\n| \n Category 5<\/u>
\nBB+\/Ba1 or lower, or unrated<\/p>\n<\/td>\n | <\/td>\n | \n 0.525%<\/p>\n<\/td>\n | <\/td>\n | \n 1.525%<\/p>\n<\/td>\n | <\/td>\n | \n 0.225%<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n For purposes of the foregoing, (a) if any of Moody153s or S&P shall not
\nhave in effect a Moody153s Rating or an S&P Rating, as the case may be (other
\nthan by reason of the circumstances referred to in the last sentence of this
\ndefinition), then the Borrower and the Lenders shall negotiate in good faith to
\namend this definition to reflect the unavailability of ratings from such rating
\nagency and, pending the effectiveness of any such amendment, such rating agency
\nshall be deemed to have established a rating in Category 5; (b) if the Moody153s
\nRating or S&P Rating established or deemed to have been established by
\nMoody153s or S&P, as the case may be, shall fall within different Categories,
\nthe Applicable Rate shall be based on the higher of the two ratings, unless the
\nratings differ by two or more categories, in which case the Applicable Rate
\nshall be based on the Category one level below that corresponding to the higher
\nrating; and (c) if the Moody153s Rating or S&P Rating established or deemed to
\nhave been established by Moody153s or S&P, as the case may be, shall be
\nchanged (other than as a result of a change in the rating system of Moody153s or
\nS&P), such change shall be effective as of the date on which it is first
\nannounced by the applicable rating agency, irrespective of when notice of such
\nchange shall have been furnished by the Borrower to the Administrative Agent and
\nthe Lenders pursuant to Section 6.01 or otherwise. Each change in the Applicable
\nRate shall apply during the period commencing on the effective date of such
\nchange and ending on the date immediately preceding the effective date of the
\nnext such change. If the rating system of Moody153s or S&P shall change, or if
\nany such rating agency shall cease to be in the business of rating corporate
\ndebt obligations, the Borrower and the Lenders shall negotiate in good faith to
\namend this definition to reflect such changed rating system or the
\nunavailability of ratings from such rating agency and, pending the effectiveness
\nof any such amendment, the Applicable Rate shall be determined by reference to
\nthe rating most recently in effect prior to such change or cessation.<\/p>\n<\/p>\n “Approved Fund<\/u>” means any Person (other than a natural person) that is
\nengaged in making, purchasing, holding or investing in bank loans and similar
\nextensions of credit in the ordinary course of its business and that is
\nadministered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
\nentity or an Affiliate of an entity that administers or manages a Lender.<\/p>\n<\/p>\n “Arranger<\/u>” means each of J.P. Morgan Securities LLC, U.S. Bank
\nNational Association, BBVA Securities Inc., Citigroup Global Markets Inc. and
\nMorgan Stanley MUFG Loan Partners, LLC, in its capacity as joint lead arranger
\nand joint bookrunner for the credit facility established hereunder.<\/p>\n<\/p>\n<\/p>\n \n
\n3<\/p>\n \n<\/p>\n “Assignment and Assumption<\/u>” means an assignment and assumption entered
\ninto by a Lender and an assignee (with the consent of any Person whose consent
\nis required by Section 10.04), and accepted by the Administrative Agent, in
\nsubstantially the form of Exhibit A or any other form approved by the
\nAdministrative Agent.<\/p>\n<\/p>\n “Availability Period<\/u>” means the period from and including the
\nEffective Date to but excluding the earlier of the Commitment Termination Date
\nand the date of termination of the Commitments.<\/p>\n<\/p>\n “Bankruptcy Event<\/u>” means, with respect to any Person, that such Person
\nhas become the subject of a bankruptcy or insolvency proceeding, or has had a
\nreceiver, conservator, trustee, administrator, custodian, assignee for the
\nbenefit of creditors or similar Person charged with the reorganization or
\nliquidation of its business appointed for it, or, in the good faith
\ndetermination of the Administrative Agent, has taken any action in furtherance
\nof, or indicating its consent to, approval of or acquiescence in any such
\nproceeding or appointment; provided<\/u> that a Bankruptcy Event shall not
\nresult solely by virtue of any ownership interest, or the acquisition of any
\nownership interest, in such Person by a Governmental Authority;
\nprovided<\/u>, however, that such ownership interest does not result in or
\nprovide such Person with immunity from the jurisdiction of courts within the
\nUnited States of America or from the enforcement of judgments or writs of
\nattachment on its assets or permit such Person (or such Governmental Authority)
\nto reject, repudiate, disavow or disaffirm any agreements made by such Person.\n<\/p>\n<\/p>\n “Best Buy Europe Distributions<\/u>” means Best Buy Europe Distributions
\nLimited, a limited company incorporated in England and Wales with registered
\nnumber 06534088.<\/p>\n<\/p>\n “Board<\/u>” means the Board of Governors of the Federal Reserve System of
\nthe United States of America.<\/p>\n<\/p>\n “Borrower<\/u>” means Best Buy Co., Inc., a Minnesota corporation.<\/p>\n<\/p>\n “Borrowing<\/u>” means (a) all Syndicated ABR Loans made, converted or
\ncontinued on the same date or (b) Syndicated Eurocurrency Loans or Competitive
\nLoans of the same Type that have the same Interest Period (or any single
\nCompetitive Loan that does not have the same Interest Period as any other
\nCompetitive Loan of the same Type).<\/p>\n<\/p>\n “Borrowing Request<\/u>” means a request by the Borrower for a Syndicated
\nBorrowing in accordance with Section 2.03.<\/p>\n<\/p>\n “Business Day<\/u>” means any day (a) that is not a Saturday, Sunday or
\nother day on which commercial banks in New York City are authorized or required
\nby law to remain closed and (b) if such day relates to a Competitive Bid Request
\nor Competitive Bid for a Competitive Eurocurrency Loan, or to a borrowing, a
\ncontinuation or conversion of or into, or the Interest Period for, a
\nEurocurrency Borrowing, or to a notice by the Borrower with respect to any such
\nborrowing, payment, prepayment, continuation, conversion, or Interest Period,
\nthat is also a day on which dealings in deposits denominated in Dollars are
\ncarried out in the London interbank market.<\/p>\n<\/p>\n “Capital Lease Obligations<\/u>” of any Person means the obligations of
\nsuch Person to pay rent or other amounts under any lease of (or other
\narrangement conveying the right to use) real or personal property, or a
\ncombination thereof, which obligations are required to be classified and
\naccounted for as capital leases on a balance sheet of such Person under GAAP,
\nand the amount of such obligations shall be the capitalized amount thereof
\ndetermined in accordance with GAAP.<\/p>\n<\/p>\n “Cash Flow Leverage Ratio<\/u>” means, as of the last day of any
\nMeasurement Period, the ratio of (a) the sum of (i) Net Interest-bearing
\nIndebtedness on such day, (ii) the principal amount of the Securitization
\nTransactions on such day plus (iii) eight times Rental and Lease Expense for the
\nMeasurement Period ended on such day, to (b) the sum of EBITDA and Rental and
\nLease Expense for the Measurement Period ended on<\/p>\n<\/p>\n<\/p>\n \n
\n4<\/p>\n \n<\/p>\n such day.<\/p>\n<\/p>\n “Change in Contro<\/u>l” means either (a) the occurrence, after the
\nEffective Date, of any of any Person or two or more Persons acting in concert
\nacquiring beneficial ownership (within the meaning of Rule 13d-3 of the
\nSecurities and Exchange Commission under the Exchange Act), directly or
\nindirectly, of common stock of the Borrower representing 50% or more of the
\ncombined voting power of all common stock of the Borrower entitled to vote in
\nthe election of directors or (b) during any period of up to twelve consecutive
\nmonths, whether commencing before or after the Effective Date, individuals who
\nat the beginning of such twelve-month period were directors of the Borrower,
\nceasing for any reason (other than by reason of death, disability or scheduled
\nretirement) to constitute a majority of the Board of Directors of the Borrower,
\nunless such directors were replaced by new directors whose election to the Board
\nof Directors of the Borrower, or whose nomination for election by the
\nshareholders of the Borrower, was approved by a majority of the directors then
\nstill in office who either were directors at the beginning of such period or
\nwhose election or nomination for election was previously so approved.<\/p>\n<\/p>\n “Change in Law<\/u>” means the occurrence, after the date of this
\nAgreement, of any of the following: (a) the adoption or taking effect of any
\nlaw, rule, regulation or treaty, (b) any change in any law, rule, regulation or
\ntreaty or in the administration, interpretation, implementation or application
\nthereof by any Governmental Authority or (c) the making or issuance of any
\nrequest, guideline or directive (whether or not having the force of law) by any
\nGovernmental Authority; provided<\/u> that, notwithstanding anything herein to
\nthe contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act
\nand all requests, rules, guidelines or directives thereunder or issued in
\nconnection therewith and (ii) all requests, rules, guidelines or directives
\npromulgated by the Bank for International Settlements, the Basel Committee on
\nBanking Supervision (or any successor or similar authority) or the United States
\nregulatory authorities, in each case pursuant to Basel III, shall in each case
\nbe deemed to be a “Change in Law”, regardless of the date enacted, adopted,
\npromulgated or issued; and provided, further, that the determination by any
\nLender of any additional amount owing to it, to the extent claimed in reliance
\non the preceding proviso, shall be made in good faith in a manner generally
\nconsistent with such Lender153s standard practices.<\/p>\n<\/p>\n “Class<\/u>“, when used in reference to any Loan or Borrowing, refers to
\nwhether such Loan, or the Loans comprising such Borrowing, are Syndicated Loans
\nor Competitive Loans.<\/p>\n<\/p>\n “Code<\/u>” means the Internal Revenue Code of 1986.<\/p>\n<\/p>\n “Commitment<\/u>” means, with respect to each Lender, the commitment of
\nsuch Lender to make Syndicated Loans hereunder, expressed as an amount
\nrepresenting the maximum aggregate amount of such Lender153s Revolving Credit
\nExposure hereunder, as such commitment may be (a) reduced from time to time
\npursuant to Section 2.09 and (b) reduced or increased from time to time pursuant
\nto assignments by or to such Lender pursuant to Section 10.04. The initial
\namount of each Lender153s Commitment is set forth on Schedule 2.01 or in the
\nAssignment and Assumption pursuant to which such Lender shall have assumed its
\nCommitment. The initial aggregate amount of the Lenders153 Commitments is
\n$1,000,000,000.<\/p>\n<\/p>\n “Commitment Termination Date<\/u>” means October 5, 2012 (or, if such date
\nis not a Business Day, the immediately preceding Business Day).<\/p>\n<\/p>\n “Competitive<\/u>“, when used in reference to any Loan or Borrowing, refers
\nto whether such Loan, or the Loans comprising such Borrowing, are made pursuant
\nto Section 2.04.<\/p>\n<\/p>\n “Competitive Bid<\/u>” means an offer by a Lender to make a Competitive
\nLoan in accordance with Section 2.04.<\/p>\n<\/p>\n “Competitive Bid Rate<\/u>” means, with respect to any Competitive Bid, the
\nMargin or the Fixed Rate, as applicable, offered by the Lender making such
\nCompetitive Bid.<\/p>\n<\/p>\n “Competitive Bid Request<\/u>” means a request by the Borrower for
\nCompetitive Bids in<\/p>\n<\/p>\n<\/p>\n \n
\n5<\/p>\n \n<\/p>\n accordance with Section 2.04.<\/p>\n<\/p>\n “Connection Income Taxes<\/u>” means Other Connection Taxes that are
\nimposed on or measured by net income (however denominated) or that are franchise
\nTaxes or branch profits Taxes.<\/p>\n<\/p>\n “Control<\/u>” means the possession, directly or indirectly, of the power
\nto direct or cause the direction of the management or policies of a Person,
\nwhether through the ability to exercise voting power, by contract or otherwise.
\n“Controlling<\/u>” and “Controlled<\/u>” have meanings correlative thereto.\n<\/p>\n<\/p>\n “Default<\/u>” means any event or condition which constitutes an Event of
\nDefault or which upon notice, lapse of time or both would, unless cured or
\nwaived, become an Event of Default.<\/p>\n<\/p>\n “Defaulting Lender<\/u>” means any Lender that (a) has failed, within two
\nBusiness Days of the date required to be funded or paid, (i) to fund any portion
\nof its Loans or (ii) to pay to the Administrative Agent or any other Lender any
\nother amount required to be paid by it hereunder, unless, in the case of clause
\n(i) above, such Lender notifies the Administrative Agent in writing that such
\nfailure is the result of such Lender153s good faith determination that a condition
\nprecedent to funding (specifically identified in writing, including, if
\napplicable, by reference to a specific Default) has not been satisfied, (b) has
\nnotified the Borrower, the Administrative Agent or any other Lender in writing,
\nor has made a public statement to the effect, that it does not intend or expect
\nto comply with any of its funding obligations under this Agreement (unless such
\nwriting or public statement indicates that such position is based on such
\nLender153s good-faith determination that a condition precedent (specifically
\nidentified in such writing, including, if applicable, by reference to a specific
\nDefault) to funding a Loan cannot be satisfied) or generally under other
\nagreements in which it commits to extend credit, (c) has failed, within three
\nBusiness Days after request by the Administrative Agent or any other Lender,
\nmade in good faith, to provide a certification in writing from an authorized
\nofficer of such Lender that it will comply with its obligations to fund
\nprospective Loans, provided<\/u> that such Lender shall cease to be a
\nDefaulting Lender pursuant to this clause (c) upon the receipt by the
\nAdministrative Agent or such other Lender of such certification, or (d) has
\nbecome the subject of a Bankruptcy Event.<\/p>\n<\/p>\n “Documentation Agent<\/u>” means each of BBVA Securities Inc., Citibank,
\nN.A. and Morgan Stanley MUFG Loan Partners, LLC in its capacity as documentation
\nagent for the credit facility established hereunder.<\/p>\n<\/p>\n “Dollars<\/u>” or “$<\/u>” refers to lawful money of the United States of
\nAmerica.<\/p>\n<\/p>\n “Domestic Securitization Transaction<\/u>” means any transfer by the
\nBorrower or any of its Domestic Subsidiaries of its accounts receivable or
\ninterests (including security interests) therein (a) to a trust, partnership,
\ncorporation, limited liability company or other entity, which transfer is funded
\nin whole or in part, directly or indirectly, by the incurrence or issuance by
\nthe transferee or successor transferee of Indebtedness or other securities that
\nare to receive payments from, or that represent interests in, the cash flow
\nderived from such accounts receivable or interests therein, or (b) directly to
\none or more investors or other purchasers.<\/p>\n<\/p>\n “Domestic Subsidiary<\/u>” means any Subsidiary of the Borrower organized
\nor incorporated under the laws of any State within the United States of America
\nor the District of Columbia.<\/p>\n<\/p>\n “EBITDA<\/u>” means, for any period, the consolidated net income of the
\nBorrower and its consolidated Subsidiaries determined in accordance with GAAP
\n(but excluding therefrom any portion thereof attributable to any noncontrolling
\ninterest in a Subsidiary and, prior to the Restricted Date, excluding all
\namounts relating to Best Buy Europe Distributions and its Subsidiaries)
\nplus<\/u> (a) to the extent deducted in determining such consolidated net
\nincome, the sum of (i) interest expense (net of interest income), income tax
\nexpense and depreciation and amortization, all as determined in accordance with
\nGAAP, (ii) extraordinary, non-recurring or unusual charges or losses, (iii)
\ncharges resulting from the application of FASB Statement Number 123 (Revised),
\n(iv) other non-cash charges, and (v) losses arising from the sale of assets
\nother than in the ordinary course of business, minus<\/u> (b) to the extent
\nincluded in such consolidated net income,<\/p>\n<\/p>\n<\/p>\n \n
\n6<\/p>\n \n<\/p>\n extraordinary gains and gains arising from the sale of assets other than in
\nthe ordinary course of business.<\/p>\n<\/p>\n “Effective Date<\/u>” means the date on which the Administrative Agent
\ndeclares this Agreement effective as provided in Section 5.01.<\/p>\n<\/p>\n “Environmental Laws<\/u>” means all laws, rules, regulations, codes,
\nordinances, orders, decrees, judgments, injunctions, notices or binding
\nagreements issued, promulgated or entered into by any Governmental Authority,
\nrelating in any way to the environment, preservation or reclamation of natural
\nresources, the management, release or threatened release of any Hazardous
\nMaterial or to health and safety matters.<\/p>\n<\/p>\n “Environmental Liability<\/u>” means any liability, contingent or otherwise
\n(including any liability for damages, costs of environmental remediation, fines,
\npenalties or indemnities), of the Borrower or any Subsidiary directly or
\nindirectly resulting from or based upon (a) violation of any Environmental Law,
\n(b) the generation, use, handling, transportation, storage, treatment or
\ndisposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
\n(d) the release or threatened release of any Hazardous Materials into the
\nenvironment or (e) any contract, agreement or other consensual arrangement
\npursuant to which liability is assumed or imposed with respect to any of the
\nforegoing.<\/p>\n<\/p>\n “Equity Interests<\/u>” means shares of capital stock, partnership
\ninterests, membership interests in a limited liability company, beneficial
\ninterests in a trust or other equity ownership interests in a Person, and any
\nwarrants, options or other rights entitling the holder thereof to purchase or
\nacquire any such equity interest.<\/p>\n<\/p>\n “ERISA<\/u>” means the Employee Retirement Income Security Act of 1974.<\/p>\n<\/p>\n “ERISA Affiliate<\/u>” means any trade or business (whether or not
\nincorporated) that, together with the Borrower, is treated as a single employer
\nunder Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
\nof ERISA and Section 412 of the Code, is treated as a single employer under
\nSection 414 of the Code.<\/p>\n<\/p>\n “ERISA Event<\/u>” means (a) any “reportable event”, as defined in Section
\n4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
\nthan an event for which the 30145day notice period is waived); (b) a failure by
\nany Plan to meet the “minimum funding standard” (as defined in Section 412 of
\nthe Code or Section 302 of ERISA) applicable to such Plan, in each instance,
\nwhether or not waived; (c) the filing pursuant to Section 412(c) of the Code or
\nSection 302(c) of ERISA of an application for a waiver of the minimum funding
\nstandard with respect to any Plan; (d) the incurrence by the Borrower or any of
\nits ERISA Affiliates of any liability under Title IV of ERISA with respect to
\nthe termination of any Plan; (e) the receipt by the Borrower or any ERISA
\nAffiliate from the PBGC or a plan administrator of any notice relating to an
\nintention to terminate any Plan or Plans or to appoint a trustee to administer
\nany Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of
\nany liability with respect to the withdrawal or partial withdrawal from any Plan
\nor Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate
\nof any notice, or the receipt by any Multiemployer Plan from the Borrower or any
\nERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
\nor a determination that a Multiemployer Plan is, or is expected to be, insolvent
\nor in reorganization, within the meaning of Title IV of ERISA.<\/p>\n<\/p>\n “Eurocurrency<\/u>“, when used in reference to any Loan or Borrowing,
\nrefers to whether such Loan, or the Loans comprising such Borrowing, are bearing
\ninterest at a rate determined by reference to (a) in the case of a Syndicated
\nLoan or a Syndicated Borrowing, the Adjusted LIBO Rate, or (b) in the case of a
\nCompetitive Loan or a Competitive Borrowing, the LIBO Rate.<\/p>\n<\/p>\n “Event of Default<\/u>” has the meaning specified in Article VIII.<\/p>\n<\/p>\n “Excess Funding Guarantor<\/u>” has the meaning specified in Section 3.08.\n<\/p>\n<\/p>\n<\/p>\n \n
\n7<\/p>\n \n<\/p>\n “Excess Payment<\/u>” has the meaning specified in Section 3.08.<\/p>\n<\/p>\n “Exchange Act<\/u>” means the Securities Exchange Act of 1934.<\/p>\n<\/p>\n “Excluded Taxes<\/u>” means, with respect to the Administrative Agent, any
\nLender or any other recipient of any payment to be made by or on account of any
\nobligation of the Borrower or any Subsidiary Guarantor hereunder or under any
\nother Loan Document, (a) Taxes imposed on or measured by net income (however
\ndenominated), franchise Taxes or minimum Taxes (in lieu of net income Taxes),
\nand branch profits Taxes imposed as a result of such recipient being organized
\nunder the laws of, or having its principal office or, in the case of any Lender,
\nits applicable lending office located in, the jurisdiction imposing such Tax (or
\nany political subdivision thereof), (b) any Taxes that are Other Connection
\nTaxes, (c) in the case of a Lender (other than an assignee pursuant to a request
\nby the Borrower under Section 2.19(b)), any withholding Tax that is imposed by
\nthe United States of America on amounts payable to such Lender at the time such
\nLender becomes a party hereto (or designates a new lending office), except to
\nthe extent that such Lender (or its assignor, if any) was entitled, at the time
\nof designation of a new lending office (or assignment), to receive additional
\namounts from the Borrower with respect to such withholding tax pursuant to
\nSection 2.17(a) or 2.17(c), (d) Taxes attributable to such Lender153s failure or
\ninability (other than as a result of a Change in Law) to comply with Section
\n2.17(f) or 2.17(g), and (e) any U.S. Federal withholding Taxes imposed under
\nFATCA.<\/p>\n<\/p>\n “Existing Credit Agreement<\/u>” means the Credit Agreement dated as of
\nSeptember 19, 2007, among the Borrower, the subsidiary guarantors party thereto,
\nJPMCB, as administrative agent, and the lenders party thereto, as heretofore
\namended.<\/p>\n<\/p>\n “FATCA<\/u>” means Sections 1471 through 1474 of the Code, as of the date
\nof this Agreement (or any amended or successor version that is substantively
\ncomparable and not materially more onerous to comply with) and any current or
\nfuture regulations or official interpretations thereof.<\/p>\n<\/p>\n “Federal Funds Effective Rate<\/u>” means, for any day, the weighted
\naverage (rounded upwards, if necessary, to the next 1\/100 of 1%) of the rates on
\novernight Federal funds transactions with members of the Federal Reserve System
\narranged by Federal funds brokers, as published on the next succeeding Business
\nDay by the Federal Reserve Bank of New York, or, if such rate is not so
\npublished for any day that is a Business Day, the average (rounded upwards, if
\nnecessary, to the next 1\/100 of 1%) of the quotations for such day for such
\ntransactions received by the Administrative Agent from three Federal funds
\nbrokers of recognized standing selected by it.<\/p>\n<\/p>\n “Financial Officer<\/u>” means the principal financial officer, chief
\nfinancial officer, principal accounting officer, treasurer, controller or
\ndirector-treasury of the Borrower.<\/p>\n<\/p>\n “Five-Year Credit Agreement<\/u>” means the Five-Year Credit Agreement
\ndated as of the date hereof, among the Borrower, the subsidiary guarantors party
\nthereto, JPMCB, as administrative agent, and the lenders party thereto.<\/p>\n<\/p>\n “Fixed Rate<\/u>” means, with respect to any Competitive Loan (other than a
\nCompetitive Eurocurrency Loan), the fixed rate of interest per annum specified
\nby the Lender making such Competitive Loan in its related Competitive Bid. When
\nused in reference to any Loan or Borrowing, “Fixed Rate<\/u>” refers to
\nwhether such Loan, or the Loans comprising such Borrowing, are Competitive Loans
\nbearing interest at a Fixed Rate.<\/p>\n<\/p>\n “Foreign Lender<\/u>” means any Lender that is organized under the laws of
\na jurisdiction other than the United States of America, a State thereof or the
\nDistrict of Columbia.<\/p>\n<\/p>\n “Foreign Securitization Transaction<\/u>” means any transfer by any Foreign
\nSubsidiaries of its accounts receivable or interests (including security
\ninterests) therein (a) to a trust, partnership, corporation, limited liability
\ncompany or other entity, which transfer is funded in whole or in part, directly
\nor indirectly,<\/p>\n<\/p>\n<\/p>\n \n
\n8<\/p>\n \n<\/p>\n by the incurrence or issuance by the transferee or successor transferee of
\nIndebtedness or other securities that are to receive payments from, or that
\nrepresent interests in, the cash flow derived from such accounts receivable or
\ninterests therein, or (b) directly to one or more investors or other purchasers.\n<\/p>\n<\/p>\n “Foreign Subsidiary<\/u>” means any Subsidiary of the Borrower that is not
\na Domestic Subsidiary.<\/p>\n<\/p>\n “GAAP<\/u>” means generally accepted accounting principles in the United
\nStates of America.<\/p>\n<\/p>\n “Governmental Authority<\/u>” means the government of the United States of
\nAmerica or any other nation, or of any political subdivision thereof, whether
\nstate or local, and any agency, authority, instrumentality, regulatory body,
\ncourt, central bank or other entity exercising executive, legislative, judicial,
\ntaxing, regulatory or administrative powers or functions of or pertaining to
\ngovernment (including any supra-national bodies such as the European Union or
\nthe European Central Bank).<\/p>\n<\/p>\n “Guarantee<\/u>” of or by any Person (the “guarantor<\/u>“) means any
\nobligation, contingent or otherwise, of the guarantor guaranteeing or having the
\neconomic effect of guaranteeing any Indebtedness or other obligation of any
\nother Person (the “primary obligor<\/u>“) in any manner, whether directly or
\nindirectly, and including any obligation of the guarantor, direct or indirect,
\n(a) to purchase or pay (or advance or supply funds for the purchase or payment
\nof) such Indebtedness or other obligation or to purchase (or to advance or
\nsupply funds for the purchase of) any security for the payment thereof, (b) to
\npurchase or lease property, securities or services for the purpose of assuring
\nthe owner of such Indebtedness or other obligation of the payment thereof, (c)
\nto maintain working capital, equity capital or any other financial statement
\ncondition or liquidity of the primary obligor so as to enable the primary
\nobligor to pay such Indebtedness or other obligation or (d) as an account party
\nin respect of any letter of credit or letter of guaranty issued to support such
\nIndebtedness or obligation; provided<\/u> that the term Guarantee shall not
\ninclude endorsements for collection or deposit in the ordinary course of
\nbusiness.<\/p>\n<\/p>\n “Guarantee Assumption Agreement<\/u>” means a Guarantee Assumption
\nAgreement substantially in the form of Exhibit B by (a) an entity that, pursuant
\nto Section 6.08, is required to become a “Subsidiary Guarantor” hereunder or (b)
\nany Domestic Subsidiary that, pursuant to Section 3.10, is designated a
\n“Subsidiary Guarantor” by the Borrower, in each case in favor of the
\nAdministrative Agent.<\/p>\n<\/p>\n “Guaranteed Obligations<\/u>” has the meaning set forth in Section 3.01.\n<\/p>\n<\/p>\n “Hazardous Materials<\/u>” means all explosive or radioactive substances or
\nwastes and all hazardous or toxic substances, wastes or other pollutants,
\nincluding petroleum or petroleum distillates, asbestos or asbestos containing
\nmaterials, polychlorinated biphenyls, radon gas, infectious or medical wastes
\nand all other substances or wastes of any nature regulated as “toxic” or
\n“hazardous” or as a “pollutant” or “contaminant” by any Governmental Authority.\n<\/p>\n<\/p>\n “Hedging Agreement<\/u>” means any agreement with respect to any swap,
\nforward, future or derivative transaction or option or similar agreement
\ninvolving, or settled by reference to, one or more rates, currencies,
\ncommodities, equity or debt instruments or securities, or economic, financial or
\npricing indices or measures of economic, financial or pricing risk or value or
\nany similar transaction or any combination of these transactions;
\nprovided<\/u> that no phantom stock or similar plan (including the Borrower153s
\nomnibus stock and incentive plan and the Borrower153s employee stock purchase
\nplan) providing for payments only on account of services provided by current or
\nformer directors, officers, employees or consultants of the Borrower or its
\nSubsidiaries shall be a Hedging Agreement.<\/p>\n<\/p>\n “Indebtedness<\/u>” means, with respect to any Person at any time of
\ndetermination, without duplication, (a) all obligations of such Person for
\nborrowed money, (b) all obligations of such Person evidenced by bonds,
\ndebentures, notes or other similar instruments, (c) all obligations of such
\nPerson upon which interest charges are customarily paid or accrued by such
\nPerson, (d) all obligations of such Person for the deferred<\/p>\n<\/p>\n<\/p>\n \n
\n9<\/p>\n \n<\/p>\n purchase price of property not constituting a current liability, (e) all
\nCapital Lease Obligations of such Person, (f) all obligations of such Person,
\nactual or contingent, as an account party in respect of letters of credit or
\nbankers153 acceptances, (g) all Guarantees by such Person of Indebtedness of
\nothers and (h) all Indebtedness of others secured by any Lien on property owned
\nby such Person, whether or not the Indebtedness secured thereby has been
\nassumed. The Indebtedness of any Person shall include the Indebtedness of any
\nother Person (including any partnership in which such Person is a general
\npartner) to the extent such Person is liable therefor as a result of such
\nPerson153s ownership interest in or other relationship with such other Person,
\nexcept to the extent the terms of such Indebtedness provide that such Person is
\nnot liable therefor.<\/p>\n<\/p>\n “Indemnified Taxes<\/u>” means Taxes imposed on or with respect to any
\npayment made by or on account of any obligation of the Borrower or any
\nSubsidiary Guarantor, other than Excluded Taxes.<\/p>\n<\/p>\n “Indemnitee<\/u>” has the meaning specified in Section 10.03(b).<\/p>\n<\/p>\n “Information Memorandum<\/u>” means the Confidential Information Memorandum
\ndated September 2011 relating to the Borrower and the Transactions.<\/p>\n<\/p>\n “Initial Purchase Price<\/u>” means $2,167,000,000.<\/p>\n<\/p>\n “Interest Coverage Ratio<\/u>” means, for any Measurement Period, the ratio
\nof (a) the sum of EBITDA and Rental and Lease Expense for such Measurement
\nPeriod to<\/u> (b) the sum of Net Interest Expense\/Income and Rental and Lease
\nExpense for such Measurement Period.<\/p>\n<\/p>\n “Interest Election Request<\/u>” means a request by the Borrower to convert
\nor continue a Syndicated Borrowing in accordance with Section 2.08.<\/p>\n<\/p>\n “Interest Payment Date<\/u>” means (a) with respect to any Syndicated ABR
\nLoan, each Quarterly Date, (b) with respect to any Eurocurrency Loan, the last
\nday of each Interest Period therefor and, in the case of any Interest Period for
\na Eurocurrency Loan of more than three months153 duration, each day prior to the
\nlast day of such Interest Period that occurs at three145month intervals after the
\nfirst day of such Interest Period and (c) with respect to any Fixed Rate Loan,
\nthe last day of the Interest Period therefor and, in the case of any Interest
\nPeriod for a Fixed Rate Loan of more than 90 days153 duration (unless otherwise
\nspecified in the applicable Competitive Bid Request), each day prior to the last
\nday of such Interest Period that occurs at 90145day intervals after the first day
\nof such Interest Period, and any other dates that are specified in the
\napplicable Competitive Bid Request as Interest Payment Dates with respect to
\nsuch Loan.<\/p>\n<\/p>\n “Interest Period<\/u>” means:<\/p>\n<\/p>\n (a) for any Syndicated Eurocurrency Loan or Borrowing, the period commencing
\non the date of such Loan or Borrowing and ending on the day that is seven days
\nor the numerically corresponding day in the calendar month that is one, two,
\nthree or six months (or, with the consent of each Lender, nine or twelve months)
\nthereafter, as specified in the applicable Borrowing Request or Interest
\nElection Request;<\/p>\n<\/p>\n (b) for any Competitive Eurocurrency Loan or Borrowing, the period commencing
\non the date of such Loan or Borrowing and ending on the numerically
\ncorresponding day in the calendar month that is one, two, three or six months
\nthereafter, as specified in the applicable Competitive Bid Request; and<\/p>\n<\/p>\n (c) for any Fixed Rate Loan or Borrowing, the period (which shall not be less
\nthan seven days or more than 360 days) commencing on the date of such Loan or
\nBorrowing and ending on the date specified in the applicable Competitive Bid
\nRequest;<\/p>\n<\/p>\n provided<\/u> that (i) if any Interest Period would end on a day other than
\na Business Day, such Interest Period<\/p>\n<\/p>\n<\/p>\n \n
\n10<\/p>\n \n<\/p>\n shall be extended to the next succeeding Business Day unless, in the case of
\na Eurocurrency Borrowing only, such next succeeding Business Day would fall in
\nthe next calendar month, in which case such Interest Period shall end on the
\nnext preceding Business Day, (ii) any Interest Period pertaining to a
\nEurocurrency Borrowing that commences on the last Business Day of a calendar
\nmonth (or on a day for which there is no numerically corresponding day in the
\nlast calendar month of such Interest Period) shall end on the last Business Day
\nof the last calendar month of such Interest Period and (iii) any Interest Period
\nmust comply with Section 2.02(d). For purposes hereof, the date of a Loan or
\nBorrowing initially shall be the date on which such Loan or Borrowing is made
\nand, in the case of a Syndicated Loan or Borrowing, thereafter shall be the
\neffective date of the most recent conversion or continuation of such Loan or
\nBorrowing.<\/p>\n<\/p>\n “Inventory<\/u>” means goods held for sale, lease or use by a Person in the
\nordinary course of business, net of any reserve for goods that have been
\nsegregated by such Person to be returned to the applicable vendor for credit, as
\ndetermined in accordance with GAAP.<\/p>\n<\/p>\n “Investments<\/u>” means, for any Person: (a) the acquisition (whether for
\ncash, property, services or securities or otherwise) of capital stock, bonds,
\nnotes, debentures, partnership or other ownership interests or other securities
\nof, or the making of any capital contribution to, any other Person or any
\nagreement to make any such acquisition, (b) the making of any deposit with, or
\nadvance, loan or other extension of credit to, any other Person (including the
\npurchase of property from another Person subject to an understanding or
\nagreement, contingent or otherwise, to resell such property to such Person), and
\n(c) the entering into of any Guarantee of, or other contingent obligation with
\nrespect to, Indebtedness or other liabilities of any other Person
\n(provided<\/u> that for purposes of Section 7.07(b), the amount of any such
\nGuarantee or contingent obligation shall equal the then outstanding amount of
\nthe Indebtedness or other liabilities subject thereto).<\/p>\n<\/p>\n “JPMCB<\/u>” means JPMorgan Chase Bank, N.A.<\/p>\n<\/p>\n “Lenders<\/u>” means the Persons listed on Schedule 2.01 and any other
\nPerson that shall have become a party hereto pursuant to an Assignment and
\nAssumption, other than any such Person that ceases to be a party hereto pursuant
\nto an Assignment and Assumption.<\/p>\n<\/p>\n “LIBO Rate<\/u>” means, for the Interest Period for any Eurocurrency
\nBorrowing, the rate appearing on the Reuters “LIBOR01” screen displaying British
\nBankers153 Association Interest Settlement Rates (or on any successor or
\nsubstitute screen provided by Reuters, or any successor to or substitute for
\nsuch service, providing rate quotations comparable to those currently provided
\non such screen, as determined by the Administrative Agent from time to time for
\npurposes of providing quotations of interest rates applicable to Dollar deposits
\nin the London interbank market) at approximately 11:00 a.m., London time, two
\nBusiness Days prior to the commencement of such Interest Period, as the rate for
\ndeposits denominated in Dollars with a maturity comparable to such Interest
\nPeriod. In the event that such rate is not available at such time for any
\nreason, then the LIBO Rate for such Interest Period shall be the rate at which
\ndeposits in Dollars in the amount of $5,000,000 and for a maturity comparable to
\nsuch Interest Period are offered by the principal London office of the
\nAdministrative Agent in immediately available funds in the London interbank
\nmarket at approximately 11:00 a.m., London time, two Business Days prior to the
\ncommencement of such Interest Period.<\/p>\n<\/p>\n “Lien<\/u>” means, with respect to any asset, (a) any mortgage, deed of
\ntrust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
\non or of such asset and (b) the interest of a vendor or a lessor under any
\nconditional sale agreement, capital lease or title retention agreement (or any
\nfinancing lease having substantially the same economic effect as any of the
\nforegoing) relating to such asset.<\/p>\n<\/p>\n “Loan Documents<\/u>” means this Agreement and each Guarantee Assumption
\nAgreement.<\/p>\n<\/p>\n “Loans<\/u>” means the loans made by the Lenders to the Borrower pursuant
\nto this Agreement.<\/p>\n<\/p>\n “Margin<\/u>” means, with respect to any Competitive Loan bearing interest
\nat a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
\nadded to or subtracted from the LIBO Rate to determine<\/p>\n<\/p>\n<\/p>\n \n
\n11<\/p>\n \n<\/p>\n the rate of interest applicable to such Loan, as specified by the Lender
\nmaking such Loan in its related Competitive Bid.<\/p>\n<\/p>\n “Margin Stock<\/u>” means “margin stock” within the meaning of Regulation U
\nissued by the Board, as from time to time amended<\/p>\n<\/p>\n “Material Adverse Effect<\/u>” means (a) a materially adverse effect on the
\nbusiness, assets, operations, or financial condition of the Borrower and its
\nSubsidiaries taken as a whole, (b) material impairment of the ability of the
\nObligors taken as a whole to perform any material obligation under any Loan
\nDocument to which such Person is or becomes a party or (c) material impairment
\nof any of the material rights of, or benefits available to, the Administrative
\nAgent or the Lenders under any Loan Document.<\/p>\n<\/p>\n “Material Indebtedness<\/u>” means Indebtedness (other than the Loans) and
\nSecuritization Transactions, or obligations in respect of one or more Hedging
\nAgreements, of any one or more of the Borrower and its Subsidiaries in an
\naggregate principal amount exceeding $150,000,000. For purposes of determining
\nMaterial Indebtedness, the “principal amount” of (a) the obligations of the
\nBorrower or any of its Subsidiaries in respect of any Hedging Agreement at any
\ntime shall be the maximum aggregate amount (giving effect to any netting
\nagreements) that the Borrower or any Subsidiary would be required to pay if such
\nHedging Agreement were terminated at such time and (b) any Securitization
\nTransaction shall be determined as set forth in the definition of such term.<\/p>\n<\/p>\n “Material Subsidiary<\/u>” means, at any time, with respect to any fiscal
\nyear of the Borrower, any Subsidiary which accounted for an amount equal to or
\ngreater than 5.0% of the consolidated aggregate revenues of the Borrower for
\nsuch fiscal year, provided<\/u> that, notwithstanding the foregoing, each
\nSubsidiary Guarantor shall be deemed to be a “Material Subsidiary”.<\/p>\n<\/p>\n “Maturity Date<\/u>” means the Commitment Termination Date or any later
\ndate to which the Maturity Date shall have been extended pursuant to Section
\n2.21.<\/p>\n<\/p>\n “Measurement Period<\/u>” means a period of four consecutive fiscal
\nquarters ending on the last day of a fiscal quarter of the Borrower.<\/p>\n<\/p>\n “Moody153s<\/u>” means Moody153s Investors Service, Inc., and any successor to
\nits rating agency business.<\/p>\n<\/p>\n “Moody153s Rating<\/u>” means Moody153s rating of the Borrower153s long term,
\nunenhanced, senior unsecured debt.<\/p>\n<\/p>\n “Multiemployer Plan<\/u>” means a multiemployer plan as defined in Section
\n4001(a)(3) of ERISA.<\/p>\n<\/p>\n “Net Interest-bearing Indebtedness<\/u>” means, as of the last day of any
\nMeasurement Period, all Indebtedness of the Borrower and its Subsidiaries for
\nborrowed money or that bears interest and that, in accordance with GAAP, would
\nbe classified as long term or short term debt on the consolidated balance sheet
\nof the Borrower, net of the aggregate amount of invested cash and cash
\nequivalents held by the Borrower or any Subsidiary as of such date, excluding
\nany such cash and cash equivalents that (a) are subject to any Liens (other than
\nLiens in favor of the Administrative Agent or any other Lender created under the
\nLoan Documents), (b) are subject to any restrictions on the use or disposition
\nthereof or (c) are held by a Subsidiary, to the extent such Subsidiary is
\nsubject to any restriction on the distribution of such cash or cash equivalents
\nwithout prior approval or waiver (that has not been obtained), pursuant to the
\nterms of such Subsidiary153s organizational documents or any agreement, judgment,
\norder, law or other restriction binding upon such Subsidiary; provided<\/u>
\nthat in no event shall Net Interest-bearing Indebtedness be less than zero.<\/p>\n<\/p>\n “Net Interest Expense\/Income<\/u>” means, for any period of determination,
\ninterest expense<\/p>\n<\/p>\n<\/p>\n \n
\n12<\/p>\n \n<\/p>\n minus<\/u> interest income, in each case calculated on a consolidated basis
\nfor the Borrower and its Subsidiaries in accordance with GAAP.<\/p>\n<\/p>\n “Obligor<\/u>” means the Borrower and each Subsidiary Guarantor.<\/p>\n<\/p>\n “Other Connection Taxes<\/u>” means, with respect to the Administrative
\nAgent, any Lender or any other recipient, Taxes imposed as a result of a present
\nor former connection between such recipient and the jurisdiction imposing such
\nTax (other than connections arising from such recipient having executed,
\ndelivered, become a party to, performed its obligations under, received payments
\nunder, received or perfected a security interest under, engaged in any other
\ntransaction pursuant to or enforced any Loan Document, or sold or assigned an
\ninterest in any Loan, any other Guaranteed obligation or any Loan Document).<\/p>\n<\/p>\n “Other Taxes<\/u>” means any and all present or future recording, stamp,
\ncourt, documentary, filing, excise, property or similar Taxes arising from any
\npayment made hereunder or under any other Loan Document or from the execution,
\ndelivery or enforcement of, or otherwise with respect to, this Agreement or any
\nother Loan Document, except (i) any such Taxes that are Other Connection Taxes
\nimposed with respect to an assignment (other than an assignment pursuant to a
\nrequest by the Borrower under Section 2.19(b) and (ii) any Excluded Taxes.<\/p>\n<\/p>\n “Participant<\/u>” has the meaning set forth in Section 10.04(c)(i).<\/p>\n<\/p>\n “Participant Register<\/u>” has the meaning set forth in Section
\n10.04(c)(i).<\/p>\n<\/p>\n “PBGC<\/u>” means the Pension Benefit Guaranty Corporation referred to and
\ndefined in ERISA.<\/p>\n<\/p>\n “Permitted Encumbrances<\/u>” means:<\/p>\n<\/p>\n (a) Liens for Taxes not delinquent or which are being contested in good faith
\nby appropriate proceedings and for which whatever reserves required by GAAP have
\nbeen established;<\/p>\n<\/p>\n (b) Liens consisting of easements, rights-of-way, zoning restrictions,
\nrestrictions on the use of real property, and defects and irregularities in the
\ntitle thereto and other similar charges or encumbrances;<\/p>\n<\/p>\n (c) Liens imposed by law, such as landlord153s, materialmens153, mechanic153s,
\nworkmen153s, repairmen153s, carriers153, warehousemans153, vendors153 or other similar
\nliens and encumbrances arising in the ordinary course of the business of the
\nBorrower or any of its Subsidiaries, or governmental (federal, state or
\nmunicipal) Liens arising out of contracts for the sale of products or services
\nby the Borrower or any of its Subsidiaries, in each case, securing obligations
\nthat are not overdue by more than 30 days or which are being contested in
\ncompliance with Section 6.04, or deposits or pledges to obtain the release of
\nany of the foregoing Liens;<\/p>\n<\/p>\n (d) deposits to secure the performance of bids, trade contracts, leases,
\nstatutory obligations, government contracts, supply agreements, utilities,
\nperformance and return-of money bonds contracts, surety and appeal bonds and
\nother obligations of a like nature, in each case in the ordinary course of
\nbusiness;<\/p>\n<\/p>\n (e) licenses, leases, or subleases granted to third Persons or to the
\nBorrower or its Subsidiaries by the Borrower and its Subsidiaries in the
\nordinary course of business;<\/p>\n<\/p>\n (f) Liens encumbering deposits made to secure obligations arising from
\nstatutory, regulatory, contractual or warranty requirements of the Borrower and
\nits Subsidiaries (excluding deposits securing the repayment of Indebtedness);\n<\/p>\n<\/p>\n (g) Liens encumbering customary initial deposits and margin deposits, and
\nother Liens incurred<\/p>\n<\/p>\n<\/p>\n \n
\n13<\/p>\n \n<\/p>\n in the ordinary course of business and which are within the general
\nparameters customary in the industry securing obligations under commodities
\nagreements;<\/p>\n<\/p>\n (h) Liens arising in connection with Capital Lease Obligations;
\nprovided<\/u> that no such Lien shall extend to or cover any assets other than
\nthe assets subject to the applicable capital leases;<\/p>\n<\/p>\n (i) any (i) interest or title of a lessor or sublessor under any lease, (ii)
\nrestriction or encumbrance that the interest or title of such lessor or
\nsublessor may be subject to, or (iii) subordination of the interest of the
\nlessee or sublessee under such lease to any restriction or encumbrance referred
\nto in the preceding clause (ii);<\/p>\n<\/p>\n (j) Liens on any property or assets of any Person existing at the time such
\nPerson is merged into or consolidated with the Borrower or any Subsidiary,
\nprovided<\/u> that such Lien was not incurred in contemplation thereof and
\ndoes not extend to any other property of the Borrower or any of its
\nSubsidiaries;<\/p>\n<\/p>\n (k) Liens arising from filing UCC financing statements relating solely to
\nleases not prohibited by this Agreement;<\/p>\n<\/p>\n (l) Liens in favor of customs and revenue authorities arising as a matter of
\nlaw to secure payment of customs duties in connection with the importation of
\ngoods;<\/p>\n<\/p>\n (m) judgment Liens in respect of judgments that do not constitute an Event of
\nDefault under clause (j) of Article VIII;<\/p>\n<\/p>\n (n) Liens solely on cash earnest money deposits made by Borrower or any
\nSubsidiary in connection with any letter of intent or purchase agreement
\npermitted hereunder; provided<\/u> that such Liens are granted on customary
\nbusiness terms and in the ordinary course of business of the Borrower or such
\nSubsidiary; and<\/p>\n<\/p>\n (o) Liens (i) of a collection bank arising under Section 4-210 of the UCC on
\nitems in the course of collection and (ii) in favor of a banking institution
\narising as a matter of law encumbering deposits (including the right of set-off)
\nand which are within the general parameters customary in the banking industry,
\nin each case existing solely with respect to cash or cash equivalents.<\/p>\n<\/p>\n “Person<\/u>” means any natural person, corporation, limited liability
\ncompany, trust, joint venture, association, company, partnership, Governmental
\nAuthority or other entity.<\/p>\n<\/p>\n “Plan<\/u>” means any employee pension benefit plan (other than a
\nMultiemployer Plan) subject to the provisions of Title IV of ERISA or Section
\n412 of the Code or Section 302 of ERISA that is sponsored, maintained or
\ncontributed to by the Borrower or any ERISA Affiliate.<\/p>\n<\/p>\n “Prime Rate<\/u>” means the rate of interest per annum publicly announced
\nfrom time to time by JPMCB as its prime rate in effect at its principal office
\nin New York City. Each change in the Prime Rate shall be effective from and
\nincluding the date such change is publicly announced as being effective.<\/p>\n<\/p>\n “Pro Rata Share<\/u>” has the meaning set forth in Section 3.08.<\/p>\n<\/p>\n “Quarterly Dates<\/u>” means the last Business Day of each fiscal quarter
\nof the Borrower in each of its fiscal years, the first of which shall be the
\nfirst such day after the date hereof.<\/p>\n<\/p>\n “Receivables<\/u>” means all rights of the Borrower or any of its
\nSubsidiaries to payments (whether constituting accounts, chattel paper,
\ninstruments, general intangibles or otherwise, and including the right to
\npayment of any interest or finance charges), which rights are identified (or, in
\nthe case of future rights<\/p>\n<\/p>\n<\/p>\n \n
\n14<\/p>\n \n<\/p>\n to payments, are expected to be identified) in the accounting records of the
\nBorrower or such Subsidiary as accounts receivable, as determined in accordance
\nwith GAAP.<\/p>\n<\/p>\n “Register<\/u>” has the meaning set forth in Section 10.04.<\/p>\n<\/p>\n “Related Parties<\/u>” means, with respect to any Person, such Person153s
\nAffiliates and the partners, members, trustees, directors, officers, employees,
\nagents and advisors of such Person and of such Person153s Affiliates.<\/p>\n<\/p>\n “Rental and Lease Expense<\/u>” means, for any Measurement Period, all
\nitems that, in accordance with GAAP, would be classified as rental and lease
\nexpense that are included in selling, general and administrative expenses on the
\nconsolidated statement of earnings of the Borrower, in each case determined in
\naccordance with GAAP, provided<\/u> that Rental and Lease Expense shall not
\ninclude any Rental and Lease Expense incurred during the Measurement Period
\nunder leases that have been assigned to and assumed by any Person (other than
\nthe Borrower or a Subsidiary) or that constitute or relate to discontinued
\noperations for which the Borrower and its Subsidiaries are no longer obligated.\n<\/p>\n<\/p>\n “Required Lenders<\/u>” means, at any time, Lenders having Revolving Credit
\nExposures and unused Commitments representing more than 50% of the sum of the
\ntotal Revolving Credit Exposures and unused Commitments at such time
\n(provided<\/u> that, for purposes of declaring the Loans to be due and payable
\npursuant to Article VIII, and for all purposes after the Loans become due and
\npayable pursuant to Article VIII or the Commitments expire or terminate, the
\noutstanding Competitive Loans of the Lenders shall be included in their
\nrespective Revolving Credit Exposures in determining the Required Lenders).<\/p>\n<\/p>\n “Restricted Date<\/u>” has the meaning set forth in the definition of
\n“Subsidiary”.<\/p>\n<\/p>\n “Revolving Credit Exposure<\/u>” means, with respect to any Lender at any
\ntime, the sum of the outstanding principal amount of such Lender153s Syndicated
\nLoans at such time.<\/p>\n<\/p>\n “Securitization Transaction<\/u>” means any Domestic Securitization
\nTransaction or any Foreign Securitization Transaction. The “amount” or
\n“principal amount” of any Domestic Securitization Transaction or Foreign
\nSecuritization Transaction shall be deemed at any time to be the aggregate
\nprincipal or stated amount of the Indebtedness or other securities referred to
\nin the definition of the term “Domestic Securitization Transaction” or “Foreign
\nSecuritization Transaction”, as applicable, or, if there shall be no such
\nprincipal or stated amount, the uncollected amount of the accounts receivable or
\ninterests therein transferred pursuant to such Domestic Securitization
\nTransaction or Foreign Securitization Transaction, as applicable, net of any
\nsuch accounts receivable or interests therein that have been written off as
\nuncollectible.<\/p>\n<\/p>\n “Specified Subsidiary<\/u>” means, with respect to any fiscal year of the
\nBorrower, any Domestic Subsidiary which accounted for an amount equal to or
\ngreater than 20.0% of the consolidated aggregate revenues of the Borrower for
\nsuch fiscal year, provided<\/u> that, if, in any fiscal year of the Borrower,
\nthe Subsidiaries (other than Best Buy Stores, L.P.), on a collective basis,
\naccounted for more than 50.0% of the consolidated aggregate revenues of the
\nBorrower for such fiscal year, then the percentage amount stated in the clause
\npreceding the proviso clause of this definition shall be automatically and
\npermanently reduced to 5.0%.<\/p>\n<\/p>\n “S&P<\/u>” means Standard & Poor153s Ratings Services, a division of
\nThe McGraw:Hill Companies, Inc., and any successor to its rating agency
\nbusiness.<\/p>\n<\/p>\n “S&P Rating<\/u>” means S&P153s corporate credit rating for the
\nBorrower.<\/p>\n<\/p>\n “Statutory Reserve Rate<\/u>” means, for the Interest Period for any
\nSyndicated Eurocurrency Borrowing, a fraction (expressed as a decimal), the
\nnumerator of which is the number one and the denominator of which is the number
\none minus<\/u> the arithmetic mean, taken over each day in such Interest
\nPeriod, of the<\/p>\n<\/p>\n<\/p>\n \n
\n15<\/p>\n \n<\/p>\n aggregate of the maximum reserve percentages (including any marginal,
\nspecial, emergency or supplemental reserves) expressed as a decimal established
\nby the Board to which the Administrative Agent is subject for eurocurrency
\nfunding (currently referred to as “Eurocurrency liabilities” in Regulation D of
\nthe Board). Such reserve percentages shall include those imposed pursuant to
\nRegulation D of the Board. Eurocurrency Loans shall be deemed to constitute
\neurocurrency funding and to be subject to such reserve requirements without
\nbenefit of or credit for proration, exemptions or offsets that may be available
\nfrom time to time to any Lender under Regulation D of the Board or any
\ncomparable regulation. The Statutory Reserve Rate shall be adjusted
\nautomatically on and as of the effective date of any change in any reserve
\npercentage.<\/p>\n<\/p>\n “Subsidiary<\/u>” means, with respect to any Person (the “parent<\/u>“)
\nat any date, any corporation, limited liability company, partnership,
\nassociation or other entity the accounts of which would be consolidated with
\nthose of the parent in the parent153s consolidated financial statements if such
\nfinancial statements were prepared in accordance with GAAP as of such date, as
\nwell as any other corporation, limited liability company, partnership,
\nassociation or other entity (a) of which securities or other ownership interests
\nrepresenting more than 50% of the equity or more than 50% of the ordinary voting
\npower or, in the case of a partnership, more than 50% of the general partnership
\ninterests are, as of such date, owned, controlled or held, or (b) that is, as of
\nsuch date, otherwise Controlled, by the parent or one or more subsidiaries of
\nthe parent or by the parent and one or more subsidiaries of the parent. Unless
\notherwise specified, “Subsidiary” means a Subsidiary of the Borrower.
\nNotwithstanding the foregoing, Best Buy Europe Distributions and its
\nSubsidiaries shall be deemed not to constitute “Subsidiaries” of the Borrower
\nfor the purposes of this Agreement and the other Loan Documents; provided that,
\n(a) this sentence shall not apply to the definition of the term “Total Assets”
\nand (b) the Borrower may specify in a written notice to the Administrative Agent
\n(the date thereof, the “Restricted Date<\/u>“) that Best Buy Europe
\nDistributions and its Subsidiaries shall thereafter be treated as “Subsidiaries”
\nof the Borrower for the purposes of this Agreement and the other Loan Documents,
\nprovided that, (i) immediately before and after the Restricted Date, no Default
\nshall have occurred and be continuing, including, on a pro forma basis, pursuant
\nto the covenants set forth in Section 7.06 (and the Borrower shall deliver to
\nthe Administrative Agent a certificate of a Financial Officer setting forth in
\nreasonable detail the calculations demonstrating compliance with such covenants)
\nand (ii) the Borrower may not subsequently specify that Best Buy Europe
\nDistributions and its Subsidiaries shall no longer be treated as “Subsidiaries”
\nof the Borrower for the purposes of this Agreement and the Loan Documents. If
\nthe Restricted Date occurs, Best Buy Europe Distributions and its Subsidiaries
\nshall be deemed to have incurred on such date any Indebtedness or Liens of Best
\nBuy Europe Distributions or such Subsidiary existing on such date.<\/p>\n<\/p>\n “Subsidiary Guarantor<\/u>” means Best Buy Stores, L.P., BBC Investment
\nCo., BBC Property Co., each Specified Subsidiary that becomes a “Subsidiary
\nGuarantor” after the date hereof pursuant to Section 6.08 and each Domestic
\nSubsidiary that becomes a “Subsidiary Guarantor after the date hereof pursuant
\nto Section 3.10.<\/p>\n<\/p>\n “Syndicated<\/u>“, when used in reference to any Loan or Borrowing, refers
\nto whether such Loan, or the Loans comprising such Borrowing, are made pursuant
\nto Section 2.01.<\/p>\n<\/p>\n “Syndication Agent<\/u>” means USB, in its capacity as syndication agent
\nfor the credit facility established hereunder.<\/p>\n<\/p>\n “Tangible Net Worth<\/u>” means, as of any date, the sum for the Borrower
\nand its Subsidiaries (determined on a consolidated basis without duplication in
\naccordance with GAAP, but excluding all amounts attributable to noncontrolling
\ninterests in any Subsidiary and, prior to the Restricted Date, all amounts
\nrelating to Best Buy Europe Distributions and its Subsidiaries), of the
\nfollowing:<\/p>\n<\/p>\n (a) the total assets of the Borrower and its Subsidiaries as shown on the
\nconsolidated balance sheet of the Borrower and its Subsidiaries for the fiscal
\nquarter or fiscal year of the Borrower most recently ended on or prior to such
\ndate prepared in accordance with GAAP, minus<\/u><\/p>\n<\/p>\n (b) the total liabilities of the Borrower and its Subsidiaries as shown on
\nsuch consolidated<\/p>\n<\/p>\n<\/p>\n \n
\n16<\/p>\n \n<\/p>\n balance sheet, minus<\/u><\/p>\n<\/p>\n (c) the net book amount of all assets of the Borrower and its Subsidiaries
\nshown as intangible assets (including goodwill) on such consolidated balance
\nsheet.<\/p>\n<\/p>\n “Taxes<\/u>” means all present or future taxes, levies, imposts, duties,
\ndeductions, withholdings, assessments, fees or other charges imposed by any
\nGovernmental Authority, including any interest, additions to tax or penalties
\napplicable thereto.<\/p>\n<\/p>\n “Term-Out Option<\/u>” has the meaning set forth in Section 2.21.<\/p>\n<\/p>\n “Total Assets<\/u>” means, as of any date, for the Borrower and its
\nSubsidiaries (determined on a consolidated basis without duplication in
\naccordance with GAAP), the total assets of the Borrower and its Subsidiaries as
\nshown on the consolidated balance sheet of the Borrower and its Subsidiaries for
\nthe fiscal quarter or fiscal year of the Borrower most recently ended prior to
\nsuch date for which financial statements are available prepared in accordance
\nwith GAAP (but excluding therefrom all amounts attributable to noncontrolling
\ninterests in any Subsidiary).<\/p>\n<\/p>\n “Transactions<\/u>” means the execution, delivery and performance by each
\nObligor of this Agreement and the other Loan Documents to which such Obligor is
\nintended to be a party, the borrowing of Loans and the use of the proceeds
\nthereof.<\/p>\n<\/p>\n “Type<\/u>“, when used in reference to any Loan or Borrowing, refers to
\nwhether the rate of interest on such Loan, or on the Loans comprising such
\nBorrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
\nBase Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a
\nFixed Rate.<\/p>\n<\/p>\n “UCC<\/u>” means the Uniform Commercial Code as in effect in the State of
\nNew York.<\/p>\n<\/p>\n “USA Patriot Act<\/u>” means the Uniting and Strengthening America by
\nProviding Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
\n2001.<\/p>\n<\/p>\n “USB” means U.S. Bank National Association<\/p>\n<\/p>\n “Withdrawal Liability<\/u>” means liability to a Multiemployer Plan as a
\nresult of a complete or partial withdrawal from such Multiemployer Plan, as such
\nterms are defined in Part I of Subtitle E of Title IV of ERISA.<\/p>\n<\/p>\n “Withholding Agent<\/u>” means the Borrower and the Administrative Agent.\n<\/p>\n<\/p>\n SECTION 1.02. Classification of Loans and Borrowings.<\/u> For purposes of
\nthis Agreement, Loans may be classified and referred to by Class (e.g.<\/u>, a
\n“Competitive Loan”), by Type (e.g.<\/u>, a “Eurocurrency Loan”) or by Class
\nand Type (e.g.<\/u>, a “Competitive Eurocurrency Loan”). Borrowings also may
\nbe classified and referred to by Class (e.g.<\/u>, a “Competitive Borrowing”),
\nby Type (e.g.<\/u>, a “Eurocurrency Borrowing”) or by Class and Type
\n(e.g.<\/u>, a “Competitive Eurocurrency Borrowing”).<\/p>\n<\/p>\n SECTION 1.03. Terms Generally.<\/u> The definitions of terms herein shall
\napply equally to the singular and plural forms of the terms defined. Whenever
\nthe context may require, any pronoun shall include the corresponding masculine,
\nfeminine and neuter forms. The words “include”, “includes” and “including” shall
\nbe deemed to be followed by the phrase “without limitation”. The word “will”
\nshall be construed to have the same meaning and effect as the word “shall”. The
\nwords “asset” and “property” shall be construed to have the same meaning and
\neffect and to refer to any and all real and personal, tangible and intangible
\nassets and properties, including cash, securities, accounts and contract rights.
\nThe word “law” shall be construed as referring to all statutes, rules,
\nregulations, codes and other laws (including official rulings and<\/p>\n<\/p>\n<\/p>\n \n
\n17<\/p>\n \n<\/p>\n interpretations thereunder having the force of law or with which affected
\nPersons customarily comply), and all judgments, orders, writs and decrees, of
\nall Governmental Authorities. Unless the context requires otherwise (a) any
\ndefinition of or reference to any agreement, instrument or other document herein
\n(including this Agreement) shall be construed as referring to such agreement,
\ninstrument or other document as from time to time amended, supplemented or
\notherwise modified (subject to any restrictions on such amendments, supplements
\nor modifications set forth herein), (b) any reference herein to any Person shall
\nbe construed to include such Person153s successors and assigns (subject to any
\nrestrictions on assignment set forth herein) and, in the case of any
\nGovernmental Authority, any other Governmental Authority that shall have
\nsucceeded to any or all functions thereof, (c) any definition of or reference to
\nany statute, rule or regulation shall be construed as referring thereto as from
\ntime to time amended, supplemented or otherwise modified (including by
\nsuccession of comparable successor laws), (d) the words “herein”, “hereof” and
\n“hereunder”, and words of similar import, shall be construed to refer to this
\nAgreement in its entirety and not to any particular provision hereof and (e) all
\nreferences herein to Articles, Sections, Exhibits and Schedules shall be
\nconstrued to refer to Articles and Sections of, and Exhibits and Schedules to,
\nthis Agreement.<\/p>\n<\/p>\n SECTION 1.04. Accounting Terms; GAAP.<\/u> Except as otherwise expressly
\nprovided herein, all terms of an accounting or financial nature shall be
\nconstrued in accordance with GAAP as in effect from time to time;
\nprovided<\/u> that if the Borrower notifies the Administrative Agent that the
\nBorrower requests an amendment to any provision hereof to eliminate the effect
\nof any change occurring after the date hereof in GAAP or in the application
\nthereof on the operation of such provision (or if the Administrative Agent
\nnotifies the Borrower that the Required Lenders request an amendment to any
\nprovision hereof for such purpose), regardless of whether any such notice is
\ngiven before or after such change in GAAP or in the application thereof, then
\nsuch provision shall be interpreted on the basis of GAAP as in effect and
\napplied immediately before such change shall have become effective until such
\nnotice shall have been withdrawn or such provision amended in accordance
\nherewith. Notwithstanding the foregoing, (a) all liabilities under or in respect
\nof any lease (whether now outstanding or at any time entered into or incurred)
\nthat, under GAAP as in effect on the Effective Date, would be accrued as Rental
\nand Lease Expense and would not constitute a Capital Lease Obligation, shall
\ncontinue to be treated as Rental and Lease Expense in accordance with GAAP as in
\neffect on the Effective Date and shall not constitute a Capital Lease
\nObligation, in each case, for purposes of the covenants set forth herein and all
\ndefined terms as used therein and (b) all terms of an accounting or financial
\nnature used herein shall be construed, and all computations of amounts and
\nratios referred to herein shall be made, without giving effect to any election
\nunder Statement of Financial Accounting Standards 159, The Fair Value Option for
\nFinancial Assets and Financial Liabilities, or any successor thereto (including
\npursuant to the Accounting Standards Codification), to value any Indebtedness of
\nthe Borrower or any Subsidiary at “fair value”, as defined therein.<\/p>\n<\/p>\n ARTICLE II<\/p>\n The Credits<\/u><\/p>\n \n SECTION 2.01. The Commitments.<\/u> Subject to the terms and conditions set
\nforth herein, each Lender agrees to make Syndicated Loans in Dollars to the
\nBorrower from time to time during the Availability Period in an aggregate
\nprincipal amount that will not result in (a) such Lender153s Revolving Credit
\nExposure exceeding such Lender153s Commitment or (b) the sum of the total
\nRevolving Credit Exposures plus<\/u> the aggregate principal amount of
\noutstanding Competitive Loans exceeding the total Commitments. Within the
\nforegoing limits and subject to the terms and conditions set forth herein, the
\nBorrower may borrow, prepay and reborrow Syndicated Loans.<\/p>\n<\/p>\n SECTION 2.02. Loans and Borrowings.<\/u> (a) Obligations of Lenders.<\/u>
\nEach Syndicated Loan shall be made as part of a Borrowing consisting of Loans of
\nthe same Class and Type made by the Lenders ratably in accordance with their
\nrespective Commitments. Each Competitive Loan shall be made in accordance with
\nthe procedures set forth in Section 2.04. The failure of any Lender to make any
\nLoan required to be made by it shall not relieve any other Lender of its
\nobligations hereunder; provided<\/u> that the Commitments and Competitive Bids
\nof the Lenders are several and no Lender shall be responsible for any other
\nLender153s failure<\/p>\n<\/p>\n<\/p>\n \n
\n18<\/p>\n \n<\/p>\n to make Loans as required.<\/p>\n<\/p>\n (b) Type of Loans.<\/u> Subject to Section 2.14, (i) each Syndicated
\nBorrowing shall be comprised entirely of ABR Loans or of Eurocurrency Loans, as
\nthe Borrower may request in accordance herewith, and (ii) each Competitive
\nBorrowing shall be comprised entirely of Eurocurrency Loans or Fixed Rate Loans,
\nas the Borrower may request in accordance herewith. Each Lender at its option
\nmay make any Eurocurrency Loan by causing any domestic or foreign branch or
\nAffiliate of such Lender to make such Loan; provided<\/u> that any exercise of
\nsuch option shall not affect the obligation of the Borrower to repay such Loan
\nin accordance with the terms of this Agreement.<\/p>\n<\/p>\n (c) Minimum Amounts; Limitation on Number of Borrowings.<\/u> Each
\nSyndicated Eurocurrency Borrowing shall be in an aggregate amount of $5,000,000
\nor a larger multiple of $500,000. Each Syndicated ABR Borrowing shall be in an
\naggregate amount equal to $2,000,000 or a larger multiple of $500,000;
\nprovided<\/u> that a Syndicated ABR Borrowing may be in an aggregate amount
\nthat is equal to the entire unused balance of the total Commitments. Each
\nCompetitive Borrowing shall be in an aggregate amount equal to $5,000,000 or a
\nlarger multiple of $1,000,000. Borrowings of more than one Class and Type may be
\noutstanding at the same time; provided<\/u> that there shall not at any time
\nbe more than a total of 20 Syndicated Eurocurrency Borrowings outstanding.<\/p>\n<\/p>\n (d) Limitations on Interest Periods.<\/u> Notwithstanding any other
\nprovision of this Agreement, the Borrower shall not be entitled to request (or
\nto elect to convert to or continue as a Syndicated Eurocurrency Borrowing) any
\nBorrowing if the Interest Period requested therefor would end after the
\nCommitment Termination Date (or, in the case of any Syndicated Borrowing if the
\nTerm-Out Option has been exercised, the Maturity Date as it has been extended
\npursuant thereto).<\/p>\n<\/p>\n SECTION 2.03. Requests for Syndicated Borrowings.<\/u> (a) Notice by the
\nBorrower.<\/u> To request a Syndicated Borrowing, the Borrower shall notify the
\nAdministrative Agent of such request by telephone (i) in the case of a
\nSyndicated Eurocurrency Borrowing, not later than 1:00 pm, New York City time,
\nthree Business Days before the date of the proposed Borrowing or (ii) in the
\ncase of a Syndicated ABR Borrowing, not later than 1:00 p.m., New York City
\ntime, the same Business Day as the date of the proposed Borrowing. Each such
\ntelephonic Borrowing Request shall be irrevocable and shall be confirmed
\npromptly by hand delivery or facsimile to the Administrative Agent of a written
\nBorrowing Request in substantially the form of Exhibit D and signed by the
\nBorrower.<\/p>\n<\/p>\n (b) Content of Borrowing Requests.<\/u> Each telephonic and written
\nBorrowing Request shall specify the following information in compliance with
\nSection 2.02:<\/p>\n<\/p>\n (i) the aggregate principal amount of the requested Borrowing;<\/p>\n<\/p>\n (ii) the date of such Borrowing, which shall be a Business Day;<\/p>\n<\/p>\n (iii) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
\nBorrowing; and<\/p>\n<\/p>\n (iv) in the case of a Syndicated Eurocurrency Borrowing, the Interest Period
\ntherefor, which shall be a period contemplated by the definition of the term
\n“Interest Period” and permitted under Section 2.02(d).<\/p>\n<\/p>\n (c) Notice by the Administrative Agent to the Lenders.<\/u> Promptly
\nfollowing receipt of a Borrowing Request in accordance with this Section, the
\nAdministrative Agent shall advise each Lender of the details thereof and of the
\namount of such Lender153s Loan to be made as part of the requested Borrowing.<\/p>\n<\/p>\n (d) Failure to Elect.<\/u> If no election as to the Type of a Syndicated
\nBorrowing is specified, then the requested Borrowing shall be an ABR Borrowing.
\nIf no Interest Period is specified with respect to<\/p>\n<\/p>\n<\/p>\n \n
\n19<\/p>\n \n<\/p>\n any requested Syndicated Eurocurrency Borrowing, the Borrower shall be deemed
\nto have selected an Interest Period of one month153s duration.<\/p>\n<\/p>\n SECTION 2.04. Competitive Bid Procedure.<\/u> (a) Requests for Bids by
\nthe Borrower.<\/u> Subject to the terms and conditions set forth herein, from
\ntime to time during the Availability Period the Borrower may request Competitive
\nBids and may (but shall not have any obligation to) accept Competitive Bids and
\nborrow Competitive Loans denominated in Dollars; provided<\/u> that the sum of
\nthe total Revolving Credit Exposures plus<\/u> the aggregate principal amount
\nof outstanding Competitive Loans at any time shall not exceed the total
\nCommitments. To request Competitive Bids, the Borrower shall notify the
\nAdministrative Agent of such request by telephone, in the case of a Eurocurrency
\nBorrowing, not later than 1:00 p.m., New York City time, four Business Days
\nbefore the date of the proposed Borrowing and, in the case of a Fixed Rate
\nBorrowing, not later than 12:00 noon, New York City time, one Business Day
\nbefore the date of the proposed Borrowing; provided<\/u> that the Borrower may
\nsubmit up to (but not more than) one Competitive Bid Request on the same day,
\nbut a Competitive Bid Request shall not be made within four Business Days after
\nthe date of any previous Competitive Bid Request, unless any and all such
\nprevious Competitive Bid Requests shall have been withdrawn or all Competitive
\nBids received in response thereto rejected. Each such telephonic Competitive Bid
\nRequest shall be confirmed promptly by hand delivery or facsimile to the
\nAdministrative Agent of a written Competitive Bid Request in a form approved by
\nthe Administrative Agent and signed by the Borrower. Each such telephonic and
\nwritten Competitive Bid Request shall specify the following information in
\ncompliance with Section 2.02:<\/p>\n<\/p>\n (i) the aggregate amount of the requested Borrowing;<\/p>\n<\/p>\n (ii) the date of such Borrowing, which shall be a Business Day;<\/p>\n<\/p>\n (iii) the maturity date of such Borrowing, which date shall not be less than
\nseven days or more than 360 days after the date of such Borrowing;<\/p>\n<\/p>\n (iv) whether such Borrowing is to be a Eurocurrency Borrowing or a Fixed Rate
\nBorrowing;<\/p>\n<\/p>\n (v) the Interest Period for such Borrowing, which shall be a period
\ncontemplated by the definition of the term “Interest Period” that does not
\nextend beyond the Commitment Termination Date; and<\/p>\n<\/p>\n (vi) the location and number of the Borrower153s account to which funds are to
\nbe disbursed.<\/p>\n<\/p>\n Promptly following receipt of a Competitive Bid Request in accordance with
\nthis Section, the Administrative Agent shall notify the Lenders of the details
\nthereof, inviting the Lenders to submit Competitive Bids.<\/p>\n<\/p>\n (b) Making of Bids by Lenders.<\/u> Each Lender may (but shall not have any
\nobligation to) make one or more Competitive Bids to the Borrower in response to
\na Competitive Bid Request. Each Competitive Bid by a Lender must be in a form
\napproved by the Administrative Agent and must be received by the Administrative
\nAgent by facsimile, in the case of a Competitive Eurocurrency Borrowing, not
\nlater than 9:30 a.m., New York City time, three Business Days before the
\nproposed date of such Borrowing, and in the case of a Fixed Rate Borrowing, not
\nlater than 9:30 a.m., New York City time, on the proposed date of such
\nBorrowing. Competitive Bids that do not conform substantially to the form
\napproved by the Administrative Agent may be rejected by the Administrative
\nAgent, and the Administrative Agent shall notify the applicable Lender of such
\nrejection as promptly as practicable. Each Competitive Bid shall specify (i) the
\nprincipal amount (which shall be $5,000,000 or a larger multiple of $1,000,000
\nand which may equal the entire principal amount of the Competitive Borrowing
\nrequested by the Borrower) of the Competitive Loan or Loans that the Lender is
\nwilling to make, (ii) the Competitive Bid Rate or Competitive Bid Rates at which
\nthe Lender is prepared to make such Loan or Loans (expressed as a percentage
\nrate per annum in the form of a decimal to<\/p>\n<\/p>\n<\/p>\n \n
\n20<\/p>\n \n<\/p>\n no more than four decimal places) and (iii) the Interest Period for each such
\nLoan and the last day thereof.<\/p>\n<\/p>\n (c) Notification of Bids by Administrative Agent.<\/u> The Administrative
\nAgent shall promptly notify the Borrower by facsimile of the Competitive Bid
\nRate and the principal amount specified in each Competitive Bid and the identity
\nof the Lender that shall have made such Competitive Bid.<\/p>\n<\/p>\n (d) Acceptance of Bids by the Borrower.<\/u> Subject only to the provisions
\nof this paragraph, the Borrower may accept or reject any Competitive Bid. The
\nBorrower shall notify the Administrative Agent by telephone, confirmed by
\nfacsimile in a form approved by the Administrative Agent, whether and to what
\nextent it has decided to accept or reject each Competitive Bid, in the case of a
\nCompetitive Eurocurrency Borrowing, not later than 12:00 noon, New York City
\ntime, three Business Days before the date of the proposed Competitive Borrowing,
\nand in the case of a Fixed Rate Borrowing, not later than 11:00 a.m., New York
\nCity time, on the proposed date of the Competitive Borrowing; provided<\/u>,
\nthat (i) the failure of the Borrower to give such notice shall be deemed to be a
\nrejection of each Competitive Bid, (ii) the Borrower shall not accept a
\nCompetitive Bid made at a particular Competitive Bid Rate if the Borrower
\nrejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
\naggregate amount of the Competitive Bids accepted by the Borrower shall not
\nexceed the aggregate amount of the requested Competitive Borrowing specified in
\nthe related Competitive Bid Request, (iv) to the extent necessary to comply with
\nclause (iii) of this proviso, the Borrower may accept Competitive Bids at the
\nsame Competitive Bid Rate in part, which acceptance, in the case of multiple
\nCompetitive Bids at such Competitive Bid Rate, shall be made pro rata in
\naccordance with the amount of each such Competitive Bid, and (v) except pursuant
\nto clause (iv) of this proviso, no Competitive Bid shall be accepted for a
\nCompetitive Loan unless such Competitive Loan is in a principal amount of
\n$5,000,000 or a larger multiple of $1,000,000; provided further<\/u> that if a
\nCompetitive Loan must be in an amount less than $5,000,000 because of the
\nprovisions of clause (iv) of the first proviso of this paragraph, such
\nCompetitive Loan may be in the amount of $1,000,000 or any multiple thereof, and
\nin calculating the pro rata allocation of acceptances of portions of multiple
\nCompetitive Bids at a particular Competitive Bid Rate pursuant to such clause
\n(iv) the amounts shall be rounded to multiples of $1,000,000 in a manner
\ndetermined by the Borrower. A notice given by the Borrower pursuant to this
\nparagraph shall be irrevocable.<\/p>\n<\/p>\n (e) Notification of Acceptances by the Administrative Agent.<\/u> The
\nAdministrative Agent shall promptly notify each bidding Lender whether or not
\nits Competitive Bid has been accepted (and, if so, the amount and Competitive
\nBid Rate so accepted), and each successful bidder will thereupon become bound,
\nsubject to the terms and conditions hereof, to make the Competitive Loan in
\nrespect of which its Competitive Bid has been accepted.<\/p>\n<\/p>\n (f) Bids by the Administrative Agent.<\/u> If the Administrative Agent
\nshall elect to submit a Competitive Bid in its capacity as a Lender, it shall
\nsubmit such Competitive Bid directly to the Borrower at least one quarter of an
\nhour earlier than the time by which the other Lenders are required to submit
\ntheir Competitive Bids to the Administrative Agent pursuant to paragraph (b) of
\nthis Section. Any Competitive Bid submitted by the Administrative Agent that
\nfails to comply with the provisions of paragraph (b) above and this paragraph
\n(f) shall be void ab initio<\/em>.<\/p>\n<\/p>\nSECTION 2.05. [Intentionally Omitted]<\/p>\n<\/p>\n SECTION 2.06. [Intentionally Omitted]]<\/p>\n<\/p>\n SECTION 2.07. Funding of Borrowings.<\/u> (a) Funding by Lenders<\/u>.
\nEach Lender shall make each Loan to be made by it hereunder on the proposed date
\nthereof by wire transfer of immediately available funds by 2:00 p.m., New York
\nCity time (or, in the case of any Syndicated ABR Loan, 4:00 p.m. New York City
\ntime), to the account of the Administrative Agent most recently designated by it
\nfor such purpose by notice to the Lenders. The Administrative Agent will make
\nsuch Loans available to the Borrower by promptly crediting the amounts so
\nreceived, in like funds, to an account of the Borrower designated by the
\nBorrower in the applicable borrowing request.<\/p>\n<\/p>\n<\/p>\n \n
\n21<\/p>\n \n<\/p>\n (b) Presumption by the Administrative Agent.<\/u> Unless the Administrative
\nAgent shall have received notice from a Lender prior to the proposed time of any
\nBorrowing that such Lender will not make available to the Administrative Agent
\nsuch Lender153s share of such Borrowing, the Administrative Agent may assume that
\nsuch Lender has made such share available on such date in accordance with
\nparagraph (a) of this Section and may, in reliance upon such assumption, make
\navailable to the Borrower a corresponding amount. In such event, if a Lender has
\nnot in fact made its share of the applicable Borrowing available to the
\nAdministrative Agent, then the applicable Lender and the Borrower severally
\nagree to pay to the Administrative Agent forthwith on demand such corresponding
\namount with interest thereon, for each day from and including the date such
\namount is made available to the Borrower to but excluding the date of payment to
\nthe Administrative Agent, at (i) in the case of a payment to be made by such
\nLender, the greater of the Federal Funds Effective Rate and a rate determined by
\nthe Administrative Agent in accordance with banking industry rules on interbank
\ncompensation and (ii) in the case of a payment to be made by the Borrower, the
\ninterest rate applicable to Syndicated ABR Loans. If the Borrower and such
\nLender shall pay such interest to the Administrative Agent for the same or an
\noverlapping period, the Administrative Agent shall promptly remit to the
\nBorrower the amount of such interest paid by the Borrower for such period. If
\nsuch Lender pays its share of the applicable Borrowing to the Administrative
\nAgent, then the amount so paid shall constitute such Lender153s Loan included in
\nsuch Borrowing. Any payment by the Borrower shall be without prejudice to any
\nclaim the Borrower may have against a Lender that shall have failed to make such
\npayment to the Administrative Agent.<\/p>\n<\/p>\n SECTION 2.08. Interest Elections.<\/u> (a) Elections by the Borrower for
\nSyndicated Borrowings.<\/u> The Loans comprising each Syndicated Borrowing
\ninitially shall be of the Type specified in the applicable Borrowing Request or
\nas otherwise provided in Section 2.03(d) and, in the case of a Syndicated
\nEurocurrency Borrowing, shall have the Interest Period specified in such
\nBorrowing Request or as otherwise provided in Section 2.03(d). Thereafter, the
\nBorrower may elect to convert such Borrowing to a Borrowing of a different Type
\nor to continue such Borrowing as a Borrowing of the same Type and, in the case
\nof a Syndicated Eurocurrency Borrowing, may elect the Interest Period therefor,
\nall as provided in this Section. The Borrower may elect different options with
\nrespect to different portions of the affected Borrowing, in which case each such
\nportion shall be allocated ratably among the Lenders holding the Loans
\ncomprising such Borrowing, and the Loans comprising each such portion shall be
\nconsidered a separate Borrowing. This Section shall not apply to Competitive
\nBorrowings, which may not be converted or continued.<\/p>\n<\/p>\n (b) Notice of Elections.<\/u> To make an election pursuant to this Section,
\nthe Borrower shall notify the Administrative Agent of such election by telephone
\nby the time that a Borrowing Request would be required under Section 2.03 if the
\nBorrower were requesting a Syndicated Borrowing of the Type resulting from such
\nelection to be made on the effective date of such election. Each such telephonic
\nInterest Election Request shall be irrevocable and shall be confirmed promptly
\nby hand delivery or facsimile to the Administrative Agent of a written Interest
\nElection Request in a form approved by the Administrative Agent and signed by
\nthe Borrower.<\/p>\n<\/p>\n (c) Content of Interest Election Requests.<\/u> Each telephonic and written
\nInterest Election Request shall specify the following information in compliance
\nwith Section 2.02:<\/p>\n<\/p>\n (i) the Borrowing to which such Interest Election Request applies and, if
\ndifferent options are being elected with respect to different portions thereof,
\nthe portions thereof to be allocated to each resulting Borrowing (in which case
\nthe information to be specified pursuant to clauses (iii) and (iv) below shall
\nbe specified for each resulting Borrowing);<\/p>\n<\/p>\n (ii) the effective date of the election made pursuant to such Interest
\nElection Request, which shall be a Business Day;<\/p>\n<\/p>\n (iii) whether the resulting Borrowing is to be an ABR Borrowing or a
\nEurocurrency Borrowing; and<\/p>\n<\/p>\n (iv) if the resulting Borrowing is a Syndicated Eurocurrency Borrowing, the
\nInterest<\/p>\n<\/p>\n<\/p>\n \n
\n22<\/p>\n \n<\/p>\n Period therefor after giving effect to such election, which shall be a period
\ncontemplated by the definition of the term “Interest Period” and permitted under
\nSection 2.02(d).<\/p>\n<\/p>\n (d) Notice by the Administrative Agent to the Lenders.<\/u> Promptly
\nfollowing receipt of an Interest Election Request, the Administrative Agent
\nshall advise each Lender of the details thereof and of such Lender153s portion of
\neach resulting Borrowing.<\/p>\n<\/p>\n (e) Failure to Elect; Events of Default.<\/u> If the Borrower fails to
\ndeliver a timely and complete Interest Election Request with respect to a
\nSyndicated Eurocurrency Borrowing prior to the end of the Interest Period
\ntherefor, then, unless such Syndicated Eurocurrency Borrowing is repaid as
\nprovided herein, the Borrower shall be deemed to have selected an Interest
\nPeriod of one month153s duration.<\/p>\n<\/p>\n Notwithstanding any contrary provision hereof, if an Event of Default has
\noccurred and is continuing and the Administrative Agent, at the request of the
\nRequired Lenders, so notifies the Borrower (provided<\/u> that no such notice
\nshall be required in the case of any Event of Default under clause (h) or (i) of
\nArticle VII with respect to the Borrower), then, so long as an Event of Default
\nis continuing (A) no outstanding Syndicated Borrowing may be converted to or
\ncontinued as a Syndicated Eurocurrency Borrowing and (B) unless repaid, each
\nSyndicated Eurocurrency Borrowing shall be converted to a Syndicated ABR
\nBorrowing at the end of the Interest Period therefor.<\/p>\n<\/p>\n SECTION 2.09. Termination and Reduction of the Commitments.<\/u> (a)
\nScheduled Termination.<\/u> Unless previously terminated, the Commitments
\nshall terminate on the Commitment Termination Date.<\/p>\n<\/p>\n (b) Voluntary Termination or Reduction.<\/u> The Borrower may at any time
\nterminate, or from time to time reduce, the Commitments; provided<\/u> that
\n(i) each partial reduction of the Commitments shall be in an amount that is
\n$5,000,000 or a larger multiple thereof and (ii) the Borrower shall not
\nterminate or reduce the Commitments if, after giving effect to any concurrent
\nprepayment of the Loans in accordance with Section 2.11, the sum of the total
\nRevolving Credit Exposures plus<\/u> the aggregate principal amount of
\noutstanding Competitive Loans would exceed the total Commitments.<\/p>\n<\/p>\n (c) Notice of Voluntary Termination or Reduction.<\/u> The Borrower shall
\nnotify the Administrative Agent of any election to terminate or reduce the
\nCommitments under paragraph (b) of this Section at least three Business Days
\nprior to the effective date of such termination or reduction, specifying such
\nelection and the effective date thereof. Promptly following receipt of any
\nnotice, the Administrative Agent shall advise the Lenders of the contents
\nthereof. Each notice delivered by the Borrower pursuant to this Section shall be
\nirrevocable; provided<\/u> that a notice of termination of the Commitments
\ndelivered by the Borrower may state that such notice is conditioned upon the
\neffectiveness of other credit facilities, in which case such notice may be
\nrevoked by the Borrower (by notice to the Administrative Agent on or prior to
\nthe specified effective date) if such condition is not satisfied.<\/p>\n<\/p>\n (d) Effect of Termination or Reduction.<\/u> Any termination or reduction
\nof the Commitments shall be permanent. Each reduction of the Commitments shall
\nbe made ratably among the Lenders in accordance with their respective
\nCommitments.<\/p>\n<\/p>\n SECTION 2.10. Repayment of Loans; Evidence of Debt.<\/u> (a)
\nRepayment.<\/u> The Borrower hereby unconditionally promises to pay the Loans
\nas follows:<\/p>\n<\/p>\n (i) to the Administrative Agent for account of each Lender the outstanding
\nprincipal amount of the Syndicated Loans of such Lender on the Maturity Date,
\nand<\/p>\n<\/p>\n (ii) to the Administrative Agent for account of each Lender the then unpaid
\nprincipal amount of each Competitive Loan of such Lender on the last day of the
\nInterest Period therefor.<\/p>\n<\/p>\n (b) Manner of Payment.<\/u> Prior to any repayment or prepayment of any
\nBorrowings<\/p>\n<\/p>\n<\/p>\n \n
\n23<\/p>\n \n<\/p>\n hereunder, and subject (in the case of a prepayment) to any applicable
\nprovisions of Section 2.11, the Borrower shall select the Borrowing or
\nBorrowings to be paid and shall notify the Administrative Agent by telephone
\n(confirmed by facsimile) of such selection not later than 11:00 a.m., New York
\nCity time, three Business Days before the scheduled date of such repayment. If
\nthe Borrower fails to make a timely selection of the Borrowing or Borrowings to
\nbe repaid or prepaid, such payment shall be applied, first, to pay any
\noutstanding ABR Borrowings and, second, to other Borrowings in the order of the
\nremaining duration of their respective Interest Periods (the Borrowing with the
\nshortest remaining Interest Period to be repaid first). Each payment of a
\nSyndicated Borrowing shall be applied ratably to the Loans included in such
\nBorrowing.<\/p>\n<\/p>\n (c) Maintenance of Records by Lenders.<\/u> Each Lender shall maintain in
\naccordance with its usual practice records evidencing the indebtedness of the
\nBorrower to such Lender resulting from each Loan made by such Lender, including
\nthe amounts of principal and interest payable and paid to such Lender from time
\nto time hereunder.<\/p>\n<\/p>\n (d) Maintenance of Records by the Administrative Agent.<\/u> The
\nAdministrative Agent shall maintain records in which it shall record (i) the
\namount of each Loan made hereunder, the Class and Type thereof and, if
\napplicable, each Interest Period therefor, (ii) the amount of any principal or
\ninterest due and payable or to become due and payable from the Borrower to each
\nLender hereunder and (iii) the amount of any sum received by the Administrative
\nAgent hereunder for account of the Lenders and each Lender153s share thereof.<\/p>\n<\/p>\n (e) Effect of Entries.<\/u> The entries made in the records maintained
\npursuant to paragraph (c) or (d) of this Section shall be prima<\/u>
\nfacie<\/u> evidence of the existence and amounts of the obligations recorded
\ntherein; provided<\/u> that the failure of any Lender or the Administrative
\nAgent to maintain such records or any error therein shall not in any manner
\naffect the obligation of the Borrower to repay the Loans or pay any other
\namounts hereunder in accordance with the terms of this Agreement.<\/p>\n<\/p>\n (f) Promissory Notes.<\/u> Any Lender may request that Loans made by it be
\nevidenced by a promissory note. In such event, the Borrower shall prepare,
\nexecute and deliver to such Lender a promissory note payable to such Lender and
\nits registered assigns and in customary form reasonably satisfactory to the
\nBorrower and the Administrative Agent. Thereafter, the Loans evidenced by such
\npromissory note and interest thereon shall at all times (including after
\nassignment pursuant to Section 10.04) be represented by one or more promissory
\nnotes in such form payable to the payee named therein or its registered assigns.\n<\/p>\n<\/p>\n SECTION 2.11. Prepayment of Loans.<\/u> (a) Optional Prepayments.<\/u>
\nThe Borrower shall have the right at any time and from time to time to prepay
\nany Borrowing in whole or in part, without premium or penalty, subject to the
\nrequirements of this Section; provided<\/u> that the Borrower shall not have
\nthe right to prepay any Competitive Loan without the prior consent of the Lender
\nthereof.<\/p>\n<\/p>\n (b) Notices, Etc.<\/u> The Borrower shall notify the Administrative Agent
\nby telephone (confirmed by facsimile) of any prepayment hereunder (i) in the
\ncase of prepayment of a Syndicated Eurocurrency Borrowing or of a Competitive
\nBorrowing, not later than 12:00 noon, New York City time, three Business Days
\nbefore the date of prepayment or (ii) in the case of prepayment of a Syndicated
\nABR Borrowing, not later than 12:00 noon, New York City time, on the date of
\nprepayment. Each such notice shall be irrevocable and shall specify the
\nprepayment date, the principal amount of each Borrowing or portion thereof to be
\nprepaid, any other information required to be in such notice pursuant to Section
\n2.10(b); provided<\/u> that, if a notice of prepayment is given in connection
\nwith a conditional notice of termination of the Commitments as contemplated by
\nSection 2.09, then such notice of prepayment may be revoked if such notice of
\ntermination is revoked in accordance with Section 2.09. Promptly following
\nreceipt of any such notice relating to a Syndicated Borrowing or Competitive
\nBorrowing, the Administrative Agent shall advise the relevant Lenders of the
\ncontents thereof. Each partial prepayment of any Borrowing shall be in an amount
\nthat would be permitted in the case of a Borrowing of the same Class and Type as
\nprovided in Section 2.02. Each prepayment of a Syndicated Borrowing shall be
\napplied ratably to the Loans included in the prepaid Borrowing. Prepayments
\nshall be accompanied by accrued interest to the extent required by Section 2.13
\nand any payments pursuant<\/p>\n<\/p>\n<\/p>\n \n
\n24<\/p>\n \n<\/p>\n to Section 2.16, if applicable.<\/p>\n<\/p>\n SECTION 2.12. Fees<\/u>. (a) Facility Fees.<\/u> The Borrower agrees to
\npay to the Administrative Agent for account of each Lender a facility fee, which
\nshall accrue at the Applicable Rate on the daily amount of the Commitment of
\nsuch Lender (whether used or unused) during the period from and including the
\ndate hereof to but excluding the date such Commitment terminates;
\nprovided<\/u> that, if such Lender continues to have any Revolving Credit
\nExposure after its Commitment terminates (including as a result of the exercise
\nof the Term-Out Option), then such facility fee shall continue to accrue on the
\ndaily amount of such Lender153s Revolving Credit Exposure from and including the
\ndate on which its Commitment terminates to but excluding the date on which such
\nLender ceases to have any Revolving Credit Exposure. Accrued facility fees shall
\nbe payable in arrears on each Quarterly Date, on the date the Commitments
\nterminate and, if the Term-Out Option has been exercised, on each date following
\nthe date the Commitments terminate on which any Syndicated Loans are prepaid or
\nrepaid, commencing on the first such date to occur after the date hereof;
\nprovided<\/u> that any facility fees accruing after the date on which the
\nCommitments terminate shall (unless the Term-Out Option has been exercised) be
\npayable on demand. All facility fees shall be computed on the basis of a year of
\n360 days and shall be payable for the actual number of days elapsed (including
\nthe first day but excluding the last day).<\/p>\n<\/p>\n (b) Administrative Agent Fees.<\/u> The Borrower agrees to pay to the
\nAdministrative Agent, for its own account, fees payable in the amounts and at
\nthe times separately agreed upon between the Borrower and the Administrative
\nAgent.<\/p>\n<\/p>\n (c) Term-Out Fees<\/u>. On the Commitment Termination Date, the Borrower
\nagrees to pay to the Administrative Agent, for the account of each Lender, a fee
\nequal to 1.00% of the aggregate principal amount of such Lender153s outstanding
\nSyndicated Loans that have been termed out on the Commitment Termination Date as
\na result of the exercise of the Term-Out Option) pursuant to Section 2.21.<\/p>\n<\/p>\n (d) Payment of Fees.<\/u> All fees payable hereunder shall be paid on the
\ndates due, in Dollars and immediately available funds, to the Administrative
\nAgent for distribution, in the case of facility fees and term-out fees, to the
\nLenders entitled thereto. Fees paid shall not be refundable under any
\ncircumstances.<\/p>\n<\/p>\n SECTION 2.13. Interest.<\/u> (a) ABR Loans.<\/u> The Loans comprising
\neach ABR Borrowing shall bear interest at a rate per annum equal to the
\nAlternate Base Rate plus<\/u> the Applicable Rate.<\/p>\n<\/p>\n (b) Eurocurrency Loans.<\/u> The Loans comprising each Eurocurrency
\nBorrowing shall bear interest at a rate per annum equal to (i) in the case of a
\nSyndicated Eurocurrency Borrowing, the Adjusted LIBO Rate for the Interest
\nPeriod for such Borrowing plus<\/u> the Applicable Rate, or (ii) in the case
\nof a Competitive Eurocurrency Borrowing, the LIBO Rate for the Interest Period
\nfor such Borrowing plus<\/u> (or minus<\/u>, as applicable) the Margin
\napplicable to such Borrowing.<\/p>\n<\/p>\n (c) Fixed Rate Loans.<\/u> Each Fixed Rate Loan shall bear interest at a
\nrate per annum equal to the Fixed Rate applicable to such Loan.<\/p>\n<\/p>\n (d) Default Interest.<\/u> Notwithstanding the foregoing, if any principal
\nof or interest on any Loan or any fee or other amount payable by the Borrower
\nhereunder is not paid when due, whether at stated maturity, upon acceleration or
\notherwise, such overdue amount shall bear interest, after as well as before
\njudgment, at a rate per annum equal to (i) in the case of overdue principal of
\nany Loan, 2% plus<\/u> the rate otherwise applicable to such Loan as provided
\nabove or (ii) in the case of any other amount, 2% plus<\/u> the rate
\napplicable to ABR Loans as provided in paragraph (a) of this Section.<\/p>\n<\/p>\n (e) Payment of Interest.<\/u> Accrued interest on each Loan shall be
\npayable in arrears on each Interest Payment Date for such Loan and, in the case
\nof Syndicated Loans, upon termination of the Commitments; provided<\/u> that
\n(i) interest accrued pursuant to paragraph (d) of this Section shall be payable
\non<\/p>\n<\/p>\n<\/p>\n \n
\n25<\/p>\n \n<\/p>\n demand; (ii) in the event of any repayment or prepayment of any Loan (other
\nthan a prepayment of a Syndicated ABR Loan prior to the Commitment Termination
\nDate), accrued interest on the principal amount repaid or prepaid shall be
\npayable on the date of such repayment or prepayment and (iii) in the event of
\nany conversion of any Syndicated Eurocurrency Borrowing prior to the end of the
\nInterest Period therefor, accrued interest on such Borrowing shall be payable on
\nthe effective date of such conversion.<\/p>\n<\/p>\n (f) Computation.<\/u> All interest hereunder shall be computed on the basis
\nof a year of 360 days, except that interest computed by reference to the
\nAlternate Base Rate at times when the Alternate Base Rate is based on the Prime
\nRate shall be computed on the basis of a year of 365 days (or 366 days in a leap
\nyear), and in each case shall be payable for the actual number of days elapsed
\n(including the first day but excluding the last day). The applicable Alternate
\nBase Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
\nAdministrative Agent, and such determination shall be conclusive absent manifest
\nerror.<\/p>\n<\/p>\n SECTION 2.14. Alternate Rate of Interest.<\/u> If prior to the commencement
\nof the Interest Period for any Eurocurrency Borrowing:<\/p>\n<\/p>\n (a) the Administrative Agent determines (which determination shall be
\nconclusive absent manifest error) that adequate and reasonable means do not
\nexist for ascertaining the Adjusted LIBO Rate (in the case of a Syndicated
\nEurocurrency Borrowing) or the LIBO Rate (in the case of a Competitive
\nEurocurrency Borrowing) for such Interest Period; or<\/p>\n<\/p>\n (b) the Administrative Agent is advised by the Required Lenders (or, in the
\ncase of a Competitive Eurocurrency Borrowing, any Lender that is required to
\nmake a Loan included in such Borrowing) that the Adjusted LIBO Rate (in the case
\nof a Syndicated Eurocurrency Borrowing) or the LIBO Rate (in the case of a
\nCompetitive Eurocurrency Borrowing) for such Interest Period will not adequately
\nand fairly reflect the cost to such Lenders (or Lender) of making or maintaining
\ntheir respective Loans (or its Loan) included in such Borrowing for such
\nInterest Period;<\/p>\n<\/p>\n then the Administrative Agent shall give notice thereof to the Borrower and
\nthe Lenders by telephone or facsimile as promptly as practicable thereafter and,
\nuntil the Administrative Agent notifies the Borrower and the Lenders that the
\ncircumstances giving rise to such notice no longer exist, (i) any Interest
\nElection Request that requests the conversion of any Syndicated Borrowing to, or
\nthe continuation of any Syndicated Borrowing as, a Syndicated Eurocurrency
\nBorrowing shall be ineffective and such Syndicated Borrowing (unless prepaid)
\nshall be continued as, or converted to, a Syndicated ABR Borrowing and (ii) any
\nBorrowing Request for a Syndicated Eurocurrency Borrowing shall be treated as a
\nrequest for a Syndicated ABR Borrowing.<\/p>\n<\/p>\n SECTION 2.15. Increased Costs.<\/u> (a) Increased Costs Generally.<\/u>
\nIf any Change in Law shall:<\/p>\n<\/p>\n (i) impose, modify or deem applicable any reserve, special deposit,
\ncompulsory loan, insurance charge or similar requirement against assets of,
\ndeposits with or for the account of, or credit extended or participated in by,
\nany Lender (except any reserve requirement reflected in the Adjusted LIBO Rate);\n<\/p>\n<\/p>\n (ii) subject any Lender or the Administrative Agent to any Tax (other than
\n(A) Indemnified Taxes, (B) Other Taxes, (C) Taxes described in clauses (a) and
\n(c) through (e) of the definition of Excluded Taxes, (D) Connection Income Taxes
\nand (E) Taxes imposed on gross or net income, profits or revenue, including
\nvalue-added and similar Taxes) of any kind whatsoever with respect to its loans,
\nloan principal, letters of credit, commitments or other obligations, or its
\ndeposits, reserves, other liabilities or capital attributable thereto; or<\/p>\n<\/p>\n (iii) impose on any Lender or the London interbank market any other
\ncondition, cost or expense affecting this Agreement, Eurocurrency Loans or Fixed
\nRate Loans made by such Lender;<\/p>\n<\/p>\n and the result of any of the foregoing shall be to increase the cost to such
\nLender of making or maintaining<\/p>\n<\/p>\n<\/p>\n \n
\n26<\/p>\n \n<\/p>\n any Eurocurrency Loan or Fixed Rate Loan (or of maintaining its obligation to
\nmake any such Loan), or to reduce the amount of any sum received or receivable
\nby such Lender or the Administrative Agent hereunder (whether of principal,
\ninterest or any other amount) then, upon request of such Lender or the
\nAdministrative Agent, as the case may be, the Borrower will pay to such Lender
\nor the Administrative Agent, as the case may be, in Dollars, such additional
\namount or amounts as will compensate such Lender or the Administrative Agent, as
\nthe case may be, for such additional costs incurred or reduction suffered.<\/p>\n<\/p>\n (b) Capital Requirements.<\/u> If any Lender determines that any Change in
\nLaw affecting such Lender or any lending office of such Lender or such Lender153s
\nholding company, if any, regarding capital or liquidity requirements has or
\nwould have the effect of reducing the rate of return on such Lender153s capital or
\non the capital of such Lender153s holding company, if any, as a consequence of
\nthis Agreement, the Commitment of such Lender or the Loans made by such Lender,
\nto a level below that which such Lender or such Lender153s holding company could
\nhave achieved but for such Change in Law (taking into consideration such
\nLender153s or such Lender153s holding company153s policies and the policies of such
\nLender153s holding company with respect to capital adequacy), then from time to
\ntime the Borrower will pay to such Lender, in Dollars, such additional amount or
\namounts as will compensate such Lender or such Lender153s holding company for any
\nsuch reduction suffered.<\/p>\n<\/p>\n (c) Certificates for Reimbursement.<\/u> A certificate of a Lender setting
\nforth the amount or amounts, in Dollars, necessary to compensate such Lender or
\nits holding company, as the case may be, as specified in paragraph (a) or (b) of
\nthis Section and delivered to the Borrower shall be conclusive absent manifest
\nerror. The Borrower shall pay such Lender the amount shown as due on any such
\ncertificate within 10 days after receipt thereof.<\/p>\n<\/p>\n (d) Delay in Requests.<\/u> Failure or delay on the part of any Lender to
\ndemand compensation pursuant to this Section shall not constitute a waiver of
\nsuch Lender153s right to demand such compensation, provided<\/u> that the
\nBorrower shall not be required to compensate a Lender pursuant to this Section
\nfor any increased costs incurred or reductions suffered more than nine months
\nprior to the date that such Lender, as the case may be, notifies the Borrower of
\nthe Change in Law giving rise to such increased costs or reductions and of such
\nLender153s intention to claim compensation therefor (except that, if the Change in
\nLaw giving rise to such increased costs or reductions is retroactive, then the
\nnine145month period referred to above shall be extended to include the period of
\nretroactive effect thereof).<\/p>\n<\/p>\n (e) Competitive Loans.<\/u> Notwithstanding the foregoing provisions of
\nthis Section, a Lender shall not be entitled to compensation pursuant to this
\nSection in respect of any Competitive Loan if the Change in Law (other than any
\nChange in Law referred to in the proviso of the definition of such term) that
\nwould otherwise entitle it to such compensation shall have been publicly
\nannounced prior to submission of the Competitive Bid pursuant to which such Loan
\nwas made.<\/p>\n<\/p>\n SECTION 2.16. Break Funding Payments.<\/u> In the event of (a) the payment
\nof any principal of any Eurocurrency Loan or Fixed Rate Loan other than on the
\nlast day of the Interest Period therefor (including as a result of an Event of
\nDefault), (b) the conversion of any Syndicated Eurocurrency Loan other than on
\nthe last day of the Interest Period therefor, (c) the failure to borrow,
\nconvert, continue or prepay any Syndicated Loan on the date specified in any
\nnotice delivered pursuant hereto (regardless of whether such notice is permitted
\nto be revocable under Section 2.11(b) and is revoked in accordance herewith),
\n(d) the failure to borrow any Competitive Loan after accepting the Competitive
\nBid to make such Loan, or (e) the assignment as a result of a request by the
\nBorrower pursuant to Section 2.19(b) of any Syndicated Eurocurrency Loan other
\nthan on the last day of the Interest Period therefor, then, in any such event,
\nthe Borrower shall compensate each Lender for the loss, cost and expense
\nattributable to such event. In the case of a Eurocurrency Loan, the loss to any
\nLender attributable to any such event shall be deemed to include an amount
\ndetermined by such Lender to be equal to the excess, if any, of (i) the amount
\nof interest that such Lender would pay for a deposit equal to the principal
\namount of such Loan for the period from the date of such payment, conversion,
\nfailure or assignment to the last day of the Interest Period for such Loan (or,
\nin the case of a failure to borrow, convert or continue, the duration of the
\nInterest Period that would have resulted from such borrowing, conversion or<\/p>\n<\/p>\n<\/p>\n \n
\n27<\/p>\n \n<\/p>\n continuation) if the interest rate payable on such deposit were equal to the
\nAdjusted LIBO Rate (in the case of a Syndicated Eurocurrency Loan) or the LIBO
\nRate (in the case of a Competitive Eurocurrency Loan) for such Interest Period,
\nover<\/u> (ii) the amount of interest that such Lender would earn on such
\nprincipal amount for such period if such Lender were to invest such principal
\namount for such period at the interest rate that would be bid by such Lender (or
\nan affiliate of such Lender) for deposits denominated in Dollars from other
\nbanks in the eurocurrency market at the commencement of such period. A
\ncertificate of any Lender setting forth any amount or amounts that such Lender
\nis entitled to receive pursuant to this Section shall be delivered to the
\nBorrower and shall be conclusive absent manifest error. The Borrower shall pay
\nsuch Lender the amount shown as due on any such certificate within 10 days after
\nreceipt thereof.<\/p>\n<\/p>\n SECTION 2.17. Taxes.<\/u> (a) Payments Free of Taxes.<\/u> Any and all
\npayments by or on account of any obligation of the Borrower or any Subsidiary
\nGuarantor hereunder or under any other Loan Document shall be made free and
\nclear of and without deduction or withholding for any Indemnified Taxes
\n(including Other Taxes); provided<\/u> that if the Borrower or any Subsidiary
\nGuarantor shall be required by applicable law to deduct any Indemnified Taxes
\n(including any Other Taxes) from such payments, then (i) the sum payable shall
\nbe increased as necessary so that after making all required deductions
\n(including deductions applicable to additional sums payable under this Section)
\nthe Administrative Agent or Lender, as the case may be, receives an amount equal
\nto the sum it would have received had no such deductions been made, (ii) the
\nBorrower or such Subsidiary Guarantor shall make or cause to be made such
\ndeductions and (iii) the Borrower or such Subsidiary Guarantor shall timely pay
\nor cause to be paid the full amount deducted to the relevant Governmental
\nAuthority in accordance with applicable law.<\/p>\n<\/p>\n (b) Payment of Other Taxes by the Borrower.<\/u> Without limiting the
\nprovisions of paragraph (a) above, the Borrower and each Subsidiary Guarantor
\nshall timely pay any Other Taxes to the relevant Governmental Authority in
\naccordance with applicable law.<\/p>\n<\/p>\n (c) Indemnification by the Borrower.<\/u> The Borrower shall indemnify the
\nAdministrative Agent and each Lender, within 30 days after written demand
\ntherefor, for the full amount of any Indemnified Taxes (including Other Taxes,
\nand Indemnified Taxes imposed or asserted on or attributable to amounts paid or
\npayable under this Section, but excluding Excluded Taxes under all
\ncircumstances) paid or payable by the Administrative Agent or such Lender, as
\nthe case may be, and any penalties and interest arising therefrom or with
\nrespect thereto, whether or not such Indemnified Taxes (including Other Taxes)
\nwere correctly or legally imposed or asserted by the relevant Governmental
\nAuthority. A certificate as to the amount of such payment or liability, prepared
\nin good faith and delivered to the Borrower by a Lender (with a copy to the
\nAdministrative Agent), or by the Administrative Agent on its own behalf or on
\nbehalf of a Lender, shall be conclusive absent manifest error. The Borrower
\nshall not be obligated to indemnify for any Indemnified Taxes (including Other
\nTaxes) if a written demand therefor is not made by the Administrative Agent or a
\nLender, as the case may be, within 120 days from the first date the
\nAdministrative Agent or such Lender knows or reasonably should have known of the
\nimposition of such Taxes.<\/p>\n<\/p>\n (d) Evidence of Payments.<\/u> As soon as practicable after any payment of
\nIndemnified Taxes (including Other Taxes) by the Borrower or any Subsidiary
\nGuarantor to a Governmental Authority, the Borrower or such Subsidiary Guarantor
\nshall deliver to the Administrative Agent the original or a certified copy of a
\nreceipt issued by such Governmental Authority evidencing such payment or other
\nevidence of such payment reasonably satisfactory to the Administrative Agent.\n<\/p>\n<\/p>\n (e) Indemnification by the Lenders.<\/u> Each Lender shall severally
\nindemnify the Administrative Agent for any Taxes attributable to such Lender
\n(but only to the extent that the Borrower and the Subsidiary Guarantors have not
\nalready indemnified the Administrative Agent for such Taxes and without limiting
\nthe obligation of the Borrower and the Subsidiary Guarantors to do so) that are
\npaid or payable by the Administrative Agent in connection with any Loan Document
\nand any reasonable expenses arising therefrom or with respect thereto, whether
\nor not such Taxes were correctly or legally imposed or asserted by the relevant
\nGovernmental Authority. The indemnity under this paragraph (e) shall be paid
\nwithin 10 days after the Administrative Agent delivers to the applicable Lender
\na certificate stating the amount of Taxes so<\/p>\n<\/p>\n<\/p>\n \n
\n28<\/p>\n \n<\/p>\n paid or payable by the Administrative Agent. Such certificate shall be
\nconclusive of the amount so paid or payable absent manifest error.<\/p>\n<\/p>\n (f) Foreign Lender Tax Certifications.<\/u> (i) Any Foreign Lender that is
\nentitled to an exemption from, or reduction of, any applicable withholding Tax
\nwith respect to any payments under any Loan Document shall deliver to the
\nBorrower and the Administrative Agent, at the time or times reasonably requested
\nby the Borrower or the Administrative Agent, such properly completed and
\nexecuted documentation reasonably requested by the Borrower or the
\nAdministrative Agent as will permit such payments to be made without, or at a
\nreduced rate of, withholding. Upon the reasonable request of the Borrower or the
\nAdministrative Agent, any Lender shall update any form or certification
\npreviously delivered pursuant to this paragraph (f). If any form or
\ncertification previously delivered pursuant to this Section expires or becomes
\nobsolete or inaccurate in any respect with respect to a Lender, such Lender
\nshall promptly (and in any event within 10 days after such expiration,
\nobsolescence or inaccuracy) notify the Borrower and the Administrative Agent in
\nwriting of such expiration, obsolescence or inaccuracy and update the form or
\ncertification if it is legally eligible to do so.<\/p>\n<\/p>\n (ii) Without limiting the generality of the foregoing:<\/p>\n<\/p>\n (A) each Foreign Lender shall (x) furnish on or before the date on which it
\nbecomes a party to this Agreement either (1) two accurate and complete
\noriginally executed U.S. Internal Revenue Service Form W-8BEN (or successor
\nform), (2) two accurate and complete originally executed U.S. Internal Revenue
\nService Form W-8ECI (or successor form), and\/or (3) two accurate and complete
\noriginally executed U.S. Internal Service Form W-8IMY (together with the forms
\ndescribed in clauses (1) and (2), as required) certifying, in each case, to such
\nForeign Lender153s legal entitlement to a complete exemption from U.S. Federal
\nwithholding tax with respect to all interest payments hereunder, and (y) provide
\na new Form W-8BEN (or successor form) or Form W-8ECI (or successor form) and\/or
\nForm W-8IMY (or successor form) upon the expiration or obsolescence of any
\npreviously delivered form to reconfirm complete exemption from U.S. Federal
\nwithholding tax with respect to any interest payment hereunder to the extent (in
\ncase of this clause (y)) such Foreign Lender is legally able to do so;
\nprovided<\/u> that any Foreign Lender that is relying on the so-called
\n“portfolio interest exemption” and is not (x) a “bank” within the meaning of
\nSection 881(c)(3)(A) of the Code, (y) a “10 percent shareholder” of the Borrower
\nwithin the meaning of Section 881(c)(3)(B) of the Code and (z) a controlled
\nforeign corporation described in Section 881(c)(3)(C) of the Code, shall also
\nfurnish a “Non-Bank Certificate” in the form of Exhibit C together with a Form
\nW-8BEN. Notwithstanding any other provision of this Section 2.17(f)(ii)(A), a
\nForeign Lender that is an assignee shall not be required to deliver any
\ndocumentation pursuant to this Section 2.17(f)(ii)(A) that such Foreign Lender
\nis not legally able to deliver. For the avoidance of doubt, the legal inability
\nof a Foreign Lender to provide any documentation pursuant to this Section
\n2.17(f)(ii)(A) shall not cause any Tax resulting from such inability to be an
\nExcluded Tax in circumstances where such inability arises solely due to a Change
\nin Law subsequent to the date the Foreign Lender becomes a party to this
\nAgreement. Subject to Section 2.17(a), if any Foreign Lender fails to provide
\nthe certifications described in this paragraph, each such Foreign Lender
\nacknowledges that the Borrower and the Administrative Agent shall be entitled to
\ndeduct and withhold any Taxes imposed by the United States or any taxing
\nauthority thereof or therein, to the extent required by law.<\/p>\n<\/p>\n (B) If a payment made to a Lender under any Loan Document would be subject to
\nU.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to
\ncomply with the applicable reporting requirements of FATCA (including those
\ncontained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender
\nshall deliver to the Withholding Agent, at the time or times prescribed by law
\nand at such time or times reasonably requested by the Withholding Agent, such
\ndocumentation prescribed by<\/p>\n<\/p>\n<\/p>\n \n
\n29<\/p>\n \n<\/p>\n applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the
\nCode) and such additional documentation reasonably requested by the Withholding
\nAgent as may be necessary for the Withholding Agent to comply with its
\nobligations under FATCA, to determine that such Lender has or has not complied
\nwith such Lender153s obligations under FATCA and, as necessary, to determine the
\namount to deduct and withhold from such payment. Solely for purposes of this
\nSection 2.17(f)(ii)(B), “FATCA” shall include any amendments made to FATCA after
\nthe date of this Agreement.<\/p>\n<\/p>\n (g) U.S. Lender Tax Certifications.<\/u> Any Lender that is a United States
\nperson, as defined in Section 7701(a)(30) of the Code and is not an exempt
\nrecipient within the meaning of Treasury Regulations Section 1.6049-4(c), shall
\ndeliver to the Borrower (with a copy to the Administrative Agent) two accurate
\nand complete original signed copies of Internal Service Form W-9, or any
\nsuccessor form that such person is entitled to provide, establishing that the
\nLender is not subject to U.S. Federal backup withholding Tax.<\/p>\n<\/p>\n (h) Cooperation in Contesting Indemnified Taxes.<\/u> If the Borrower
\ndetermines in good faith that a reasonable basis exists for contesting any
\nIndemnified Taxes (including Other Taxes) for which additional amounts have been
\npaid under this Section 2.17, the Administrative Agent or the relevant Lender,
\nas the case may be, shall cooperate with the Borrower in challenging such
\nIndemnified Taxes (including Other Taxes) at the Borrower153s expense, if so
\nrequested by the Borrower in writing; provided<\/u> that, in the sole
\ndiscretion, exercised in good faith, of the Administrative Agent or such Lender,
\nas the case may be, doing so would not materially prejudice the Administrative
\nAgent or such Lender, and the Administrative Agent or such Lender would not be
\nrequired to disclose any information it considers proprietary or make available
\nits Tax returns (or any other information relating to its Taxes that it deems
\nconfidential) to the Borrower or any other Person.<\/p>\n<\/p>\n (i) Treatment of Certain Refunds.<\/u> If the Administrative Agent or a
\nLender determines, in its reasonable discretion, that it has received a refund
\nof any Indemnified Taxes (including Other Taxes) as to which it has been
\nindemnified by the Borrower or any Subsidiary Guarantor or with respect to which
\nthe Borrower or any Subsidiary Guarantor has paid additional amounts pursuant to
\nthis Section, it shall pay to the Borrower or such Subsidiary Guarantor an
\namount equal to such refund (but only to the extent of indemnity payments made,
\nor additional amounts paid, by the Borrower or such Subsidiary Guarantor under
\nthis Section with respect to the Indemnified Taxes (including Other Taxes)
\ngiving rise to such refund), net of all reasonable out-of-pocket expenses of the
\nAdministrative Agent or such Lender, as the case may be, and without interest
\n(other than any interest paid by the relevant Governmental Authority with
\nrespect to such refund); provided<\/u> that the Borrower or such Subsidiary
\nGuarantor, upon the request of the Administrative Agent or such Lender, shall
\nrepay the amount paid over to the Borrower or such Subsidiary Guarantor (plus
\nany penalties, interest or other charges imposed by the relevant Governmental
\nAuthority) to the Administrative Agent or such Lender in the event the
\nAdministrative Agent or such Lender is required to repay such refund to such
\nGovernmental Authority. This paragraph shall not be construed to require the
\nAdministrative Agent or any Lender to disclose any information it considers
\nproprietary or make available its Tax returns (or any other information relating
\nto its Taxes that it deems confidential) to the Borrower, any Subsidiary
\nGuarantor or any other Person.<\/p>\n<\/p>\n SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
\nSetoffs.<\/u> (a) Payments by the Obligors.<\/u> Each Obligor shall make each
\npayment required to be made by it hereunder (whether of principal, interest or
\nfees, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise), or
\nunder any other Loan Document (except to the extent otherwise provided therein),
\nprior to 1:00 p.m., New York City time, on the date when due, in immediately
\navailable funds, without setoff or counterclaim. Any amounts received after such
\ntime on any date may, in the discretion of the Administrative Agent, be deemed
\nto have been received on the next succeeding Business Day for purposes of
\ncalculating interest thereon. All such payments shall be made to the
\nAdministrative Agent at the Administrative Agent153s Account, except as otherwise
\nexpressly provided in the relevant Loan Document and except payments pursuant to
\nSections 2.15, 2.16, 2.17 and 10.03, which shall be made directly to the Persons
\nentitled thereto. The Administrative Agent shall distribute any such payments
\nreceived by it for account of any other Person to the appropriate recipient
\npromptly<\/p>\n<\/p>\n<\/p>\n \n
\n30<\/p>\n \n<\/p>\n following receipt thereof. If any payment hereunder shall be due on a day
\nthat is not a Business Day, the date for payment shall be extended to the next
\nsucceeding Business Day and, in the case of any payment accruing interest,
\ninterest thereon shall be payable for the period of such extension. All payments
\nunder each Loan Document shall be made in Dollars.<\/p>\n<\/p>\n (b) Application of Insufficient Payments.<\/u> If at any time insufficient
\nfunds are received by and available to the Administrative Agent to pay fully all
\namounts of principal, interest and fees then due hereunder, such funds shall be
\napplied (i) first, to pay interest and fees then due hereunder, ratably among
\nthe parties entitled thereto in accordance with the amounts of interest and fees
\nthen due to such parties, and (ii) second, to pay principal then due hereunder,
\nratably among the parties entitled thereto in accordance with the amounts of
\nprincipal then due to such parties.<\/p>\n<\/p>\n (c) Pro Rata Treatment.<\/u> Except to the extent otherwise provided herein
\n(for the avoidance of doubt, as this Agreement is in effect from time to time):
\n(i) each payment of facility fees under Section 2.12(a) shall be made for
\naccount of the Lenders, and each termination or reduction of the amount of the
\nCommitments under Section 2.09 shall be applied to the respective Commitments of
\nthe Lenders, pro rata according to the amounts of their respective Commitments
\n(or, in the case of any such payment of facility fees at a time when the
\nCommitments shall have terminated or expired, pro rata according to the amounts
\nof their respective Revolving Credit Exposure); (ii) each Syndicated Borrowing
\nshall be allocated pro rata among the Lenders according to the amounts of their
\nrespective Commitments (in the case of the making of Syndicated Loans) or their
\nrespective Loans that are to be included in such Borrowing (in the case of
\nconversions and continuations of Loans); (iii) each payment or prepayment of any
\nSyndicated Borrowing shall be applied ratably to the Loans included in the
\nrepaid or prepaid Syndicated Borrowing; and (iv) if the Term-Out Option is
\nexercised, the payment of the term-out fees under Section 2.12(c) shall be made
\nfor account of the Lenders pro rata according to the amounts of their respective
\nCommitments immediately prior to the Commitment Termination Date.<\/p>\n<\/p>\n (d) Sharing of Payments by Lenders.<\/u> If any Lender shall, by exercising
\nany right of setoff or counterclaim or otherwise, obtain payment in respect of
\nany principal of or interest on any of its Loans (other than a Competitive Loan)
\nresulting in such Lender153s receiving payment of a greater proportion of the
\naggregate amount of its Loans (other than Competitive Loans) and accrued
\ninterest thereon than the proportion received by any other Lender, then the
\nLender receiving such greater proportion shall (A) notify the Administrative
\nAgent of such fact and (B) purchase (for cash at face value) participations in
\nthe Loans (other than Competitive Loans) of other Lenders, or make such other
\nadjustments as shall be equitable, so that the benefit of all such payments
\nshall be shared by the Lenders ratably in accordance with the aggregate amounts
\nof principal of and accrued interest on their Loans (other than Competitive
\nLoans), provided<\/u> that:<\/p>\n<\/p>\n (i) if any such participations are purchased and all or any portion of the
\npayment giving rise thereto is recovered, such participations shall be rescinded
\nand the purchase price restored to the extent of such recovery, without
\ninterest; and<\/p>\n<\/p>\n (ii) the provisions of this paragraph shall not be construed to apply to (x)
\nany payment made by any Obligor pursuant to and in accordance with the express
\nterms of this Agreement (for the avoidance of doubt, as this Agreement is in
\neffect from time to time) or (y) any payment obtained by a Lender as
\nconsideration for the assignment of or sale of a participation in any of its
\nLoans to any assignee or participant, other than to the Borrower or any
\nSubsidiary thereof (as to which the provisions of this paragraph shall apply).\n<\/p>\n<\/p>\n Each Obligor consents to the foregoing and agrees, to the extent it may
\neffectively do so under applicable law, that any Lender acquiring a
\nparticipation pursuant to the foregoing arrangements may exercise against each
\nObligor rights of setoff and counterclaim with respect to such participation as
\nfully as if such Lender were a direct creditor of each Obligor in the amount of
\nsuch participation.<\/p>\n<\/p>\n (e) Payments by the Borrower; Presumptions by the Administrative
\nAgent.<\/u> Unless the<\/p>\n<\/p>\n<\/p>\n \n
\n31<\/p>\n \n<\/p>\n Administrative Agent shall have received notice from the Borrower prior to
\nthe date on which any payment is due to the Administrative Agent for the account
\nof the Lenders hereunder that the Borrower will not make such payment, the
\nAdministrative Agent may assume that the Borrower has made such payment on such
\ndate in accordance herewith and may, in reliance upon such assumption,
\ndistribute to the Lenders the amount due. In such event, if the Borrower has not
\nin fact made such payment, then each of the Lenders severally agrees to repay to
\nthe Administrative Agent forthwith on demand the amount so distributed to such
\nLender with interest thereon, for each day from and including the date such
\namount is distributed to it to but excluding the date of payment to the
\nAdministrative Agent, at the greater of the Federal Funds Effective Rate and a
\nrate determined by the Administrative Agent in accordance with banking industry
\nrules on interbank compensation.<\/p>\n<\/p>\n (f) Certain Deductions by the Administrative Agent.<\/u> If any Lender
\nshall fail to make any payment required to be made by it hereunder to or for the
\naccount of the Administrative Agent, then the Administrative Agent may, in its
\ndiscretion (notwithstanding any contrary provision hereof), (i) apply any
\namounts thereafter received by the Administrative Agent for the account of such
\nLender to satisfy such Lender153s obligations in respect of such payment until all
\nsuch unsatisfied obligations have been discharged or (ii) hold any such amounts
\nin a segregated account as cash collateral for, and application to, any future
\nfunding obligations of such Lender pursuant to this Agreement (including
\npursuant to Sections 2.07(b), 2.18(e) and 10.03(c)), in each case in such order
\nas shall be determined by the Administrative Agent in its discretion.<\/p>\n<\/p>\n SECTION 2.19. Mitigation Obligations; Replacement of Lenders.<\/u> (a)
\nDesignation of a Different Lending Office.<\/u> If any Lender requests
\ncompensation under Section 2.15, or requires the Borrower to pay any additional
\namount to any Lender or any Governmental Authority for the account of any Lender
\npursuant to Section 2.17, then such Lender shall use reasonable efforts to
\ndesignate a different lending office for funding or booking its Loans hereunder
\nor to assign and delegate its rights and obligations hereunder to another of its
\noffices, branches or Affiliates, if, in the judgment of such Lender, such
\ndesignation or assignment and delegation (i) would eliminate or reduce amounts
\npayable pursuant to Section 2.15 or 2.17, as the case may be, in the future and
\n(ii) would not subject such Lender to any unreimbursed cost or expense and would
\nnot otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
\npay all reasonable costs and expenses incurred by any Lender in connection with
\nany such designation or assignment and delegation.<\/p>\n<\/p>\n (b) Replacement of Lenders.<\/u> If (i) any Lender requests compensation
\nunder Section 2.15, (ii) the Borrower is required to pay any additional amount
\nto any Lender or any Governmental Authority for the account of any Lender
\npursuant to Section 2.17, (iii) any Lender has become a Defaulting Lender, or
\n(iv) any Lender does not consent to any proposed amendment, supplement,
\nmodification, consent or waiver of any provision of this Agreement or any other
\nLoan Document that requires the consent of such Lender or each of the Lenders or
\neach of the Lenders affected thereby (so long as the consent of the Required
\nLenders has been obtained), then the Borrower may, at its sole expense and
\neffort, upon notice to such Lender and the Administrative Agent, require such
\nLender to assign and delegate, without recourse (in accordance with and subject
\nto the restrictions contained in, and consents required by, Section 10.04), all
\nof its interests, rights and obligations under this Agreement and the related
\nLoan Documents (other than any outstanding Competitive Loans held by it) to an
\nassignee that shall assume such obligations (which assignee may be another
\nLender, if a Lender accepts such assignment), provided<\/u> that:<\/p>\n<\/p>\n (A) the Borrower shall have received the prior written consent of the
\nAdministrative Agent, which consent shall not unreasonably be withheld;<\/p>\n<\/p>\n (B) the Borrower shall have paid to the Administrative Agent the assignment
\nfee specified in Section 10.04;<\/p>\n<\/p>\n (C) such Lender shall have received payment of an amount equal to the
\noutstanding principal of its Loans (other than Competitive Loans), accrued
\ninterest thereon, accrued fees and all other amounts (except Competitive Loans)
\npayable to it hereunder and under the other Loan Documents (including any
\namounts under Section 2.16) from the assignee (to the extent of such outstanding
\nprincipal and accrued interest and fees) or the Borrower (in the case of all
\nother amounts);<\/p>\n<\/p>\n<\/p>\n \n
\n32<\/p>\n \n<\/p>\n (D) in the case of any such assignment and delegation resulting from a claim
\nfor compensation under Section 2.15 or payments required to be made pursuant to
\nSection 2.17, such assignment and delegation will result in a reduction in such
\ncompensation or payments thereafter; and<\/p>\n<\/p>\n (E) such assignment does not conflict with applicable law.<\/p>\n<\/p>\n A Lender shall not be required to make any such assignment or delegation if,
\nprior thereto, as a result of a waiver by such Lender or otherwise, the
\ncircumstances entitling the Borrower to require such assignment and delegation
\ncease to apply. Each party hereto agrees that an assignment and delegation
\nrequired pursuant to this paragraph may be effected pursuant to an Assignment
\nand Assumption executed by the Borrower, the Administrative Agent and the
\nassignee and that the Lender required to make such assignment and delegation
\nneed not be a party thereto.<\/p>\n<\/p>\n SECTION 2.20. Defaulting Lenders<\/u>. Notwithstanding any provision of
\nthis Agreement to the contrary, if any Lender becomes a Defaulting Lender, then
\nthe following provisions shall apply for so long as such Lender is a Defaulting
\nLender:<\/p>\n<\/p>\n (a) facility fees shall continue to accrue on the amount of the Commitment of
\nsuch Defaulting Lender pursuant to Section 2.12(a) only to the extent of the
\nRevolving Credit Exposure of such Defaulting Lender; and<\/p>\n<\/p>\n (b) the Commitment, the Revolving Credit Exposure and the aggregate principal
\namount of outstanding Competitive Loans of such Defaulting Lender shall not be
\nincluded in determining whether the Required Lenders or any other requisite
\nLenders have taken or may take any action hereunder or under any other Loan
\nDocument (including any consent to any amendment, waiver or other modification
\npursuant to Section 10.02); provided<\/u> that any amendment, waiver or other
\nmodification requiring the consent of all Lenders or all Lenders affected
\nthereby shall, except as otherwise provided in Section 10.02, require the
\nconsent of such Defaulting Lender in accordance with the terms hereof.<\/p>\n<\/p>\n In the event that the Administrative Agent and the Borrower each agree that a
\nDefaulting Lender has adequately remedied all matters that caused such Lender to
\nbe a Defaulting Lender, then on such date such Lender shall purchase at par such
\nof the Syndicated Loans of the other Lenders as the Administrative Agent shall
\ndetermine may be necessary in order for such Lender to hold such Loans in
\naccordance with its Applicable Percentage.<\/p>\n<\/p>\n SECTION 2.21. Term-Out Option<\/u>. The Borrower may, by irrevocable
\nwritten notice to the Administrative Agent given, not less than 30 days, but not
\nmore than 60 days, prior to the Commitment Termination Date, elect (such
\nelection, the “Term-Out Option<\/u>“) to extend the Maturity Date to a
\none-year anniversary of the Commitment Termination Date; provided<\/u> that on
\nthe Commitment Termination Date (a) no Default shall have occurred and be
\ncontinuing or would result therefrom, (b) the representations and warranties set
\nforth in Article IV and in the other Loan Documents shall be true and correct on
\nand as of the Commitment Termination Date as if made on and as of such date (or,
\nif any such representation or warranty is expressly stated to have been made as
\nof a specific date, as of such specific date) and (c) the Borrower shall pay the
\nTerm-Out Fee to the Administrative Agent for the account of each Lender pursuant
\nto Section 2.12(c). Each notice by the Borrower under this Section shall be
\ndeemed to constitute a representation and warranty by the Borrower as to the
\nmatters specified in clauses (a) and (b) above as of the Commitment Termination
\nDate. For the avoidance of doubt all Commitments will terminate on the
\nCommitment Termination Date, and no additional Borrowings will be permitted
\nafter the Commitment Termination Date. This Section shall not apply to
\nCompetitive Loans, which must be repaid on or prior to the Commitment
\nTermination Date.<\/p>\n<\/p>\n ARTICLE III<\/p>\n Guarantee<\/u><\/p>\n \n<\/p>\n<\/p>\n \n
\n33<\/p>\n \n<\/p>\n SECTION 3.01. The Guarantee.<\/u> The Subsidiary Guarantors hereby jointly
\nand severally, as a primary obligor and not merely as a surety, guarantee to
\neach Lender, each other holder of a Guaranteed Obligation (as hereinafter
\ndefined) and the Administrative Agent and their respective successors and
\nassigns the prompt payment in full when due (whether at stated maturity, by
\nacceleration or otherwise) of the principal of and interest on the Loans made by
\nthe Lenders to the Borrower and all fees, indemnification payments and other
\namounts whatsoever, whether direct or indirect, absolute or contingent, now or
\nhereafter from time to time owing to the Lenders or the Administrative Agent by
\nthe Borrower under this Agreement and by any Obligor under any of the other Loan
\nDocuments, in each case strictly in accordance with the terms thereof and
\nincluding all interest, fees and expenses accrued or incurred subsequent to the
\ncommencement of any bankruptcy or insolvency proceedings with respect to the
\nBorrower, whether or not such interest, fees or expenses are allowed as a claim
\nin such proceeding (such obligations being herein collectively called the
\n“Guaranteed Obligations<\/u>“). The Subsidiary Guarantors hereby further
\njointly and severally agree that if the Borrower shall fail to pay in full when
\ndue (whether at stated maturity, by acceleration or otherwise) any of the
\nGuaranteed Obligations, the Subsidiary Guarantors will promptly pay the same,
\nwithout any demand or notice whatsoever, and that in the case of any extension
\nof time of payment or renewal of any of the Guaranteed Obligations, the same
\nwill be promptly paid in full when due (whether at extended maturity, by
\nacceleration or otherwise) in accordance with the terms of such extension or
\nrenewal.<\/p>\n<\/p>\n SECTION 3.02. Obligations Unconditional.<\/u> The obligations of the
\nSubsidiary Guarantors under Section 3.01 are absolute and unconditional, joint
\nand several, irrespective of the value, genuineness, validity, regularity or
\nenforceability of the obligations of the Borrower under this Agreement or any
\nother agreement or instrument referred to herein, or any substitution, release
\nor exchange of any other guarantee of or security for any of the Guaranteed
\nObligations, and, to the fullest extent permitted by applicable law,
\nirrespective of any other circumstance whatsoever that might otherwise
\nconstitute a legal or equitable discharge or defense of a surety or guarantor,
\nit being the intent of this Section that the obligations of the Subsidiary
\nGuarantors hereunder shall be absolute and unconditional, joint and several,
\nunder any and all circumstances. Without limiting the generality of the
\nforegoing, it is agreed that the occurrence of any one or more of the following
\nshall not alter or impair the liability of the Subsidiary Guarantors hereunder,
\nwhich shall remain absolute and unconditional as described above:<\/p>\n<\/p>\n (i) at any time or from time to time, without notice to the Subsidiary
\nGuarantors, the time for any performance of or compliance with any of the
\nGuaranteed Obligations shall be extended, or such performance or compliance
\nshall be waived;<\/p>\n<\/p>\n (ii) any of the acts mentioned in any of the provisions of this Agreement or
\nany other agreement or instrument referred to herein shall be done or omitted;\n<\/p>\n<\/p>\n (iii) the maturity of any of the Guaranteed Obligations shall be accelerated,
\nor any of the Guaranteed Obligations shall be modified, supplemented or amended
\nin any respect, or any right under this Agreement or any other agreement or
\ninstrument referred to herein shall be waived or any other guarantee of any of
\nthe Guaranteed Obligations or any security therefor shall be released or
\nexchanged in whole or in part or otherwise dealt with; or<\/p>\n<\/p>\n (iv) any lien or security interest granted to, or in favor of, the
\nAdministrative Agent or any Lender or Lenders as security for any of the
\nGuaranteed Obligations shall fail to be perfected.<\/p>\n<\/p>\n The Subsidiary Guarantors hereby expressly waive diligence, presentment,
\ndemand of payment, protest and all notices whatsoever. Each Subsidiary Guarantor
\nagrees that its guarantee hereunder constitutes a guarantee of payment when due
\n(whether or not any bankruptcy, insolvency, receivership or similar proceeding
\nshall have stayed the accrual or collection of any of the Guaranteed Obligations
\nor operated as a discharge thereof) and not merely of collection, and hereby
\nexpressly waives any requirement that the Administrative Agent or any Lender
\nexhaust any right, power or remedy or proceed against the Borrower under this
\nAgreement or any other agreement or instrument referred to herein, or against
\nany other Person under any other guarantee of, or security for, any of the
\nGuaranteed Obligations.<\/p>\n<\/p>\n<\/p>\n \n
\n34<\/p>\n \n<\/p>\n SECTION 3.03. Reinstatement.<\/u> The obligations of the Subsidiary
\nGuarantors under this Article shall be automatically reinstated if and to the
\nextent that for any reason any payment by or on behalf of the Borrower in
\nrespect of the Guaranteed Obligations is rescinded or must be otherwise restored
\nby any holder of any of the Guaranteed Obligations, whether as a result of any
\nproceedings in bankruptcy or reorganization or otherwise, and the Subsidiary
\nGuarantors jointly and severally agree that they will indemnify the
\nAdministrative Agent and each Lender on demand for all reasonable costs and
\nexpenses (including fees of counsel) incurred by the Administrative Agent or
\nsuch Lender in connection with such rescission or restoration, including any
\nsuch costs and expenses incurred in defending against any claim alleging that
\nsuch payment constituted a preference, fraudulent transfer or similar payment
\nunder any bankruptcy, insolvency or similar law.<\/p>\n<\/p>\n SECTION 3.04. Subrogation.<\/u> The Subsidiary Guarantors hereby jointly
\nand severally agree that until the payment and satisfaction in full of all
\nGuaranteed Obligations and the expiration and termination of the Commitments of
\nthe Lenders under this Agreement they shall not exercise any right or remedy
\narising by reason of any performance by them of their guarantee in Section 3.01,
\nwhether by subrogation or otherwise, against the Borrower or any other guarantor
\nof any of the Guaranteed Obligations or any security for any of the Guaranteed
\nObligations.<\/p>\n<\/p>\n SECTION 3.05. Remedies.<\/u> The Subsidiary Guarantors jointly and
\nseverally agree that, as between the Subsidiary Guarantors and the Lenders, the
\nobligations of the Borrower under this Agreement may be declared to be forthwith
\ndue and payable as provided in Article VIII (and shall be deemed to have become
\nautomatically due and payable in the circumstances provided in Article VIII) for
\npurposes of Section 3.01 notwithstanding any stay, injunction or other
\nprohibition preventing such declaration (or such obligations from becoming
\nautomatically due and payable) as against the Borrower and that, in the event of
\nsuch declaration (or such obligations being deemed to have become automatically
\ndue and payable), such obligations (whether or not due and payable by the
\nBorrower) shall forthwith become due and payable by the Subsidiary Guarantors
\nfor purposes of Section 3.01.<\/p>\n<\/p>\n SECTION 3.06. Instrument for the Payment of Money.<\/em><\/u> To the
\nfullest extent permitted by N.Y. Civ. Prac. L&R \u00a7 3213 and other applicable
\nlaw, each Subsidiary Guarantor hereby acknowledges that the guarantee in this
\nArticle constitutes an instrument for the payment of money, and consents and
\nagrees that any Lender or the Administrative Agent, at its sole option, in the
\nevent of a dispute by such Subsidiary Guarantor in the payment of any moneys due
\nhereunder, shall have the right to bring motion action under N.Y. Civ. Prac.
\nL&R \u00a7 3213.<\/p>\n<\/p>\nSECTION 3.07. Continuing Guarantee.<\/u> The guarantee in this Article is a
\ncontinuing guarantee, and shall apply to all Guaranteed Obligations whenever
\narising. Each Subsidiary Guarantor further agrees that the Guaranteed
\nObligations may be extended or renewed, in whole or in part, or amended or
\nmodified, without notice to or further assent from it, and that it will remain
\nbound upon its guarantee hereunder notwithstanding any extension, renewal,
\namendment or modification of any Guaranteed Obligation.<\/p>\n<\/p>\n SECTION 3.08. Rights of Contribution.<\/u> The Subsidiary Guarantors hereby
\nagree, as between themselves, that if any Subsidiary Guarantor shall become an
\nExcess Funding Guarantor (as defined below) by reason of the payment by such
\nSubsidiary Guarantor of any Guaranteed Obligations, then each other Subsidiary
\nGuarantor shall, on demand of such Excess Funding Guarantor (but subject to the
\nnext sentence), pay to such Excess Funding Guarantor an amount equal to such
\nSubsidiary Guarantor153s Pro Rata Share (as defined below and determined, for this
\npurpose, without reference to the properties, debts and liabilities of such
\nExcess Funding Guarantor) of the Excess Payment (as defined below) in respect of
\nsuch Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to
\nany Excess Funding Guarantor under this Section shall be subordinate and subject
\nin right of payment to the prior payment in full of the obligations of such
\nSubsidiary Guarantor under the other provisions of this Article and such Excess
\nFunding Guarantor shall not exercise any right or remedy with respect to such
\nexcess until payment and satisfaction in full of all of such obligations.<\/p>\n<\/p>\n For purposes of this Section, (a) “Excess Funding Guarantor<\/u>” means, in
\nrespect of any<\/p>\n<\/p>\n<\/p>\n \n
\n35<\/p>\n \n<\/p>\n Guaranteed Obligations, a Subsidiary Guarantor that has paid an amount in
\nexcess of its Pro Rata Share of such Guaranteed Obligations, (b) “Excess
\nPayment<\/u>” means, in respect of any Guaranteed Obligations, the amount paid by
\nan Excess Funding Guarantor in excess of its Pro Rata Share of such Guaranteed
\nObligations and (c) “Pro Rata Share<\/u>” means, for any Subsidiary Guarantor,
\nthe ratio (expressed as a percentage) of (i) the amount by which the aggregate
\npresent fair saleable value of all properties of such Subsidiary Guarantor
\n(excluding any shares of stock or other equity interest of any other Subsidiary
\nGuarantor) exceeds the amount of all the debts and liabilities of such
\nSubsidiary Guarantor (including contingent, subordinated, unmatured and
\nunliquidated liabilities, but excluding the obligations of such Subsidiary
\nGuarantor hereunder and any obligations of any other Subsidiary Guarantor that
\nhave been Guaranteed by such Subsidiary Guarantor) to (ii) the amount by which
\nthe aggregate fair saleable value of all properties of all of the Subsidiary
\nGuarantors exceeds the amount of all the debts and liabilities (including
\ncontingent, subordinated, unmatured and unliquidated liabilities, but excluding
\nthe obligations of the Borrower and the Subsidiary Guarantors hereunder and
\nunder the other Loan Documents) of all of the Subsidiary Guarantors, determined
\n(A) with respect to any Subsidiary Guarantor that is a party hereto on the
\nEffective Date, as of the Effective Date, and (B) with respect to any other
\nSubsidiary Guarantor, as of the date such Subsidiary Guarantor becomes a
\nSubsidiary Guarantor hereunder.<\/p>\n<\/p>\n SECTION 3.09. General Limitation on Guarantee Obligations<\/u>. In any
\naction or proceeding involving any state corporate law, or any state or Federal
\nbankruptcy, insolvency, reorganization or other law affecting the rights of
\ncreditors generally, if the obligations of any Subsidiary Guarantor under
\nSection 3.01 would otherwise, taking into account the provisions of Section
\n3.08, be held or determined to be void, invalid or unenforceable on account of
\nthe amount of its liability under Section 3.01, then, notwithstanding any other
\nprovision hereof to the contrary, the amount of such liability shall, without
\nany further action by such Subsidiary Guarantor, any Lender, the Administrative
\nAgent or any other Person, be automatically limited and reduced to the highest
\namount that is valid and enforceable as determined in such action or proceeding.\n<\/p>\n<\/p>\n SECTION 3.10. Designation of Subsidiary Guarantors<\/u>. The Borrower may
\nat any time and from time to time designate, in its sole discretion, any
\nDomestic Subsidiary as a Subsidiary Guarantor, in each case by delivery to the
\nAdministrative Agent of (a) a duly executed Guarantee Assumption Agreement
\nproperly completed for such Subsidiary and in such number of counterparts as may
\nreasonably be requested by the Administrative Agent and (b) proof of corporate
\naction, incumbency of officers, opinions of counsel and other documents
\nconsistent with those delivered by the Subsidiary Guarantors pursuant to Section
\n5.01 on the Effective Date as may reasonably be requested by the Administrative
\nAgent. Any Subsidiary Guarantor designated as such pursuant to this Section 3.10
\nshall continue to be a Subsidiary Guarantor until the Borrower shall have
\ndelivered written notice to the Administrative Agent of the termination of such
\ndesignation; provided<\/u> that the preceding clause shall not limit the
\nBorrower153s obligations with respect to Specified Subsidiaries pursuant to
\nSection 6.08.<\/p>\n<\/p>\n SECTION 3.11. Release of Guarantees<\/u>. A Subsidiary Guarantor will
\nautomatically be released from its obligations under this Article III, upon the
\nconsummation of any transaction permitted by this Agreement as a result of which
\nneither the Borrower nor any of its Subsidiaries owns any equity interest in
\nsuch Subsidiary Guarantor, provided<\/u> that, if so required by this
\nAgreement, the Required Lenders shall have consented to such transactions and
\nthe terms of such consent shall not have provided otherwise. In connection with
\nany release pursuant to this Section, the Administrative Agent shall execute and
\ndeliver to any Obligor, at such Obligor153s expense, all documents that such
\nObligor shall reasonably request to evidence such release. Any execution and
\ndelivery of documents pursuant to this Section shall be without recourse to or
\nwarranty by the Administrative Agent.<\/p>\n<\/p>\n ARTICLE IV<\/p>\n Representations and Warranties<\/u><\/p>\n \n The Borrower represents and warrants to the Administrative Agent and the
\nLenders that:<\/p>\n<\/p>\n SECTION 4.01. Organization.<\/u> Each Obligor is duly organized, validly
\nexisting and<\/p>\n<\/p>\n<\/p>\n \n
\n36<\/p>\n \n<\/p>\n in good standing under the laws of the jurisdiction of its organization.<\/p>\n<\/p>\n SECTION 4.02. Authorization; Enforceability.<\/u> The Transactions are
\nwithin each Obligor153s corporate or other organizational powers and have been
\nduly authorized by all necessary corporate or other organizational action. This
\nAgreement has been duly executed and delivered by each Obligor identified herein
\nas a signatory party hereto and constitutes, and each of the other Loan
\nDocuments to which any Obligor is a party when executed and delivered by such
\nObligor will constitute, a legal, valid and binding obligation of such Obligor,
\nenforceable against each Obligor in accordance with its terms, except as such
\nenforceability may be limited by (a) bankruptcy, insolvency, reorganization,
\nmoratorium or similar laws of general applicability affecting the enforcement of
\ncreditors153 rights and (b) the application of general principles of equity
\n(regardless of whether such enforceability is considered in a proceeding in
\nequity or at law).<\/p>\n<\/p>\n SECTION 4.03. Governmental Approvals; No Conflicts.<\/u> The Transactions
\n(a) do not require any consent or approval of, registration or filing with, or
\nany other action by, any Governmental Authority, except such as have been
\nobtained or made and are in full force and effect, (b) do not violate the
\ncharter, by145laws or other organizational documents of any Obligor and do not
\nviolate in any material respect any applicable law or regulation or any order of
\nany Governmental Authority, and (c) do not constitute a default under any
\nmaterial indenture, agreement or other instrument binding upon the Borrower or
\nany of its Subsidiaries.<\/p>\n<\/p>\n SECTION 4.04. Financial Condition; No Material Adverse Change.<\/u> (a)
\nFinancial Condition.<\/u> The Borrower153s consolidated balance sheet and
\nstatements of earnings, shareholders153 equity and cash flows (i) as of and for
\nthe fiscal year ended February 26, 2011, reported on by Deloitte & Touche
\nLLP, independent registered public accounting firm, and (ii) as of and for the
\nfiscal quarter and the portion of the fiscal year ended August 27, 2011,
\ncertified by the chief financial officer of the Borrower, present fairly, in all
\nmaterial respects, the financial position and results of operations and cash
\nflows of the Borrower and its consolidated Subsidiaries as of such dates and for
\nsuch periods in accordance with GAAP, subject to year145end audit adjustments and
\nthe absence of certain footnotes in the case of the statements referred to in
\nclause (ii).<\/p>\n<\/p>\n (b) No Material Adverse Change<\/u>. Since February 26, 2011, there has
\nbeen no material adverse change in the business, assets, operations or condition
\n(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole.\n<\/p>\n<\/p>\n SECTION 4.05. Properties.<\/u> Except in respect of matters that would not
\nreasonably be expected to have a Material Adverse Effect, the Borrower and its
\nSubsidiaries have title to, or leasehold interests in, or the use of, property
\nsufficient to conduct their business, except for defects in title that do not
\ninterfere with their ability to conduct their business.<\/p>\n<\/p>\n SECTION 4.06. Litigation and Environmental Matters.<\/u> (a) Actions,
\nSuits and Proceedings<\/u>. (i) There are no material actions, suits or
\nproceedings by or before any arbitrator or Governmental Authority now pending
\nagainst or, to the knowledge of the Borrower, threatened against or affecting
\nthe Borrower or any of its Subsidiaries, except as disclosed in the Annual
\nReport on Form 10-K of the Borrower for the fiscal year ended February 26, 2011
\nas filed with the Securities and Exchange Commission.<\/p>\n<\/p>\n (ii) There are no actions, suits or proceedings by or before any arbitrator
\nor Governmental Authority now pending against or, to the knowledge of the
\nBorrower, threatened against or affecting the Borrower or any of its
\nSubsidiaries that purport to affect the legality, validity or enforceability of
\nany Loan Document, the borrowing or repayment of any Loans.<\/p>\n<\/p>\n (b) Environmental, Health and Safety Laws.<\/u> Neither the Borrower nor
\nany Subsidiary has received any notice to the effect that any part of its
\noperations or properties is not in compliance with any Environmental Law or
\norder or any notice that it or its property is the subject of any governmental
\ninvestigation evaluating whether any remedial action is needed to respond to any
\nrelease of any Hazardous Material into the environment, which non-compliance or
\nremedial action could reasonably be expected to have a Material<\/p>\n<\/p>\n<\/p>\n \n
\n37<\/p>\n \n<\/p>\n Adverse Effect.<\/p>\n<\/p>\n SECTION 4.07. Compliance with Laws and Agreements.<\/u> Each of the
\nBorrower and its Subsidiaries is in compliance with all laws, regulations and
\norders of any Governmental Authority applicable to it or its property and all
\nindentures, agreements and other instruments binding upon it or its property,
\nexcept where the failure to do so, individually or in the aggregate, would not
\nreasonably be expected to result in a Material Adverse Effect. No Default has
\noccurred and is continuing.<\/p>\n<\/p>\n SECTION 4.08. Investment Company Status.<\/u> No Obligor is an “investment
\ncompany” as defined in, or subject to regulation under, the Investment Company
\nAct of 1940.<\/p>\n<\/p>\n SECTION 4.09. Taxes.<\/u> Each of the Borrower and its Subsidiaries has
\ntimely filed or caused to be filed all material Tax returns and reports required
\nto have been filed and has paid or caused to be paid all Taxes required to have
\nbeen paid by it, except (a) Taxes that are being contested in good faith by
\nappropriate proceedings and for which such Person has set aside on its books
\nadequate reserves in accordance with GAAP or (b) to the extent that the failure
\nto do so would not reasonably be expected to result in a Material Adverse
\nEffect.<\/p>\n<\/p>\n SECTION 4.10. ERISA.<\/u> No ERISA Event has occurred or is reasonably
\nexpected to occur that, when taken together with all other such ERISA Events for
\nwhich liability is reasonably expected to occur, could reasonably be expected to
\nresult in a Material Adverse Effect.<\/p>\n<\/p>\n SECTION 4.11. Subsidiaries.<\/u> Set forth on Schedule 4.11 is a complete
\nand correct list as of the Effective Date of (a) all of the Subsidiaries of the
\nBorrower and (b) each Subsidiary holding ownership interests in other
\nSubsidiaries of the Borrower, together with, for each such Subsidiary, the
\njurisdiction of organization of such Subsidiary. Schedule 4.11 separately
\nidentifies all Specified Subsidiaries and Material Subsidiaries as of the date
\nhereof.<\/p>\n<\/p>\n SECTION 4.12. Federal Reserve Regulations.<\/u> Neither the Borrower nor
\nany Subsidiary is engaged principally or as one of its important activities in
\nthe business of extending credit for the purpose of purchasing or carrying
\nMargin Stock. The value of all Margin Stock owned by the Borrower and its
\nSubsidiaries (including, without limitation, all capital stock of the Borrower
\nheld by the Borrower in treasury) does not constitute more than 25.0% of the
\nvalue of the consolidated assets of the Borrower.<\/p>\n<\/p>\n ARTICLE V<\/p>\n Conditions<\/u><\/p>\n \n SECTION 5.01. Effective Date.<\/u> The obligations of the Lenders to make
\nLoans hereunder shall not become effective until the date on which the following
\nconditions shall have been satisfied (or delivery of such documents is waived in
\naccordance with Section 10.02):<\/p>\n<\/p>\n (a) Executed Counterparts<\/u>. The Administrative Agent shall have
\nreceived from each party hereto either (i) a counterpart of this Agreement
\nsigned on behalf of such party or (ii) written evidence satisfactory to the
\nAdministrative Agent (which may include facsimile or other electronic
\ntransmission of a signed signature page to this Agreement) that such party has
\nsigned a counterpart of this Agreement.<\/p>\n<\/p>\n (b) Opinion of Counsel to the Obligors<\/u>. The Administrative Agent shall
\nhave received opinions, dated the Effective Date, of General Counsel of the
\nBorrower and of Simpson Thacher & Bartlett LLP, special counsel for the
\nBorrower in form and substance reasonably satisfactory to the Administrative
\nAgent (and each Obligor hereby instructs such counsel to deliver such opinion to
\nthe Lenders and the Administrative Agent).<\/p>\n<\/p>\n (c) Corporate Documents<\/u>. The Administrative Agent shall have received
\nsuch<\/p>\n<\/p>\n<\/p>\n \n
\n38<\/p>\n \n<\/p>\n documents and certificates as the Administrative Agent or its counsel may
\nreasonably request relating to the organization, existence and good standing of
\neach Obligor, the authorization of the Transactions and any other legal matters
\nrelating to the Obligors, this Agreement or the Transactions, all in form and
\nsubstance satisfactory to the Administrative Agent and its counsel.<\/p>\n<\/p>\n (d) Officer153s Certificate<\/u>. The Administrative Agent shall have
\nreceived a certificate, dated the Effective Date and signed by the president, a
\nvice president or a Financial Officer of the Borrower, confirming, to the best
\nknowledge of such Person, following due inquiry, compliance with the conditions
\nset forth in the lettered clauses of the first sentence of Section 5.02 (except,
\nin the case of clause (a) thereof, without giving effect to the parenthetical
\nstatement therein).<\/p>\n<\/p>\n (e) Repayment of Existing Indebtedness<\/u>. The Administrative Agent shall
\nhave received evidence that the principal of and interest on, and all other
\namounts owing in respect of, Indebtedness under the Existing Credit Agreement
\nshall have been (or shall simultaneously be) paid in full, that the commitments
\nto extend credit under the Existing Credit Agreement have been (or shall
\nsimultaneously be) canceled or terminated and letters of credit outstanding
\nthereunder shall have expired or been terminated or shall be “Existing Letters
\nof Credit” under and as defined in the Five-Year Credit Agreement.<\/p>\n<\/p>\n (f) Other Documents<\/u>. The Administrative Agent shall have received such
\nother documents as the Administrative Agent or Cravath, Swaine & Moore LLP,
\nNew York counsel to JPMCB, may reasonably request.<\/p>\n<\/p>\n (g) Delivery of Information<\/u>. The Lenders shall have received all
\ndocumentation and other information required by bank regulatory authorities
\nunder applicable “know your customer” and anti-money laundering rules and
\nregulations, including the USA PATRIOT Act that have been requested at least
\nfive Business Days prior to the Effective Date.<\/p>\n<\/p>\n The obligation of each Lender to make its initial extension of credit
\nhereunder is also subject to the payment by the Borrower of such fees as the
\nBorrower shall have agreed in writing to pay to any Lender or the Administrative
\nAgent in connection herewith, including the reasonable and documented fees and
\nexpenses of Cravath, Swaine & Moore LLP, New York counsel to JPMCB, in
\nconnection with the negotiation, preparation, execution and delivery of this
\nAgreement and the other Loan Documents and the extensions of credit hereunder
\n(to the extent that statements for such fees and expenses have been delivered to
\nthe Borrower).<\/p>\n<\/p>\n The Administrative Agent shall notify the Borrower and the Lenders when it
\ndetermines that this Agreement has become effective, and such notice shall be
\nconclusive and binding. Notwithstanding the foregoing, the obligations of the
\nLenders to make Loans hereunder shall not become effective unless each of the
\nforegoing conditions is satisfied (or waived pursuant to Section 10.02) at or
\nprior to 3:00 p.m., New York City time, on October 31, 2011 (and, in the event
\nsuch conditions are not so satisfied or waived, the Commitments shall terminate
\nat such time).<\/p>\n<\/p>\n SECTION 5.02. Each Credit Event.<\/u> The obligation of each Lender to make
\nany Loan is additionally subject to the satisfaction of the following
\nconditions:<\/p>\n<\/p>\n (a) the representations and warranties of the Borrower set forth in this
\nAgreement (other than, after the Effective Date, those set forth in Sections
\n4.04(b) and 4.06(a)(i)) shall be true and correct on and as of the date of such
\nLoan; and<\/p>\n<\/p>\n (b) at the time of and immediately after giving effect to such Loan, no
\nDefault or Event of Default shall have occurred and be continuing.<\/p>\n<\/p>\n Each Borrowing shall be deemed to constitute a representation and warranty by
\nthe Borrower on the date thereof as to the matters specified in the preceding
\nsentence.<\/p>\n<\/p>\n<\/p>\n \n
\n39<\/p>\n \n<\/p>\n ARTICLE VI<\/p>\n Affirmative Covenants<\/u><\/p>\n \n Until the Commitments have expired or been terminated and the principal of
\nand interest on each Loan and all fees payable hereunder shall have been paid in
\nfull, the Borrower covenants and agrees with the Lenders that:<\/p>\n<\/p>\n SECTION 6.01. Financial Statements, Rating Changes and Other
\nInformation.<\/u> The Borrower will furnish to the Administrative Agent and each
\nLender:<\/p>\n<\/p>\n (a) as soon as available and in any event within 90 days after the end of
\neach fiscal year of the Borrower, the audited consolidated balance sheet and
\nrelated statements of earnings, shareholders153 equity and cash flows of the
\nBorrower and its Subsidiaries as of the end of and for such year, setting forth
\nin each case in comparative form the figures for the previous fiscal year, all
\nreported on by Deloitte & Touche LLP or another independent registered
\npublic accounting firm of recognized national standing (without a “going
\nconcern” or like qualification or exception and without any qualification or
\nexception as to the scope of such audit) to the effect that such consolidated
\nfinancial statements present fairly in all material respects the financial
\ncondition and results of operations and cash flows of the Borrower and its
\nSubsidiaries on a consolidated basis in accordance with GAAP;<\/p>\n<\/p>\n (b) as soon as available and in any event within 45 days after the end of
\neach of the first three fiscal quarters of each fiscal year of the Borrower, the
\nconsolidated balance sheet and related statements of earnings, shareholders153
\nequity and cash flows of the Borrower and its Subsidiaries as of the end of and
\nfor such fiscal quarter and the then elapsed portion of the fiscal year, setting
\nforth in each case in comparative form the figures for (or, in the case of the
\nbalance sheet, as of the end of) the corresponding period or periods of the
\nprevious fiscal year, all certified by a Financial Officer of the Borrower as
\npresenting fairly in all material respects the financial condition and results
\nof operations and cash flows of the Borrower and its Subsidiaries on a
\nconsolidated basis in accordance with GAAP, subject to normal year145end audit
\nadjustments and the absence of certain footnotes;<\/p>\n<\/p>\n (c) concurrently with any delivery of financial statements under clause (a)
\nor (b) of this Section, a certificate of a Financial Officer of the Borrower (i)
\ncertifying as to whether, to the best knowledge of such Financial Officer
\n(following due inquiry), a Default has occurred and, if a Default has occurred,
\nspecifying the details thereof and any action taken or proposed to be taken with
\nrespect thereto, (ii) setting forth reasonably detailed calculations
\ndemonstrating compliance with Section 7.06, and (iii) stating whether any change
\nin GAAP or in the application thereof has been given effect in the preparation
\nof such financial statements that became effective after the date of the audited
\nfinancial statements referred to in Section 4.04 that affects calculations
\npursuant to Section 7.06 and has not previously been reported in such a
\ncertificate and, if any such not previously reported change has occurred,
\nspecifying the effect of such change on the financial statements accompanying
\nsuch certificate;<\/p>\n<\/p>\n (d) promptly after Moody153s or S&P shall have publicly announced a change
\nin the Moody153s Rating or the S&P Rating, as the case may be, written notice
\nof such rating change; and<\/p>\n<\/p>\n (e) promptly following any request therefor, such other information regarding
\nthe operations, business affairs and financial condition of the Borrower or any
\nof its Subsidiaries, or compliance with the terms of this Agreement and the
\nother Loan Documents, as the Administrative Agent or any Lender through the
\nAdministrative Agent may reasonably request.<\/p>\n<\/p>\n The Borrower153s obligations under clauses (a) and (b) of this Section shall in
\nany event be deemed sufficiently performed if the financial statements referred
\nto therein are delivered by the time required under the applicable clause in
\nsuch form and content as permitted under the Exchange Act. Documents required to
\nbe delivered<\/p>\n<\/p>\n<\/p>\n \n
\n40<\/p>\n \n<\/p>\n pursuant to clauses (a) and (b) of this Section (to the extent any such
\ndocuments are included in materials otherwise filed with the Securities and
\nExchange Commission), may be delivered electronically and, if so delivered,
\nshall be deemed to have been delivered on the date on which the Borrower posts
\nsuch documents on www.sec.gov, or provides a link thereto on the Borrower153s
\nwebsite at www.bestbuy.com. Notices required to be delivered pursuant to clause
\n(d) of this Section may be delivered electronically and, if so delivered, shall
\nbe deemed delivered on the date on which the applicable rating agency posts such
\nnotice, or provides a link thereto, on the website of such rating agency. All
\ndocuments and notices required by this Section shall be deemed sufficiently
\ndelivered when posted on the Borrower153s behalf on IntraLinks\/IntraAgency or
\nanother relevant website, if any, to which each Lender and the Administrative
\nAgent have ready access without charge (whether a commercial, third-party
\nwebsite or whether sponsored by the Administrative Agent).<\/p>\n<\/p>\n SECTION 6.02. Notices of Material Events.<\/u> The Borrower will furnish to
\nthe Administrative Agent and each Lender (through the Administrative Agent)
\nprompt written notice of the following:<\/p>\n<\/p>\n (a) the occurrence of any Default;<\/p>\n<\/p>\n (b) the filing or commencement of any action, suit or proceeding by or before
\nany arbitrator or Governmental Authority against or affecting the Borrower or
\nany of its Subsidiaries that could reasonably be expected to result in a
\nMaterial Adverse Effect;<\/p>\n<\/p>\n (c) the occurrence of any ERISA Event that, alone or together with any other
\nERISA Events that have occurred, results in, or could reasonably be expected to
\nresult in, a Material Adverse Effect; and<\/p>\n<\/p>\n (d) any other development that results in, or could reasonably be expected to
\nresult in, a Material Adverse Effect.<\/p>\n<\/p>\n Each notice delivered under this Section shall be accompanied by a statement
\nof a Financial Officer or other executive officer of the Borrower setting forth
\nthe details of the event or development requiring such notice and any action
\ntaken or proposed to be taken with respect thereto.<\/p>\n<\/p>\n SECTION 6.03. Existence; Conduct of Business.<\/u> The Borrower will, and
\nwill cause each of its Material Subsidiaries to, do or cause to be done all
\nthings necessary to obtain, preserve, renew and keep in full force and effect
\nits legal existence and the rights, licenses, permits, privileges,
\nauthorizations and franchises material to the conduct of its business;
\nprovided<\/u> that the foregoing shall not prohibit any transaction permitted
\nunder Section 7.03.<\/p>\n<\/p>\n SECTION 6.04. Payment of Obligations.<\/u> The Borrower will, and will
\ncause each of its Subsidiaries to, pay its obligations, including Tax
\nliabilities, that, if not paid, would result in a Material Adverse Effect before
\nthe same shall become delinquent or in default, except where (a) the validity or
\namount thereof is being contested in good faith by appropriate proceedings, (b)
\nthe Borrower or such Subsidiary has set aside on its books adequate reserves
\nwith respect thereto in accordance with GAAP and (c) the failure to make payment
\npending such contest would not reasonably be expected to result in a Material
\nAdverse Effect.<\/p>\n<\/p>\n SECTION 6.05. Maintenance of Properties; Insurance.<\/u> The Borrower will,
\nand will cause each of its Subsidiaries to, (a) keep and maintain all property
\nmaterial to the conduct of its business in working order and condition
\nsufficient to permit the conduct of business in the ordinary course, ordinary
\nwear and tear excepted, and (b) maintain, with financially sound and reputable
\ninsurance companies (or with the Borrower153s captive self-insurance Subsidiary or
\nother customary self insurance, so long as such arrangements are administered in
\naccordance with sound business practices), insurance in such amounts and against
\nsuch risks as are customarily maintained by companies engaged in the same or
\nsimilar businesses operating in the same or similar locations.<\/p>\n<\/p>\n SECTION 6.06. Books and Records; Inspection Rights.<\/u> The Borrower will,
\nand will<\/p>\n<\/p>\n<\/p>\n \n
\n41<\/p>\n \n<\/p>\n cause each of its Subsidiaries to, keep proper books of record and account in
\nsuch detail as is necessary to allow the delivery of the reports required by
\nSection 6.01, in which full, true and correct entries are made of all dealings
\nand transactions in relation to its business and activities in accordance with
\nand as required by GAAP in all material respects. The Borrower will, and will
\ncause each of its Subsidiaries to, permit any representatives designated by the
\nAdministrative Agent (on its own behalf or as requested by any Lender), upon
\nreasonable prior notice, to visit and inspect its properties, to examine and
\nmake extracts from its books and records, and to discuss its affairs, finances
\nand condition with its officers and independent accountants, all at such
\nreasonable times and as often as reasonably requested (collectively, the
\n“Inspections<\/u>“); provided<\/u> that the Borrower shall not be obligated
\nto permit more than one Inspection in any calendar year unless a Default or
\nEvent of Default is then continuing or to make available material non-public
\ninformation to any Person in any respect that would (in the opinion of counsel
\nto the Borrower) violate applicable law, including the Exchange Act.<\/p>\n<\/p>\n SECTION 6.07. Compliance with Laws.<\/u> The Borrower will, and will cause
\neach of its Subsidiaries to, comply with all laws (including ERISA and
\nEnvironmental Laws) and all rules, regulations and orders of any Governmental
\nAuthority applicable to it or its property, except where the failure to do so,
\nindividually or in the aggregate, would not reasonably be expected to result in
\na Material Adverse Effect.<\/p>\n<\/p>\n SECTION 6.08. New Specified Subsidiaries to Become Subsidiary
\nGuarantors.<\/u> With respect to each Subsidiary that becomes a Specified
\nSubsidiary after the Effective Date, the Borrower will (a) within 30 Business
\nDays after such Subsidiary becomes a Specified Subsidiary, cause such Subsidiary
\nto duly execute and deliver to the Administrative Agent a Guarantee Assumption
\nAgreement properly completed for such Subsidiary and in such number of
\ncounterparts as may reasonably be requested by the Administrative Agent and (b)
\ndeliver to the Administrative Agent within a reasonable time (not exceeding 30
\ndays) after its request therefor, such proof of corporate action, incumbency of
\nofficers, opinions of counsel and other documents consistent with those
\ndelivered by the Subsidiary Guarantors pursuant to Section 5.01 on the Effective
\nDate as may reasonably be requested by the Administrative Agent. Nothing in this
\nAgreement shall obligate the Administrative Agent or the Lenders to release or
\nterminate the Guarantee under Article III of this Agreement or any Guarantee
\nAssumption Agreement of any Subsidiary Guarantor which ceases to be a Specified
\nSubsidiary.<\/p>\n<\/p>\n SECTION 6.09. Use of Proceeds; Federal Reserve Regulations.<\/u> The
\nBorrower will use the proceeds of the Loans for general corporate purposes
\n(including, in the case of the Loans, to repay existing Indebtedness) in
\ncompliance with all applicable legal and regulatory requirements;
\nprovided<\/u> that neither the Administrative Agent nor any Lender shall have
\nany responsibility as to the use of any of such proceeds. No part of the
\nproceeds of any Loan will be used, whether directly or indirectly, for any
\npurpose that entails a violation of any of the Regulations of the Board,
\nincluding Regulations T, U and X, and the Borrower will not permit the value of
\nall Margin Stock owned by the Borrower and its Subsidiaries (including, without
\nlimitation, all capital stock of the Borrower from time to time held by the
\nBorrower in treasury) to constitute more than 25.0% of the value of the
\nconsolidated assets of the Borrower.<\/p>\n<\/p>\n ARTICLE VII<\/p>\n Negative Covenants<\/u><\/p>\n \n Until the Commitments have expired or terminated and the principal of and
\ninterest on each Loan and all fees payable hereunder have been paid in full, the
\nBorrower covenants and agrees with the Lenders that:<\/p>\n<\/p>\n SECTION 7.01. Subsidiary Indebtedness.<\/u> The Borrower will not permit
\nany Domestic Subsidiary that is not an Obligor to create, incur, assume or
\npermit to exist any Indebtedness, except:<\/p>\n<\/p>\n (a) obligations under the Loan Documents;<\/p>\n<\/p>\n (b) any other Indebtedness existing on the Effective Date and described in
\nSchedule<\/p>\n<\/p>\n<\/p>\n \n
\n42<\/p>\n \n<\/p>\n 7.01 (and any Indebtedness that may be incurred after the Effective Date
\nunder commitments to extend such Indebtedness available on the Effective Date
\nand so described), and Indebtedness the proceeds of which are used solely to
\nrefinance such Indebtedness;<\/p>\n<\/p>\n (c) Indebtedness referred to in, and secured by Liens permitted under,
\nSection 7.02(e);<\/p>\n<\/p>\n (d) Indebtedness referred to in, and secured by Liens permitted under,
\nSections 7.02(c) and 7.02(d);<\/p>\n<\/p>\n (e) Indebtedness in respect of (i) documentary letters of credit and trade
\nletters of credit incurred in the ordinary course of business and (ii) trade
\nbank acceptance drafts incurred in the ordinary course of business;<\/p>\n<\/p>\n (f) current liabilities, other than for borrowed money, incurred in the
\nordinary course of business;<\/p>\n<\/p>\n (g) Indebtedness of any Subsidiary owing to the Borrower or any other
\nSubsidiary;<\/p>\n<\/p>\n (h) Indebtedness arising from Domestic Securitization Transactions permitted
\nby Section 7.02(k), provided<\/u> that the aggregate amount of such
\nIndebtedness shall not exceed $300,000,000 at any time outstanding; and<\/p>\n<\/p>\n (i) other Indebtedness, provided<\/u> that, as of the Effective Date and as
\nof the time any Indebtedness is created, incurred or assumed in reliance on this
\nclause (i), the aggregate principal amount of all Indebtedness outstanding in
\nreliance on this clause (i) (together with the aggregate principal amount of any
\nsuch Indebtedness to be created, incurred or assumed in reliance on this clause
\n(i)) does not exceed the greater of (i) $250,000,000 and (ii) 5.0% of Tangible
\nNet Worth as of the Effective Date or as of the date such Indebtedness is
\ncreated, incurred or assumed, as applicable.<\/p>\n<\/p>\n SECTION 7.02. Liens.<\/u> The Borrower will not, nor will it permit any of
\nits Subsidiaries to, create, incur, assume or permit to exist any Lien on any
\nproperty or asset now owned or hereafter acquired by it, or assign or sell any
\nincome or revenues (including accounts receivable) or rights in respect of any
\nthereof, except:<\/p>\n<\/p>\n (a) Liens existing on the Effective Date and, if securing a liability in
\nexcess of $150,000,000, described on Schedule 7.02, and Liens on the same
\nproperty (or, if such Lien attaches to a type or class of property of any
\nPerson, on the same type or class of property of such Person) securing any
\nextension, renewal, refinancing, refunding or replacement of the liability
\nsecured by such Liens that do not increase the outstanding principal amount
\nthereof;<\/p>\n<\/p>\n (b) deposits or pledges, or cash collateral given to any financial
\ninstitution that has issued a letter of credit, to secure payment of workers153
\ncompensation, unemployment insurance, old age pensions or other social security
\nor employee benefit obligations, daylight overdraft exposure or ACH obligations,
\nor liabilities under or in respect of self-insurance programs, in each case in
\nthe ordinary course of business of the Borrower and its Subsidiaries;<\/p>\n<\/p>\n (c) Liens created or assumed in connection with the acquisition of real
\nproperty by the Borrower or any Subsidiary; provided<\/u> that such Liens
\nattach only to the property acquired and secure only Indebtedness incurred
\nsolely to finance the acquisition of such property, and Liens on the same
\nproperty securing any Indebtedness the proceeds of which are used solely to
\nrefinance such Indebtedness;<\/p>\n<\/p>\n (d) Liens on inventory of the Borrower or any Subsidiary and proceeds thereof
\npursuant to agreements with the suppliers of inventory or inventory letter of
\ncredit providers to the Borrower or such<\/p>\n<\/p>\n<\/p>\n \n
\n43<\/p>\n \n<\/p>\n Subsidiary; provided<\/u> that such Liens attach only to inventory financed
\npursuant to such agreements and secure only Indebtedness incurred solely to
\nfinance the acquisition of such inventory by the Borrower or such Subsidiary;\n<\/p>\n<\/p>\n (e) Liens securing Indebtedness and related obligations incurred to finance
\nthe acquisition or construction of capital assets not constituting real property
\nor to reimburse the Borrower or a Subsidiary for expenditures made to acquire or
\nconstruct such capital assets, and Liens securing Indebtedness and related
\nobligations incurred by the same obligor to extend, renew, refinance, refund or
\nreplace any such Indebtedness or obligations so long as the outstanding
\nprincipal amount thereof is not increased; provided <\/u>that such Liens
\nattach only to such capital assets and the proceeds thereof;<\/p>\n<\/p>\n (f) Liens securing Indebtedness and related obligations of any Subsidiary
\nwhich became a Subsidiary after the Effective Date if such Indebtedness and
\nLiens were outstanding prior to the time it became a Subsidiary and not incurred
\nin contemplation of its becoming a Subsidiary, and Liens on the same property
\n(or, if such Lien attaches to a type or class of property of any Person, on the
\nsame type or class of property of such Person) securing Indebtedness and related
\nobligations incurred by the same obligor to extend, renew, refinance, refund or
\nreplace such Indebtedness or obligations so long as the outstanding principal
\nthereof is not increased;<\/p>\n<\/p>\n (g) Permitted Encumbrances;<\/p>\n<\/p>\n (h) Liens consisting of easements, rights of way, zoning restrictions,
\nrestrictions on the use of real property and defects and irregularities in the
\ntitle thereto, landlords153, materialmen153s or mechanic153s liens and other similar
\nliens and encumbrances none of which interfere materially with the use of the
\nproperty covered thereby in the ordinary course of the business of the Borrower
\nor such Subsidiary and which do not materially detract from the value of such
\nproperties;<\/p>\n<\/p>\n (i) Liens on assets of Foreign Subsidiaries securing Indebtedness or other
\nliabilities of Foreign Subsidiaries;<\/p>\n<\/p>\n (j) cash collateral given to any financial institution that has issued a
\ntrade bank acceptance draft in the ordinary course of business of the Borrower
\nand its Subsidiaries;<\/p>\n<\/p>\n (k) Securitization Transactions, and Liens on accounts receivable, interests
\ntherein and the proceeds thereof existing or deemed to exist in connection with
\nany Securitization Transaction; provided<\/u> that the aggregate amount of the
\nDomestic Securitization Transactions shall not exceed $300,000,000 at any time;\n<\/p>\n<\/p>\n (l) Liens on cash collateral given pursuant to Section 2.21 of the Five-Year
\nCredit Agreement;<\/p>\n<\/p>\n (m) Liens on assets securing obligations under the Five-Year Credit Agreement
\nso long as obligations under this Agreement are secured on an equal and ratable
\nbasis on terms reasonably satisfactory to the Administrative Agent; and<\/p>\n<\/p>\n (n) Liens securing other liabilities, provided<\/u> that, as of the
\nEffective Date and as of the time any Lien securing any obligations is created,
\nincurred or assumed in reliance on this clause (n), the aggregate principal
\namount of all liabilities secured by Liens in reliance on this clause (n)
\n(together with the aggregate principal amount of all liabilities secured by such
\nLien to be created, incurred or assumed in reliance on this clause (n)) does not
\nexceed the greater of (i) $250,000,000 and (ii) 10.0% of Tangible Net Worth as
\nof the Effective Date or as of the date any such Lien is created, incurred or
\nassumed, as applicable.<\/p>\n<\/p>\n SECTION 7.03. Fundamental Changes.<\/u> (a) Mergers, Consolidations,
\nSales of Assets, Etc.<\/u><\/p>\n<\/p>\n<\/p>\n \n
\n44<\/p>\n \n<\/p>\n (i) The Borrower will not, and will not permit any Subsidiary Guarantor to,
\nmerge with or into or consolidate with (collectively, “merge<\/u>” or a
\n“merger<\/u>“) any other Person, or permit any other Person to merge with or
\ninto it, or liquidate or dissolve; provided<\/u> that, if at the time thereof
\nand immediately after giving effect thereto no Default or Event of Default shall
\nhave occurred and be continuing, (A) any Subsidiary Guarantor may merge into the
\nBorrower in a transaction in which the Borrower is the surviving entity; (B) any
\nSubsidiary Guarantor may merge with or into any other Person (including in
\nconnection with any acquisition) in a transaction in which the surviving entity
\nis, or concurrently with the consummation of such merger becomes, a Subsidiary
\nGuarantor; (C) any Subsidiary Guarantor may be disposed of pursuant to a merger
\nwith or into another Person so long as such disposition does not violate clause
\n(ii) below; (D) any Subsidiary Guarantor may liquidate or dissolve if the
\nBorrower determines in good faith that such liquidation or dissolution is in the
\nbest interests of the Borrower and is not materially disadvantageous to the
\nLenders; and (E) the Borrower may merge with or into any other Person organized
\nunder the laws of the United States of America or any State thereof,
\nprovided<\/u> that (1) the Borrower is the surviving entity or (2) if the
\nsurviving entity is not the Borrower, then (x) the surviving entity assumes all
\nof the Borrower153s obligations under this Agreement and the other Loan Documents
\npursuant to an agreement reasonably satisfactory to the Administrative Agent and
\n(y) the Lenders shall have received all documentation and other information
\nrequired by bank regulatory authorities under applicable “know your customer”
\nand anti-money laundering rules and regulations, including the USA PATRIOT Act,
\nwith respect to such surviving entity, and provided<\/u> further<\/u> that
\non the date of consummation of any such merger, the Borrower shall deliver to
\nthe Administrative Agent a certificate of a Financial Officer demonstrating that
\nthe Borrower would be in pro forma compliance with Section 7.06 as of the last
\nday of the fiscal quarter then most recently ended (determined as if such
\nmerger, and any related incurrence of Indebtedness, had occurred on the first
\nday of the period of four consecutive fiscal quarters ending on such last day).\n<\/p>\n<\/p>\n (ii) The Borrower will not, and will not permit any of its Subsidiaries to,
\nsell, transfer, lease, license or otherwise dispose of (in one transaction or in
\na series of transactions, and whether directly or through any merger or
\nconsolidation) assets representing all or substantially all the consolidated
\nassets of the Borrower and the Subsidiaries (whether now owned or hereafter
\nacquired), taken as a whole.<\/p>\n<\/p>\n (b) Lines of Business.<\/u> The Borrower will not, and will not permit any
\nof its Subsidiaries to, engage to any material extent in any business other than
\nbusinesses of the type conducted by the Borrower and its Subsidiaries on the
\ndate of execution of this Agreement and businesses reasonably related thereto.\n<\/p>\n<\/p>\n SECTION 7.04. Restrictive Agreements.<\/u> The Borrower will not, and will
\nnot permit any of its Subsidiaries to, directly or indirectly, enter into, incur
\nor permit to exist any agreement or other arrangement that prohibits, restricts
\nor imposes any condition upon (collectively, “Restrictions<\/u>“) (a) the
\nability of the Borrower or any Domestic Subsidiary to create, incur or permit to
\nexist a first priority Lien upon any of its assets securing the obligations of
\nthe Borrower hereunder or, in the case of Domestic Subsidiaries, the Guarantees
\nthereof, (b) the ability of any Subsidiary to pay dividends or similar
\ndistributions with respect to any shares of its capital stock (or similar Equity
\nInterests) or to make or repay loans or advances to the Borrower or any
\nSubsidiary Guarantor or (c) the ability of any Domestic Subsidiary to Guarantee
\nany of the Guaranteed Obligations; provided<\/u> that:<\/p>\n<\/p>\n (i) the foregoing shall not apply to (A) Restrictions imposed by law, rule,
\nregulation or order or by this Agreement or any other Loan Document, (B)
\nRestrictions existing on the date hereof identified on Schedule 7.04 (but shall
\napply to any amendment or modification expanding the scope of any such
\nRestrictions), (C) Restrictions imposed by any agreement by which any Subsidiary
\nis bound at the time such Subsidiary became a Subsidiary, so long as such
\nagreement was in effect at the time of such acquisition and was not created in
\ncontemplation of such acquisition and such Restrictions only apply to such
\nSubsidiary (but shall apply to any amendment or modification expanding the scope
\nof any such Restriction), (D) customary Restrictions contained in agreements\n<\/p>\n<\/p>\n<\/p>\n \n
\n45<\/p>\n \n<\/p>\n relating to the sale of a Subsidiary or assets pending such sale,
\nprovided<\/u> that (1) such Restrictions apply only to the Subsidiary or
\nassets to be sold and (2) such sale is permitted hereunder, (E) Restrictions on
\ncash or other deposits under contracts entered into in the ordinary course of
\nbusiness, (F) in the case of any Subsidiary that is not a wholly-owned
\nSubsidiary of the Borrower, Restrictions imposed by its organizational documents
\nor any related joint venture or similar agreement, provided<\/u> that such
\nRestrictions apply only to such Subsidiary and to any Equity Interests in such
\nSubsidiary and (G) Restrictions contained in lease agreements or agreements not
\nrelating to Indebtedness, in each case, entered into by the Borrower or any
\nSubsidiary in the ordinary course of business;<\/p>\n<\/p>\n (ii) clause (a) of the foregoing shall not apply to (A) Restrictions imposed
\nby any agreement relating to secured Indebtedness permitted by this Agreement if
\nsuch Restrictions apply only to the assets securing such Indebtedness, (B)
\nRestrictions imposed by any agreement relating to Indebtedness permitted by this
\nAgreement incurred after the Effective Date to finance the acquisition of
\nparticular assets (and any agreement relating to any refinancing of such
\nIndebtedness, so long as the aggregate principal amount of such refinancing
\nIndebtedness does not exceed the then outstanding aggregate principal amount of
\nsuch original Indebtedness), so long as such Restrictions apply only to such
\nassets (other than Inventory and Receivables), (C) Restrictions imposed by any
\nagreement relating to Indebtedness permitted by this Agreement, provided<\/u>
\nthat neither the Borrower nor any Domestic Subsidiary may create, incur or
\npermit to exist any Lien securing the Indebtedness under such agreement unless
\nthe Indebtedness under this Agreement is equally and ratably secured thereby on
\nterms reasonably satisfactory to the Administrative Agent, and (D) customary
\nprovisions in leases and other contracts restricting the assignment thereof; and\n<\/p>\n<\/p>\n (iii) clause (b) of the foregoing shall not apply to Restrictions imposed by
\nany agreement if the Borrower153s Board of Directors determines in good faith that
\nsuch Restrictions could not reasonably be expected to have a material adverse
\neffect on the ability of the Borrower and the Subsidiary Guarantors to pay their
\nobligations under the Loan Documents when due.<\/p>\n<\/p>\n SECTION 7.05. Transactions with Affiliates.<\/u> The Borrower will not, and
\nwill not permit any of its Subsidiaries to, sell, lease or otherwise transfer
\nany property or assets to, or purchase, lease or otherwise acquire any property
\nor assets from, or otherwise engage in any other transactions with, any of its
\nAffiliates, except (a) at prices and on terms and conditions not less favorable
\nto the Borrower or such Subsidiary than could be obtained on an arm153s-length
\nbasis from unrelated third parties and (b) transactions between or among the
\nBorrower and its Subsidiaries not involving any other Affiliate.<\/p>\n<\/p>\n SECTION 7.06. Certain Financial Covenants.<\/u> (a) Cash Flow Leverage
\nRatio.<\/u> The Borrower will not permit the Cash Flow Leverage Ratio on the last
\nday of any fiscal quarter to exceed 3.50 to 1.00.<\/p>\n<\/p>\n (b) Interest Coverage Ratio.<\/u> The Borrower will not permit the Interest
\nCoverage Ratio, as at the end of any Measurement Period, to be less than 2.75 to
\n1.00.<\/p>\n<\/p>\n SECTION 7.07. Investments in Foreign Subsidiaries<\/u>. (a) The Borrower
\nwill not, and will not permit any of its Domestic Subsidiaries to, sell,
\ntransfer, lease, license or otherwise dispose of (in one transaction or in a
\nseries of transactions) to any Foreign Subsidiary (i) any Equity Interests in
\nany Domestic Subsidiary, (ii) any United States patents, copyrights, trademarks,
\nservice marks, trade names, trade dress, logos and other source or business
\nidentifiers, all registrations and recordings thereof, all applications
\ntherefor, all extensions or renewals thereof and all goodwill associated
\ntherewith or symbolized thereby, that are, or are contemplated to be, used or
\nuseful in the conduct of the business of the Borrower and its Domestic
\nSubsidiaries taken as a whole, (iii) any assets (other than (A) cash and cash
\nequivalents and (B) Indebtedness or other obligations owing to the Borrower or
\nany Domestic Subsidiary by any Foreign Subsidiary in the form of intercompany
\nloans or advances) that, individually or in the aggregate, are material to the
\nconduct of the business of the Borrower and its Domestic Subsidiaries taken as a
\nwhole or (iv) all or any substantial portion of the assets of the Borrower and
\nits Domestic Subsidiaries taken as a whole.<\/p>\n<\/p>\n<\/p>\n \n
\n46<\/p>\n \n<\/p>\n (b) Prior to the Restricted Date, the Borrower will not, and will not permit
\nany of its Subsidiaries to, make any Investments in Best Buy Europe
\nDistributions or its Subsidiaries unless, on the date of any such Investment,
\nafter giving effect thereto, the aggregate amount of all such Investments does
\nnot exceed the sum of (i) the Initial Purchase Price and (ii) 10.0% of Total
\nAssets.<\/p>\n<\/p>\n ARTICLE VIII<\/p>\n Events of Default<\/u><\/p>\n \n If any of the following events (“Events of Default”) shall occur:<\/p>\n<\/p>\n (a) the Borrower shall fail to pay any principal of any Loan when and as the
\nsame shall become due and payable, whether at the due date thereof or at a date
\nfixed for prepayment thereof or otherwise;<\/p>\n<\/p>\n (b) the Borrower shall fail to pay any interest on any Loan or any fee or any
\nother amount (other than an amount referred to in clause (a) of this Article)
\npayable under this Agreement or under any other Loan Document, when and as the
\nsame shall become due and payable, and such failure shall continue unremedied
\nfor a period of three or more Business Days;<\/p>\n<\/p>\n (c) any representation or warranty made or deemed made by or on behalf of the
\nBorrower or any other Obligor in or in connection with this Agreement or any
\nother Loan Document or any amendment or modification hereof or thereof, or any
\nwaiver hereunder or thereunder, or in any report, certificate, financial
\nstatement or other document furnished pursuant to or in connection with this
\nAgreement or any other Loan Document or any amendment or modification hereof or
\nthereof, or any waiver hereunder or thereunder, shall prove to have been
\nincorrect in any material respect when made or deemed made;<\/p>\n<\/p>\n (d) the Borrower shall fail to observe or perform any covenant, condition or
\nagreement contained in Section 6.02(a), Section 6.03 (with respect to the
\nBorrower153s existence) or Section 6.08 or in Article VII;<\/p>\n<\/p>\n (e) any Obligor shall fail to observe or perform any covenant, condition or
\nagreement contained in this Agreement (other than those specified in clause (a),
\n(b) or (d) of this Article) or any other Loan Document and such failure shall
\ncontinue unremedied for a period of 30 or more days after notice thereof from
\nthe Administrative Agent or the Required Lenders to the Borrower;<\/p>\n<\/p>\n (f) the Borrower or any of its Subsidiaries shall fail to make any payment
\n(whether of principal or interest and regardless of amount) in respect of any
\nMaterial Indebtedness, when and as the same shall become due and payable (after
\ngiving effect to any grace period applicable thereto); provided<\/u> that any
\nsuch failure with respect to any Indebtedness arising from the purchase of goods
\nor services by the Borrower that is being contested in good faith by appropriate
\nproceedings shall not constitute an Event of Default as long as the Borrower153s
\nor such Subsidiary153s title to any substantial part of its property is not
\nmaterially adversely affected, its use of such property in the ordinary course
\nof its business is not materially interfered with and adequate reserves with
\nrespect thereto have been set aside on its books in conformity with GAAP;<\/p>\n<\/p>\n (g) any event or condition occurs that results in any Material Indebtedness
\nbecoming due prior to its scheduled maturity or that enables or permits (with or
\nwithout the giving of notice, the lapse of time or both) the holder or holders
\nof any Material Indebtedness or any trustee or agent on its or their behalf, or,
\nin the case of any Hedging Agreement, the applicable counterparty, or, in the
\ncase of any Securitization Transaction, the purchasers or lenders thereunder to
\ncause any Material Indebtedness to become due, or to require the prepayment,
\nrepurchase, redemption or defeasance thereof, prior to its scheduled maturity
\nor, in the case of any Hedging Agreement or Securitization<\/p>\n<\/p>\n<\/p>\n \n
\n47<\/p>\n \n<\/p>\n Transaction, to cause the termination thereof; provided<\/u> that this
\nclause (g) shall not apply to secured Indebtedness that becomes due as a result
\nof the voluntary sale or transfer of the property or assets securing such
\nIndebtedness;<\/p>\n<\/p>\n (h) an involuntary proceeding shall be commenced or an involuntary petition
\nshall be filed seeking (i) liquidation, reorganization or other relief in
\nrespect of the Borrower or any of its Material Subsidiaries or its debts, or of
\na substantial part of its assets, under any Federal, state or foreign
\nbankruptcy, insolvency, receivership or similar law now or hereafter in effect
\nor (ii) the appointment of a receiver, trustee, custodian, sequestrator,
\nconservator or similar official for the Borrower or any of its Material
\nSubsidiaries or for a substantial part of its assets, and, in any such case,
\nsuch proceeding or petition shall continue undismissed for a period of 60 or
\nmore days or an order or decree approving or ordering any of the foregoing shall
\nbe entered;<\/p>\n<\/p>\n (i) the Borrower or any of its Material Subsidiaries shall (i) voluntarily
\ncommence any proceeding or file any petition seeking liquidation, reorganization
\nor other relief under any Federal, state or foreign bankruptcy, insolvency,
\nreceivership or similar law now or hereafter in effect, (ii) consent to the
\ninstitution of, or fail to contest in a timely and appropriate manner, any
\nproceeding or petition described in clause (h) of this Article, (iii) apply for
\nor consent to the appointment of a receiver, trustee, custodian, sequestrator,
\nconservator or similar official for the Borrower or any of its Material
\nSubsidiaries or for a substantial part of its assets, (iv) file an answer
\nadmitting the material allegations of a petition filed against it in any such
\nproceeding or (v) make a general assignment for the benefit of creditors;<\/p>\n<\/p>\n (j) one or more judgments for the payment of money in an aggregate amount in
\nexcess of $150,000,000 shall be rendered against the Borrower or any of its
\nSubsidiaries or any combination thereof and the same shall remain undischarged
\nfor a period of 60 consecutive days during which execution shall not be
\neffectively stayed, or any action shall be legally taken by a judgment creditor
\nto attach or levy upon any assets of the Borrower or any of its Subsidiaries to
\nenforce any such judgment;<\/p>\n<\/p>\n (k) an ERISA Event shall have occurred that, in the opinion of the Required
\nLenders, when taken together with all other ERISA Events that have occurred,
\ncould reasonably be expected to result in a Material Adverse Effect; or<\/p>\n<\/p>\n (l) a Change in Control shall occur;<\/p>\n<\/p>\n then, and in every such event (other than an event with respect to the
\nBorrower described in clause (h) or (i) of this Article), and at any time
\nthereafter during the continuance of such event, the Administrative Agent may,
\nand at the request of the Required Lenders shall, by notice to the Borrower,
\ntake either or both of the following actions, at the same or different times:
\n(i) terminate the Commitments, and thereupon the Commitments shall terminate
\nimmediately, and (ii) declare the Loans then outstanding to be due and payable
\nin whole, and thereupon the principal of the Loans, together with accrued
\ninterest thereon and all fees and other obligations of the Obligors accrued
\nhereunder, shall become due and payable immediately, without presentment,
\ndemand, protest or other notice of any kind, all of which are hereby waived by
\neach Obligor; and in case of any event with respect to the Borrower described in
\nclause (h) or (i) of this Article, the Commitments shall automatically terminate
\nand the principal of the Loans then outstanding, together with accrued interest
\nthereon and all fees and other obligations of the Obligors accrued hereunder,
\nshall automatically become due and payable, without presentment, demand, protest
\nor other notice of any kind, all of which are hereby waived by each Obligor.<\/p>\n<\/p>\n ARTICLE IX<\/p>\n Agency <\/u><\/p>\n \n<\/p>\n<\/p>\n \n
\n48<\/p>\n \n<\/p>\n SECTION 9.01. Administrative Agent.<\/u> Each of the Lenders hereby
\nirrevocably appoints the entity named as Administrative Agent in the heading of
\nthis Agreement and its successors to serve as Administrative Agent under the
\nLoan Documents and authorizes the Administrative Agent to take such actions on
\nits behalf and to exercise such powers as are delegated to the Administrative
\nAgent by the terms hereof or thereof, together with such actions and powers as
\nare reasonably incidental thereto. The provisions of this Article are solely for
\nthe benefit of the Administrative Agent and the Lenders, and neither the
\nBorrower nor any other Obligor shall have rights as a third party beneficiary of
\nsuch provisions.<\/p>\n<\/p>\n The Person serving as the Administrative Agent hereunder shall have the same
\nrights and powers in its capacity as a Lender as any other Lender and may
\nexercise the same as though it were not the Administrative Agent, and such
\nPerson and its Affiliates may accept deposits from, lend money to, act as the
\nfinancial advisor or in any other advisory capacity for and generally engage in
\nany kind of business with the Borrower or any of its Subsidiaries or other
\nAffiliate thereof as if such Person were not the Administrative Agent hereunder
\nand without any duty to account therefor to the Lenders.<\/p>\n<\/p>\n The Administrative Agent shall not have any duties or obligations except
\nthose expressly set forth herein and in the other Loan Documents. Without
\nlimiting the generality of the foregoing, the Administrative Agent:<\/p>\n<\/p>\n (a) shall not be subject to any fiduciary or other implied duties, regardless
\nof whether a Default has occurred and is continuing;<\/p>\n<\/p>\n (b) shall not have any duty to take any discretionary action or exercise any
\ndiscretionary powers, except discretionary rights and powers expressly
\ncontemplated hereby or by the other Loan Documents that the Administrative Agent
\nis required to exercise as directed in writing by the Required Lenders (or such
\nother number or percentage of the Lenders as shall be necessary, or as the
\nAdministrative Agent shall believe in good faith to be necessary, under the
\ncircumstances as provided in Section 10.02); provided<\/u> that the
\nAdministrative Agent shall not be required to take any action that, in its
\nopinion or the opinion of its counsel, may expose the Administrative Agent to
\nliability or be contrary to any Loan Document or applicable law; and<\/p>\n<\/p>\n (c) shall not, except as expressly set forth herein and in the other Loan
\nDocuments, have any duty to disclose, and shall not be liable for the failure to
\ndisclose, any information relating to the Borrower or any of its Affiliates that
\nis communicated to or obtained by the Person serving as the Administrative Agent
\nor any of its Affiliates in any capacity.<\/p>\n<\/p>\n The Administrative Agent shall not be liable for any action taken or not
\ntaken by it (i) with the consent or at the request of the Required Lenders (or
\nsuch other number or percentage of the Lenders as shall be necessary, or as the
\nAdministrative Agent shall believe in good faith shall be necessary, under the
\ncircumstances as provided in Section 10.02) or (ii) in the absence of its own
\ngross negligence or willful misconduct (with such absence to be presumed unless
\notherwise determined by a court of competent jurisdiction in a final and
\nnonappealable judgment). The Administrative Agent shall be deemed not to have
\nknowledge of any Default unless and until written notice describing such Default
\nis given to the Administrative Agent by the Borrower or a Lender.<\/p>\n<\/p>\n The Administrative Agent shall not be responsible for or have any duty to
\nascertain or inquire into (a) any statement, warranty or representation made in
\nor in connection with this Agreement or any other Loan Document, (b) the
\ncontents of any certificate, report or other document delivered hereunder or
\nthereunder or in connection herewith or therewith, (c) the performance or
\nobservance of any of the covenants, agreements or other terms or conditions set
\nforth in any Loan Document or the occurrence of any Default, (d) the
\nsufficiency, validity, enforceability, effectiveness or genuineness of this
\nAgreement, any other Loan Document or any other agreement, instrument or
\ndocument or (e) the satisfaction of any condition set forth in Article V or
\nelsewhere<\/p>\n<\/p>\n<\/p>\n \n
\n49<\/p>\n \n<\/p>\n in any Loan Document, other than to confirm receipt of items expressly
\nrequired to be delivered to the Administrative Agent. Notwithstanding anything
\nherein to the contrary, the Administrative Agent shall not have any liability
\narising from any confirmation of the Revolving Credit Exposure or the component
\namounts thereof.<\/p>\n<\/p>\n The Administrative Agent shall be entitled to rely upon, and shall not incur
\nany liability for relying upon, any notice, request, certificate, consent,
\nstatement, instrument, document or other writing (including any electronic
\nmessage, Internet or intranet website posting or other distribution) believed by
\nit to be genuine and to have been signed, sent or otherwise authenticated by the
\nproper Person. In determining compliance with any condition hereunder to the
\nmaking of a Loan that by its terms must be fulfilled to the satisfaction of a
\nLender, the Administrative Agent may presume that such condition is satisfactory
\nto such Lender unless the Administrative Agent shall have received notice to the
\ncontrary from such Lender prior to the making of such Loan. The Administrative
\nAgent also may rely upon any statement made to it orally or by telephone and
\nbelieved by it to have been made by the proper Person, and shall not incur any
\nliability for relying thereon. The Administrative Agent may consult with legal
\ncounsel (who may be counsel for an Obligor), independent accountants and other
\nexperts selected by it, and shall not be liable for any action taken or not
\ntaken by it in accordance with the advice of any such counsel, accountants or
\nexperts.<\/p>\n<\/p>\n The Administrative Agent may perform any and all of its duties and exercise
\nits rights and powers hereunder or under any other Loan Document by or through
\nany one or more sub145agents appointed by the Administrative Agent. The
\nAdministrative Agent and any such sub145agent may perform any and all of its
\nduties and exercise its rights and powers by or through their respective Related
\nParties. The exculpatory provisions of this Article shall apply to any such
\nsub145agent and to the Related Parties of the Administrative Agent and any such
\nsub145agent, and shall apply to their respective activities in connection with the
\nsyndication of the credit facilities provided for herein as well as activities
\nas Administrative Agent.<\/p>\n<\/p>\n The Administrative Agent may at any time give notice of its resignation to
\nthe Lenders and the Borrower. Upon receipt of any such notice of resignation,
\nthe Required Lenders shall have the right, with the consent of the Borrower
\n(such consent not to be unreasonably withheld, or required if an Event of
\nDefault under clauses (a), (b), (h) or (i) of Article VIII has occurred and is
\ncontinuing), to appoint a successor, which shall be a bank with an office in the
\nUnited States of America, or an Affiliate of any such bank. If no such successor
\nshall have been so appointed by the Required Lenders and shall have accepted
\nsuch appointment within 30 days after the retiring Administrative Agent gives
\nnotice of its resignation, then the retiring Administrative Agent may on behalf
\nof the Lenders, appoint a successor Administrative Agent meeting the
\nqualifications set forth above provided<\/u> that if the Administrative Agent
\nshall notify the Borrower and the Lenders that no qualifying Person has accepted
\nsuch appointment, then such resignation shall nonetheless become effective in
\naccordance with such notice and (a) the retiring Administrative Agent shall be
\ndischarged from its duties and obligations hereunder and under the other Loan
\nDocuments and (b) all payments, communications and determinations provided to be
\nmade by, to or through the Administrative Agent shall instead be made by or to
\neach Lender directly, until such time as the Required Lenders appoint a
\nsuccessor Administrative Agent as provided for above in this paragraph. Upon the
\nacceptance of a successor153s appointment as Administrative Agent hereunder, such
\nsuccessor shall succeed to and become vested with all of the rights, powers,
\nprivileges and duties of the retiring (or retired) Administrative Agent, and the
\nretiring Administrative Agent shall be discharged from all of its duties and
\nobligations hereunder or under the other Loan Documents (if not already
\ndischarged therefrom as provided above in this paragraph). The fees payable by
\nthe Borrower to a successor Administrative Agent shall be the same as those
\npayable to its predecessor unless otherwise agreed between the Borrower and such
\nsuccessor. After the retiring Administrative Agent153s resignation hereunder and
\nunder the other Loan Documents, the provisions of this Article and Section 10.03
\nshall continue in effect for the benefit of such retiring Administrative Agent,
\nits sub145agents and their respective Related Parties in respect of any actions
\ntaken or omitted to be taken by any of them while the retiring Administrative
\nAgent was acting as Administrative Agent.<\/p>\n<\/p>\n Each Lender acknowledges that it has, independently and without reliance upon
\nthe Administrative Agent, any other Lender or any Arranger or any of their
\nRelated Parties and based on such<\/p>\n<\/p>\n<\/p>\n \n
\n50<\/p>\n \n<\/p>\n documents and information as it has deemed appropriate, made its own credit
\nanalysis and decision to enter into this Agreement. Each Lender also
\nacknowledges that it will, independently and without reliance upon the
\nAdministrative Agent, any other Lender or any other Arranger or any of their
\nRelated Parties and based on such documents and information as it shall from
\ntime to time deem appropriate, continue to make its own decisions in taking or
\nnot taking action under or based upon this Agreement, any other Loan Document or
\nany related agreement or any document furnished hereunder or thereunder.<\/p>\n<\/p>\n Except as otherwise provided in Section 10.02(b) with respect to this
\nAgreement, the Administrative Agent may, with the prior consent of the Required
\nLenders (but not otherwise), consent to any modification, supplement or waiver
\nunder any of the Loan Documents.<\/p>\n<\/p>\n SECTION 9.02. Bookrunners, Etc.<\/u> Anything herein to the contrary
\nnotwithstanding, none of the Arrangers, the Syndication Agent and the
\nDocumentation Agents listed on the cover page hereof shall have any duties or
\nresponsibilities under this Agreement or any of the other Loan Documents, except
\nin its capacity, as applicable, as the Administrative Agent or a Lender
\nhereunder.<\/p>\n<\/p>\n ARTICLE X<\/p>\n Miscellaneous<\/u><\/p>\n \n SECTION 10.01. Notices.<\/u> (a) Notices Generally.<\/u> Except in the
\ncase of notices and other communications expressly permitted to be given by
\ntelephone (and except as provided in paragraph (b) below), all notices and other
\ncommunications provided for herein shall be in writing and shall be delivered by
\nhand or overnight courier service, mailed by certified or registered mail or
\nsent by facsimile, as follows:<\/p>\n<\/p>\n (i) if to the Borrower or any Subsidiary Guarantor, to Best Buy Co., Inc. at
\n7601 Penn Avenue South, Richfield, Minnesota, 55423, Attention of Treasurer
\n(Telephone No. (612) 291-5781; Fax No. (952) 430-1316; email
\ntreasuryooo@bestbuy.com);<\/p>\n<\/p>\n (ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and
\nAgency Services Group, 1111 Fannin Street, 10th Floor, Houston, Texas
\n77002-6925, Attention of Ryan Mader (Telephone No. (713) 750-2936; Fax No. (713)
\n750-2956; email ryan.g.mader@jpmorgan.com) and Thai Pham (Telephone No. (713)
\n750-2884; Fax. No. (713) 750-2956, email thai.x.pham@jpmorgan.com) with a copy
\nto JPMorgan Chase Bank, N.A., 383 Madison Avenue, 24th Floor, New York, New York
\n10179, Attention of Jocelyn Shields (Telephone No. (212) 270-3641; Fax No. (212)
\n270-6637; email jocelyn.t.shields@jpmorgan.com); and<\/p>\n<\/p>\n (iii) if to a Lender, to it at its address (or fax number) set forth in its
\nAdministrative Questionnaire.<\/p>\n<\/p>\n Notices sent by hand or overnight courier service, or mailed by certified or
\nregistered mail, shall be deemed to have been given when received; notices sent
\nby fax shall be deemed to have been given when sent (except that, if not given
\nduring normal business hours for the recipient, shall be deemed to have been
\ngiven at the opening of business on the next business day for the recipient).
\nNotices delivered through electronic communications to the extent provided in
\nparagraph (b) below, shall be effective as provided in said paragraph (b).<\/p>\n<\/p>\n (b) Electronic Communications.<\/u> Notices and other communications to the
\nLenders hereunder may be delivered or furnished by electronic communications
\npursuant to procedures approved by the Administrative Agent; provided<\/u>
\nthat the foregoing shall not apply to notices under Article II to any Lender if
\nsuch Lender, as applicable, has notified the Administrative Agent that it is
\nincapable of receiving notices under such Article by electronic communication.
\nEach Agent or the Borrower may, in its discretion, agree to accept notices and
\nother communications to it hereunder by electronic communications pursuant to
\nprocedures<\/p>\n<\/p>\n<\/p>\n \n
\n51<\/p>\n \n<\/p>\n approved by it; provided<\/u> that approval of such procedures may be
\nlimited to particular notices or communications.<\/p>\n<\/p>\n (c) Change of Address, Etc.<\/u> Any party hereto may change its address or
\nfax number for notices and other communications hereunder by notice to the other
\nparties hereto (or, in the case of any such change by a Lender, by notice to the
\nBorrower and the Administrative Agent).<\/p>\n<\/p>\n SECTION 10.02. Waivers; Amendments.<\/u> (a) No Deemed Waivers; Remedies
\nCumulative.<\/u> No failure or delay by the Administrative Agent or any Lender in
\nexercising any right or power hereunder shall operate as a waiver thereof, nor
\nshall any single or partial exercise of any such right or power, or any
\nabandonment or discontinuance of steps to enforce such a right or power,
\npreclude any other or further exercise thereof or the exercise of any other
\nright or power. The rights and remedies of the Administrative Agent and the
\nLenders hereunder are cumulative and are not exclusive of any rights or remedies
\nthat they would otherwise have. No waiver of any provision of this Agreement or
\nconsent to any departure by any Obligor therefrom shall in any event be
\neffective unless the same shall be permitted by paragraph (b) of this Section,
\nand then such waiver or consent shall be effective only in the specific instance
\nand for the purpose for which given. Without limiting the generality of the
\nforegoing, the execution and delivery of this Agreement or the making of a Loan
\nshall not be construed as a waiver of any Default, regardless of whether the
\nAdministrative Agent or any Lender may have had notice or knowledge of such
\nDefault at the time.<\/p>\n<\/p>\n (b) Amendments.<\/u> Neither this Agreement nor any provision hereof may be
\nwaived, amended or modified except pursuant to an agreement or agreements in
\nwriting entered into by the Borrower and the Required Lenders or by the Borrower
\nand the Administrative Agent with the consent of the Required Lenders;
\nprovided<\/u> that no such agreement shall:<\/p>\n<\/p>\n (i) increase the Commitment of any Lender without the written consent of such
\nLender,<\/p>\n<\/p>\n (ii) reduce the principal amount of any Loan outstanding to any Lender or
\nreduce the rate of interest thereon (except in connection with the waiver of
\napplicability of any post-default increase in interest rates pursuant to Section
\n2.13(d)), or reduce any fees payable to any Lender hereunder, without the
\nwritten consent of such Lender,<\/p>\n<\/p>\n (iii) postpone the scheduled date of payment of the principal amount of any
\nLoan outstanding to any Lender (except as provided in Section 2.21 in connection
\nwith the exercise of the Term-Out Option), or any interest thereon, or any fees
\npayable to any Lender hereunder, or reduce the amount of, waive or excuse any
\nsuch payment, or postpone the scheduled date of expiration of any Commitment of
\nany Lender, without the written consent of such Lender,<\/p>\n<\/p>\n (iv) change Section 2.18(b), 2.18(c) or 2.18(d) in a manner that would alter
\nthe pro rata sharing of payments required thereby without the written consent of
\neach Lender directly and adversely affected thereby,<\/p>\n<\/p>\n (v) change any of the provisions of this Section or the percentage in the
\ndefinition of the term “Required Lenders” or any other provision hereof
\nspecifying the number or percentage of Lenders required to waive, amend or
\nmodify any rights hereunder or make any determination or grant any consent
\nhereunder, without the written consent of each Lender directly and adversely
\naffected thereby, or<\/p>\n<\/p>\n (vi) release all or substantially all of the Guarantors from their guarantee
\nobligations under Article III without the written consent of each Lender, and\n<\/p>\n<\/p>\n provided<\/u> further<\/u> that no such agreement shall amend, modify or
\notherwise affect the rights or duties of the Administrative Agent hereunder
\nwithout the prior written consent of the Administrative Agent.<\/p>\n<\/p>\n Notwithstanding the foregoing (but subject to the immediately preceding
\nproviso), (A) any amendment of the<\/p>\n<\/p>\n<\/p>\n \n
\n52<\/p>\n \n<\/p>\n definition of the term “Applicable Rate” pursuant to the last sentence of
\nsuch definition shall require only the written consent of the Borrower and the
\nRequired Lenders, (B) no consent with respect to any amendment, waiver or other
\nmodification of this Agreement shall be required of any Defaulting Lender,
\nexcept with respect to any amendment, waiver or other modification referred to
\nin clause (i), (ii) or (iii) of the first proviso of this paragraph and then
\nonly in the event such Defaulting Lender shall be directly affected by such
\namendment, waiver or other modification, (C) the Administrative Agent may enter
\ninto one or more security agreements (including mortgages and pledge agreements)
\nin connection with any grant of a security interest securing Indebtedness under
\nthis Agreement as contemplated by Sections 7.02(m) and 7.04 without the consent
\nof any Lender and (D) this Agreement may be amended (or amended and restated)
\nwith the written consent of the Required Lenders, the Administrative Agent and
\nthe Borrower (x) to add one or more additional credit facilities to this
\nAgreement and to permit the extensions of credit from time to time outstanding
\nthereunder and the accrued interest and fees in respect thereof to share in the
\nbenefits of this Agreement and the other Loan Documents and (y) to include
\nappropriately the Lenders holding such credit facilities in any determination of
\nthe Required Lenders.<\/p>\n<\/p>\n SECTION 10.03. Expenses; Indemnity; Damage Waiver.<\/u> (a) Costs and
\nExpenses.<\/u> The Borrower shall pay (i) all reasonable and documented
\nout145of145pocket expenses incurred by the Administrative Agent, the Arrangers, the
\nDocumentation Agents, the Syndication Agent and each of their respective
\nAffiliates (including the reasonable and documented fees, charges and
\ndisbursements of one firm of counsel (and one firm of local counsel in each
\napplicable jurisdiction) for the foregoing), in connection with the syndication
\nof the credit facilities provided for herein, the preparation, negotiation,
\nexecution, delivery and administration of this Agreement and the other Loan
\nDocuments or any amendments, modifications or waivers of the provisions hereof
\nor thereof (whether or not the transactions contemplated hereby or thereby shall
\nbe consummated and (ii) all out145of145pocket expenses incurred by the
\nAdministrative Agent or any Lender (including the reasonable fees, charges and
\ndisbursements of one firm of counsel (and one firm of local counsel in each
\napplicable jurisdiction) for the Administrative Agent and the Lenders and of any
\nseparate counsel (including local counsel) that may be required in light of any
\nconflicting interests among the foregoing parties) in connection with the
\nenforcement or protection of its rights (A) in connection with this Agreement
\nand the other Loan Documents, including its rights under this Section, or (B) in
\nconnection with the Loans made hereunder, including all such out145of145pocket
\nexpenses incurred during any workout, restructuring or negotiations in respect
\nof such Loans.<\/p>\n<\/p>\n (b) Indemnification by the Borrower.<\/u> The Borrower shall indemnify the
\nAdministrative Agent (and any sub145agent thereof), the Arrangers, the
\nDocumentation Agents, the Syndication Agent and each Lender, and each Related
\nParty of any of the foregoing Persons (each such Person being called an
\n“Indemnitee<\/u>“), against, and hold each Indemnitee harmless from, any and
\nall losses, claims, damages, liabilities and related expenses (including the
\nreasonable fees, charges and disbursements of one firm of counsel (and one firm
\nof local counsel in each applicable jurisdiction) for the Indemnitees and of any
\nseparate counsel (including local counsel) that may be required in light of any
\nconflicting interests among Indemnitees), incurred by any Indemnitee or asserted
\nagainst any Indemnitee by any third party or by the Borrower or any other
\nObligor arising out of, in connection with, or as a result of (i) the execution
\nor delivery of this Agreement, any other Loan Document or any agreement or
\ninstrument contemplated hereby or thereby, the performance by the parties hereto
\nof their respective obligations hereunder or thereunder or the consummation of
\nthe transactions contemplated hereby or thereby, (ii) any Loan or the use or
\nproposed use of the proceeds therefrom, (iii) any actual or alleged presence or
\nRelease of Hazardous Materials on or from any property owned or operated by the
\nBorrower or any of its Subsidiaries, or any Environmental Liability related in
\nany way to the Borrower or any of its Subsidiaries, or (iv) any actual or
\nprospective claim, litigation, investigation or proceeding relating to any of
\nthe foregoing, whether based on contract, tort or any other theory, whether
\nbrought by a third party or by the Borrower or any other Obligor, and regardless
\nof whether any Indemnitee is a party thereto; provided<\/u> that such
\nindemnity shall not, as to any Indemnitee, be available to the extent that such
\nlosses, claims, damages, liabilities or related expenses (x) are determined by a
\ncourt of competent jurisdiction by final and nonappealable judgment to have
\nresulted from the bad faith, gross negligence or willful misconduct of such
\nIndemnitee or its Related Parties or (y) result from a claim brought in good
\nfaith by the Borrower or any other Obligor against an Indemnitee for breach in
\nbad faith, gross negligence or willful misconduct of such<\/p>\n<\/p>\n<\/p>\n \n
\n53<\/p>\n \n<\/p>\n Indemnitee153s obligations hereunder or under any other Loan Document.<\/p>\n<\/p>\n (c) Reimbursement by Lenders.<\/u> To the extent that the Borrower for any
\nreason fails to indefeasibly pay any amount required under paragraph (a) or (b)
\nof this Section to be paid by it to the Administrative Agent (or any sub145agent
\nthereof) or any Related Party of the Administrative Agent (or any sub-agent
\nthereof), each Lender severally agrees to pay to the Administrative Agent (or
\nany such sub145agent), or such Related Party, as the case may be, such Lender153s
\nApplicable Percentage (determined as of the time that the applicable
\nunreimbursed expense or indemnity payment is sought) of such unpaid amount;
\nprovided<\/u> that the unreimbursed expense or indemnified loss, claim,
\ndamage, liability or related expense, as the case may be, was incurred by or
\nasserted against the Administrative Agent (or any such sub145agent) or against any
\nRelated Party of the Administrative Agent (or any sub-agent thereof) acting for
\nthe Administrative Agent (or any such sub145agent) in connection with such
\ncapacity. The obligations of the Lenders under this paragraph are several
\nobligations.<\/p>\n<\/p>\n (d) Waiver of Consequential Damages, Etc.<\/u> To the fullest extent
\npermitted by applicable law, no Obligor shall assert, and each Obligor hereby
\nwaives, any claim against any Indemnitee, on any theory of liability, for
\nspecial, indirect, consequential or punitive damages (as opposed to direct or
\nactual damages) arising out of, in connection with, or as a result of, this
\nAgreement, any other Loan Document or any agreement or instrument contemplated
\nhereby or thereby, the transactions contemplated hereby or thereby, any Loan or
\nthe use of the proceeds thereof. No Indemnitee shall be liable for any damages
\narising from the use by unintended recipients of any information or other
\nmaterials distributed by it through telecommunications, electronic or other
\ninformation transmission systems, except to the extent they are determined by a
\nfinal and non-appealable judgment of a court of competent jurisdiction to have
\nresulted from the bad faith, willful misconduct or gross negligence of such
\nIndemnitee or any of its Related Parties, or for any special, indirect,
\nconsequential or punitive damages in connection with this Agreement or the other
\nLoan Documents or the transactions contemplated hereby or thereby.<\/p>\n<\/p>\n (e) Payments.<\/u> All amounts due under this Section shall be payable
\npromptly after demand therefor.<\/p>\n<\/p>\n SECTION 10.04. Successors and Assigns<\/u>. (a) Assignments
\nGenerally.<\/u> The provisions of this Agreement shall be binding upon and inure
\nto the benefit of the parties hereto and their respective successors and assigns
\npermitted hereby, except that (i) other than as expressly provided in Section
\n7.03(a)(i), the Borrower may not assign or otherwise transfer any of its rights
\nor obligations hereunder without the prior written consent of each Lender (and
\nany attempted assignment or transfer by the Borrower without such consent shall
\nbe null and void) and (ii) no Lender may assign or otherwise transfer its rights
\nor obligations hereunder except in accordance with this Section. Nothing in this
\nAgreement, expressed or implied, shall be construed to confer upon any Person
\n(other than the parties hereto, their respective successors and assigns
\npermitted hereby, Participants (to the extent provided in paragraph (c) of this
\nSection), the Arrangers, the Documentation Agent, the Syndication Agent and, to
\nthe extent expressly contemplated hereby, the sub-agents of the Administrative
\nAgent and the Related Parties of each of the Administrative Agent and the
\nLenders) any legal or equitable right, remedy or claim under or by reason of
\nthis Agreement.<\/p>\n<\/p>\n (b) Assignments by Lenders.<\/u><\/p>\n<\/p>\n (i) Assignments Generally.<\/u> Subject to the conditions set forth in
\nparagraph (b)(ii) below, any Lender may assign to one or more assignees (other
\nthan any natural person) all or a portion of its rights and obligations under
\nthis Agreement (including all or a portion of its Commitment and the Loans at
\nthe time owing to it) with the prior written consent (such consent not to be
\nunreasonably withheld) of:<\/p>\n<\/p>\n (A) the Borrower; provided<\/u> that (x) no consent of the Borrower shall
\nbe required for an assignment to a Lender, an Affiliate of a Lender, an Approved
\nFund or, if an Event of Default has occurred and is continuing, any other
\nassignee, and (y) the Borrower<\/p>\n<\/p>\n<\/p>\n \n
\n54<\/p>\n \n<\/p>\n shall be deemed to have consented to any assignment unless it shall object
\nthereto by written notice the Administrative Agent within 10 Business Days after
\nhaving confirmed receipt of notice thereof; and<\/p>\n<\/p>\n (B) the Administrative Agent; provided<\/u> that no consent of the
\nAdministrative Agent shall be required for an assignment of all or any portion
\nof the Commitments or Syndicated Loans to a Lender or an Affiliate of a Lender.\n<\/p>\n<\/p>\n (ii) Certain Conditions to Assignments.<\/u> Assignments shall be subject
\nto the following additional conditions:<\/p>\n<\/p>\n (A) except in the case of an assignment to a Lender or an Affiliate of a
\nLender or an assignment of the entire remaining amount of the assigning Lender153s
\nCommitment or Loans of any Class, the amount of the Commitment or Loans of the
\nassigning Lender subject to each such assignment (determined as of the date the
\nAssignment and Assumption with respect to such assignment is delivered to the
\nAdministrative Agent) shall not be less than $5,000,000 unless each of the
\nBorrower and the Administrative Agent otherwise consent, provided<\/u> that no
\nsuch consent of the Borrower shall be required if an Event of Default has
\noccurred and is continuing;<\/p>\n<\/p>\n (B) each partial assignment shall be made as an assignment of a proportionate
\npart of all the assigning Lender153s rights and obligations under this Agreement;\n<\/p>\n<\/p>\n (C) the parties to each assignment shall execute and deliver to the
\nAdministrative Agent an Assignment and Assumption, together with a processing
\nand recordation fee of $3,500; and<\/p>\n<\/p>\n (D) the assignee, if it shall not be a Lender, shall deliver to the
\nAdministrative Agent an Administrative Questionnaire in which the assignee
\ndesignates one or more credit contacts to whom all syndicate-level information
\n(which may contain material non-public information about the Borrower and its
\nRelated Parties or their respective securities) will be made available and who
\nmay receive such information in accordance with the assignee153s compliance
\nprocedures and applicable laws, including Federal and state securities laws.<\/p>\n<\/p>\n (iii) Effectiveness of Assignments.<\/u> Subject to acceptance and
\nrecording thereof pursuant to paragraph (b)(iv) of this Section, from and after
\nthe effective date specified in each Assignment and Assumption the assignee
\nthereunder shall be a party hereto and, to the extent of the interest assigned
\nby such Assignment and Assumption, have the rights and obligations of a Lender
\nunder this Agreement, and the assigning Lender thereunder shall, to the extent
\nof the interest assigned by such Assignment and Assumption, be released from its
\nobligations under this Agreement (and, in the case of an Assignment and
\nAssumption covering all of the assigning Lender153s rights and obligations under
\nthis Agreement, such Lender shall cease to be a party hereto but shall continue
\nto be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 10.03). Any
\nassignment or transfer by a Lender of rights or obligations under this Agreement
\nthat does not comply with this Section shall be treated for purposes of this
\nAgreement as a sale by such Lender of a participation in such rights and
\nobligations in accordance with paragraph (c) of this Section.<\/p>\n<\/p>\n (iv) Maintenance of Register.<\/u> The Administrative Agent, acting for
\nthis purpose as a non-fiduciary agent of the Borrower, shall maintain at one of
\nits offices a copy of each Assignment and Assumption delivered to it and a
\nregister for the recordation of the names and addresses of the Lenders, and the
\nCommitment of, and principal amount of the Loans owing to, each Lender pursuant
\nto the terms hereof from time to time (the “Register<\/u>“). The entries in
\nthe Register shall be conclusive, and the Borrower, the Administrative Agent\n<\/p>\n<\/p>\n<\/p>\n \n
\n55<\/p>\n \n<\/p>\n and the Lenders may treat each Person whose name is recorded in the Register
\npursuant to the terms hereof as a Lender hereunder for all purposes of this
\nAgreement, notwithstanding notice to the contrary. The Register shall be
\navailable for inspection by the Borrower and any Lender, at any reasonable time
\nand from time to time upon reasonable prior notice.<\/p>\n<\/p>\n (v) Acceptance of Assignments by Administrative Agent.<\/u> Upon its
\nreceipt of a duly completed Assignment and Assumption executed by an assigning
\nLender and an assignee, the assignee153s completed Administrative Questionnaire
\n(unless the assignee shall already be a Lender hereunder), the processing and
\nrecordation fee referred to in paragraph (b) of this Section and any written
\nconsent to such assignment required by paragraph (b) of this Section, the
\nAdministrative Agent shall accept such Assignment and Assumption and record the
\ninformation contained therein in the Register; provided<\/u> that if either
\nthe assigning Lender or the assignee shall have failed to make any payment
\nrequired to be made by it pursuant to Section 2.07(b), 2.18(d) or 10.03(c), the
\nAdministrative Agent shall have no obligation to accept such Assignment and
\nAssumption and record the information therein in the Register unless and until
\nsuch payment shall have been made in full, together with all accrued interest
\nthereon. No assignment shall be effective for purposes of this Agreement unless
\nit has been recorded in the Register as provided in this paragraph.<\/p>\n<\/p>\n (c) Participations.<\/u><\/p>\n<\/p>\n (i) Participations Generally.<\/u> Any Lender may, without the consent of
\nthe Borrower or the Administrative Agent, sell participations to one or more
\nbanks or other entities (a “Participant<\/u>“) in all or a portion of such
\nLender153s rights and obligations under this Agreement (including all or a portion
\nof its Commitment and the Loans owing to it); provided<\/u> that (A) such
\nLender153s obligations under this Agreement shall remain unchanged, (B) such
\nLender shall remain solely responsible to the other parties hereto for the
\nperformance of such obligations and (C) the Borrower, the Administrative Agent
\nand the other Lenders shall continue to deal solely and directly with such
\nLender in connection with such Lender153s rights and obligations under this
\nAgreement. Any agreement or instrument pursuant to which a Lender sells such a
\nparticipation shall provide that such Lender shall retain the sole right to
\nenforce this Agreement and to approve any amendment, modification or waiver of
\nany provision of this Agreement; provided<\/u> that such agreement or
\ninstrument may provide that such Lender will not, without the consent of the
\nParticipant, agree to any amendment, modification or waiver described in the
\nfirst proviso to Section 10.02(b) that directly and adversely affects such
\nParticipant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees
\nthat each Participant shall be entitled to the benefits of Sections 2.15, 2.16
\nand 2.17 (subject to the requirements and limitations therein, including the
\nrequirements under Sections 2.17(f) and 2.17(g) (it being understood that the
\ndocumentation required under Sections 2.17(f) and 2.17(g) shall be delivered to
\nthe participating Lender)) to the same extent as if it were a Lender and had
\nacquired its interest by assignment pursuant to paragraph (b) of this Section.
\nTo the extent permitted by law, each Participant also shall be entitled to the
\nbenefits of Section 10.08 as though it were a Lender, provided<\/u> that such
\nParticipant agrees to be subject to Section 2.18(d) as though it were a Lender.
\nEach Lender selling participations shall keep a register (the “Participant
\nRegister<\/u>“) in which it shall record the name and address of each Participant
\nto which such Lender sells participations and the amount and terms of such
\nparticipations, acting for this purpose as an agent of the Borrower;
\nprovided<\/u> that no Lender shall have any obligation to disclose all or any
\nportion of the Participant Register (including the identity of any Participant
\nor any information relating to a Participant153s interest in any Commitments,
\nLoans or its other obligations under any Loan Document) to any Person except to
\nthe extent that such disclosure is necessary to establish that such Commitment,
\nLoan or other obligation is in registered form under Section 5f.103-1(c) of the
\nUnited States Treasury Regulations. The entries in the Participant Register
\nshall be conclusive absent manifest error, and such Lender shall treat each
\nPerson whose name is recorded in the Participant Register as the owner of such
\nparticipation for all purposes of this Agreement notwithstanding any notice to
\nthe contrary. For the avoidance of doubt, the Administrative Agent (in its
\ncapacity as Administrative Agent) shall have no responsibility for<\/p>\n<\/p>\n<\/p>\n \n
\n56<\/p>\n \n<\/p>\n maintaining a Participant Register.<\/p>\n<\/p>\n (ii) Limitations on Rights of Participants.<\/u> A Participant shall not be
\nentitled to receive any greater payment under Section 2.15 or 2.17 than the
\napplicable Lender would have been entitled to receive with respect to the
\nparticipation sold to such Participant, unless the sale of the participation to
\nsuch Participant is made with the Borrower153s prior written consent. A
\nParticipant that would be a Foreign Lender if it were a Lender shall not be
\nentitled to the benefits of Section 2.17 unless the Borrower is notified of the
\nparticipation sold to such Participant and such Participant agrees, for the
\nbenefit of the Borrower, to comply with Section 2.17(f) as though it were a
\nLender.<\/p>\n<\/p>\n (d) Certain Pledges.<\/u> Any Lender may at any time pledge or assign a
\nsecurity interest in all or any portion of its rights under this Agreement to
\nsecure obligations of such Lender, including without limitation any pledge or
\nassignment to secure obligations to a Federal Reserve Bank, and this Section
\nshall not apply to any such pledge or assignment of a security interest;
\nprovided<\/u> that no such pledge or assignment of a security interest shall
\nrelease a Lender from any of its obligations hereunder or substitute any such
\npledgee or assignee for such Lender as a party hereto.<\/p>\n<\/p>\n SECTION 10.05. Survival.<\/u> All covenants, agreements, representations
\nand warranties made by the Borrower herein and in the certificates or other
\ninstruments delivered in connection with or pursuant to this Agreement shall be
\nconsidered to have been relied upon by the other parties hereto and shall
\nsurvive the execution and delivery of this Agreement and the making of any
\nLoans, regardless of any investigation made by any such other party or on its
\nbehalf and notwithstanding that the Administrative Agent or any Lender may have
\nhad notice or knowledge of any Default or incorrect representation or warranty
\nat the time any credit is extended hereunder, and shall continue in full force
\nand effect as long as the principal of or any accrued interest on any Loan or
\nany fee or any other amount payable under this Agreement is outstanding and
\nunpaid and so long as the Commitments have not expired or terminated. The
\nprovisions of Sections 2.15, 2.16, 2.17, 2.18(f), 3.03 and 10.03 and Article IX
\nshall survive and remain in full force and effect regardless of the consummation
\nof the transactions contemplated hereby, the repayment of the Loans and the
\nCommitments or the termination of this Agreement or any provision hereof.<\/p>\n<\/p>\n SECTION 10.06. Counterparts; Integration; Effectiveness; Electronic
\nExecution.<\/u> (a) Counterparts; Integration; Effectiveness.<\/u> This
\nAgreement may be executed in counterparts (and by different parties hereto in
\ndifferent counterparts), each of which shall constitute an original, but all of
\nwhich when taken together shall constitute a single contract. This Agreement and
\nthe other Loan Documents, and any separate letter agreements with respect to
\nfees payable to the Administrative Agent, constitute the entire contract between
\nand among the parties relating to the subject matter hereof and supersede any
\nand all previous agreements and understandings, oral or written, relating to the
\nsubject matter hereof (but do not supersede any provisions of any separate
\nletter agreements with respect to fees payable to the Administrative Agent).
\nExcept as provided in Section 5.01, this Agreement shall become effective when
\nit shall have been executed by the Administrative Agent and when the
\nAdministrative Agent shall have received counterparts hereof that, when taken
\ntogether, bear the signatures of each of the other parties hereto. Delivery of
\nan executed counterpart of a signature page to this Agreement by facsimile (or
\nother electronic transmission) shall be effective as delivery of a manually
\nexecuted counterpart of this Agreement.<\/p>\n<\/p>\n (b) Electronic Execution of Assignments.<\/u> The words “execution,”
\n“signed,” “signature,” and words of like import in any Assignment and Assumption
\nshall be deemed to include electronic signatures or the keeping of records in
\nelectronic form, each of which shall be of the same legal effect, validity or
\nenforceability as a manually executed signature or the use of a paper-based
\nrecordkeeping system, as the case may be, to the extent and as provided for in
\nany applicable law, including the Federal Electronic Signatures in Global and
\nNational Commerce Act, the New York State Electronic Signatures and Records Act,
\nor any other similar state laws based on the Uniform Electronic Transactions
\nAct.<\/p>\n<\/p>\n SECTION 10.07. Severability.<\/u> Any provision of this Agreement held to
\nbe invalid, illegal or unenforceable in any jurisdiction shall, as to such
\njurisdiction, be ineffective to the extent of such<\/p>\n<\/p>\n<\/p>\n \n
\n57<\/p>\n \n<\/p>\n invalidity, illegality or unenforceability without affecting the validity,
\nlegality and enforceability of the remaining provisions hereof; and the
\ninvalidity of a particular provision in a particular jurisdiction shall not
\ninvalidate such provision in any other jurisdiction.<\/p>\n<\/p>\n SECTION 10.08. Right of Setoff.<\/u> In addition to any rights and remedies
\nof the Lenders provided by law, each Lender shall have the right, without notice
\nto the Borrower or any Subsidiary Guarantor, any such notice being expressly
\nwaived by the Borrower and each Subsidiary Guarantor to the extent permitted by
\napplicable law, upon any obligations of the Borrower or any Subsidiary Guarantor
\nunder this Agreement or any other Loan Document becoming due and payable
\n(whether at the stated maturity, by acceleration or otherwise), to apply to the
\npayment of such obligations, by setoff or otherwise, any and all deposits
\n(general or special, time or demand, provisional or final), in any currency, and
\nany other credits, indebtedness or claims, in any currency, in each case whether
\ndirect or indirect, absolute or contingent, matured or unmatured, at any time
\nheld or owing by such Lender, any Affiliate thereof or any of their respective
\nbranches or agencies to or for the credit or the account of the Borrower or any
\nSubsidiary Guarantor; provided<\/u> that if any Defaulting Lender shall
\nexercise any such right of setoff, all amounts so set off shall be paid over
\nimmediately to the Administrative Agent for further application in accordance
\nwith the provisions of this Agreement and, pending such payment, shall be
\nsegregated by such Defaulting Lender from its other funds and deemed held in
\ntrust for the benefit of the Administrative Agent and the Lenders. Each Lender
\n(including any Defaulting Lender) agrees to notify the Borrower and the
\nAdministrative Agent promptly after any such application made by such Lender,
\nprovided<\/u> that the failure to give such notice shall not affect the
\nvalidity of such application.<\/p>\n<\/p>\n SECTION 10.09. Governing Law; Jurisdiction; Etc.<\/u> (a) Governing
\nLaw.<\/u> This Agreement shall be governed by, and construed in accordance with,
\nthe law of the State of New York.<\/p>\n<\/p>\n (b) Submission to Jurisdiction.<\/u> Each Obligor irrevocably and
\nunconditionally submits, for itself and its property, to the exclusive
\njurisdiction of the Supreme Court of the State of New York sitting in New York
\nCounty and of the United States District Court of the Southern District of New
\nYork, and any appellate court from any thereof, in any action or proceeding
\narising out of or relating to this Agreement or any other Loan Document, or for
\nrecognition or enforcement of any judgment, and each of the parties hereto
\nirrevocably and unconditionally agrees that all claims in respect of any such
\naction or proceeding may be heard and determined in such New York State court
\nor, to the fullest extent permitted by applicable law, in such Federal court.
\nEach of the parties hereto agrees that a final judgment in any such action or
\nproceeding shall be conclusive and may be enforced in other jurisdictions by
\nsuit on the judgment or in any other manner provided by law. Nothing in this
\nAgreement or in any other Loan Document shall affect any right that the
\nAdministrative Agent or any Lender may otherwise have to bring any action or
\nproceeding relating to this Agreement or any other Loan Document against any
\nObligor or its properties in the courts of any jurisdiction.<\/p>\n<\/p>\n (c) Waiver of Venue.<\/u> Each Obligor irrevocably and unconditionally
\nwaives, to the fullest extent permitted by applicable law, any objection that it
\nmay now or hereafter have to the laying of venue of any action or proceeding
\narising out of or relating to this Agreement or any other Loan Document in any
\ncourt referred to in paragraph (b) of this Section. Each of the parties hereto
\nirrevocably waives, to the fullest extent permitted by applicable law, the
\ndefense of an inconvenient forum to the maintenance of such action or proceeding
\nin any such court.<\/p>\n<\/p>\n (d) Service of Process.<\/u> Each party hereto irrevocably consents to
\nservice of process in the manner provided for notices in Section 10.01. Nothing
\nin this Agreement will affect the right of any party hereto to serve process in
\nany other manner permitted by applicable law.<\/p>\n<\/p>\n SECTION 10.10. WAIVER OF JURY TRIAL.<\/u> EACH PARTY HERETO HEREBY
\nIRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
\nIT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
\nARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
\nTRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
\nANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES<\/p>\n<\/p>\n<\/p>\n \n
\n58<\/p>\n \n<\/p>\n THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
\nREPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
\nEVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
\nTHAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
\nAGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
\nWAIVERS AND CERTIFICATIONS IN THIS SECTION.<\/p>\n<\/p>\n SECTION 10.11. Headings.<\/u> Article and Section headings and the Table of
\nContents used herein are for convenience of reference only, are not part of this
\nAgreement and shall not affect the construction of, or be taken into
\nconsideration in interpreting, this Agreement.<\/p>\n<\/p>\n SECTION 10.12. Treatment of Certain Information; Confidentiality.<\/u> (a)
\nTreatment of Certain Information.<\/u> The Borrower acknowledges that from
\ntime to time financial advisory, investment banking and other services may be
\noffered or provided to the Borrower or one or more of its Subsidiaries (in
\nconnection with this Agreement or otherwise) by any Lender or by one or more
\nSubsidiaries or Affiliates of such Lender and the Borrower hereby authorizes
\neach Lender to share any information delivered to such Lender by the Borrower
\nand its Subsidiaries pursuant to this Agreement, or in connection with the
\ndecision of such Lender to enter into this Agreement, with any Subsidiary or
\nAffiliate of such Lender, it being understood that any such Subsidiary or
\nAffiliate of any Lender receiving such information shall be bound by the
\nprovisions of paragraph (b) of this Section as if it were a Lender hereunder.
\nSuch authorization shall survive the repayment of the Loans and the Commitments
\nor the termination of this Agreement or any provision hereof.<\/p>\n<\/p>\n (b) Confidentiality.<\/u> Each of the Administrative Agent and the Lenders
\nagrees to maintain the confidentiality of the Information (as defined below),
\nexcept that Information may be disclosed (i) to its Affiliates and to its and
\nits Affiliates153 respective partners, directors, officers, employees, agents,
\nadvisors and other representatives (it being understood that the Persons to whom
\nsuch disclosure is made will be informed of the confidential nature of such
\nInformation and instructed to keep such Information confidential), (ii) to the
\nextent requested by any regulatory authority purporting to have jurisdiction
\nover it or its Affiliates (including any self-regulatory authority, such as the
\nNational Association of Insurance Commissioners), (iii) to the extent required
\nby applicable laws or regulations or by any subpoena or similar legal process,
\n(iv) to any other party hereto, (v) in connection with the exercise of any
\nremedies hereunder or under any other Loan Document or any action or proceeding
\nrelating to this Agreement or any other Loan Document or the enforcement of
\nrights hereunder or thereunder, (vi) subject to an agreement containing
\nprovisions substantially the same as those of this Section, to (x) any assignee
\nof or Participant in, or any prospective assignee of or Participant in, any of
\nits rights or obligations under this Agreement or (y) any actual or prospective
\ncounterparty (or its advisors) to any swap or derivative transaction relating to
\nthe Borrower and its obligations, (vii) with the consent of the Borrower, (viii)
\nto the extent such Information (x) becomes publicly available other than as a
\nresult of a breach of this Section or (y) becomes available to the
\nAdministrative Agent or any Lender or any of their respective Affiliates on a
\nnonconfidential basis from a source other than an Obligor or (ix) to Moody153s or
\nS&P.<\/p>\n<\/p>\n For purposes of this Section, “Information<\/u>” means all information
\nreceived from any Obligor or any of its Subsidiaries relating to any Obligor or
\nany of its Subsidiaries or any of their respective businesses, other than (a)
\nany such information that is available to the Administrative Agent or any Lender
\non a nonconfidential basis prior to disclosure by an Obligor or any of its
\nSubsidiaries and (b) any such information that is publicly disclosed by the
\nBorrower in connection with its public filings with the Securities and Exchange
\nCommission. Any Person required to maintain the confidentiality of Information
\nas provided in this Section shall be considered to have complied with its
\nobligation to do so if such Person has exercised the same degree of care to
\nmaintain the confidentiality of such Information as such Person would accord to
\nits own confidential information.<\/p>\n<\/p>\n EACH LENDER AND THE ADMINISTRATIVE AGENT ACKNOWLEDGES THAT INFORMATION (AS
\nDEFINED IN THIS SECTION) FURNISHED TO IT PURSUANT TO THIS AGREEMENT OR THE OTHER
\nLOAN DOCUMENTS MAY INCLUDE MATERIAL NON-PUBLIC<\/p>\n<\/p>\n<\/p>\n \n
\n59<\/p>\n \n<\/p>\n INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR
\nRESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
\nREGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE
\nSUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH APPLICABLE LAW,
\nINCLUDING FEDERAL AND STATE SECURITIES LAWS.<\/p>\n<\/p>\n ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY
\nANY OBLIGOR OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
\nADMINISTERING, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS WILL BE
\nSYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION
\nABOUT THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES.
\nACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT
\nTHAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO
\nMAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
\nACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL
\nAND STATE SECURITIES LAWS.<\/p>\n<\/p>\n SECTION 10.13. USA PATRIOT Act.<\/u> Each Lender hereby notifies the
\nBorrower and the other Obligors that pursuant to the requirements of the USA
\nPATRIOT Act, such Lender may be required to obtain, verify and record
\ninformation that identifies the Borrower and the other Obligors, which
\ninformation includes the name and address of the Borrower and the other Obligors
\nand other information that will allow such Lender to identify the Borrower and
\nthe other Obligors in accordance with the USA PATRIOT Act.<\/p>\n<\/p>\n SECTION 10.14. Interest Rate Limitation.<\/u> Notwithstanding anything
\nherein to the contrary, if at any time the interest rate applicable to any Loan,
\ntogether with all fees, charges and other amounts which are treated as interest
\non such Loan under applicable law (collectively the “Charges<\/u>“), shall
\nexceed the maximum lawful rate (the “Maximum Rate<\/u>“) which may be
\ncontracted for, charged, taken, received or reserved by the Lender holding such
\nLoan in accordance with applicable law, the rate of interest payable in respect
\nof such Loan hereunder, together with all Charges payable in respect thereof,
\nshall be limited to the Maximum Rate and, to the extent lawful, the interest and
\nCharges that would have been payable in respect of such Loan but were not
\npayable as a result of the operation of this Section shall be cumulated and the
\ninterest and Charges payable to such Lender in respect of other Loans or periods
\nshall be increased (but not above the Maximum Rate therefor) until such
\ncumulated amount, together with interest thereon at the Federal Funds Effective
\nRate for each day to the date of repayment, shall have been received by such
\nLender.<\/p>\n<\/p>\n SECTION 10.15. No Fiduciary Relationship.<\/u> The Borrower, on behalf of
\nitself and its Subsidiaries, agrees that in connection with all aspects of the
\ntransactions contemplated hereby and any communications in connection therewith,
\nthe Borrower, its Subsidiaries and their Affiliates, on the one hand, and the
\nAdministrative Agent, the Lenders the Arrangers, the Syndication Agent the
\nDocumentation Agents and their Affiliates, on the other hand, will have a
\nbusiness relationship that does not create, by implication or otherwise, any
\nfiduciary duty on the part of the Administrative Agent, the Lenders, the
\nArrangers, the Syndication Agent, the Documentation Agents or their Affiliates,
\nand no such duty will be deemed to have arisen in connection with any such
\ntransactions or communications.<\/p>\n<\/p>\n<\/p>\n<\/p>\n \n
\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
\nexecuted by their respective authorized officers as of the day and year first
\nabove written.<\/p>\n<\/p>\n \n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n BORROWER<\/u><\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n BEST BUY CO., INC.,<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ CHRISTOPHER K.K. GOULD<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Christopher K.K. Gould<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Vice President, Treasurer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n SUBSIDIARY GUARANTORS<\/u><\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Best Buy Stores, L.P.,<\/p>\n<\/td>\n<\/tr>\n | \n| \n by: BBC Property Co., its General Partner<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ CHRISTOPHER K.K. GOULD<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Christopher K.K. Gould<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Vice President, Treasurer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n BBC Property Co.,<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ CHRISTOPHER K.K. GOULD<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Christopher K.K. Gould<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Vice President, Treasurer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n BBC Investment Co.,<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ CHRISTOPHER K.K. GOULD<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Christopher K.K. Gould<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Vice President, Treasurer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n<\/p>\n \n
\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n LENDERS<\/u><\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ SARAH L. FREEDMAN<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Sarah L. Freedman<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Vice President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n U.S. Bank National Association<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ LUDMILA YAKOVLEV<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Ludmila Yakovlev<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Assistant Vice President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Citibank, N.A.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ MARNI MCMANUS<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Marni McManus<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Managing Director<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Compass Bank<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ RAMON GARCIA<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Ramon Garcia<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Vice President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n The Bank of Tokyo-Mitsubishi UFJ, Ltd.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ VICTOR PIERZCHALSKI<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Victor Pierzchalski<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Authorized Signatory<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Bank of America, N.A.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ THOMAS KAINAMURA<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Thomas Kainamura<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Vice President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n
\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n BARCLAYS BANK PLC<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ DIANE ROLFE<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Diane Rolfe<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Director<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n CREDIT SUISSE AG, Cayman Islands Branch<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ ARI BRUGER<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Ari Bruger<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Vice President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ MICHAEL SPAIGHT<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Michael Spaight<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Associate<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n GOLDMAN SACHS BANK USA<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ MARK WALTON<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Mark Walton<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Authorized Signatory<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n HSBC Bank USA, National Association<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ THOMAS FOLEY<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Thomas Foley<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Managing Director<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Royal Bank of Canada<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ GLEN BARISOFF<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Glen Barisoff<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Authorized Signatory<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n The Royal Bank of Scotland plc<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ TRACY RAHN<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Tracy Rahn<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Director<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n
\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n DnB NOR Bank ASA<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ PHILIP F. KURPIEWSKI<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Philip F. Kurpiewski<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Senior Vice President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ PAL BOGER<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Pal Boger<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Vice President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n FIFTH THIRD BANK<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ GARY S. LOSEY<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Gary S. Losey<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n VP – Corporate Banking<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n LLOYDS TSB BANK PLC<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ RICHARD HERDER<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Richard Herder<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Managing Director H003<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ DEBORAH CARLSON<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Deborah Carlson<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Director Corporate Banking USA C103<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n UBS AG, STAMFORD BRANCH<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ IRJA R. OTSA<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Irja R. Otsa<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Associate Director<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ MARY E. EVANS<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Mary E. Evans<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Associate Director<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n MORGAN STANLEY BANK, N.A.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ MICHAEL KING<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Michael King<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Authorized Signatory<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n
\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Mizuho Corporate Bank (USA)<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ ROBERT GALLAGHER<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Robert Gallagher<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Senior Vice President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Standard Chartered Bank<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ JAMES P. HUGHES<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n James P. Hughes A2386<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Director<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ ROBERT K. REDDINGTON<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Robert K. Reddington<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Credit Documentation Manager<\/p>\n Credit Documentation Unit, WB Legal-Americas<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Bank of China, New York Branch<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ SHIQIANG WU<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Shiqiang Wu<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n General Manager<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n The Bank of Nova Scotia<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ CHRISTOPHER USAS<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Christopher Usas<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Director<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n<\/p>\n \n
\nSchedule 2.01<\/p>\n \n<\/p>\n 364-Day Credit Agreement Commitments<\/u><\/p>\n \n<\/p>\n \n \n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Lender Allocation<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Allocation<\/strong><\/p>\n<\/td>\n<\/tr>\n\n| \n JPMorgan Chase Bank, N.A.<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 86,800,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n U.S. Bank National Association<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 86,800,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Citibank, N.A.<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 86,800,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Compass Bank<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 86,800,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n The Bank of Tokyo-Mitsubishi UFJ, Ltd.<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 58,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Bank of America, N.A.<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 50,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Barclays Bank PLC<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 50,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Credit Suisse AG, Cayman Islands Branch<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 50,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Goldman Sachs Bank USA<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 50,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n HSBC Bank USA, National Association<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 50,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Royal Bank of Canada<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 50,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n The Royal Bank of Scotland plc<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 50,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n DnB NOR Bank ASA<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 38,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Fifth Third Bank<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 38,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Lloyds TSB Bank plc<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 38,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n UBS AG, Stamford Branch<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 30,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Morgan Stanley Bank, N.A.<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 28,800,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Mizuho Corporate Bank (USA)<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 20,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Standard Chartered Bank<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 20,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Bank of China, New York Branch<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 16,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n The Bank of Nova Scotia<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 16,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n TOTAL:<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,000,000,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n<\/p>\n \n
\nSchedule 4.11<\/p>\n \n<\/p>\n \n Best Buy Co., Inc. Entity Structure<\/u><\/p>\n \n<\/p>\n \n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Name<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Material \/ Specified Subsidiary<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n State or Other Jurisdiction of Incorporation or
\nOrganization<\/strong><\/p>\n<\/td>\n<\/tr>\n\n| \n BBC Insurance Agency Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBC Investment Co.<\/p>\n<\/td>\n | <\/td>\n | \n Material<\/p>\n<\/td>\n | <\/td>\n | \n Nevada<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBY Networks, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBC Property Co.<\/p>\n<\/td>\n | <\/td>\n | \n Material<\/p>\n<\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Stores, L.P. (1)<\/p>\n<\/td>\n | <\/td>\n | \n Material \/ Specified<\/p>\n<\/td>\n | <\/td>\n | \n Virginia<\/p>\n<\/td>\n<\/tr>\n | \n| \n BestBuy.com, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Virginia<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Leasing, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Virginia<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Puerto Rico Holdings, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Stores Puerto Rico, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Puerto Rico<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBY Services, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Connect, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Gov, LLC (2)<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Warehousing Logistics, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n Nichols Distribution, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBY Holdings International, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy China Holdings, Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Mauritius<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Shanghai, Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Enterprise Services, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBY Canada Finance, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBCAN Financial Services, L.P.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Alberta<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBCAN UK, LLP<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n United Kingdom<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy, LLP<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n United Kingdom<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Distributions Limited<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n United Kingdom<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBY Business to Business, ULC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Nova Scotia<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBY Solutions, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Asia Pacific Regional Holdings Limited<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Hong Kong<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Hangzhou Limited<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Nanjing Limited<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Canada Ltd. (3)<\/p>\n<\/td>\n | <\/td>\n | \n Material<\/p>\n<\/td>\n | <\/td>\n | \n Canada +<\/p>\n<\/td>\n<\/tr>\n | \n| \n 6349021 Canada Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Canada +<\/p>\n<\/td>\n<\/tr>\n | \n| \n FutureGard Reinsurance Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Turks and Caicos<\/p>\n<\/td>\n<\/tr>\n | \n| \n Howell & Associates, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Ontario<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Holdings B.V.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Netherlands<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy China Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Bermuda<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Purchasing LLC (4)<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Finance, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBY (Mauritius I) Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Mauritius<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBY (Mauritius II) Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Mauritius<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy China %<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n BBY (Mauritius III) Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Mauritius<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy (AsiaPacific) Limited<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy China UK, LLP<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n United Kingdom<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy International Finance, S.a.r.l.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Luxembourg<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Enterprises, S. de R.L. de C.V.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Mexico, Federal District<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n
\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Best Buy Imports, S. de R.L. de C.V.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Mexico, Federal District<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Stores, S. de R.L. de C.V.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Mexico, Federal District<\/p>\n<\/td>\n<\/tr>\n | \n| \n Dovinic Limited<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Hong Kong<\/p>\n<\/td>\n<\/tr>\n | \n| \n ExB Marketing Japan G.K.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Japan<\/p>\n<\/td>\n<\/tr>\n | \n| \n Five Star Trust %<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy Jiangsu Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Mauritius<\/p>\n<\/td>\n<\/tr>\n | \n| \n Jiangsu Five Star Appliance Co., Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Anhui Five Star Appliance Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Anhui Five Star Appliance Repair & Maintenance Service Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Changzhou Five Star Appliance Co., Ltd #<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Chengdu Xingpu Five Star Electrical Appliance Co.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Henan Five Star Appliance Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Jiangsu Five Star Appliance Repair & Maintenance Co.,Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Jiangsu Five Star Appliance Service Co.,Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Jiangsu Five Star Central Air-conditioning Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Jiangsu Five Star Purchase Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Jiangsu Friendship Appliance Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Jiangsu Hengxin Gree Air-conditioner Sales Co., Ltd @<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Jiangsu Taide Commercial & Trade Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Jiangsu Xingpu Science & Technology Trading Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Nanjing Appliance Central Air-conditioning Engineering Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Ningbo Xingpu Five Star Appliance Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Qingdao Five Star Appliance Service Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Shandong Five Star Appliance Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Sichuan Xingpu Five Star Appliance Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Xuzhou Five Star Appliance Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Xuzhou Five Star Appliance Service Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Wuxi Five Star Appliance Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Yancheng Asia Shopping Mall Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Yunnan Five Star Appliance Co.,Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Zhejiang Xingpu Five Star Appliance Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Zhejiang Xingpu Five Star Appliance Service Co., Ltd<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n China<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy – Fuse Capital Digital Media Fund, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy UK Investments 1, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n Project Austin, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n Best Buy UK Investments 2, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n CCL Insurance Company<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Vermont<\/p>\n<\/td>\n<\/tr>\n | \n| \n CP Gal Ritchfield, LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n Jiangsu Five Star Capital Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Mauritius<\/p>\n<\/td>\n<\/tr>\n | \n| \n Jiangsu Five Star Investment Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Mauritius<\/p>\n<\/td>\n<\/tr>\n | \n| \n Magnolia Hi-Fi, Inc. (5)<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Washington<\/p>\n<\/td>\n<\/tr>\n | \n| \n Napster, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n Napster Card Company LLC<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Virginia<\/p>\n<\/td>\n<\/tr>\n | \n| \n Napster, LLC (6)<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Delaware<\/p>\n<\/td>\n<\/tr>\n | \n| \n Napster Deutschland GmbH<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Germany<\/p>\n<\/td>\n<\/tr>\n | \n| \n Napster Luxembourg S. 161 r. l.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Luxembourg<\/p>\n<\/td>\n<\/tr>\n | \n| \n Napster UK Ltd.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n United Kingdom<\/p>\n<\/td>\n<\/tr>\n | \n| \n Online Services Co.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n | \n| \n Pacific Sales Kitchen and Bath Centers, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n California<\/p>\n<\/td>\n<\/tr>\n | \n| \n Redline Entertainment, Inc. (7)<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n
\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Talkback, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Washington<\/p>\n<\/td>\n<\/tr>\n | \n| \n vpr Matrix, Inc.<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Minnesota<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n # Best Buys owns 60% of this entity<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n + Federally chartered<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n % China Business Trust<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Also doing business as:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n HD Gamer Store, GameDaemons, Best Buy Express, DealTree, TechLiquidators,
\nNapster, Cowboom, Warehouse B.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n<\/p>\n \n
\nSchedule 7.01<\/p>\n \n<\/p>\n \n Existing and Available Indebtedness as of August 27,
\n2011<\/u> 1<\/sup><\/p>\n\n<\/p>\n \n \n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n $ in Millions<\/strong><\/p>\n<\/td>\n<\/tr>\n\n| \n Best Buy Domestic Indebtedness 2<\/sup><\/p>\n<\/td>\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Financing Lease Obligations 3<\/sup><\/p>\n<\/td>\n| <\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 109.6<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Capital Lease Obligations<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 55.8<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Sub-Total Best Buy Domestic<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 165.4<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 1 <\/sup>Balances approximate the amounts outstanding as of the Effective
\nDate in all material respects.<\/p>\n<\/td>\n<\/tr>\n\n| \n 2 <\/sup>Best Buy Domestic refers to all Best Buy Co., Inc. entities not
\nseparately included herein.<\/p>\n<\/td>\n<\/tr>\n\n| \n 3 <\/sup>Amounts reimbursed from landlords on financing leases are
\nrecorded as financing lease obligations.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n<\/p>\n\n
\nSchedule 7.02<\/p>\n \n<\/p>\n \n Certain Existing Liens<\/u><\/p>\n \n<\/p>\n Long term ground lease with Peoples Republic of China secured by Best Buy
\nShanghai Ltd. retail store<\/p>\n<\/p>\n<\/p>\n<\/p>\n \n
\nSchedule 7.04<\/p>\n \n<\/p>\n \n Restrictive Agreements<\/u><\/p>\n \n<\/p>\n \n Amended and Restated Lease between BB Property Company, as Lessor, and Best
\nBuy Stores, L.P., as Lessee dated September 26, 2001<\/p>\n<\/p>\n<\/p>\n Five-Year Credit Agreement dated as of October 7, 2011 (as amended,
\nsupplemented, replaced or otherwise modified from time to time) among Best Buy
\nCo., Inc., the Subsidiary Guarantors, the Lenders and JPMorgan Chase Bank, N.A.,
\nas Administrative Agent<\/p>\n<\/p>\n<\/p>\n<\/p>\n \n
\nEXHIBIT A<\/p>\n \n [Form of Assignment and Assumption]<\/p>\n \n ASSIGNMENT AND ASSUMPTION<\/p>\n \n This Assignment and Assumption (the “Assignment and Assumption<\/u>“) is
\ndated as of the Effective Date set forth below and is entered into by and
\nbetween the Assignor identified below and the Assignee identified below.
\nCapitalized terms used but not defined herein shall have the meanings given to
\nthem in the Credit Agreement (as defined below), receipt of a copy of which is
\nhereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions
\nset forth in Annex 1 attached hereto are hereby agreed to and incorporated
\nherein by reference and made a part of this Assignment and Assumption as if set
\nforth herein in full.<\/p>\n<\/p>\n For an agreed consideration, the Assignor hereby irrevocably sells and
\nassigns to the Assignee, and the Assignee hereby irrevocably purchases and
\nassumes from the Assignor, subject to and in accordance with the Standard Terms
\nand Conditions and the Credit Agreement, as of the Effective Date inserted by
\nthe Administrative Agent as contemplated below (i) all of the Assignor’s rights
\nand obligations in its capacity as a Lender under the Credit Agreement and any
\nother documents or instruments delivered pursuant thereto to the extent related
\nto the amount and percentage interest identified below of all of such
\noutstanding rights and obligations of the Assignor under the facility identified
\nbelow (including any Guarantees included in such facility) and (ii) to the
\nextent permitted to be assigned under applicable law, all claims, suits, causes
\nof action and any other right of the Assignor (in its capacity as a Lender)
\nagainst any Person, whether known or unknown, arising under or in connection
\nwith the Credit Agreement, any other documents or instruments delivered pursuant
\nthereto or the loan transactions governed thereby or in any way based on or
\nrelated to any of the foregoing, including contract claims, tort claims,
\nmalpractice claims, statutory claims and all other claims at law or in equity
\nrelated to the rights and obligations sold and assigned pursuant to clause (i)
\nabove (the rights and obligations sold and assigned by the Assignor to the
\nAssignee pursuant to clauses (i) and (ii) above being referred to herein
\ncollectively as the “Assigned Interest<\/u>“). Each such sale and assignment
\nis without recourse to the Assignor and, except as expressly provided in this
\nAssignment and Assumption, without representation or warranty by the Assignor.\n<\/p>\n<\/p>\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 1.<\/p>\n<\/td>\n | \n Assignor:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 2.<\/p>\n<\/td>\n | \n Assignee:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n [for the Assignee, indicate [Affiliate][Approved Fund] of [identify
\nLender<\/em>]1<\/sup><\/p>\n<\/p>\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 3.<\/p>\n<\/td>\n | \n Borrower:<\/p>\n<\/td>\n | <\/td>\n | \n Best Buy Co., Inc. Best Buy Co., Inc., a Minnesota corporation<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 4.<\/p>\n<\/td>\n | \n Administrative Agent:<\/p>\n<\/td>\n | <\/td>\n | \n JPMorgan Chase Bank, N.A., in its capacity as administrative agent under the
\nCredit Agreement<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 5.<\/p>\n<\/td>\n | \n Credit Agreement:<\/p>\n<\/td>\n | <\/td>\n | \n $1,000,000,000 364-Day Credit Agreement dated as of October 7, 2011 (as
\namended, amended and restated, supplemented or otherwise modified from time to
\ntime), among the Borrower, the Subsidiary Guarantors party thereto, the Lenders
\nparty thereto and JPMorgan Chase Bank, N.A., as the Administrative Agent (the
\n“Credit Agreement<\/u>“)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n ________________________________________________<\/sup><\/p>\n<\/p>\n1<\/sup> Select as appropriate.<\/p>\n<\/p>\n<\/p>\n<\/p>\n\n
\n6. Assigned Interest:<\/p>\n<\/p>\n \n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Facility Assigned<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Aggregate Amount of Commitments\/ Syndicated Loans for
\nall Lenders<\/strong><\/p>\n<\/td>\n<\/td>\n | \n Amount of Commitment\/ Syndicated Loans\/ Competitive
\nLoan Assigned<\/strong>2<\/sup><\/strong><\/p>\n<\/td>\n<\/td>\n | \n Percentage Assigned of Commitments\/ Syndicated Loans
\nfor all Lenders<\/strong>3<\/sup><\/strong><\/p>\n<\/td>\n<\/tr>\n\n| \n Commitment\/ Syndicated Loans<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | <\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| \n Competitive Loans4<\/sup><\/p>\n<\/td>\n| <\/td>\n | \n N\/A<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | <\/td>\n | \n N\/A<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n Effective Date: _____________ ___, 20___ [TO BE INSERTED BY THE
\nADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
\nTRANSFER IN THE REGISTER THEREFOR.]<\/strong><\/p>\n<\/p>\nThe Assignee, if not already a Lender, agrees to deliver to the
\nAdministrative Agent a completed Administrative Questionnaire in which the
\nAssignee designates one or more credit contacts to whom all syndicate-level
\ninformation (which may contain material non-public information about the
\nBorrower and its Related Parties or their respective securities) will be made
\navailable and who may receive such information in accordance with the assignee’s
\ncompliance procedures and applicable laws, including Federal and state
\nsecurities laws.<\/em><\/strong><\/p>\n<\/p>\n________________________________________________<\/sup><\/p>\n<\/p>\n2<\/sup> Must comply with Section 10.04(b)(ii) of the Credit Agreement.\n<\/p>\n<\/p>\n3<\/sup> Set forth, to at least 9 decimals, as a percentage of the
\nCommitments\/Syndicated Loans of all Lenders.<\/p>\n<\/p>\n4<\/sup> Specify the Competitive Loan assigned, including whether it is a
\nEurocurrency Loan or a Fixed Rate Loan.<\/p>\n<\/p>\n<\/p>\n<\/p>\n\n
\nThe terms set forth in this Assignment and Assumption are hereby agreed to:\n<\/p>\n<\/p>\n ASSIGNOR<\/u><\/p>\n<\/p>\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n [NAME OF ASSIGNOR]<\/p>\n<\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n<\/p>\n ASSIGNEE<\/u><\/p>\n<\/p>\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n [NAME OF ASSIGNEE]<\/p>\n<\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n
\n[Consented to and]5 <\/sup>Accepted:<\/p>\n<\/p>\n<\/p>\nJPMORGAN CHASE BANK, N.A.,<\/p>\n<\/p>\n as Administrative Agent<\/p>\n<\/p>\n<\/p>\n by _________________________________<\/p>\n<\/p>\n Name:<\/p>\n<\/p>\n Title:<\/p>\n<\/p>\n<\/p>\n<\/p>\n<\/p>\n [Consented to:]6<\/sup><\/p>\n<\/p>\n<\/p>\n[BEST BUY CO., INC.]<\/p>\n<\/p>\n<\/p>\n by _________________________________<\/p>\n<\/p>\n Name:<\/p>\n<\/p>\n Title:<\/p>\n<\/p>\n<\/p>\n<\/p>\n ________________________________________________<\/sup><\/p>\n<\/p>\n5<\/sup> To be added only if the consent of the Administrative Agent is
\nrequired by the terms of the Credit Agreement.<\/p>\n<\/p>\n6<\/sup> To be added only if the consent of the Borrower is required by
\nthe terms of the Credit Agreement.<\/p>\n<\/p>\n<\/p>\n<\/p>\n\n
\nANNEX 1<\/p>\n \n $1,000,000,000 BEST BUY CO., INC. 364-DAY CREDIT AGREEMENT<\/p>\n \n<\/p>\n STANDARD TERMS AND CONDITIONS FOR<\/p>\n \n ASSIGNMENT AND ASSUMPTION<\/p>\n \n 1. Representations and Warranties.<\/u><\/p>\n<\/p>\n 1.1 Assignor.<\/u> The Assignor (a) represents and warrants that (i) it is
\nthe legal and beneficial owner of its Assigned Interest, (ii) such Assigned
\nInterest is free and clear of any lien, encumbrance or other adverse claim and
\n(iii) it has full power and authority, and has taken all action necessary, to
\nexecute and deliver this Assignment and Assumption and to consummate the
\ntransactions contemplated hereby; and (b) assumes no responsibility with respect
\nto (i) any statements, warranties or representations made in or in connection
\nwith the Credit Agreement or any other Loan Document (other than its
\nrepresentations and warranties set forth herein), (ii) the execution, legality,
\nvalidity, enforceability, genuineness, sufficiency or value of the Loan
\nDocuments or any collateral thereunder, (iii) the financial condition of the
\nBorrower, any of its Subsidiaries or other Affiliates or any other Person
\nobligated in respect of any Loan Document or (iv) the performance or observance
\nby the Borrower, any of its Subsidiaries or Affiliates or any other Person of
\nany of their respective obligations under any Loan Document.<\/p>\n<\/p>\n 1.2. Assignee.<\/u> The Assignee (a) represents and warrants that (i) it
\nhas full power and authority, and has taken all action necessary, to execute and
\ndeliver this Assignment and Assumption and to consummate the transactions
\ncontemplated hereby and to become a Lender under the Credit Agreement, (ii) it
\nsatisfies the requirements, if any, specified in the Credit Agreement that are
\nrequired to be satisfied by it in order to acquire the Assigned Interest and
\nbecome a Lender (subject to such consents, if any, as may be required under
\nSection 10.04(b)(i) and (ii) of the Credit Agreement), (iii) from and after the
\nEffective Date, it shall be bound by the provisions of the Credit Agreement as a
\nLender thereunder and, to the extent of its Assigned Interest, shall have the
\nobligations of a Lender thereunder, (iv) it is sophisticated with respect to
\ndecisions to acquire assets of the type represented by the Assigned Interest and
\neither it, or the Person exercising discretion in making its decision to acquire
\nthe Assigned Interest, is experienced in acquiring assets of such type, (v) it
\nhas received a copy of the Credit Agreement, and has received or has been
\naccorded the opportunity to receive copies of the most recent financial
\nstatements delivered pursuant to Section 6.01 thereof, as applicable, and such
\nother documents and information as it deems appropriate to make its own credit
\nanalysis and decision to enter into this Assignment and Assumption and to
\npurchase such Assigned Interest, (vi) it has, independently and without reliance
\nupon the Administrative Agent, any Arranger or any other Lender and based on
\nsuch documents and information as it has deemed appropriate, made its own credit
\nanalysis and decision to enter into this Assignment and Assumption and to
\npurchase such Assigned Interest, (vii) if it is a Lender that is a United States
\nperson, as defined in Section 7701(a)(30) of the Code and is not an exempt
\nrecipient within the meaning of Treasury Regulations Section 1.6049-4(c),
\nattached to this Assignment and Assumption is two accurate and complete original
\nsigned copies of Internal Service Form W-9, or any successor form that such
\nLender is entitled to provide, establishing that such Lender is not subject to
\nU.S. Federal backup withholding Tax, and (viii) if it is a Foreign Lender,
\nattached to the Assignment and Assumption is any documentation required to be
\ndelivered by it pursuant to the terms of the Credit Agreement, duly completed
\nand executed by such Assignee; and (b) agrees that (i) it will, independently
\nand without reliance on the Administrative Agent, any Arranger, the Assignor or
\nany other Lender, and based on such documents and information as it shall deem
\nappropriate at the time, continue to make its own credit decisions in taking or
\nnot taking action under the Loan Documents, and (ii) it will perform in
\naccordance with their terms all of the obligations which by the terms of the
\nLoan Documents are required to be performed by it as a Lender.<\/p>\n<\/p>\n 2. Payments.<\/u> From and after the Effective Date, the Administrative
\nAgent shall make all payments in respect of the Assigned Interest (including
\npayments of principal, interest, fees and other amounts) to the Assignor for
\namounts which have accrued to but excluding the Effective Date and to the
\nAssignee for amounts which have accrued from and after the Effective Date.<\/p>\n<\/p>\n 3. General Provisions.<\/u> This Assignment and Assumption shall be binding
\nupon, and inure to the benefit of, the parties hereto and their respective
\nsuccessors and assigns. This Assignment and Assumption may be executed in any
\nnumber of counterparts, which together shall constitute one instrument. Delivery
\nof an executed counterpart of a signature page of this Assignment and Assumption
\nby facsimile or other electronic transmission shall be effective as delivery of
\na manually executed counterpart of this Assignment and Assumption. This
\nAssignment and Assumption shall be governed by, and construed in accordance
\nwith, the law of the State of New York.<\/p>\n<\/p>\n<\/p>\n \n
\nExhibit B<\/p>\n \n [Form of Guarantee Assumption Agreement]<\/p>\n \n GUARANTEE ASSUMPTION AGREEMENT<\/p>\n \n GUARANTEE ASSUMPTION AGREEMENT dated as of [ , 20 ] (the “Guarantee
\nAssumption Agreement<\/u>“) by [NAME OF ADDITIONAL SUBSIDIARY GUARANTOR], a
\n[JURISDICTION] [ENTITY TYPE] (the “Additional Subsidiary Guarantor<\/u>“), in
\nfavor of JPMorgan Chase Bank, N.A., as administrative agent under the Credit
\nAgreement referred to below (in such capacity, together with its successors in
\nsuch capacity, the “Administrative Agent<\/u>“. Best Buy Co., Inc., a
\nMinnesota corporation, the Subsidiary Guarantors referred to therein, the
\nLenders referred to therein and the Administrative Agent are parties to a
\n364-Day Credit Agreement dated as of October 7, 2011 (as amended, amended and
\nrestated, supplemented or otherwise modified from time to time, the “Credit
\nAgreement<\/u>“). Capitalized terms used but not defined herein shall have the
\nmeanings given to them in the Credit Agreement<\/p>\n<\/p>\n Pursuant to Section 3.10 or 6.08, as applicable, of the Credit Agreement, the
\nAdditional Subsidiary Guarantor hereby agrees to become a “Subsidiary Guarantor”
\nfor all purposes of the Credit Agreement. Without limiting the foregoing, the
\nAdditional Subsidiary Guarantor hereby, jointly and severally with the other
\nSubsidiary Guarantors, as a primary obligor and not merely as a surety,
\nguarantees to each Lender, each other holder of a Guaranteed Obligation and the
\nAdministrative Agent and their respective successors and assigns the prompt
\npayment in full when due (whether at stated maturity, by acceleration or
\notherwise) of all Guaranteed Obligations in the same manner and to the same
\nextent as is provided in Article III of the Credit Agreement.<\/p>\n<\/p>\n The Additional Subsidiary Guarantor hereby (a) agrees that, from and after
\nthe effectiveness of this Agreement, it shall be bound by all the obligations of
\na “Guarantor” and a “Subsidiary Guarantor” under the Credit Agreement and the
\nother Loan Documents and (b) makes the representations and warranties set forth
\nin Sections 4.01, 4.02 and 4.03 of the Credit Agreement with respect to itself
\nand its obligations under this Agreement, as if each reference in such Sections
\nto the Loan Documents included reference to this Agreement.<\/p>\n<\/p>\n The Additional Subsidiary Guarantor hereby instructs its counsel to deliver
\nthe opinions referred to in Section 3.10 or 6.08, as applicable, of the Credit
\nAgreement to the Lenders and the Administrative Agent.<\/p>\n<\/p>\n The provisions of Sections 10.06, 10.07, 10.09 and 10.10 of the Credit
\nAgreement are hereby incorporated by reference as if fully set forth herein,
\nmutatis mutandis.<\/p>\n<\/p>\n IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has caused this
\nGuarantee Assumption Agreement to be duly executed and delivered as of the day
\nand year first above written.<\/p>\n<\/p>\n [NAME OF ADDITIONAL SUBSIDIARY GUARANTOR]<\/p>\n<\/p>\n by ____________________________<\/p>\n<\/p>\n Name:<\/p>\n<\/p>\n Title:<\/p>\n<\/p>\n<\/p>\n Accepted and agreed:<\/p>\n<\/p>\n<\/p>\n JPMORGAN CHASE BANK, N.A., as Administrative Agent<\/p>\n<\/p>\n by ____________________________<\/p>\n<\/p>\n Name:<\/p>\n<\/p>\n Title:<\/p>\n<\/p>\n<\/p>\n<\/p>\n \n
\nEXHIBIT C<\/p>\n \n<\/p>\n \n [FORM OF]<\/p>\n \n U.S. TAX CERTIFICATE<\/p>\n \n (For Non-U.S. Lenders That Are Not Partnerships For U.S.
\nFederal Income Tax Purposes)<\/p>\n \n Reference is hereby made to the 364-Day Credit Agreement dated as of October
\n7, 2011 (as amended, amended and restated, supplemented or otherwise modified
\nfrom time to time, the “Credit Agreement<\/u>“), among Best Buy Co., Inc. (the
\n“Borrower<\/u>“), a Minnesota corporation, the Subsidiary Guarantors party
\nthereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as the
\nAdministrative Agent.<\/p>\n<\/p>\n Pursuant to the provisions of Section 2.17 of the Credit Agreement, the
\nundersigned hereby certifies that (i) it is the sole record and beneficial owner
\nof the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of
\nwhich it is providing this certificate, (ii) it is not a bank within the meaning
\nof Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder
\nof the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it
\nis not a controlled foreign corporation related to the Borrower as described in
\nSection 881(c)(3)(C) of the Code and (v) the interest payments in question are
\nnot effectively connected with the undersigned’s conduct of a U.S. trade or
\nbusiness.<\/p>\n<\/p>\n The undersigned has furnished the Administrative Agent and the Borrower with
\na certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing
\nthis certificate, the undersigned agrees that (1) if the information provided on
\nthis certificate changes, the undersigned shall promptly so inform the Borrower
\nand the Administrative Agent and (2) the undersigned shall have at all times
\nfurnished the Borrower and the Administrative Agent with a properly completed
\nand currently effective certificate in either the calendar year in which each
\npayment is to be made to the undersigned, or in either of the two calendar years
\npreceding such payments.<\/p>\n<\/p>\n Unless otherwise defined herein, terms defined in the Credit Agreement and
\nused herein shall have the meanings given to them in the Credit Agreement.<\/p>\n<\/p>\n [NAME OF LENDER]<\/p>\n<\/p>\n By:______________________________________<\/p>\n<\/p>\n Name:<\/p>\n<\/p>\n Title:<\/p>\n<\/p>\n<\/p>\n Date: ________ __, 20[ ]<\/p>\n<\/p>\n<\/p>\n<\/p>\n \n
\n[FORM OF]<\/p>\n \n U.S. TAX CERTIFICATE<\/p>\n \n (For Non-U.S. Lenders That Are Partnerships For U.S. Federal
\nIncome Tax Purposes)<\/p>\n \n Reference is hereby made to the 364-Day Credit Agreement dated as of October
\n7, 2011 (as amended, amended and restated, supplemented or otherwise modified
\nfrom time to time, the “Credit Agreement<\/u>“), among Best Buy Co., Inc. (the
\n“Borrower<\/u>“), a Minnesota corporation, the Subsidiary Guarantors party
\nthereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as the
\nAdministrative Agent.<\/p>\n<\/p>\n Pursuant to the provisions of Section 2.17 of the Credit Agreement, the
\nundersigned hereby certifies that (i) it is the sole record owner of the Loan(s)
\n(as well as any Note(s) evidencing such Loan(s)) in respect of which it is
\nproviding this certificate, (ii) its partners\/members are the sole beneficial
\nowners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii)
\nwith respect to the extension of credit pursuant to this Credit Agreement,
\nneither the undersigned nor any of its partners\/members is a bank extending
\ncredit pursuant to a loan agreement entered into in the ordinary course of its
\ntrade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv)
\nnone of its partners\/members is a ten percent shareholder of the Borrower within
\nthe meaning of Section 871(h)(3)(B) of the Code, (v) none of its
\npartners\/members is a controlled foreign corporation related to the Borrower as
\ndescribed in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in
\nquestion are not effectively connected with the undersigned’s or its
\npartners\/members’ conduct of a U.S. trade or business.<\/p>\n<\/p>\n The undersigned has furnished the Administrative Agent and the Borrower with
\nIRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of its
\npartners\/members claiming the portfolio interest exemption. By executing this
\ncertificate, the undersigned agrees that (1) if the information provided on this
\ncertificate changes, the undersigned shall promptly so inform the Borrower and
\nthe Administrative Agent and (2) the undersigned shall have at all times
\nfurnished the Borrower and the Administrative Agent with a properly completed
\nand currently effective certificate in either the calendar year in which each
\npayment is to be made to the undersigned, or in either of the two calendar years
\npreceding such payments.<\/p>\n<\/p>\n Unless otherwise defined herein, terms defined in the Credit Agreement and
\nused herein shall have the meanings given to them in the Credit Agreement.<\/p>\n<\/p>\n [NAME OF LENDER]<\/p>\n<\/p>\n By:______________________________________<\/p>\n<\/p>\n Name:<\/p>\n<\/p>\n Title:<\/p>\n<\/p>\n<\/p>\n Date: ________ __, 20[ ]<\/p>\n<\/p>\n<\/p>\n<\/p>\n \n
\n[FORM OF]<\/p>\n \n U.S. TAX CERTIFICATE<\/p>\n \n (For Non-U.S. Participants That Are Not Partnerships For U.S.
\nFederal Income Tax Purposes)<\/p>\n \n Reference is hereby made to the 364-Day Credit Agreement dated as of October
\n7, 2011 (as amended, amended and restated, supplemented or otherwise modified
\nfrom time to time, the “Credit Agreement<\/u>“), among Best Buy Co., Inc. (the
\n“Borrower<\/u>“), a Minnesota corporation, the Subsidiary Guarantors party
\nthereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as the
\nAdministrative Agent.<\/p>\n<\/p>\n Pursuant to the provisions of Section 2.17 of the Credit Agreement, the
\nundersigned hereby certifies that (i) it is the sole record and beneficial owner
\nof the participation in respect of which it is providing this certificate, (ii)
\nit is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii)
\nit is not a ten percent shareholder of the Borrower within the meaning of
\nSection 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign
\ncorporation related to the Borrower as described in Section 881(c)(3)(C) of the
\nCode, and (v) the interest payments in question are not effectively connected
\nwith the undersigned’s conduct of a U.S. trade or business.<\/p>\n<\/p>\n The undersigned has furnished its participating Lender with a certificate of
\nits non-U.S. Person status on IRS Form W-8BEN. By executing this certificate,
\nthe undersigned agrees that (1) if the information provided on this certificate
\nchanges, the undersigned shall promptly so inform such Lender in writing and (2)
\nthe undersigned shall have at all times furnished such Lender with a properly
\ncompleted and currently effective certificate in either the calendar year in
\nwhich each payment is to be made to the undersigned, or in either of the two
\ncalendar years preceding such payments.<\/p>\n<\/p>\n Unless otherwise defined herein, terms defined in the Credit Agreement and
\nused herein shall have the meanings given to them in the Credit Agreement.<\/p>\n<\/p>\n<\/p>\n [NAME OF PARTICIPANT]<\/p>\n<\/p>\n By:______________________________________<\/p>\n<\/p>\n Name:<\/p>\n<\/p>\n Title:<\/p>\n<\/p>\n<\/p>\n Date: ________ __, 20[ ]<\/p>\n<\/p>\n<\/p>\n<\/p>\n \n
\nEXHIBIT D<\/p>\n \n [Form of Borrowing Request]<\/p>\n \n BORROWING REQUEST<\/p>\n \n [Date]<\/p>\n \n JPMorgan Chase Bank, N.A., as Administrative Agent<\/p>\n<\/p>\n for the Lenders party to the Credit Agreement referred to below<\/p>\n<\/p>\n Attention: [ ]<\/p>\n<\/p>\n Ladies and Gentlemen:<\/p>\n<\/p>\n The undersigned, Best Buy Co., Inc., a Minnesota corporation (the
\n“Borrower<\/u>“), refers to the 364-Day Credit Agreement dated as of October
\n7, 2011, among the Borrower, the Subsidiary Guarantors party thereto, the
\nLenders party thereto and the Administrative Agent (as amended, amended and
\nrestated, supplemented or otherwise modified from time to time, the “Credit
\nAgreement<\/u>“), and hereby gives you notice, pursuant to Section 2.03 of the
\nCredit Agreement, that the undersigned hereby requests a Syndicated Borrowing
\nunder the Credit Agreement, and in that connection sets forth below the
\ninformation relating to such Borrowing as required by Section 2.03(b) of the
\nCredit Agreement:<\/p>\n<\/p>\n (i) the aggregate principal amount of the Borrowing is ________;<\/p>\n<\/p>\n (ii) the date of the Borrowing is [must be a Business Day]________;<\/p>\n<\/p>\n (iii) the Type of Loans initially comprising the Borrowing is [ABR Loans]
\n[Eurocurrency Loans];<\/p>\n<\/p>\n (iv) the initial Interest Period for each Loan made as part of the Borrowing
\nis ______ [days\/month[s]]7<\/sup>; and<\/p>\n<\/p>\n(v) [the Borrowing is to be credited to the Borrower at [ ], ABA #[ ],
\nAccount #[ ], Attention:[ ]].<\/p>\n<\/p>\n \n ________________________________________________<\/sup><\/p>\n<\/p>\n7<\/sup> For Eurocurrency Loans only. To be a period permitted under the
\ndefinition of “Interest Period” in the Credit Agreement.<\/p>\n<\/p>\n<\/p>\n<\/p>\n\n
\nVery truly yours,<\/p>\n<\/p>\n \n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n BEST BUY CO., INC.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n<\/p>\n <\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6890],"corporate_contracts_industries":[9497],"corporate_contracts_types":[9561,9560],"class_list":["post-40867","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-best-buy-co-inc","corporate_contracts_industries-retail__electronics","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40867","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40867"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40867"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40867"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40867"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}} | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |