Default, a separate action or actions may be brought against the Guarantor, whether or not the
U.S. Borrower or any such other Loan Party is joined therein or a separate action or actions are
brought against the U.S. Borrower or any such other Loan Party.



          (d)     Financial Condition of the U.S Borrower. The Guarantor shall not have any right to require
any Guaranteed Party to obtain or disclose any information with respect to: (i) the financial
condition or character of the U.S. Borrower or the ability of the U.S. Borrower to pay and perform
the Obligations; (ii) the Guaranteed Obligations; (iii) the Collateral; (iv) the existence or
nonexistence of any other guarantees of all or any part of the Guaranteed Obligations; (v) any
action or inaction on the part of any Guaranteed Party or any other Person; or (vi) any other
matter, fact or occurrence whatsoever.



          SECTION 6.  Subrogation. Until the Guaranteed Obligations (other than contingent
indemnification obligations) shall be satisfied in full and the Commitments shall be terminated,
the Guarantor shall not have, and the Guarantor shall not directly or indirectly exercise, (a) any
rights that it may acquire by way of subrogation under this Guaranty, by any payment hereunder or
otherwise, (b) any rights of contribution, indemnification, reimbursement or similar suretyship
claims arising out of this Guaranty, or (c) any other right which it might otherwise have or
acquire (in any way whatsoever) which could entitle it at any time to share or participate



-7-









 







in any right, remedy or security of any Guaranteed Party as against the U.S. Borrower or any
other Loan Party, whether in connection with this Guaranty, any of the other Loan Documents or
otherwise. If any amount shall be paid to the Guarantor on account of the foregoing rights at any
time when all the Guaranteed Obligations shall not have been paid in full, such amount shall be
held in trust for the benefit of the Guaranteed Parties and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms of the Loan Documents. Upon the indefeasible payment in
full of the Guaranteed Obligations and the termination of all Commitments, the Guarantor shall be
subrogated to the rights of the Guaranteed Parties against the U.S. Borrower to the extent
otherwise permitted by law; provided that such subrogation shall not (i) constitute a
representation or warranty, express or implied, by any Guaranteed Party as to the enforceability or
collectibility of any obligations of the U.S. Borrower under the Loan Documents or as to the
perfection, priority or enforceability of any lien or security interest contained in or relating to
any Loan Document; (ii) grant to the Guarantor any right of recourse against any Guaranteed Party
in respect thereof; (iii) give rise to any duty on the part of any Guaranteed Party to cooperate
with the Guarantor in the protection, preservation or enforcement of any rights the Guarantor may
have against the U.S. Borrower or any other Loan Party; (iv) impair any Guaranteed Party’s
unfettered discretion to settle or otherwise compromise any claims such Guaranteed Party may have
against the U.S. Borrower or otherwise impair or affect any of the waivers or consents contained
herein; or (v) restrict any Guaranteed Party from enforcing or forbearing from enforcing any of its
rights or remedies against the U.S. Borrower; provided, further, that the Guarantor shall, upon
demand, indemnify each Guaranteed Party against any and all costs and expenses arising directly or
indirectly in connection with such right of subrogation.



          SECTION 7.  Continuing Guaranty; Reinstatement.



          (a)     This Guaranty is a continuing guaranty and agreement of subordination relating to any
Guaranteed Obligations, including Guaranteed Obligations which may exist continuously or which may
arise from time to time in connection with successive transactions consummated under the Term Loan
Agreement and the other Loan Documents, and the Guarantor expressly acknowledges that this Guaranty
shall remain in full force and effect notwithstanding that there may be periods in which no
Guaranteed Obligations exist. This Guaranty shall continue in effect and be binding upon the
Guarantor until termination of the Commitments and payment and performance in full of the
Guaranteed Obligations.



          (b)     This Guaranty shall continue to be effective or shall be reinstated and revived, as the
case may be, if, for any reason, any payment of the Guaranteed Obligations by or on behalf of the
U.S. Borrower (or receipt of any proceeds of Collateral) shall be rescinded, invalidated, declared
to be fraudulent or preferential, set aside, voided or otherwise required to be repaid to the U.S.
Borrower, its estate, trustee, receiver or any other Person (including under the Bankruptcy Code or
other state or federal law), or must otherwise be restored by the Administrative Agent or any
Lender, whether as a result of Insolvency Proceedings or otherwise. To the extent any payment is so
rescinded, set aside, voided or otherwise repaid or restored, the Guaranteed Obligations shall be
revived in full force and effect without reduction or discharge for such payment.



-8-









 





          SECTION 8.  Payments.



          (a)     The Guarantor hereby agrees, in furtherance of the foregoing provisions of this Guaranty
and not in limitation of any other right which any Guaranteed Party or any other Person may have
against the Guarantor by virtue hereof, upon the failure of the U.S. Borrower to pay any of the
Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under § 362(a) of the Bankruptcy Code or
comparable provision of other applicable Debtor Relief Laws), the Guarantor shall forthwith pay, or
cause to be paid, in cash, to the Administrative Agent an amount equal to the amount of the
Guaranteed Obligations then due as aforesaid (including interest which, but for the filing of a
petition in any Insolvency Proceeding with respect to the U.S. Borrower, would have accrued on such
Guaranteed Obligations, whether or not a claim is allowed against the U.S. Borrower for such
interest in any such Insolvency Proceeding). The Guarantor shall make each payment hereunder,
unconditionally in full without set-off, counterclaim or other defense, on the day when due in the
currency in which such Guaranteed Obligations are denominated in Same Day Funds, to the
Administrative Agent at such office of the Administrative Agent and to such account as is specified
in the Term Loan Agreement.



          (b)     Each time the Guarantor is required to make any payment hereunder on behalf of the U.S.
Borrower and at all times thereafter, the Guarantor shall be deemed to make the representation set
forth in Section 5.18 of the Term Loan Agreement (which section shall be read for this purpose by
substituting “Guarantor” for “Borrower” in each place such term appears).



          (c)     If the Guarantor is required to make payments to or for the account of any Guaranteed
Party under the Guarantor Documents, the Guarantor may request that such Guaranteed Party (to the
extent such Guaranteed Party is legally entitled to do so) deliver such properly completed and
executed documentation as provided for in Section 3.01(e) of the Term Loan Agreement.



          (d)     The agreements in this Section 8 shall survive the payment of all Guaranteed Obligations.



          SECTION 9.  Consideration. In order to induce the Lenders to make Loans to the U.S.
Borrower pursuant to the Term Loan Agreement, the Guarantor represents and warrants to each
Guaranteed Party that the Guarantor has received at least “reasonably equivalent value” (as such
phrase is used in § 548 of the Bankruptcy Code), and “fair consideration” (as such term is used in
§ 272 of the New York Uniform Fraudulent Conveyance Act) and more than sufficient consideration to
support its obligations hereunder in respect of the Guaranteed Obligations and under any of the
Collateral Documents to which it is a party.



          SECTION 10. Notices. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by facsimile
transmission) and mailed, faxed, emailed (subject to the provisions of the final sentence of this
Section 10) or delivered, in the case of the Guarantor, to the address or facsimile number or email
address specified in the Term Loan Agreement, and in the case of any Guaranteed Party, to



-9-









 







the address or facsimile number or email address specified in the Term Loan Agreement, or to
such other address, facsimile number or email address as shall be designated by such party in a
notice to the other parties. All such notices and other communications shall be deemed to be given
or made upon the earlier to occur of (i) actual receipt by the intended recipient and (ii) (A) if
delivered by hand or by courier, when signed for by the intended recipient; (B) if delivered by
mail, four Business Days after deposit in the mails, postage prepaid; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone, when delivered; and (D) if
delivered by electronic mail (which form of delivery is subject to the provisions of the final
sentence of this Section 10), when delivered. In no event shall a voicemail message be effective as
a notice, communication or confirmation hereunder. Electronic mail and Internet and intranet
websites may be used only to distribute routine communications, and to distribute documents for
execution by the parties thereto, and may not be used for any other purpose.



          SECTION 11. No Waiver; Cumulative Remedies. No failure by any Guaranteed Party to
exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder or under any other Guarantor Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein or therein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.



          SECTION 12. Costs and Expenses.



          (a)     Costs and Expenses. The Guarantor shall: (i) pay or reimburse the Administrative
Agent for all reasonable costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Guaranty and the other Guarantor Documents and any
amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or
not the transactions contemplated hereby or thereby are consummated), and the consummation and
administration of the transactions contemplated hereby and thereby, including all reasonable costs
and expenses of counsel; and (ii) pay or reimburse the Administrative Agent and each other
Guaranteed Party for all costs and expenses incurred in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Guaranty or the other Guarantor
Documents (including all such costs and expenses incurred during any “workout” or restructuring in
respect of the Guaranteed Obligations and during any legal proceeding, including any proceeding
under any Debtor Relief Laws), including all costs and expenses of counsel. The foregoing costs and
expenses shall include all search, filing, recording, title insurance and appraisal charges and
fees and taxes related thereto, and other out-of-pocket expenses incurred by the Administrative
Agent and the cost of independent public accountants and other outside experts retained by any
Guaranteed Party.



          (b)     Interest. Any amounts payable by the Guarantor under this Section 12 or otherwise
under this Guaranty if not paid upon demand shall bear interest from the date of such demand until
paid in full, at a fluctuating interest rate per annum at all times equal to the Default Rate
applicable to Base Rate Loans to the fullest extent permitted by applicable Law. Any such interest
shall be due and payable upon demand and shall be calculated on the basis of a year of 365 or 366
days, as the case may be, and the actual number of days elapsed.



-10-









 





          (c)     Payment. All amounts due under this Section 12 shall be payable within ten
Business Days after demand therefor.



          (d)     Survival. The agreements in this Section 12 shall survive the termination of the
Commitments and repayment of all Guaranteed Obligations.



          SECTION 13. Right of Set-Off. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of Default each
Lender, each of their respective Affiliates is authorized at any time and from time to time,
without prior notice to the Guarantor, any such notice being waived by the Guarantor to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other indebtedness at any time owing by,
such Lender or any such Affiliate to or for the credit or the account of the Guarantor against any
and all Obligations owing to such Lender, now or hereafter existing, irrespective of whether or not
the Administrative Agent or such Lender shall have made demand under this Guaranty or any other
Guarantor Document and although such Obligations may be contingent or unmatured or denominated in a
currency different from that of the applicable deposit or indebtedness. Each of the Lenders agree
(by its acceptance hereof) promptly to notify the Guarantor and the Administrative Agent after any
such set-off and application made by such Lender; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application. The rights of each Lender and
their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender or their respective Affiliates may have.



          SECTION 14. Marshalling; Payments Set Aside. Neither the Administrative Agent nor any
other Guaranteed Party shall be under any obligation to marshal any assets in favor of the
Guarantor or any other Person or against or in payment of any or all of the Guaranteed Obligations.
To the extent that the Guarantor makes a payment to any Guaranteed Party, or any Guaranteed Party
exercises its right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by any Guaranteed Party in its
discretion) to be repaid to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b) each of the Lenders
severally agrees (by its acceptance hereof) to pay to the Administrative Agent upon demand its pro
rata share of any amount so recovered from or repaid by the Administrative Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate per annum equal to
the Federal Funds Rate from time to time in effect.



          SECTION 15. Benefits of Guaranty. This Guaranty is entered into for the sole
protection and benefit of the Administrative Agent and each other Guaranteed Party and their
respective successors and assigns, and no other Person (other than any Indemnitee specified herein)
shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action
or claim in connection with, this Guaranty. The Guaranteed Parties, by their acceptance of this
Guaranty, shall not have any obligations under this Guaranty to any Person other than the
Guarantor, and such obligations shall be limited to those expressly stated herein.



-11-









 





          SECTION 16. Binding Effect; Assignment.



          (a)     Binding Effect. This Guaranty shall be binding upon the Guarantor and its
successors and assigns, and inure to the benefit of and be enforceable by the Administrative Agent
and each other Guaranteed Party and their respective successors, endorsees, transferees and
assigns.



          (b)     Assignment. Except to the extent otherwise provided in the Term Loan Agreement,
the Guarantor shall not have the right to assign or transfer its rights and obligations hereunder
or under any other Guarantor Documents without the prior written consent of the Required Lenders.
Each Lender may, without notice to or consent by the Guarantor, sell, assign, transfer or grant
participations in all or any portion of such Lender’s rights and obligations hereunder and under
the other Guarantor Documents in connection with any sale, assignment, transfer or grant of a
participation by such Lender in accordance with Section 10.06 of the Term Loan Agreement of or in
its rights and obligations thereunder and under the other Loan Documents. In the event of any grant
of a participation, the participant (A) shall be deemed to have a right of setoff under Section 13
in respect of its participation to the same extent as if it were such “Guaranteed Party;” and (B)
shall also be entitled to the benefits of Section 12.



          SECTION 17. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



          SECTION 18. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER
GUARANTOR DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER GUARANTOR
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



          SECTION 19. Entire Agreement; Amendments and Waivers. This Guaranty together with the
other Guarantor Documents embodies the entire agreement of the Guarantor with respect to the
matters set forth herein and supersedes all prior or contemporaneous agreements and understandings
of the Guarantor, verbal or written, relating to the subject matter hereof and thereof and shall
not be amended except by written agreement of the Guarantor, the Administrative Agent and the
Required Lenders. No waiver of any rights of the Guaranteed Parties under any provision of this
Guaranty or consent to any departure by the Guarantor therefrom shall be effective unless in
writing and signed by the Administrative Agent and the Required Lenders, or the Administrative
Agent (with the written consent of the Required Lenders). Any such amend-



-12-









 







ment, waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given.



          SECTION 20. Severability. If any provision of this Guaranty or the other Guarantor
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Guaranty and the other Guarantor Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations
to replace the illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.



          SECTION 21. Counterparts. This Guaranty may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.



          SECTION 22. Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Guarantor Document into a
currency other than Dollars, the rate of exchange used shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase Dollars with such other currency
on the Business Day preceding that on which final judgment is given. The obligation of the
Guarantor in respect of any such sum due from it to any Guaranteed Party hereunder or under the
other Guarantor Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than Dollars, 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
Dollars with the Judgment Currency. If the amount of Dollars so purchased is less than the sum
originally due to the Administrative Agent from the Guarantor in such currency, the Guarantor
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such obligation was owing against such loss. If the
amount of Dollars so purchased is greater than the sum originally due to the Administrative Agent
in such currency, the Administrative Agent (by its acceptance hereof) agrees to return the amount
of any excess to the Guarantor (or to any other Person who may be entitled thereto under applicable
law). The agreements in this Section 22 shall survive the termination of the Commitments and
repayment of all Guaranteed Obligations.



          SECTION 23. Bermuda Branch; Full Recourse Obligations. All the obligations of the
Guarantor hereunder are incurred by Flextronics International Ltd., a Singapore corporation (“FIL”)
at its Bermuda branch located at Canon’s Court, 22 Victoria Street, Hamilton HM 12 BERMUDA, and all
payments hereunder including, without limitation, payments of principal and interest, by the
Guarantor of the Guaranteed Obligations will be made through its Bermuda branch; provided, however,
that notwithstanding the foregoing, Guarantor acknowledges and agrees that the Guarantor’s
obligations hereunder are full recourse to FIL, and are in no manner limited to any extent to any
branch thereof and shall in no manner impair the Administrative Agent’s or any Lender’s ability to
enforce or collect any of the Guaranteed Obligations from FIL.



-13-









 





          SECTION 24. California Judicial Reference. If any action or proceeding is filed in a
court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Guaranty or any other Loan Document, (a) the court shall, and is
hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section
638 to a referee (who shall be a single active or retired judge) to hear and determine all of the
issues in such action or proceeding (whether of fact or of law) and to report a statement of
decision, provided that at the option of any party to such proceeding, any such issues pertaining
to a “provisional remedy” as defined in California Code of Civil Procedure Section 1281.8 shall be
heard and determined by the court, and (b) without limiting the generality of Section 10.04 of the
Term Loan Agreement, the Guarantor shall be solely responsible to pay all fees and expenses of any
referee appointed in such action or proceeding.



[Remainder of page intentionally left blank]




-14-









 





          IN WITNESS WHEREOF, the Guarantor has executed this Guaranty, as of the date first above
written.



	 	 	 	 	 
	 	FLEXTRONICS INTERNATIONAL LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




Exhibit F-1











 





EXHIBIT G




[FORM OF SUBSIDIARY GUARANTY]




          THIS GUARANTY (this “Guaranty”), dated as of October 1, 2007, is made by each of the
undersigned (together, the “Guarantors”; each a “Guarantor”), in favor of the
Lenders from time to time party to the Term Loan Agreement referred to below and Citicorp North
America, Inc., as Administrative Agent.



          A.     Flextronics International Ltd., a Singapore corporation (“FIL” or the
“Company”), Flextronics International USA, Inc. (“U.S. Borrower”, and together with
the Company, the “Borrowers”), the Lenders from time to time party thereto (each a
“Lender” and, collectively, the “Lenders”) and the Administrative Agent are parties
to a Term Loan Agreement dated as of October 1, 2007 (as amended, modified, renewed or extended
from time to time, the “Term Loan Agreement”).



          B.     The Guarantors are Subsidiaries of the Company.



          C.     It is a condition precedent to the making of Loans to the Borrowers under the Term Loan
Agreement that the Guarantors guarantee the indebtedness and other obligations of each Borrower to
the Guaranteed Parties under or in connection with the Term Loan Agreement.



          D.     The Guarantors, as Subsidiaries or Affiliates of the Borrowers, will derive substantial
direct and indirect benefits from the making of the Loans to the Borrowers pursuant to the Term
Loan Agreement (which benefits are hereby acknowledged by the Guarantors).



          Accordingly, to induce the Administrative Agent and the Lenders to enter into the Term Loan
Agreement, and in consideration thereof, the Guarantors hereby agree as follows:



          SECTION 1.  Definitions; Interpretation.



          (a)     Terms Defined in Term Loan Agreement. All capitalized terms used in this Guaranty
(including in the recitals hereof) and not otherwise defined herein shall have the meanings
assigned to them in the Term Loan Agreement.



          (b)     Certain Defined Terms. As used in this Guaranty (including in the recitals hereof), the
following terms shall have the following meanings:



          “Aggregate Guaranty Payments” shall mean, with respect to any Guarantor at any time,
the aggregate amount of all payments made by such Guarantor under this Guaranty (including under
Section 9 hereof) at or prior to such time.



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



1









 





          “Collateral” means any property and interests and proceeds thereof now or hereafter
acquired by the Guarantors, any Borrower or any other Person in which a Lien shall exist in favor
of the Guaranteed Parties to secure the Guaranteed Obligations.



          “Collateral Documents” means any agreement pursuant to which the Guarantors, any
Borrower or any other Person provides a Lien on any Collateral securing any or all of the
Guaranteed Obligations and all filings, documents and agreements made or delivered pursuant
thereto.



          “Fair Share” shall mean, with respect to any Guarantor at any time, an amount equal to
(i) a fraction, the numerator which is the Maximum Guaranty Amount of such Guarantor and the
denominator of which is the aggregate Maximum Guaranty Amounts of all Guarantors, multiplied by
(ii) the aggregate amount paid by all Funding Guarantors under this Guaranty at or prior to such
time.



          “Fair Share Shortfall” shall mean, with respect to any Guarantor at any time, the
amount, if any, by which the Fair Share of such Guarantor at such time exceeds the Aggregate
Guaranty Payments of such Guarantor at such time.



          “Funding Guarantor” has the meaning set forth in Section 9.



          “Guaranteed Obligations” has the meaning set forth in Section 2.



          “Guaranteed Parties” means the Administrative Agent and each Lender.



          “Guarantor Documents” means this Guaranty and all other certificates, documents,
agreements and instruments delivered to any Guaranteed Party under or in connection with this
Guaranty and the Loan Documents.



          “Insolvency Proceeding” means, with respect to any Person, (a) any case, action or
proceeding with respect to such Person before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or
relief of debtors, or (b) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; in either case undertaken under Debtor
Relief Laws.



          “Judgment Currency” has the meaning set forth in Section 24.



          “Lenders” has the meaning specified in the recitals to this Guaranty.



          “Maximum Guaranty Amount” shall mean, with respect to any Guarantor at any time, (i)
the full amount of the Guaranteed Obligations at such time or (ii) if any court of competent
jurisdiction determines in any action to enforce this Guaranty that enforcement against such
Guarantor for the full amount of the Guaranteed Obligations is not lawful under or would be subject
to avoidance under Section 548 of the Bankruptcy Code or any applicable provision of any comparable
law of any state or other jurisdiction, then the maximum amount lawful and not subject to such
avoidance.



2









 





          “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.



          “Release Date” means, in respect of any Guarantor, the occurrence of any of the
following: (i) the date of receipt by the Administrative Agent of an executed Guarantor Release
Certificate in compliance with Section 6.11(b) of the Term Loan Agreement in relation to such
Guarantor, or (ii) the date the Administrative Agent receives actual notice of the consummation of
any of the following in relation to such Guarantor, provided such transactions are
permitted under the Term Loan Agreement: (A) the sale of all or substantially all of the Equity
Securities issued by, or of all or substantially all of the assets of, such Guarantor to a Person
that is not FIL or any of its Affiliates, or (B) a Substantial Spin-off of such Guarantor, (C) the
dissolution, liquidation or termination of the existence of such Guarantor, or (D) the merger or
amalgamation of such Guarantor with or into any Person other than FIL or any of its Affiliates.



          “Solvent” means, as to any Person at any time, that (a) the fair value of the property
of such Person is greater than the amount of such Person’s liabilities (including disputed,
contingent and unliquidated liabilities) as such value is established and as such liabilities are
evaluated for purposes of Section 101(32) of the Bankruptcy Code and, in the alternative, for
purposes of the New York Uniform Fraudulent Conveyance Act and other applicable state law; (b) the
present fair saleable value of the property of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they become absolute and
matured; (c) such Person is able to realize upon its property and pay its debts and other
liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the
normal course of business; (d) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities
mature; and (e) such Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person’s property would constitute unreasonably small
capital.



          “Substantial Spin-off” means, in respect of any Guarantor, the sale, transfer or
distribution (including by means of a dividend) of 50% or more of the Equity Securities of such
Person entitled to vote for the board of directors or similar governing body of such Person
pursuant to a public offering or spin-off (by means of a dividend) of such securities.



          “Term Loan Agreement” has the meaning specified in the recitals to this Guaranty.



3









 





          (c)     Interpretation. The rules of interpretation set forth in Sections 1.02 and 1.03 of the
Term Loan Agreement shall be applicable to this Guaranty and are incorporated herein by this
reference.



          SECTION 2. Guaranty.



          (a)     The Guarantors each hereby jointly and severally, absolutely, unconditionally and
irrevocably guarantee for the Guaranteed Parties, and their respective successors, endorsees,
transferees and assigns, the full and prompt payment when due (whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise) and performance of the
Obligations and any indebtedness, liabilities and other obligations of each Borrower to the
Guaranteed Parties under or in connection with the Term Loan Agreement, the Notes and the other
Loan Documents, including all unpaid principal of the Loans, all interest accrued thereon, all fees
due under the Term Loan Agreement and all other amounts payable by each Borrower to the Guaranteed
Parties thereunder, in connection therewith, and in connection with any other Loan Document. The
terms “indebtedness,” “liabilities” and “obligations” are used herein in their most comprehensive
sense and include without limitation any and all advances, debts, obligations and liabilities,
whether now existing or hereafter arising, whether voluntary or involuntary and whether due or not
due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether
recovery upon such indebtedness, liabilities and obligations may be or hereafter become
unenforceable or shall be an allowed or disallowed claim under any Debtor Relief Law, and including
interest that accrues after the commencement by or against any Borrower or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding.
The foregoing Obligations, indebtedness, liabilities and other obligations of each Borrower, and
all other indebtedness, liabilities and obligations to be paid or performed by the Guarantors in
connection with this Guaranty (including any and all amounts due under Section 14), shall
hereinafter be collectively referred to as the “Guaranteed Obligations”.



          (b)     To the extent that any court of competent jurisdiction shall impose by final judgment
under applicable law (including if applicable, the New York Uniform Fraudulent Conveyance Act or
other applicable state law and §§ 544 and 548 of the Bankruptcy Code) any limitations on the amount
of any Guarantor’s liability with respect to the Guaranteed Obligations which any Guaranteed Party
can enforce under this Guaranty, the Guaranteed Parties by their acceptance hereof accept such
limitation on the amount of the Guarantor’s liability hereunder to the extent needed to make this
Guaranty and the Guarantor Documents fully enforceable and nonavoidable.



          SECTION 3.  Liability of Guarantors. The liability of each Guarantor under this
Guaranty shall be irrevocable, absolute, independent and unconditional, and shall not be affected
by any circumstance which might constitute a discharge of a surety or guarantor other than the
indefeasible payment and performance in full of all Guaranteed Obligations. In furtherance of the
foregoing and without limiting the generality thereof, each Guarantor agrees as follows:




     (a)     the Guarantor’s liability hereunder shall be the immediate, direct, and primary
obligation of the Guarantor and shall not be contingent upon any Guaranteed



4









 







Party’s exercise or enforcement of any remedy it may have against any Borrower or any
other Person, or against any Collateral;




     (b)     this Guaranty is a guaranty of payment when due and not merely of collectibility;




     (c)     the Guaranteed Parties may enforce this Guaranty upon the occurrence and during the
continuance of an Event of Default notwithstanding the existence of any dispute between any
of the Guaranteed Parties and any Borrower with respect to the existence of such Event of
Default;




     (d)     the Guarantor’s payment of a portion, but not all, of the Guaranteed Obligations
shall in no way limit, affect, modify or abridge the Guarantor’s liability for any portion
of the Guaranteed Obligations remaining unsatisfied; and




     (e)     the Guarantor’s liability with respect to the Guaranteed Obligations shall remain
in full force and effect without regard to, and shall not be impaired or affected by, nor
shall the Guarantor be exonerated or discharged by, any of the following events:




(i)     any Insolvency Proceeding with respect to any Borrower, the Guarantor, any
other Guarantor or other Loan Party or any other Person;




(ii)     any limitation, discharge, or cessation of the liability of any Borrower,
the Guarantor, any other Guarantor or other Loan Party or any other Person for any
Guaranteed Obligations due to any statute, regulation or rule of law, or any
invalidity or unenforceability in whole or in part of any of the Guaranteed
Obligations or the Loan Documents;




(iii)     any merger, acquisition, consolidation or change in structure of any
Borrower, the Guarantor or any other Guarantor or other Loan Party or Person, or any
sale, lease, transfer or other disposition of any or all of the assets or shares of
any Borrower, the Guarantor, any other Guarantor or other Loan Party or other Person
(in each case, except as otherwise provided in Section 25 hereof);




(iv)     any assignment or other transfer, in whole or in part, of any Guaranteed
Party’s interests in and rights under this Guaranty or the other Loan Documents,
including any Guaranteed Party’s right to receive payment of the Guaranteed
Obligations, or any assignment or other transfer, in whole or in part, of any
Guaranteed Party’s interests in and to any of the Collateral;




(v)     any claim, defense, counterclaim or setoff, other than that of prior
performance, that any Borrower, the Guarantor, any other Guarantor or other Loan
Party or other Person may have or assert, including any defense of incapacity or
lack of corporate or other authority to execute any of the Loan Documents;




(vi)     any Guaranteed Party’s amendment, modification, renewal, extension,
cancellation or surrender of any Loan Document, any Guaranteed Obliga-



5









 







tions, or any Collateral, or any Guaranteed Party’s exchange, release, or
waiver of any Collateral;




(vii)    any Guaranteed Party’s exercise or nonexercise of any power, right or
remedy with respect to any of the Collateral, including any Guaranteed Party’s
compromise, release, settlement or waiver with or of any Borrower, any other
Guarantor or other Loan Party or any other Person;




(viii)   any Guaranteed Party’s vote, claim, distribution, election, acceptance,
action or inaction in any Insolvency Proceeding related to the Guaranteed
Obligations;




(ix)    any impairment or invalidity of any of the Collateral or any other
collateral securing any of the Guaranteed Obligations or any failure to perfect any
of the Liens of the Guaranteed Parties thereon or therein; and




(x)     any other guaranty, whether by the Guarantor or any other Guarantor or
other Person, of all or any part of the Guaranteed Obligations or any other
indebtedness, obligations or liabilities of any Borrower to any Guaranteed Party.



          SECTION 4.  Consents of Guarantors. Each Guarantor hereby unconditionally consents and
agrees that, without notice to or further assent from the Guarantor:





      (a)     the principal amount of the Guaranteed Obligations may be increased or decreased
and additional Obligations of the Loan Parties under the Loan Documents may be incurred, by
one or more amendments, modifications, renewals or extensions of any Loan Document or
otherwise;




      (b)     the time, manner, place or terms of any payment under any Loan Document may be
extended or changed, including by an increase or decrease in the interest rate on any
Guaranteed Obligation or any fee or other amount payable under such Loan Document, by an
amendment, modification or renewal of any Loan Document or otherwise;




      (c)     the time for any Borrower’s (or any other Person’s) performance of or compliance
with any term, covenant or agreement on its part to be performed or observed under any Loan
Document may be extended, or such performance or compliance waived, or failure in or
departure from such performance or compliance consented to, all in such manner and upon such
terms as the Guaranteed Parties may deem proper;




      (d)     any Guaranteed Party may discharge or release, in whole or in part, any other
Guarantor or other Loan Party or any other Person liable for the payment and performance of
all or any part of the Guaranteed Obligations, and may permit or consent to any such action
or any result of such action, and shall not be obligated to demand or enforce payment upon
any of the Collateral or any other collateral, nor shall any Guaranteed Party be liable to
the Guarantor for any failure to collect or enforce payment or performance of the Guaranteed
Obligations from any Person or to realize on the Collateral or other collateral therefor;



6









 






     (e)     in addition to the Collateral, the Guaranteed Parties may take and hold other
security (legal or equitable) of any kind, at any time, as collateral for the Guaranteed
Obligations, and may, from time to time, in whole or in part, exchange, sell, surrender,
release, subordinate, modify, waive, rescind, compromise or extend such security and may
permit or consent to any such action or the result of any such action, and may apply such
security and direct the order or manner of sale thereof;




     (f)     the Guaranteed Parties may request and accept other guaranties of the Guaranteed
Obligations and any other indebtedness, obligations or liabilities of any Borrower to any
Guaranteed Party and may, from time to time, in whole or in part, surrender, release,
subordinate, modify, waive, rescind, compromise or extend any such guaranty and may permit
or consent to any such action or the result of any such action; and




     (g)     the Guaranteed Parties may exercise, or waive or otherwise refrain from exercising,
any other right, remedy, power or privilege (including the right to accelerate the maturity
of any Loan and any power of sale) granted by any Loan Document or other security document
or agreement, or otherwise available to any Guaranteed Party, with respect to the Guaranteed
Obligations or any of the Collateral, even if the exercise of such right, remedy, power or
privilege affects or eliminates any right of subrogation or any other right of the Guarantor
against the Borrowers;


all as the Guaranteed Parties may deem advisable, and all without impairing, abridging, releasing
or affecting this Guaranty.




          SECTION 5.  Guarantor Waivers.





     (a)     Certain Waivers. Each Guarantor waives and agrees not to assert:




     (i)     any right to require any Guaranteed Party to marshal assets in favor of any
Borrower, the Guarantor, any other Loan Party or any other Person, to proceed against the
Borrowers, any other Loan Party or any other Person, to proceed against or exhaust any of
the Collateral, to give notice of the terms, time and place of any public or private sale of
personal property security constituting the Collateral or other collateral for the
Guaranteed Obligations or comply with any other provisions of § 9-611 of the New York
Uniform Commercial Code (or any equivalent provision of any other applicable law) or to
pursue any other right, remedy, power or privilege of any Guaranteed Party whatsoever;




     (ii)     the defense of the statute of limitations in any action hereunder or for the
collection or performance of the Guaranteed Obligations;




     (iii)     any defense arising by reason of any lack of corporate or other authority or any
other defense of the Borrowers or any other Person;




     (iv)     any defense based upon any Guaranteed Party’s errors or omissions in the
administration of the Guaranteed Obligations;




     (v)     any rights to set-offs and counterclaims;



7









 






     (vi)     any defense based upon an election of remedies (including, if available, an
election to proceed by nonjudicial foreclosure) which destroys or impairs the subrogation
rights of the Guarantor or the right of the Guarantor to proceed against any Borrower or any
other obligor of the Guaranteed Obligations for reimbursement; and




     (vii)     without limiting the generality of the foregoing, to the fullest extent permitted
by law, any defenses or benefits that may be derived from or afforded by applicable law
limiting the liability of or exonerating guarantors or sureties, or which may conflict with
the terms of this Guaranty.




     (b)     Additional Waivers.




     (i)     Each Guarantor waives any and all notice of the acceptance of this Guaranty, and
any and all notice of the creation, renewal, modification, extension or accrual of the
Guaranteed Obligations, or the reliance by the Guaranteed Parties upon this Guaranty, or the
exercise of any right, power or privilege hereunder. The Guaranteed Obligations shall
conclusively be deemed to have been created, contracted, incurred and permitted to exist in
reliance upon this Guaranty. Each Guarantor waives promptness, diligence, presentment,
protest, demand for payment, notice of default, dishonor or nonpayment and all other notices
to or upon the Borrowers, the Guarantor or any other Guarantor or other Person with respect
to the Guaranteed Obligations.




     (ii)     Until the Guaranteed Obligations have been paid in full in cash, each Guarantor
waives (A) its rights of subrogation and reimbursement, (B) any defenses the Guarantor may
have to the Guaranty by reason of an election of remedies by the Guaranteed Parties, (C) any
rights or defenses the Guarantor may have by reason of protection afforded to any Borrower
or any other Loan Party pursuant to the anti-deficiency or other laws of the State of New
York limiting or discharging the Borrowers’ or such other Loan Party’s indebtedness, (D) any
defenses arising by reason of any disability or other defense of the Borrowers or any other
guarantor, or the cessation from any cause whatsoever (including any act or omission of any
Guaranteed Party) of the liability of any Borrower, (E) any defenses based on any claim that
the Guarantor’s obligations exceed or are more burdensome than those of the Borrowers, (F)
any right to compel any Guaranteed Party to proceed against or exhaust any security for the
Guaranteed Obligations (or to proceed against such security in a particular order) or to
pursue any other remedy in such Guaranteed Party’s power whatsoever, and (G) any benefit of
and any right to participate in any security now or hereafter held by the Guaranteed
Parties.




     (iii)     Each Guarantor warrants and agrees that each of the waivers set forth herein is
made with full knowledge of its significance and consequences and that if any such waivers
are determined to be contrary to any applicable law or public policy, such waivers shall be
effective only to the maximum extent permitted by applicable law.



          (c)     Independent Obligations. The obligations of each Guarantor hereunder are
independent of and separate from the obligations of any other Guarantor or other guarantor of the
Guaranteed Obligations, the Borrowers and any other Loan Party and upon the occurrence and during
the continuance of any Event of Default, a separate action or actions may be brought



8









 







against each Guarantor, whether or not the Borrowers or any such other Guarantor or other Loan
Party is joined therein or a separate action or actions are brought against any Borrower or any
such other Guarantor or other Loan Party.



          (d)     Financial Condition of Borrowers. No Guarantor shall have any right to require
any Guaranteed Party to obtain or disclose any information with respect to: (i) the financial
condition or character of the Borrowers or the ability of the Borrowers to pay and perform the
Obligations; (ii) the Guaranteed Obligations; (iii) the Collateral; (iv) the existence or
nonexistence of any other guarantees of all or any part of the Guaranteed Obligations; (v) any
action or inaction on the part of any Guaranteed Party or any other Person; or (vi) any other
matter, fact or occurrence whatsoever.



          SECTION 6.  Subrogation. Until the Guaranteed Obligations (other than contingent
indemnification obligations) shall be satisfied in full and the Commitments shall be terminated, no
Guarantor shall have, and no Guarantor shall directly or indirectly exercise, (a) any rights that
it may acquire by way of subrogation under this Guaranty, by any payment hereunder or otherwise,
(b) any rights of contribution, indemnification, reimbursement or similar suretyship claims arising
out of this Guaranty, or (c) any other right which it might otherwise have or acquire (in any way
whatsoever) which could entitle it at any time to share or participate in any right, remedy or
security of any Guaranteed Party as against the Borrowers or any other Guarantor or other Loan
Party, whether in connection with this Guaranty, any of the other Loan Documents or otherwise. If
any amount shall be paid to any Guarantor on account of the foregoing rights at any time when all
the Guaranteed Obligations shall not have been paid in full, such amount shall be held in trust for
the benefit of the Guaranteed Parties and shall forthwith be paid to the Administrative Agent to be
credited and applied to the Guaranteed Obligations, whether matured or unmatured, in accordance
with the terms of the Loan Documents. Upon the indefeasible payment in full of the Guaranteed
Obligations and the termination of all Commitments, each Guarantor shall be subrogated to the
rights of the Guaranteed Parties against the Borrowers to the extent otherwise permitted by law;
provided that such subrogation shall not (i) constitute a representation or warranty,
express or implied, by any Guaranteed Party as to the enforceability or collectibility of any
obligations of the Borrowers under the Loan Documents or as to the perfection, priority or
enforceability of any lien or security interest contained in or relating to any Loan Document; (ii)
grant to the Guarantor any right of recourse against any Guaranteed Party in respect thereof; (iii)
give rise to any duty on the part of any Guaranteed Party to cooperate with the Guarantor in the
protection, preservation or enforcement of any rights the Guarantor may have against any Borrower
or any other Loan Party; (iv) impair any Guaranteed Party’s unfettered discretion to settle or
otherwise compromise any claims such Guaranteed Party may have against any Borrower or otherwise
impair or affect any of the waivers or consents contained herein; or (v) restrict any Guaranteed
Party from enforcing or forbearing from enforcing any of its rights or remedies against any
Borrower; provided, further, that each Guarantor shall, upon demand, indemnify each
Guaranteed Party against any and all costs and expenses arising directly or indirectly in
connection with such right of subrogation.



          SECTION 7. Continuing Guaranty; Reinstatement.



          (a)     This Guaranty is a continuing guaranty and agreement of subordination relating to any
Guaranteed Obligations, including Guaranteed Obligations which may exist con-



9









 







tinuously or which may arise from time to time in connection with successive transactions
consummated under the Term Loan Agreement and the other Loan Documents, and each Guarantor
expressly acknowledges that this Guaranty shall remain in full force and effect notwithstanding
that there may be periods in which no Guaranteed Obligations exist. This Guaranty shall, subject to
Section 26 hereof, continue in effect and be binding upon each Guarantor until termination of the
Commitments and payment and performance in full of the Guaranteed Obligations.



          (b)     This Guaranty shall continue to be effective or shall be reinstated and revived, as the
case may be, if, for any reason, any payment of the Guaranteed Obligations by or on behalf of any
of any Borrowers (or receipt of any proceeds of Collateral) shall be rescinded, invalidated,
declared to be fraudulent or preferential, set aside, voided or otherwise required to be repaid to
any Borrower, its estate, trustee, receiver or any other Person (including under the Bankruptcy
Code or other state or federal law), or must otherwise be restored by the Administrative Agent or
any Lender, whether as a result of Insolvency Proceedings or otherwise. To the extent any payment
is so rescinded, set aside, voided or otherwise repaid or restored, the Guaranteed Obligations
shall be revived in full force and effect without reduction or discharge for such payment.



          SECTION 8.  Payments.



          (a)     Each Guarantor hereby agrees, in furtherance of the foregoing provisions of this Guaranty
and not in limitation of any other right which any Guaranteed Party or any other Person may have
against the Guarantor by virtue hereof, upon the failure of any Borrower to pay any of the
Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under § 362(a) of the Bankruptcy Code or
comparable provision of other applicable Debtor Relief Law), the Guarantor shall forthwith pay, or
cause to be paid, in cash, to the Administrative Agent an amount equal to the amount of the
Guaranteed Obligations then due as aforesaid (including interest which, but for the filing of a
petition in any Insolvency Proceeding with respect to any Borrower, would have accrued on such
Guaranteed Obligations, whether or not a claim is allowed against the Borrower for such interest in
any such Insolvency Proceeding). Each Guarantor shall make each payment hereunder, unconditionally
in full without set-off, counterclaim or other defense, on the day when due in the currency in
which such Guaranteed Obligations are denominated in Same Day Funds, to the Administrative Agent at
such office of the Administrative Agent and to such account as is specified in the Term Loan
Agreement.



          (b)     Each time a Guarantor is required to make any payment hereunder on behalf of any Borrower
and at all times thereafter, such Guarantor shall be deemed to make the representation set forth in
Section 5.18 of the Term Loan Agreement (which section shall be read for this purpose by
substituting “Guarantor” for “Borrower” in each place such term appears).



          (c)     If any Guarantor is required to make payments to or for the account of any Guaranteed
Party under the Guarantor Documents, such Guarantor may request that such Guaranteed Party (to the
extent such Guaranteed Party is legally entitled to do so) deliver such properly completed and
executed documentation as provided for in Section 3.01(e) of the Term Loan



10









 







Agreement.



          (d)     The agreements in this Section 8 shall survive the payment of all Guaranteed Obligations.



          SECTION 9.  Contribution among Guarantors. Guarantors desire to allocate among
themselves, in a fair and equitable manner, their rights of contribution from each other when any
payment is made by any Guarantor under this Guaranty. Accordingly, if any payment is made by any
Guarantor under this Guaranty (a “Funding Guarantor”) that exceeds its Fair Share, the
Funding Guarantor shall be entitled to a contribution from each other Guarantor in the amount of
such other Guarantor’s Fair Share Shortfall, so that all such contributions shall cause each
Guarantor’s Aggregate Guaranty Payments to equal its Fair Share. The amounts payable as
contributions hereunder shall be determined by the Funding Guarantor as of the date on which the
related payment or distribution is made by the Funding Guarantor, and such determination shall be
binding on the other Guarantors absent manifest error. The allocation and right of contribution
among Guarantors set forth in this Section 9 shall not be construed to limit in any way the
liability of any Guarantor under this Guaranty or the amount of the Guaranteed Obligations.



          SECTION 10.     Representations and Warranties. In order to induce the Lenders to make
Loans to the Borrowers pursuant to the Term Loan Agreement, each Guarantor represents and warrants
to each Guaranteed Party that:




     (a)     Organization and Powers. The Guarantor (i) is a duly organized or formed
corporation which is validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, and (ii) has all requisite power and
authority and all governmental licenses, authorizations, consents and approvals to (A) own
its assets and carry on its business and (B) to execute, deliver, and perform its
obligations under this Guaranty and the other Guarantor Documents to which it is a party.




     (b)     Authorization; No Conflict. The execution, delivery and performance by the
Guarantor of this Guaranty and any other Guarantor Documents have been duly authorized by
all necessary corporate or other organizational action, and do not and will not (i)
contravene the terms of any of the Guarantor’s Organization Documents; (ii) conflict with or
result in any material breach or contravention of, or the creation of any material Lien
under, any Contractual Obligation to which the Guarantor is a party or any order,
injunction, writ or decree of any Governmental Authority or arbitral award to which the
Guarantor or its property is subject; or (iii) violate any material Law applicable to the
Guarantor.




     (c)     Binding Obligation. This Guaranty has been, and the other Guarantor
Documents, when executed and delivered by the Guarantor, will have been, duly executed and
delivered by the Guarantor. This Guaranty constitutes, and each other Guarantor Document
when so executed and delivered will constitute, a legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms, except to the
extent that the enforceability hereof may be limited by Debtor Relief Laws and by equitable
principles (regardless of whether enforcement is sought in equity or at law).



11









 






     (d)     Governmental Consents. No material 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, the Guarantor of this Guaranty or any other
Guarantor Documents, except such as (i) have been made or obtained and are in full force and
effect or (ii) are being made or obtained in a timely manner and once made or obtained will
be in full force and effect.




     (e)     Consideration. The Guarantor has received at least “reasonably equivalent
value” (as such phrase is used in § 548 of the Bankruptcy Code), and at least “fair
consideration” (as such term is used in § 272 of the New York Uniform Fraudulent Conveyance
Act) and more than sufficient consideration to support its obligations hereunder in respect
of the Guaranteed Obligations and under any of the Collateral Documents to which it is a
party.




     (f)     Solvency. Immediately prior to and after and giving effect to the
incurrence of the Guarantor’s obligations under this Guaranty the Guarantor is and will be
Solvent.




     (g)     Term Loan Agreement Representations. Each representation and warranty made
by the Borrowers in the Term Loan Agreement in reference to any Guarantor is true and
correct as to such Guarantor.



          SECTION 11. Term Loan Agreement Covenants. Each Guarantor shall observe, perform and
comply with all covenants applicable to such Guarantor set forth in Articles VI and VII of the Term
Loan Agreement, which by their terms the Company is required to cause such Guarantor to observe,
perform and comply with, as if such covenants were set forth in full herein.



          SECTION 12. Notices. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by facsimile
transmission) and mailed, faxed, emailed (subject to the provisions of the final sentence of this
Section 12) or delivered, in the case of a Guarantor, care of the Company, to the address or
facsimile number or email address specified in the Term Loan Agreement, and in the case of any
Guaranteed Party, to the address or facsimile number or email address specified in the Term Loan
Agreement, or to such other address, facsimile number or email address as shall be designated by
such party in a notice to the other parties. All such notices and other communications shall be
deemed to be given or made upon the earlier to occur of (i) actual receipt by the intended
recipient and (ii) (A) if delivered by hand or by courier, when signed for by the intended
recipient; (B) if delivered by mail, four Business Days after deposit in the mails, postage
prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone, when
delivered; and (D) if delivered by electronic mail (which form of delivery is subject to the
provisions of the final sentence of this Section 12), when delivered. In no event shall a voicemail
message be effective as a notice, communication or confirmation hereunder. Electronic mail and
Internet and intranet websites may be used only to distribute routine communications, and to
distribute documents for execution by the parties thereto, and may not be used for any other
purpose.



12









 





          SECTION 13. No Waiver; Cumulative Remedies. No failure by any Guaranteed Party to
exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder or under any other Guarantor Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein or therein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.



          SECTION 14. Costs and Expenses.



          (a)     Costs and Expenses. Each Guarantor, jointly and severally, shall: (i) pay or reimburse the
Administrative Agent for all reasonable costs and expenses incurred in connection with the
development, preparation, negotiation and execution of this Guaranty and the other Guarantor
Documents and any amendment, waiver, consent or other modification of the provisions hereof and
thereof (whether or not the transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and thereby, including all
reasonable costs and expenses of counsel; and (ii) pay or reimburse the Administrative Agent and
each other Guaranteed Party for all costs and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this Guaranty or the other
Guarantor Documents (including all such costs and expenses incurred during any “workout” or
restructuring in respect of the Guaranteed Obligations and during any legal proceeding, including
any proceeding under any Debtor Relief Law), including all costs and expenses of counsel. The
foregoing costs and expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket expenses incurred by
the Administrative Agent and the cost of independent public accountants and other outside experts
retained by any Guaranteed Party.



          (b)     Interest. Any amounts payable by a Guarantor under this Section 14 or otherwise under this
Guaranty if not paid upon demand shall bear interest from the date of such demand until paid in
full, at a fluctuating interest rate per annum at all times equal to the Default Rate applicable to
Base Rate Loans to the fullest extent permitted by applicable Law. Any such interest shall be due
and payable upon demand and shall be calculated on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed.



          (c)     Payment. All amounts due under this Section 14 shall be payable within ten Business Days
after demand therefor.



          (d)     Survival. The agreements in this Section 14 shall survive the termination of the
Commitments and repayment of all Guaranteed Obligations.



          SECTION 15. Right of Set-Off. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of Default each Lender
and each of their respective Affiliates is authorized at any time and from time to time, without
prior notice to the applicable Guarantor, any such notice being waived by the Guarantor to the
fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other indebtedness at any time owing
by, such Lender or any such Affiliate to or for the credit or the account of the



13









 







Guarantor against any and all Obligations owing to such Lender now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall have made demand under
this Guaranty or any other Guarantor Document and although such Obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable deposit or
indebtedness. Each of the Lenders agrees (by its acceptance hereof) promptly to notify the
Guarantor and the Administrative Agent after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender or their respective Affiliates may have.



          SECTION 16. Marshalling; Payments Set Aside. Neither the Administrative Agent nor any
other Guaranteed Party shall be under any obligation to marshal any assets in favor of any
Guarantor or any other Person or against or in payment of any or all of the Guaranteed Obligations.
To the extent that any Guarantor makes a payment to any Guaranteed Party, or any Guaranteed Party
exercises its right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by any Guaranteed Party in its
discretion) to be repaid to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b) each of the Lenders
severally agrees (by its acceptance hereof) to pay to the Administrative Agent upon demand its pro
rata share of any amount so recovered from or repaid by the Administrative Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate per annum equal to
the Federal Funds Rate from time to time in effect.



          SECTION 17. Benefits of Guaranty. This Guaranty is entered into for the sole
protection and benefit of the Administrative Agent and each other Guaranteed Party and their
respective successors and assigns, and no other Person (other than any Indemnitee specified herein)
shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action
or claim in connection with, this Guaranty. The Guaranteed Parties, by their acceptance of this
Guaranty, shall not have any obligations under this Guaranty to any Person other than the
Guarantors, and such obligations shall be limited to those expressly stated herein.



          SECTION 18. Binding Effect; Assignment.



          (a)     Binding Effect. This Guaranty shall be binding upon each Guarantor and its successors and
assigns, and inure to the benefit of and be enforceable by the Administrative Agent and each other
Guaranteed Party and their respective successors, endorsees, transferees and assigns.



          (b)     Assignment. Except to the extent otherwise provided in the Term Loan Agreement, no
Guarantor shall have the right to assign or transfer its rights and obligations hereunder or under
any other Guarantor Documents without the prior written consent of the Required Lenders. Each
Lender may, without notice to or consent by any Guarantor, sell, assign, transfer or grant
participations in all or any portion of such Lender’s rights and obligations hereunder and



14









 







under the other Guarantor Documents in connection with any sale, assignment, transfer or grant
of a participation by such Lender in accordance with Section 10.06 of the Term Loan Agreement of or
in its rights and obligations thereunder and under the other Loan Documents. In the event of any
grant of a participation, the participant (A) shall be deemed to have a right of setoff under
Section 15 in respect of its participation to the same extent as if it were such “Guaranteed
Party”; and (B) shall also be entitled to the benefits of Section 14.



          SECTION 19. Governing Law and Jurisdiction.



          (a)     THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.



          (b)     ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER GUARANTOR
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN,
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF
THIS GUARANTY, EACH GUARANTOR CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS GUARANTY OR ANY OTHER GUARANTOR DOCUMENT. EACH GUARANTOR WAIVES PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE
LAW OF SUCH STATE.



          (c)     Each Guarantor hereby irrevocably appoints CT Corporation, with offices on the date hereof
at 111 Eighth Avenue, New York, New York 10011, as its authorized agent (in such capacity, the
“Process Agent”) with all powers necessary to receive on its behalf service of copies of
the summons and complaint and any other process which may be served in any action or proceeding
arising out of or relating to this Guaranty and the other Guarantor Documents in any of the courts
in and of the State of New York. Such service may be made by mailing or delivering a copy of such
process to the Guarantor in care of the Process Agent at the Process Agent’s address and the
Guarantor hereby irrevocably authorizes and directs the Process Agent to accept such service on its
behalf and agrees that the failure of the Process Agent to give any notice of any such service to
the Guarantor shall not impair or affect the validity of such service or of any judgment rendered
in any action or proceeding based thereon. As an alternative method of service, each Guarantor also
irrevocably consents to the service of any and all process in any such action or proceeding by the
mailing of copies of such process to the Guarantor at its address specified on the signature page
hereof. If for any reason CT Corporation shall cease to act as Process Agent, each Guarantor shall
appoint forthwith, in the manner provided for herein, a successor Process Agent qualified to act as
an agent for service of process with respect to all courts in and of the State of New York and
acceptable to the Administrative Agent.



          (d)     Nothing in this Section 19 shall affect the right of the Guaranteed Parties to serve legal
process in any other manner permitted by law or limit the right of the Guaranteed



15









 







Parties to bring any action or proceeding against the Guarantor or its property in the courts
of other jurisdictions.



          SECTION 20. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER
GUARANTOR DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER GUARANTOR
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



          SECTION 21. Entire Agreement; Amendments and Waivers. This Guaranty together with the
other Guarantor Documents embodies the entire agreement of the Guarantor with respect to the
matters set forth herein and supersedes all prior or contemporaneous agreements and understandings
of the Guarantors, verbal or written, relating to the subject matter hereof and thereof and shall
not be amended as to any Guarantor except by written agreement of the Guarantor, the Administrative
Agent and the Required Lenders. No waiver of any rights of the Guaranteed Parties under any
provision of this Guaranty or consent to any departure by any Guarantor therefrom shall be
effective unless in writing and signed by the Administrative Agent and the Required Lenders, or the
Administrative Agent (with the written consent of the Required Lenders). Any such amendment, waiver
or consent shall be effective only in the specific instance and for the specific purpose for which
given.



          SECTION 22. Severability. If any provision of this Guaranty or the other Guarantor
Documents is held to be illegal, invalid or unenforceable as to any or all Guarantors, (a) the
legality, validity and enforceability of the remaining provisions of this Guaranty and the other
Guarantor Documents as to such affected Guarantor(s) shall not be affected or impaired thereby, (b)
the legality, validity and enforceability of such provisions and any other provisions as to any
other Guarantor shall not be affected or impaired thereby, and (c) the parties shall endeavor in
good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the illegal, invalid
or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.



          SECTION 23. Counterparts. This Guaranty may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.



          SECTION 24. Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Guarantor Document into a



16









 







currency other than Dollars, the rate of exchange used shall be that at which in accordance
with normal banking procedures the Administrative Agent could purchase Dollars with such other
currency on the Business Day preceding that on which final judgment is given. The obligation of
each Guarantor in respect of any such sum due from it to any Guaranteed Party hereunder or under
the other Guarantor Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than Dollars, 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
Dollars with the Judgment Currency. If the amount of Dollars so purchased is less than the sum
originally due to the Administrative Agent from the Guarantor in such currency, the Guarantor
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such obligation was owing against such loss. If the
amount of Dollars so purchased is greater than the sum originally due to the Administrative Agent
in such currency, the Administrative Agent (by its acceptance hereof) agrees to return the amount
of any excess to the Guarantor (or to any other Person who may be entitled thereto under applicable
law). The agreements in this Section 24 shall survive the termination of the Commitments and
repayment of all Guaranteed Obligations.



          SECTION 25. Future Guarantors. At such time following the date hereof as any
Subsidiary of the Company (an “Acceding Subsidiary”) is required to accede hereto pursuant
to the terms of Section 6.11(a) of the Term Loan Agreement, such Acceding Subsidiary shall execute
and deliver to the Administrative Agent a Joinder Agreement substantially in the form of Annex I
hereto, signifying its agreement to be bound by the provisions of this Guaranty as a Guarantor to
the same extent as if such Acceding Subsidiary had originally executed this Guaranty as of the date
hereof.



          SECTION 26. Guarantor Release. Each Guarantor shall remain obligated under and bound
by this Guaranty until termination of the Commitments and payment and performance in full of the
Guaranteed Obligations; provided that this Guaranty shall be terminated as to any
Guarantor, provided there exists no Default (except as otherwise specified in Section
6.11(b) of the Term Loan Agreement), upon the occurrence of a Release Date as to such released
Guarantor, without affecting or impairing the obligations of any other Guarantor hereunder.



          SECTION 27. California Judicial Reference. If any action or proceeding is filed in a
court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Guaranty or any other Loan Document, (a) the court shall, and is
hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section
638 to a referee (who shall be a single active or retired judge) to hear and determine all of the
issues in such action or proceeding (whether of fact or of law) and to report a statement of
decision, provided that at the option of any party to such proceeding, any such issues
pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section
1281.8 shall be heard and determined by the court, and (b) without limiting the generality of
Section 10.04 of the Term Loan Agreement, the Guarantors shall be solely responsible to pay all
fees and expenses of any referee appointed in such action or proceeding.


[Remainder of page intentionally left blank]



17









 





          IN WITNESS WHEREOF, the Guarantors have executed this Guaranty, as of the date first above
written.




	 	 	 	 	 
	 	FLEXTRONICS DISTRIBUTION, INC.

 	 
	 	 
By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 
	 
	 	FLEXTRONICS INTERNATIONAL ASIA-
PACIFIC LTD.

 	 
	 	 
By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 
	 
	 	FLEXTRONICS INTERNATIONAL EUROPE 
B.V.

 	 
	 	 
By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 
	 
	 	FLEXTRONICS INTERNATIONAL 
MARKETING (L) LTD.

 	 
	 	 
By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 
	 
	 	FLEXTRONICS INTERNATIONAL USA, INC.

 	 
	 	 
By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 
	 
	 	FLEXTRONICS MARKETING (L) LTD.

 	 
	 	 
By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 
	 



[Signature Page to Guaranty]




 









 








	 	 	 	 	 
	 	FLEXTRONICS TECHNOLOGY (SHAH ALAM) 
SDN. BHD.

 	 
	 	By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 
	 
	 	FLEXTRONICS INTERNATIONAL KFT.

 	 
	 	By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 
	 
	 	FLEXTRONICS SALES & MARKETING (A-P) 
LTD.

 	 
	 	By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 
	 
	 	FLEXTRONICS (CANADA) INC.

 	 
	 	By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 
	 
	 	FLEXTRONICS INTERNATIONAL LATIN 
AMERICA (L) LTD.

 	 
	 	By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 



 









 






	 	 	 	 	 



ANNEX 1




[FORM OF]

GUARANTY JOINDER AGREEMENT




          THIS JOINDER IN GUARANTY (this “Joinder”) is executed as of        , 20        by        , a
       [corporation/limited liability company/partnership] (“Joining Party”), and delivered to
CITICORP NORTH AMERICA, INC., as administrative agent (in such capacity, the “Administrative
Agent”), for the benefit of the Lenders (as defined below). Except as otherwise defined herein,
terms used herein and defined in the Term Loan Agreement (as defined below) shall be used herein as
therein defined.




          A.     Flextronics International Ltd., a Singapore corporation (“FIL” or the
“Company”), Flextronics International USA, Inc. (the “U.S. Borrower”, and together
with the Company, the “Borrowers”), the lenders from time to time party thereto (each a
“Lender” and, collectively, the “Lenders”), and the Administrative Agent are
parties to a Term Loan Agreement, dated as of October 1, 2007 (as amended, modified or supplemented
from time to time, the “Term Loan Agreement”);




          B.     The Joining Party is a direct or indirect Subsidiary of the Company and desires, or is
required pursuant to the provisions of the Term Loan Agreement, to become a Guarantor under the
Guaranty; and




          C.     The Joining Party will obtain benefits from the incurrence of Loans by the Borrowers, in
each case pursuant to the Term Loan Agreement and, accordingly, desires to execute this Joinder in
order to (i) satisfy the requirements described in the preceding paragraph; and (ii) induce the
Lenders to continue to make Loans to the Borrowers;




          Accordingly, in consideration of the foregoing and other benefits accruing to the Joining
Party, the receipt and sufficiency of which are hereby acknowledged, the Joining Party hereby makes
the following representations and warranties to each Lender and the Administrative Agent and hereby
covenants and agrees with each Lender and the Administrative Agent as follows:






     1.     By this Joinder, the Joining party becomes a Guarantor for all purposes under the
Guaranty, pursuant to Section 25 thereof.




     2.     The Joining Party agrees that, upon its execution hereof, it will become a Guarantor
under the Guaranty with respect to all Guaranteed Obligations (as defined in the Guaranty),
and will be bound by all terms, conditions and duties applicable to a Guarantor under the
Guaranty and the other Loan Documents. Without limitation of the foregoing, and in
furtherance thereof, the Joining Party jointly and severally, absolutely, unconditionally
and irrevocably, guarantees the full and prompt payment when due of all Guaranteed
Obligations (on the same basis as the other Guarantors under the Guaranty).



Exhibit G-1









 






     3.     The Joining Party hereby makes and undertakes, as the case may be, each covenant,
representation and warranty made by, and as a Guarantor pursuant to the Guaranty, in each
case as of the date hereof (except to the extent any such representation or warranty relates
solely to an earlier date in which case such representation and warranty shall be true and
correct as of such earlier date), and agrees to be bound by all covenants, agreements and
obligations of a Guarantor and Loan Party pursuant to the Guaranty and all other Loan
Documents to which it is or becomes a party.




     4.     This Joinder shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of and be enforceable by each of the
parties hereto and its successors and assigns, provided, however, the Joining Party may not
assign any of its rights, obligations or interest hereunder or under any other Loan Document
without the prior written consent of the Lenders or as otherwise permitted by the Loan
Documents. THIS JOINDER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK. This Joinder may be executed in any number of
counterparts, each of which shall be an original, but all of which shall constitute one
instrument. In the event that any provision of this Joinder shall prove to be invalid or
unenforceable, such provision shall be deemed to be severable from the other provisions of
this Joinder, which shall remain binding on all parties hereto.




     5.     From and after the execution and delivery hereof by the parties hereto, this Joinder
shall constitute a “Loan Document” for all purposes of the Term Loan Agreement and the other
Loan Documents.




     6.     The effective date of this Joinder is        , 20   .



[Remainder of page intentionally left blank]




 









 





          IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be duly executed as of the
date first above written.




	 	 	 	 	 
	 	[NEW GUARANTOR]

 	 
	 	 
By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





	 	 	 	 	 
	Accepted and Acknowledged by:



CITICORP NORTH AMERICA, INC.,

as Administrative Agent

 	 	 
	 
By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 




 











 





EXHIBIT J




FORM OF GUARANTOR RELEASE CERTIFICATE





	To:  	 	Citicorp North America, Inc.,
as Administrative Agent





Ladies and Gentlemen:




          Reference is made to that certain Term Loan Agreement, dated as of October 1, 2007 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement”; the terms defined therein being used herein as therein defined), among
Flextronics International Ltd., a Singapore corporation (the “Company”), Flextronics
International USA, Inc., a California corporation, the Lenders from time to time party thereto and
Citicorp North America, Inc., as Administrative Agent.




          The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                    
of the Company, and that as such, he/she is authorized to execute and deliver this
Certificate to the Administrative Agent on behalf of the Company pursuant to Section 6.11(b) of the
Agreement and that:





     1.     There exists no Default as of the date hereof.


[Select One]




     2.     As set forth on the worksheet attached hereto as Annex I, [name of applicable
Subsidiary Guarantor] has ceased to be a Material Subsidiary as of the Company’s fiscal year
end dated                     , 20     .




     3.     [Name of applicable Subsidiary Guarantor] has ceased to be an Eligible Material
Subsidiary as of [insert date] by virtue of the satisfaction of clause (a) or (b) of the
definition of “Ineligible Material Subsidiary” in the Agreement solely due to a Change in
Law, and the Company is unable, with the exercise of commercially reasonable efforts, to
restore the status of such Subsidiary as an Eligible Material Subsidiary.




     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                     ,      .



	 	 	 	 	 
	 	FLEXTRONICS INTERNATIONAL LTD.

 	 
	 	By:  	 	 
	 	 	          Name:  	 	 
	 	 	          Title:  	 	 




Exhibit J-1









 








ANNEX I TO FORM OF GUARANTOR

RELEASE CERTIFICATE




Name of Subsidiary:




MATERIAL SUBSIDIARY CALCULATION

($ in 000’s)





	 	 	 	 	 	 	 	 	 
	I.	 	Material Subsidiary Test (“MS Test”) Based on Adjusted Revenues.	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	1.	 	Total revenues of Subsidiary:	 	$
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	2.	 	Intercompany Revenues:	 	$
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	3.	 	Adjusted revenues (Line I.1 - Line I.2):	 	$
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	4.	 	Consolidated total revenues for FIL (other than Flextronics	 	 
	 
	 	 	 	 	 	(Netherlands), as applicable):	 	$
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	5.	 	5% of Line I.4:	 	$
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	6.	 	Line I.3 - Line I.5:	 	$
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Test Result:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	MS Test met if Line I.6 is equal to 0 or is a positive number	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	MS Test Not Met (if Line I.6 is a negative number)	 	 
	 
	 	 	 	 	 	 	 	 
	II.	 	MS Test Based on Adjusted Assets	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	1.	 	Total assets of Subsidiary:	 	$
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	2.	 	Intercompany Receivables:	 	$
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	3.	 	Intercompany Investments:	 	$
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	4.	 	Adjusted assets (Line II.1 - 2 - 3):	 	$
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	5.	 	Consolidated total assets for FIL (other than Flextronics	 	 
	 
	 	 	 	 	 	(Netherlands), as applicable):	 	$
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	6.	 	10% of Line II.6:	 	$
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	7.	 	Line II.4 - Line II.7:	 	$
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Test Result:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	MS Test met if Line II.7 is equal to 0 or a positive number	 	 






Exhibit J-1









 






	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Not Met if Line II.7 is negative number	 	 
	 
	 	 	 	 	 	 	 	 
	III.	 	Pro Forma MS Test Based on Adjusted Revenues.	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	1	 	Total revenues of Subsidiary determined on a pro forma basis after	 	 
	 
	 	 	 	 	 	giving effect to any Material Subsidiary Recalculation Event and all	 	 
	 
	 	 	 	 	 	other Material Subsidiary Recalculation Events occurring on or prior	 	 
	 
	 	 	 	 	 	thereto:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	2.	 	Intercompany Revenues:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	3.	 	Adjusted revenues on a pro forma basis (Lines III.1 - Line III.2):	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	4.	 	Consolidated total revenues for FIL (other than	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Flextronics (Netherlands), as applicable):	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	5.	 	5% of Line III.4:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	6.	 	Line III.3 - Line III.5:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Test Result:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	MS Test met if Line III.6 is a positive number	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	MS Test not met if Line III.6 is a negative number	 	 
	 
	 	 	 	 	 	 	 	 
	IV.	 	Pro Forma MS Test Based on Net Assets.	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	1.	 	Total assets of Subsidiary determined on a pro forma basis after giving	 	 
	 
	 	 	 	 	 	effect to any Material Subsidiary Recalculation Event and all other	 	 
	 
	 	 	 	 	 	Material Subsidiary Recalculation Events on or prior thereto:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	2	 	Intercompany Receivables:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	3.	 	Intercompany Investments:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	4.	 	Adjusted assets (Line IV.1 - Line IV.2 - Line IV. 3):	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	5.	 	Consolidated total assets of FIL (other than Flextronics (Netherlands))	 	:
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	6.	 	10% of Line IV.5:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	7.	 	Line IV.4 - Line IV.6:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Test Result:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	          MS Test met if Line IV.7 is equal to 0 or a positive number	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	          MS Test not met if Line IV.7 is a negative number