exv10w1






EXHIBIT 10.1




EXECUTION VERSION




 

 













CREDIT AGREEMENT




dated as of June 13, 2008




among




PAREXEL INTERNATIONAL CORPORATION

PAREXEL INTERNATIONAL HOLDING B.V.

and

PAREXEL INTERNATIONAL HOLDING UK LIMITED

as Borrowers,




Certain Subsidiaries of the Borrowers,




The Lenders Party Hereto,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




and




J.P. MORGAN EUROPE LIMITED

as London Agent




and




KEYBANK NATIONAL ASSOCIATION,

as Syndication Agent




 






	 	 	 
	J.P. MORGAN SECURITIES INC.
	 	KEYBANK NATIONAL ASSOCIATION
	as Joint Bookrunner and Joint Lead Arranger
	 	as Joint Bookrunner and Joint Lead Arranger






 

 




 









 






TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	ARTICLE I.
	 	Definitions	 	 	1	 
	Section 1.1.
	 	 	 	Defined Terms	 	 	1	 
	Section 1.2.
	 	 	 	Classification of Loans and Borrowings	 	 	20	 
	Section 1.3.
	 	 	 	Terms Generally	 	 	20	 
	Section 1.4.
	 	 	 	Accounting Terms; GAAP	 	 	20	 
	Section 1.5.
	 	 	 	Currency Translation	 	 	21	 
	ARTICLE II.
	 	The Credits	 	 	21	 
	Section 2.1.
	 	 	 	Commitments	 	 	21	 
	Section 2.2.
	 	 	 	Loans and Borrowings	 	 	21	 
	Section 2.3.
	 	 	 	Requests for Borrowings	 	 	22	 
	Section 2.4.
	 	 	 	Swingline Loans	 	 	23	 
	Section 2.5.
	 	 	 	Letters of Credit	 	 	24	 
	Section 2.6.
	 	 	 	Funding of Borrowings	 	 	29	 
	Section 2.7.
	 	 	 	Interest Elections	 	 	29	 
	Section 2.8.
	 	 	 	Termination and Reduction of Commitments	 	 	31	 
	Section 2.9.
	 	 	 	Repayment of Loans; Evidence of Debt; Amortization of Term Loans	 	 	32	 
	Section 2.10.
	 	 	 	Prepayment of Loans	 	 	32	 
	Section 2.11.
	 	 	 	Fees	 	 	33	 
	Section 2.12.
	 	 	 	Interest	 	 	35	 
	Section 2.13.
	 	 	 	Alternate Rate of Interest	 	 	36	 
	Section 2.14.
	 	 	 	Increased Costs	 	 	36	 
	Section 2.15.
	 	 	 	Break Funding Payments	 	 	37	 
	Section 2.16.
	 	 	 	Taxes	 	 	38	 
	Section 2.17.
	 	 	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	 	 	40	 
	Section 2.18.
	 	 	 	Mitigation Obligations; Replacement of Lenders	 	 	42	 
	Section 2.19.
	 	 	 	Foreign Subsidiary Costs	 	 	43	 
	Section 2.20.
	 	 	 	Redenomination of Certain Alternative Currencies	 	 	43	 
	Section 2.21.
	 	 	 	Designation of US Subsidiary Borrowers and Foreign Borrowers	 	 	44	 
	Section 2.22.
	 	 	 	Increase in Commitments	 	 	44	 






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TABLE OF CONTENTS

(cont’d.)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	ARTICLE III.
	 	Representations and Warranties	 	 	45	 
	Section 3.1.
	 	 	 	Organization; Powers	 	 	45	 
	Section 3.2.
	 	 	 	Authorization; Enforceability	 	 	46	 
	Section 3.3.
	 	 	 	Governmental Approvals; No Conflicts	 	 	46	 
	Section 3.4.
	 	 	 	Financial Condition; No Material Adverse Change	 	 	46	 
	Section 3.5.
	 	 	 	Properties	 	 	46	 
	Section 3.6.
	 	 	 	Litigation and Environmental Matters	 	 	47	 
	Section 3.7.
	 	 	 	Compliance with Laws and Agreements	 	 	47	 
	Section 3.8.
	 	 	 	Investment and Holding Company Status	 	 	47	 
	Section 3.9.
	 	 	 	Taxes	 	 	47	 
	Section 3.10.
	 	 	 	ERISA	 	 	47	 
	Section 3.11.
	 	 	 	Disclosure	 	 	48	 
	Section 3.12.
	 	 	 	Subsidiaries	 	 	48	 
	Section 3.13.
	 	 	 	Federal Regulations	 	 	48	 
	Section 3.14.
	 	 	 	Specially Designated Nationals or Blocked Persons List	 	 	48	 
	ARTICLE IV.
	 	Conditions	 	 	48	 
	Section 4.1.
	 	 	 	Effective Date	 	 	48	 
	Section 4.2.
	 	 	 	Each Credit Event	 	 	50	 
	Section 4.3.
	 	 	 	Initial Credit Event for each Additional Borrower	 	 	50	 
	ARTICLE V.
	 	Affirmative Covenants	 	 	51	 
	Section 5.1.
	 	 	 	Financial Statements; Ratings Change and Other Information	 	 	51	 
	Section 5.2.
	 	 	 	Notices of Material Events	 	 	52	 
	Section 5.3.
	 	 	 	Existence; Conduct of Business	 	 	52	 
	Section 5.4.
	 	 	 	Payment of Obligations	 	 	52	 
	Section 5.5.
	 	 	 	Maintenance of Properties; Insurance	 	 	53	 
	Section 5.6.
	 	 	 	Books and Records; Inspection Rights	 	 	53	 
	Section 5.7.
	 	 	 	Compliance with Laws	 	 	53	 
	Section 5.8.
	 	 	 	Use of Proceeds and Letters of Credit	 	 	53	 
	Section 5.9.
	 	 	 	Additional Subsidiaries	 	 	53	 
	ARTICLE VI.
	 	Negative Covenants	 	 	54	 






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TABLE OF CONTENTS

(cont’d.)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	Section 6.1.
	 	 	 	Indebtedness	 	 	54	 
	Section 6.2.
	 	 	 	Liens	 	 	55	 
	Section 6.3.
	 	 	 	Fundamental Changes	 	 	55	 
	Section 6.4.
	 	 	 	Investments, Loans, Advances, Guarantees and Acquisitions	 	 	57	 
	Section 6.5.
	 	 	 	Swap Agreements	 	 	57	 
	Section 6.6.
	 	 	 	Restricted Payments	 	 	57	 
	Section 6.7.
	 	 	 	Transactions with Affiliates	 	 	57	 
	Section 6.8.
	 	 	 	Restrictive Agreements	 	 	58	 
	Section 6.9.
	 	 	 	Financial Covenants	 	 	58	 
	Section 6.10.
	 	 	 	Capital Expenditures	 	 	59	 
	Section 6.11.
	 	 	 	Fiscal Year	 	 	59	 
	Section 6.12.
	 	 	 	Transfers from Credit Parties to Non-Credit Parties	 	 	59	 
	ARTICLE VII.
	 	Events of Default	 	 	59	 
	ARTICLE VIII.
	 	The Agents	 	 	61	 
	ARTICLE IX.
	 	GUARANTEE	 	 	63	 
	ARTICLE X.
	 	Miscellaneous	 	 	65	 
	Section 10.1.
	 	 	 	Notices	 	 	65	 
	Section 10.2.
	 	 	 	Waivers; Amendments	 	 	66	 
	Section 10.3.
	 	 	 	Expenses; Indemnity; Damage Waiver	 	 	67	 
	Section 10.4.
	 	 	 	Successors and Assigns	 	 	68	 
	Section 10.5.
	 	 	 	Survival	 	 	72	 
	Section 10.6.
	 	 	 	Counterparts; Integration; Effectiveness	 	 	72	 
	Section 10.7.
	 	 	 	Severability	 	 	73	 
	Section 10.8.
	 	 	 	Right of Setoff	 	 	73	 
	Section 10.9.
	 	 	 	Governing Law; Jurisdiction; Consent to Service of Process	 	 	73	 
	Section 10.10.
	 	 	 	WAIVER OF JURY TRIAL	 	 	74	 
	Section 10.11.
	 	 	 	Headings	 	 	74	 
	Section 10.12.
	 	 	 	Confidentiality	 	 	74	 
	Section 10.13.
	 	 	 	Interest Rate Limitation	 	 	75	 
	Section 10.14.
	 	 	 	Conversion of Currencies	 	 	76	 






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TABLE OF CONTENTS

(cont’d.)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	Section 10.15.
	 	 	 	Releases of Guarantees	 	 	76	 
	Section 10.16.
	 	 	 	USA PATRIOT Act	 	 	77	 
	Section 10.17.
	 	 	 	No Fiduciary Duty	 	 	77	 
	Section 10.18.
	 	 	 	Liability for Obligations	 	 	78	 






iv









 








SCHEDULES:




Schedule P-1 — Certain Permitted Investments

Schedule 2.1 — Commitments

Schedule 3.6 — Disclosed Matters

Schedule 3.12 — Subsidiaries

Schedule 6.1 — Existing Indebtedness

Schedule 6.2 — Existing Liens

Schedule 6.8 — Existing Restrictions




EXHIBITS:




Exhibit A — Form of Assignment and Assumption

Exhibit B — Form of Subsidiary Guarantee Agreement

Exhibit C — Mandatory Costs Rate

Exhibit D — Form of Borrower Joinder Agreement

Exhibit E — Form of Borrower Termination Agreement

Exhibit F — Form of Instrument of Adherence

Exhibit G — Form of Borrowing Request





v











 






     CREDIT AGREEMENT (this “Agreement”) dated as of June 13, 2008,
among PAREXEL INTERNATIONAL CORPORATION, a Massachusetts corporation (the
“Administrative Borrower”), PAREXEL INTERNATIONAL HOLDING B.V., a
private company with limited liability (besloten vennootschap met beperkte
aansprakelijkheid) (the “Dutch Borrower”), PAREXEL INTERNATIONAL
HOLDING UK LIMITED, a United Kingdom corporation (“Bidco”; and
together with the Administrative Borrower, the Dutch Borrower and the other
Persons who are or hereafter are designated as Borrowers pursuant to
Section 2.21 hereto, the “Borrowers”), the Subsidiaries of
the Borrowers party hereto, the LENDERS party hereto, JPMORGAN CHASE BANK,
N.A., as Administrative Agent, and J.P. MORGAN EUROPE LIMITED, as London
Agent.




     The parties hereto agree as follows:



ARTICLE I.

DEFINITIONS




     SECTION 1.1. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



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



     “Acquisition” means the purchase or acquisition by any Person of (a) more than 50% of
the Equity Interests with ordinary voting power of another Person or (b) all or any substantial
portion of the property (other than Equity Interests) of another Person, whether or not involving a
merger or consolidation with such Person.



     “Acquisition Costs” means fees (including the fees payable under the Syndication and
Fee Letter) and expenses (including taxes thereon) and all stamp, documentary, registration or
similar taxes and duties payable by or incurred by or on behalf of the Administrative Borrower,
Bidco or the ClinPhone Group in connection with this Agreement, the Scheme and/or the Scheme
Acquisition or, if the Offer Conversion Date occurs, the Takeover Offer and/or the Takeover Offer
Acquisition, including, without limitation, the preparation and negotiation of and entry into the
necessary financing documents and all other documentation in relation to the Scheme and the Scheme
Acquisition or the Takeover Offer and the Takeover Offer Acquisition (as applicable).



     “Additional Lender” has the meaning set forth in Section 2.22.



     “Adjusted EURIBO Rate” means, with respect to any EURIBOR Borrowing for any Interest
Period, an interest rate per annum equal to the sum of (a) the EURIBO Rate for such Interest Period
and (b) the Mandatory Costs Rate.



 









 





     “Adjusted LIBO Rate” means (a) with respect to any Eurocurrency Borrowing denominated
in US Dollars for any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (i) the LIBO Rate for such Interest Period multiplied by (ii) the
Statutory Reserve Rate and (b) with respect to any Eurocurrency Borrowing denominated in an
Alternative Currency (other than Euros) for an Interest Period, any interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to (x) the LIBO Rate for such
Interest Period plus (y) the Mandatory Costs Rate.



     “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder.



     “Administrative Agent Fee Letter” means the administrative agent fee letter agreement
dated as of June 12, 2008, between the Administrative Agent and the Administrative Borrower.



     “Administrative Borrower” shall have the meaning specified in the preamble.



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



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



     “Agents” means the Administrative Agent and the London Agent.



     “Agreement” shall have the meaning specified in the preamble.



     “Agreement Currency” has the meaning assigned to such term in Section
10.14(b).



     “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.



     “Alternative Currency” means (a) Euros, (b) Sterling, (c) Yen and (d) any other
currency that is freely transferable and convertible into US Dollars in the London market and for
which LIBO Rates can be determined by reference to the Screen Rate as provided in the definition of
“LIBO Rate”, and is acceptable to all of the Lenders and the Applicable Agent.



     “Announcement Date” means the date the Press Release (or, if the Offer Conversion has
occurred prior to such date, the Offer Press Announcement) is issued (provided that such date shall
be on or prior to the date falling 10 days after the date of this Agreement).



     “Applicable Agent” means (a) with respect to a Loan or Borrowing denominated in US
Dollars or any Letter of Credit, and with respect to any payment hereunder that does not relate to
a particular Loan or Borrowing, the Administrative Agent and (b) with respect to a Loan or
Borrowing denominated in an Alternative Currency, the London Agent.



2









 





     “Applicable Creditor” has the meaning assigned to such term in Section
10.14(b).



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



     “Applicable Rate” means the following percentages per annum, based on the Consolidated
Leverage Ratio as of the end of the most recent Reference Period for which financial statements
shall have been delivered pursuant to Section 5.1(a) or (b):



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	When determined	 	 
	 	 	 	 	with reference to	 	 
	 	 	 	 	the Adjusted LIBO	 	 
	 	 	 	 	Rate and the	 	When determined
	 	 	Consolidated	 	Adjusted EURIBO	 	with reference to
	Pricing Level	 	Leverage Ratio	 	Rate	 	ABR
	1

	 	£
 0.75:1.00
	 	 	1.000	%	 	 	0	%
	2

	 	> 0.75:1.00 and
£
 1.50:1.00
	 	 	1.250	%	 	 	0.250	%
	3

	 	> 1.50:1.00 and
£
 2.25:1.00
	 	 	1.500	%	 	 	0.500	%
	4

	 	> 2.25:1.00
	 	 	1.750	%	 	 	0.750	%






Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
certificate is delivered pursuant to Section 5.1(c); provided that if such
certificate is not delivered when due in accordance with such Section, then Pricing Level 4
shall apply as of the first Business Day after the date on which such certificate was required to
have been delivered until such certificate is delivered, after which the Applicable Rate shall be
determined from such certificate. The Applicable Rate in effect from the date hereof through the
date on which such certificate in respect of the Reference Period ending on the last day of the
second full fiscal quarter completed after the Initial Funding Date is delivered to the
Administrative Agent and the Lenders in accordance with Section 5.1(c) shall be determined
based upon Pricing Level 3.



     “Approved Fund” has the meaning assigned to such term in Section 10.4.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.4), and accepted by the Administrative Agent, in the form of Exhibit A or any other
form approved by the Administrative Agent, and reasonably acceptable to the Administrative
Borrower.



3









 





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



     “Bidco” shall have the meaning specified in the preamble.



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



     “Borrower Joinder Agreement” means a Borrower Joinder Agreement substantially in the
form of Exhibit D.



     “Borrower Termination Agreement” means a Borrower Termination Agreement, substantially
in the form of Exhibit E.



     “Borrowers” shall have the meaning specified in the recitals hereto.



     “Borrowing” means (a) Loans of the same Class and Type, made, converted or continued
on the same date and, in the case of Eurocurrency Loans or EURIBOR Loans, as to which a single
Interest Period is in effect or (b) a Swingline Loan.



     “Borrowing Minimum” means (a) in the case of a Borrowing denominated in US Dollars,
US$2,000,000 and (b) in the case of a Borrowing denominated in any other Alternative Currency, the
smallest amount of such Alternative Currency that is an integral multiple of 1,000,000 units of
such currency and that has a US Dollar Equivalent in excess of US$2,000,000.



     “Borrowing Multiple” means (a) in the case of a Borrowing denominated in US Dollars
US$500,000 and (b) in the case of a Borrowing denominated in any other Alternative Currency,
500,000 units of such currency.



     “Borrowing Request” means a request by a Borrower for a Revolving Borrowing in
accordance with Section 2.3 in the form of Exhibit G.



     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that (a) when used in connection with a Eurocurrency Loan, the term “Business
Day”
shall also exclude any day on which banks are not open for dealings in deposits in such
currency in the London interbank market and in the country of issue of the currency of such
Eurocurrency Loan and (b) when used in connection with EURIBOR Loan, the term “Business Day” shall
also exclude any day on which the TARGET payment system is not open for the settlement of payments
in Euros.



     “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



4









 





     “Capital Reduction” means the reduction of ClinPhone’s share capital associated with
the cancellation and extinguishing of ClinPhone Shares provided for by the Scheme pursuant to
Sections 135 to 141 of the Companies Act 1985.



     “Cash Pooling Financing” means a customary corporate treasury cash pooling overdraft
facility established with a Lender or an Affiliate of a Lender.



     “CCT” means California Clinical Trials Medical Group, Inc., a California corporation.



     “CCT Agreements” means collectively, (a) that certain Management Agreement, dated as
of November 15, 2006, by and between the Administrative Borrower and CCT, (b) that certain Stock
Transfer Restriction Agreement, dated as of November 15, 2006, by and among the Administrative
Borrower, CCT, Murray H. Rosenthal and the stockholder of CCT, and (c) that certain Stock Transfer
Restriction Agreement, dated as of November 15, 2006, by and among the Murray H. Rosenthal, the
Administrative Borrower and CCT Holding Company Medical Group, Inc.



     “CCT Transactions” means the CCT Agreements, any modifications, replacements or
supplements to the CCT Agreements that are not materially adverse to the Administrative Borrower,
and the performance of obligations of the parties under the CCT Agreements, as modified.



     “Certain Funds Default” means any circumstance constituting:




     (a) an Event of Default under paragraphs (a) or (b) of Article VII; or




     (b) an Event of Default under paragraph (c) of Article VII insofar as it relates to a
breach of a Certain Funds Representation; or




     (c) an Event of Default under paragraph (d) of Article VII insofar as it relates to:




     (i) a breach of Section 6.1 caused by a Borrower or one of the Material CF
Subsidiaries to the extent that such breach first occurs after the date of this
Agreement and results from a wilful act or a wilful failure to act on the part of
such Borrower or such Subsidiary, as the case may be; or




     (ii) a breach of Section 6.2, 6.3 or 6.4 caused by a Borrower; or




     (iii) a breach of Section 6.13, 6.14 or 6.15; or




     (c) an Event of Default under paragraph (h), (i), (j) or (k) of Article VII insofar as
it relates to a Borrower or a Material Subsidiary which is not a member of the ClinPhone
Group but excluding, in relation to paragraph (h), any Event of Default caused by a
frivolous or vexatious (and in either case, lacking in merit) action, proceeding or petition
against a Borrower or Material Subsidiary and in respect of which no order or decree
described in such paragraph (h) shall have been entered.



5









 





     “Certain Funds Period” means:



     (1) unless the Offer Conversion occurs, the period commencing on the Announcement Date and
ending on the earlier of:




     (a) the date falling 180 days after the Announcement Date;




     (b) the date the Scheme lapses, is withdrawn or is rejected by the relevant court; and




     (c) the date ClinPhone becomes a Subsidiary and all the ClinPhone Shares have been paid
for; or



     (2) following the Offer Conversion, the period commencing on the Announcement Date and ending
on the earlier of:




     (a) the date falling 180 days after the Announcement Date;




     (b) the date the Takeover Offer lapses or is withdrawn;




     (c) the date falling 10 Business Days after the date 6 weeks after any Takeover Offer
Squeeze-Out Notice is issued by Bidco; and




     (d) the date ClinPhone becomes a Subsidiary and all amounts owing in consideration of
the acquisition of the ClinPhone Shares have been paid,



     provided that in the case of paragraphs (1)(b), 1(c), 2(b) and 2(d), the Certain Funds
Period shall end immediately on the occurrence of the circumstances set out in such paragraph.



     “Certain Funds Purpose” means:



     (1) unless the Offer Conversion occurs:




     (a) payment of all or part of the cash price payable by Bidco to the holders of the
ClinPhone Shares in consideration of either (i) the ClinPhone Shares being cancelled and the
New ClinPhone Shares being issued to Bidco pursuant to the Scheme or (ii) the compulsory
purchase of their ClinPhone Shares as contemplated by paragraph (b) of the definition of
“Scheme Acquisition”;




     (b) repayment of loans and transfer of letters of credit outstanding under the Existing
Credit Agreement; and




     (c) financing the Acquisition Costs; or



     (2) if the Offer Conversion occurs:




     (a) payment of all or part of the cash price payable by Bidco to the holders of the
ClinPhone Shares in consideration of the acquisition of such ClinPhone Shares pursuant to
the Takeover Offer;



6









 






     (b) repayment of loans and transfer of letters of credit outstanding under the Existing
Credit Agreement;




     (c) payment of the cash consideration payable pursuant to the operation by Bidco of the
procedures contained in Part 28, Chapter 3 of the Companies Act 2006;




     (d) financing the consideration payable to holders of options to acquire ClinPhone
Shares pursuant to any proposal in respect of those options as required by the City Code;
and




     (e) financing the Acquisition Costs; or



     “Certain Funds Representations” means each of the representations set out in Sections
3.1, 3.2, paragraphs (a) and (b) of 3.3 and 3.15, 3.16 and 3.17, in each case only insofar as it
applies to a Borrower or one of the Material CF Subsidiaries.



     “Certain Funds Utilisation” means the borrowing of the Loans and the issue of Letters
of Credit on a date during the Certain Funds Period for the Certain Funds Purpose.



     “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of Equity Interests representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Administrative Borrower; (b)
occupation of a majority of the seats (other than vacant seats) on the board of directors of the
Administrative Borrower by Persons who were neither (i) nominated by the board of directors of the
Administrative Borrower nor (ii) appointed by directors so nominated; or (c) the acquisition of
direct or indirect Control of the Administrative Borrower by any Person or group.



     “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.14(b), by any
lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any)
with any request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.



     “City Code” means the City Code on Takeovers and Mergers.



     “Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Term Loans, Revolving Loans or Swingline Loans or
are of a class of term loans established pursuant to Section 2.22, (b) any Commitment, refers to
whether such Commitment is a Term Commitment or a Revolving Commitment and (c) any Lender, refers
to whether such Lender has a Loan or Commitment of a particular Class.



     “ClinPhone” means ClinPhone plc, a company incorporated in England and Wales with
registered number 05204138.



7









 





     “ClinPhone Acquisition” means the acquisition by Bidco of the ClinPhone Shares, to be
effected by way of the Scheme Acquisition or, if the Offer Conversion occurs, the Takeover Offer
Acquisition.



     “ClinPhone Acquisition Documents” means the Scheme Documents and all documents
executed or to be executed pursuant to, or in connection with, the Scheme.



     “ClinPhone Group” means ClinPhone and its subsidiaries.



     “ClinPhone Shares” means all of the issued and to be issued shares of ClinPhone.



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



     “Commitment” means a Term Commitment, a Revolving Commitment or any combination
thereof (as the context requires).



     “Commitment Increase Notice” has the meaning set forth in Section 2.22.



     “Consolidated” or “consolidated” means with reference to any term defined
herein, that term as applied to the accounts of the Administrative Borrower and its Subsidiaries,
consolidated in accordance with GAAP.



     “Consolidated Capital Expenditures” means, for any period for the Administrative
Borrower and its Subsidiaries, without duplication, all expenditures (whether paid in cash or other
consideration) during such period that, in accordance with GAAP, are or should be included in
additions to property, plant and equipment or similar items reflected in the consolidated statement
of cash flows for such period; provided, that Consolidated Capital Expenditures shall not
include, for purposes hereof, (a) expenditures in connection with any Acquisition permitted
hereunder or (b) expenditures of proceeds of insurance settlements, condemnation awards and other
settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property
to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or
condemned assets, equipment or property.



     “Consolidated EBITDA” means, for any period, for the Administrative
Borrower and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus the following to the extent deducted in calculating such Consolidated Net
Income: (a) Consolidated Interest Charges for such period, (b) the provision for federal, state,
local and foreign income taxes payable by the Administrative Borrower and its Subsidiaries for such
period, (c) depreciation, and (d) amortization expense. For the Reference Period ending on the
last day of the fiscal quarter in which the ClinPhone Acquisition is consummated and for each
period prior to the consummation of the ClinPhone Acquisition, Consolidated EBITDA will be
calculated based on the foregoing definition on a pro forma basis as if ClinPhone and its
subsidiaries had been Subsidiaries during such period.



     “Consolidated Interest Charges” means, for any period, for the Administrative Borrower
and its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt
discount, fees, charges and related expenses of the Administrative Borrower and its Subsidiaries in
connection with borrowed money (including capitalized interest) or in connection with the



8









 







deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP
and (b) the portion of rent expense of the Administrative Borrower and its Subsidiaries with
respect to such period under capital leases that is treated as interest in accordance with GAAP.
For periods following the completion of the first full fiscal quarter after the consummation of the
ClinPhone Acquisition but prior to the completion of the fourth such full fiscal quarter,
Consolidated Interest Charges shall be calculated on an annualized basis based solely on the full
fiscal quarters completed after the consummation of the ClinPhone Acquisition (such that
“Consolidated Interest Charges” for the Reference Period (i) ending on the last day of
the first full fiscal quarter after the consummation of the ClinPhone Acquisition shall equal
four times the Consolidated Interest Charges for such fiscal quarter, (ii) ending on the last day
of the second such quarter shall equal two times the Consolidated Interest Charges for the first
two such fiscal quarters and (iii) ending on the last day of the third such fiscal quarter shall
equal 4/3 times the Consolidated Interest Charges for the first three such fiscal quarters).
Consolidated Interest Charges for the Reference Period ending on the last day of the fiscal quarter
in which the ClinPhone Acquisition is consummated shall be calculated by determining “Consolidated
Interest Charges” for such quarter on a pro forma basis as if such consummation had occurred (and
the Indebtedness to be incurred upon such consummation had been incurred and the Indebtedness to be
repaid at such time had been repaid) on the first day of such quarter and multiplying the amount so
determined by four.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the most recently ended Reference Period, to (b) Consolidated
Interest Charges for such Reference Period.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Total Debt as of such date, to (b) Consolidated EBITDA for the most recently ended
Reference Period.



     “Consolidated Net Income” means, for any period, for the Administrative Borrower and
its Subsidiaries on a consolidated basis, the net income of the Administrative Borrower and its
Subsidiaries (excluding extraordinary gains and extraordinary non-cash losses) for such period.



     “Consolidated Net Worth” means, as to any Person as of any date of determination, all
amounts which should be included under shareholders’ equity on a balance sheet of such Person and
its Subsidiaries determined on a consolidated basis as of such date in accordance with GAAP.



     “Consolidated Total Debt” means, as of any date of determination, the outstanding
principal amount of all Indebtedness of Administrative Borrower and its Subsidiaries.



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



9









 





     “Controlled Foreign Corporation” means (a) each Subsidiary that is a “controlled
foreign corporation” for purposes of the Code and (b) each subsidiary of each such controlled
foreign corporation.



     “Court” means The High Court of England & Wales.



     “Credit Party” means each of the Administrative Borrower and each Subsidiary Guarantor
that is party to a Subsidiary Guarantee Agreement.



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



     “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.6.



     “Dutch Borrower” shall have the meaning specified in the preamble.



     “Effective Date” means the date on which the conditions specified in Section
4.1 are satisfied (or waived in accordance with Section 10.2).



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



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



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



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



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



     “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Administrative Borrower, is treated as a single employer under Section 414(b)



10









 







or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the Code.



     “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) any failure by any Plan to satisfy the minimum funding standard
(within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in
each case whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Administrative Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by
the Administrative Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Administrative Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Administrative Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Administrative Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning
of Title IV of ERISA, or in endangered or critical status, within the meaning of Section 305 of
ERISA; or (h) a determination that any Plan is, or is expected to be, in “at-risk” status (as
defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code).



     “EURIBO Rate” means, with respect to any EURIBOR Borrowing for any Interest Period,
(a) the applicable Screen Rate or (b) if no Screen Rate is available for such Interest Period, the
arithmetic mean of the rates quoted by the London Agent to leading banks in the Banking Federation
of the European Union for the offering of deposits in Euros for a period comparable to such
Interest Period, in each case as of 11:00 a.m., Brussels time on the Quotation Day.



     “EURIBOR”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted EURIBO Rate.



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



     “Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.



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



     “Exchange Rate” means on any day, for purposes of determining the US Dollar Equivalent
of any other currency, the rate at which such other currency may be exchanged into US Dollars at
the time of determination on such day set forth on the Reuters WRLD Page for



11









 







such currency. In the event that such rate does not appear on any Reuters WRLD Page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying exchange rates as
may be agreed upon by the Applicable Agent and the Administrative Borrower, or, in the absence of
such an agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of
exchange of the Applicable Agent in the market where its foreign currency exchange operations in
respect of such currency are then being conducted, at or about such time as the Applicable Agent
shall elect after determining that such rates shall be the basis for determining the Exchange Rate,
on such date for the purchase of US Dollars for delivery two Business Days later; provided
that if at the time of any such determination, for any reason, no such spot rate is being quoted,
the Applicable Agent may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
any Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income
by the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or as a result of any present or former
connection between any Agent, any Lender or the Issuing Bank and the jurisdiction imposing such tax
or any political subdivision or taxing authority thereof (other than a connection arising solely as
a result of its execution and delivery of any Loan Document or its exercise of its rights or
performance of its obligations thereunder or otherwise as a result of its participation in the
transactions contemplated by the Loan Documents) or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which such Borrower is located or
where such recipient is organized or in which its principal office is located or, in the case of
any Lender, in which its applicable lending office is located, and (c) in the case of a Lender
(other than an assignee pursuant to a request by the Administrative Borrower under Section
2.18(b)), any withholding tax that is imposed by the United States, the Netherlands or the
United Kingdom on amounts payable to the applicable lending office of such Lender by Borrowers in
such respective jurisdictions at the time such Lender becomes a party to this Agreement (or
designates a new lending office) or is attributable to such Lender’s failure to comply with
Section 2.16(e), other than any failure due to a Change in Law occurring after the date
that such Lender became a party to this Agreement that rendered such Lender no longer legally
entitled to deliver the form or forms described in Section 2.16(e) or otherwise ineligible
for a complete exemption from withholding tax, or that rendered the information or certifications
made in such form or forms untrue or inaccurate in a material respect, and except to the extent (i)
in the case of the designation of a new lending office, that such Lender was already entitled, at
the time of designation of a new lending office, to receive additional amounts from such
Borrower with respect to such withholding tax pursuant to Section 2.16(a) or (ii) in
the case of a Lender that became a party to this Agreement pursuant to an assignment, the assigning
Lender was entitled, at the time of the assignment, to receive additional amounts with respect to
such withholding tax pursuant to Section 2.16.



     “Existing Credit Agreement” means the Amended and Restated Credit Agreement dated as
of September 18, 2007, among the Administrative Borrower, the Dutch Borrower, each other Person
from time to time thereafter designated as a Borrower pursuant to Section 2.21 thereof,



12









 







the Subsidiaries of the Borrowers party thereto, the lenders party thereto, JPMorgan Chase Bank, N.A.,
as administrative agent, and J.P. Morgan Europe Limited, as London Agent



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



     “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Administrative Borrower.



     “Foreign Borrower” means any Subsidiary organized outside of the United States of
America that has been designated as a “Foreign Borrower” pursuant to Section 2.21,
other than any of the foregoing Subsidiaries that has ceased to be a Foreign Borrower as provided
in such Section 2.21.



     “Foreign Lender” means any Lender that is not organized in the United States of
America, any state thereof or the District of Columbia.



     “Foreign Subsidiary” means each Foreign Borrower and any other Subsidiary that is
organized outside of the United States of America, any state thereof or the District of Columbia.



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



     “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.



     “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness of the payment thereof, (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness; provided, that
the term Guarantee shall not include endorsements for collection or deposit in the ordinary course
of business.



13









 





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



     “Implementation Agreement” means the implementation agreement dated on or about the
date of this Agreement relating to the Scheme Acquisition and made between Bidco and ClinPhone.



     “Increase Amount” has the meaning assigned to such term in Section 2.22.



     “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money , (b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such Person upon which interest charges are
customarily paid, (d) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (e) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not
the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of letters of credit and
letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of
bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person’s ownership interest in or other relationship
with such entity, except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Information Memorandum” means the Confidential Information Memorandum relating to the
Administrative Borrower and the Transactions to be used in the syndication of the Commitments and
Loans.



     “Initial Funding Date” means the date on which the conditions specified in Section
4.2 are satisfied (or waived in accordance with Section 10.2) except that in Section
4.2(d) the reference to the Initial Funding Date shall be construed as the date on which the other
conditions in Section 4.2 are fulfilled.



     “Initial Lenders” means JPMorgan Chase Bank, N.A. and KeyBank National Association.



     “Instrument of Adherence” has the meaning set forth in Section 10.4(e).



14









 





     “Interest Election Request” means a request by the relevant Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.7.



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



     “Interest Period” means with respect to any Eurocurrency Borrowing or EURIBOR
Borrowing, the period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months (or, with the consent
of each Lender, other periods selected by the applicable Borrower) thereafter, as the applicable
Borrower may elect; provided that (i) if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless,
in the case of a Eurocurrency Borrowing or EURIBOR Borrowing only, such next succeeding Business
Day would fall in the next calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency Borrowing or
EURIBOR Borrowing that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of such Interest Period)
shall end on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is
made and, in the case of a Eurocurrency
Borrowing or EURIBOR Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.



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



     “Judgment Currency” has the meaning assigned to such term in Section 10.14(b).



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



     “LC Exposure” means, at any time, (a) the sum of the US Dollar Equivalents of the
undrawn amounts of all outstanding Letters of Credit at such time plus (b) the sum of the
US Dollar Equivalents of the amounts of all LC Disbursements that have not yet been reimbursed by
or on behalf of the applicable Borrowers at such time. The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.



15









 





     “Lenders” means the Persons listed on Schedule 2.1 and any other Person that
shall have become a party hereto pursuant to an Assignment and Assumption, an Instrument of
Adherence or a Term Increase Amendment, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term
“Lenders” includes the Swingline Lender.



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



     “LIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in any
currency for any Interest Period, (a) the applicable Screen Rate or (b) if no Screen Rate is
available for such currency or for such Interest Period, the arithmetic mean of the rates quoted by
JPMorgan Chase Bank, N.A., London Branch, to leading banks in the London interbank market for the
offering of deposits in such currency and for a period comparable to such Interest Period, in each
case as of 11:00 a.m. London time on the Quotation Day.



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



     “Loan Documents” means this Agreement, the Syndication and Fee Letter, the
Administrative Agent Fee Letter, the Subsidiary Guarantee Agreement, each Borrower Joinder
Agreement, each Borrower Termination Agreement and each supplement thereto, each promissory note
delivered pursuant to this Agreement and each other guarantee or other similar document executed in
connection with this Agreement and the making of Borrowings and issuance of Letters of Credit
hereunder.



     “Loan Party” means the Administrative Borrower, the other Borrowers and the Subsidiary
Guarantors.



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



     “Local Time” means (a) with respect to a Loan or Borrowing denominated in US Dollars
or any Letter of Credit, New York City time, and (b) with respect to a Loan, Borrowing or LC
Disbursement denominated in an Alternative Currency, local time at the place of the relevant Loan,
Borrowing or LC Disbursement (or such earlier local time as is necessary for the relevant funds to
be received and transferred to the relevant Agent for same day value on the date the relevant
reimbursement obligation is due).



     “London Agent” means J.P. Morgan Europe Limited.



     “Mandatory Costs Rate” has the meaning set forth in Exhibit C.



16









 





     “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations or financial condition, of the Administrative Borrower and the Subsidiaries taken as a
whole, or (b) the validity, legality, binding effect or enforceability of any of the Loan Documents
or the rights or remedies of the Administrative Agent and the Lenders hereunder.



     “Material CF Subsidiaries” means PAREXEL International GmbH, PAREXEL International
Holding BV, Perceptive Informatics Inc., PAREXEL Unternehmungsbeteiligung GmbH, Parexel
International Inc., a Japanese company, and PAREXEL International (Russia) LLC.



     “Material Foreign Subsidiary” means ClinPhone and any other Foreign Subsidiary which,
(a) is a Borrower, (b) has been designated by the Administrative Borrower as a Material Foreign
Subsidiary in a written notice to the Administrative Agent or (c) by itself or together with its
Subsidiaries, accounts (excluding intercompany receivables and goodwill) for 5% or more of the
Administrative Borrower’s consolidated total assets or Consolidated EBITDA for the most recently
ended Reference Period for which financial statements have been furnished to the Administrative
Agent under Section 5.1(a) or Section 5.1(b) (or, prior to the delivery of any such
statements, for the Reference Period ended on March 31, 2008); provided that if for any
Reference Period the combined consolidated total assets or combined Consolidated EBITDA of all Subsidiaries that neither have been designated under clause (b) above nor under clause (c)
above would constitute Material Foreign Subsidiaries shall have exceeded 10% of the consolidated
total assets of the Administrative Borrower or 10% of the Consolidated EBITDA of the Administrative
Borrower, then one or more of such excluded Subsidiaries shall for all purposes of this Agreement
be deemed to be Material Foreign Subsidiaries in descending order based on the amounts of their
consolidated total assets until such excess shall have been eliminated.



     “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Administrative Borrower and its Subsidiaries in an aggregate principal amount exceeding
US$15,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the
obligations of the Administrative Borrower or any Subsidiary in respect of any Swap Agreement at
any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the
Administrative Borrower or such Subsidiary would be required to pay if such Swap Agreement were
terminated at such time.



     “Material Subsidiaries” means, collectively, the Material Foreign Subsidiaries and the
Material US Subsidiaries.



     “Material US Subsidiary” means a US Subsidiary which (a) has been designated by the
Administrative Borrower as a Material US Subsidiary in a written notice to the Administrative Agent
or (b) by itself or together with its subsidiaries, accounts for 5% or more of the Administrative
Borrower’s Consolidated EBITDA or consolidated total assets for the most recently ended Reference
Period for which financial statements have been furnished to the Administrative Agent under
Section 5.1(a) or Section 5.1(b) (or, prior to the delivery of any such statements,
for the Reference Period ended on March 31, 2008); provided that if for any Reference
Period the combined consolidated total assets or combined Consolidated EBITDA of



17









 







all US Subsidiaries that neither have been designated under clause (a) above nor under clause (b) above
would constitute Material US Subsidiaries shall have exceeded 10% of the consolidated total assets
of the Administrative Borrower or 10% of the Consolidated EBITDA of the Administrative Borrower,
then one or more of such excluded Subsidiaries shall for all purposes of this Agreement be deemed
to be Material US Subsidiaries in descending order based on the amounts of their consolidated total
assets until such excess shall have been eliminated.



     “Maturity Date” means June 13, 2013.



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



     “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



     “Net Equity Proceeds” means, with respect to the sale or issuance after the Effective
Date by any Loan Party to any Person of any Equity Interest, warrants or options in respect of
Equity Interest, the exercise of any such warrants or options, or any capital contribution by any
Person to any Loan Party, the excess of (a) the gross cash proceeds received by such Loan Party
from such sale, issuance or exercise, over (b) all reasonable and customary commissions,
fees and expenses incurred in connection with such sale or issuance which are not payable to
Affiliates of such Loan Party in connection therewith.



     “New ClinPhone Shares” means the new shares in the capital of ClinPhone, which are to
be issued by ClinPhone to Bidco pursuant to the Scheme.



     “Non-Credit Party” means any Subsidiary of the Administrative Borrower that is not a
Credit Party.



     “Non-Loan Party” means any Subsidiary of the Administrative Borrower that is not a
Loan Party.



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



     “Offer Conversion” means the Administrative Borrower procuring the lapse or withdrawal
of the Scheme in accordance with Section 6.15.



     “Offer Documents” means the Takeover Offer Document and the Offer Press Announcement.



     “Offer Press Announcement” means a press announcement to be released by or on behalf
of ClinPhone and Bidco announcing that the ClinPhone Acquisition is to be effected by the



18









 







Takeover Offer Acquisition instead of the Scheme Acquisition and setting out the terms and conditions of the
Takeover Offer.



     “Option Cut-Off Time” means 6:00 p.m., London time, on the Business Day prior to the
date on which the court confirms the Capital Reduction in relation to the Scheme.



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



     “Panel” means the Panel on Takeovers and Mergers.



     “Participant” has the meaning set forth in Section 10.4.



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



     “Permitted Acquisition” means (1) the ClinPhone Acquisition and (2) an acquisition of
a business whereby (a) the Administrative Borrower has notified the Administrative Agent of such
proposed acquisition; (b) the business to be acquired would not subject the Administrative Agent or
the Lenders to any additional regulatory or third party approvals in connection with the exercise
of its rights and remedies under this Agreement or any other Loan Document; (c) no contingent
liabilities will be incurred or assumed in connection with such Permitted Acquisition which could
reasonably be expected to have a Material Adverse Effect; (d) the board of directors and the
shareholders (if required by applicable law), or the equivalent, of the applicable Loan Party or
other Subsidiary and the Person to be acquired has approved such merger, consolidation or
acquisition); (e) the Credit Parties and their Subsidiaries, on a combined and consolidated basis,
will be solvent upon the consummation of the Permitted Acquisition; (f) the Administrative Borrower
and its Subsidiaries shall be in compliance with Section 6.9 on a pro forma basis as at the
end of and for the most recently ended Reference Period for which financial statements have been
furnished to the Administrative Agent under Section 5.1(a) or Section 5.1(b) (or,
prior to the delivery of any such statements, for the Reference Period ended on March 31, 2008);
(g) after giving effect to the Acquisition, Consolidated EBITDA (determined on a pro-forma basis in
the manner described in Section 6.9(d) for the Reference Period most recently ended for
which financial statements have been furnished to the Administrative Agent under Section
5.1(a) or Section 5.1(b) (or, prior to the delivery of any such statements, for the
Reference Period ended on March 31, 2008)), is not more than 10% lower than Consolidated EBITDA for
the Reference Period most recently ended for which financial statements have been furnished to the
Administrative Agent under Section 5.1(a) or Section 5.1(b) (or, prior to the
delivery of any such statements, for the Reference Period ended on March 31, 2008) without giving
effect to such Permitted Acquisition; (h) no Default or Event of Default then exists or would
result after giving effect to the Permitted Acquisition; and (i) in the case of a Permitted
Material Acquisition, the Administrative Borrower shall have delivered a certificate of a Financial
Officer to the Administrative Agent (and attaching calculations reasonably satisfactory to the
Administrative Agent, as appropriate) (i) certifying as to clauses (e) through (h) above, and (ii)
demonstrating that after giving effect to the Acquisition, the Consolidated Leverage Ratio



19









 







(determined on a pro-forma basis in the manner described in Section 6.9(d) for the
Reference Period most recently ended for which financial statements have been furnished to the
Administrative Agent under Section 5.1(a) or Section 5.1(b)), shall not be greater
than 2.25 to 1.00.



     “Permitted Encumbrances” means:




     (a) Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.4;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like
Liens imposed by law, arising in the ordinary course of business and securing obligations
that are not overdue by more than 45 days or are being contested in compliance with
Section 5.4;




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




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




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




     (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Administrative Borrower or any
Subsidiary;


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




     “Permitted Investments” means:




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




     (b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody’s;



20









 






     (c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or offered by,
any domestic office of any commercial bank organized under the laws of the United States of
America or any state thereof which has a combined capital and surplus and undivided profits
of not less than US$500,000,000;




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




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




     (f) investments described on Schedule P-1.



     “Permitted Material Acquisition” means any individual Permitted Acquisition that
exceeds an aggregate purchase price of US$50,000,000.



     “Permitted Stock Repurchases” means any buybacks or repurchases of stock issued by the
Administrative Borrower or any other Loan Party during any fiscal year in an aggregate amount not
to exceed 30% of Consolidated Net Income for the preceding fiscal year.



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



     “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Administrative Borrower or any ERISA Affiliate is (or, if such plan
were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.



     “Pre-Approved Lender List” means the list of potential Lenders agreed by the Initial
Lenders and Bidco and approved by the financial adviser to Bidco in connection with the ClinPhone
Acquisition, in each case on or before the Effective Date (including any amendment or supplement to
such list as may from time to time be agreed by the Initial Lenders and Bidco and approved by such
financial adviser).



     “Press Release” means the press announcement (in the form agreed with the Initial
Lenders prior to its issue) to be released by or on behalf of ClinPhone and Bidco to announce
Bidco’s firm intention to implement an acquisition of all the ClinPhone Shares by way of Scheme in
accordance with the Implementation Agreement.



     “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A., as its prime rate in effect at its office located at 270 Park Avenue,
New York, New York; each change in the Prime Rate shall be effective from and including the date
such change is publicly announced as being effective.



21









 





     “Quotation Day” means (a) with respect to any currency (other than Sterling) for any
Interest Period, two Business Days prior to the first day of such Interest Period and (b) with
respect to Sterling for any Interest Period, the first day of such Interest Period, in each case
unless market practice differs in the Relevant Interbank Market for any currency, in which case the
Quotation Day for such currency shall be determined by the Applicable Agent in accordance with
market practice in the Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day, the Quotation Day shall be the
last of those days).



     “Reference Period” means, as of the last day of any fiscal quarter, the period of four
consecutive fiscal quarters of the Administrative Borrower and its Subsidiaries ending on such
date.



     “Register” has the meaning set forth in Section 10.4.



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



     “Relevant Interbank Market” means (a) with respect to any currency (other than Euros),
the London interbank market and (b) with respect to Euros, the European interbank market.



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



     “Responsible Officer” means (a) with respect to the Administrative Borrower, the chief
executive officer, president, chief financial officer, treasurer, secretary, Vice President of
Corporate Finance or general counsel of the Administrative Borrower or any other person authorized
by the Board of Directors of the Administrative Borrower to sign Loan Documents on its behalf and
(b) with respect to any other Loan Party, any person authorized by the Board of Directors of such
Loan Party to sign Loan Documents on its behalf. Any document delivered hereunder that is signed
by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by
all necessary corporate, partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.



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



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



22









 





     “Revolving Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum aggregate permitted
amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.8, (b) increased from time to time pursuant to
Section 2.22 and (c) reduced or increased from time to time pursuant to assignments by or
to such Lender pursuant to Section 10.4 . The initial amount of each Lender’s Revolving
Commitment is set forth on Schedule 2.1, or in the Assignment and Assumption pursuant to which such
Lender shall have assumed its Revolving Commitment, as applicable. The initial aggregate amount of
the Lenders’ Revolving Commitment is US$150,000,000.



     “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum at
such time of (a) the US Dollar Equivalents of the principal amounts of such Lender’s outstanding
Revolving Loans, (b) such Lender’s LC Exposure and (c) such Lender’s Swingline Exposure.



     “Revolving Lender” means a Lender with a Revolving Commitment or Revolving Credit
Exposure.



     “Revolving Loan” means a Loan made pursuant to Section 2.1(b).



     “S&P” means Standard & Poor’s.



     “Scheme” means the scheme of arrangement under Part 26 of the Companies Act 2006 which
is or may be proposed by ClinPhone to its shareholders pursuant to which Bidco will become the only
holder of ClinPhone Shares by virtue of having been allotted and issued New ClinPhone Shares which
are paid up out of the reserve created by the cancellation of the ClinPhone Shares in issue as at
the Option Cut-Off Time, subject to such changes and amendment as are made in accordance with
Section 6.14(a)(ii).



     “Scheme Acquisition” means the acquisition by Bidco of the ClinPhone Shares pursuant
to the Scheme, to be effected by way of:




     (a) the cancellation of all the ClinPhone Shares in issue as at the Option Cut-Off Time
(other than ClinPhone Shares already held by Bidco) pursuant to the Scheme and the issue of
the New ClinPhone Shares pursuant to the Scheme; and




     (b) if any options in respect of any ClinPhone Shares remain outstanding after the
Option Cut-Off Time, the compulsory purchase by Bidco of all ClinPhone Shares issued
pursuant to the exercise of an option in respect thereof that was in existence prior to the
date of this Agreement after the applicable Option Cut-Off Time.



     “Scheme Circular” means the document to be issued by or on behalf of ClinPhone to
shareholders of ClinPhone setting out the proposals for the Scheme stating the recommendation of
the Scheme Acquisition and the Scheme to the shareholders of ClinPhone by the board of directors of
ClinPhone and setting out the notice of extraordinary general meeting of ClinPhone.



23









 





     “Scheme Documents” means the Press Release, the Scheme Circular, the Implementation
Agreement and any other document designated as a “Scheme Document” by the Administrative Agent and
the Administrative Borrower.



     “Screen Rate” means (a) in respect of the LIBO Rate for any currency for any Interest
Period, the British Bankers Association Interest Settlement Rate for such currency for such
Interest Period and (b) in respect of the EURIBO Rate for any Interest Period, the percentage per
annum determined by the Banking Federation of the European Union for such Interest Period.



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



     “Sterling” or “£” means the lawful currency of the United Kingdom.



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



     “Subsidiary” means any direct or indirect subsidiary of the Administrative Borrower.
For the avoidance of doubt, on and after the Initial Funding Date “Subsidiary” shall include
ClinPhone and its subsidiaries.



     “Subsidiary Guarantee Agreement” means a Guarantee Agreement by each Material US
Subsidiary in favor of the Administrative Agent, substantially in the form of Exhibit B
hereto.



     “Subsidiary Guarantors” means each Material US Subsidiary of the Administrative
Borrower; provided, that (a) so long as the proviso of Section 5.9 would apply to
PAREXEL International Holding Corporation, a Delaware corporation, if it were a newly created
Subsidiary, it shall be deemed not to be a Subsidiary Guarantor notwithstanding that it is a
Material US Subsidiary and (b) each Material US Subsidiary that is a subsidiary of a Controlled
Foreign Corporation on the date hereof or, if later, at the time such Controlled Foreign



24









 







Corporation becomes a Subsidiary (so long as such Material US Subsidiary shall not have become a
subsidiary of such Controlled Foreign Corporation in anticipation of the transaction by which such
Controlled Foreign Corporation became a Subsidiary) shall be deemed not to be a Subsidiary
Guarantor and shall not be required to become a party to the Subsidiary Guarantee Agreement
notwithstanding that it is a Material US Subsidiary.



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



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



     “Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.



     “Swingline Loan” means a Loan made pursuant to Section 2.4.



     “Syndication and Fee Letter” means the syndication and fee letter agreement dated as
of June 12, 2008, among J.P. Morgan Securities Inc., JPMorgan Chase Bank. N.A., KeyBank National
Association and the Administrative Borrower.



     “Takeover Offer” means the offer which is a “takeover offer” within the meaning of
section 974 of the Companies Act 2006 proposed to be made by or on behalf of Bidco to acquire the
ClinPhone Shares, substantially on the terms and conditions set out in the Offer Press Announcement
(as such offer may be amended in any way which is permitted by the terms of this Agreement).



     “Takeover Offer Acquisition” means the acquisition by Bidco of the ClinPhone Shares,
to be effected by way of (a) the Takeover Offer or (b) the compulsory acquisition permissible under
Part 28, Chapter 3 of the Companies Act 2006 of any ClinPhone Shares in respect of which
acceptances of the Takeover Offer have not been received from the holders of such ClinPhone Shares.



     “Takeover Offer Document” means the document to be issued by or on behalf of Bidco and
dispatched to shareholders of ClinPhone in respect of the Takeover Offer containing the terms and
conditions of the Takeover Offer reflecting the Offer Press Announcement in all material respects.



     “Takeover Offer Squeeze-Out Notice” means a notice under section 979(2) or 979(4) of
the Companies Act 2006.



25









 





     “TARGET” means the Trans-European Automated Real Time Gross Settlement Express
Transfer (TARGET) payment system.



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



     “Term Commitment” means, with respect to each Lender, the commitment, if any, of such
Lender to make a Term Loan on the Initial Funding Date, expressed as an amount representing the
maximum principal amount of the Term Loan to be made by such Lender, as such commitment may be (a)
reduced from time to time pursuant to Section 2.8 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 10.4. The initial
amount of each Lender’s Term Commitment is set forth in Schedule 2.1, or in the Assignment
and Assumption pursuant to which such Lender shall have assumed its Term Commitment, as applicable.
The initial aggregate amount of the Lenders’ Term Commitments is US$150,000,000.



     “Term Increase Amendment” shall have the meaning specified in Section 2.22(a).



     “Term Lender” means a Lender with a Term Commitment or an outstanding Term Loan.



     “Term Loan” means a Loan made pursuant to Section 2.1(a).



     “Transactions” means the ClinPhone Acquisition, the execution, delivery and
performance by the Loan Parties of this Agreement, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.



     “Transferred Letters of Credit” means, with respect to each Borrower, the letters of
credit outstanding as “Letters of Credit” as of the Initial Funding Date under the Existing Credit
Agreement.



     “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to (a)
the Adjusted LIBO Rate or the Alternate Base Rate, in the case of US Dollar Loans, (b) the Adjusted
LIBO Rate, in the case of Loans in Alternative Currencies (other than Euros) or (c) the Adjusted
EURIBO Rate, in the case of Loans made in Euros.



     “US Dollar Equivalent” means, on any date of determination, (a) with respect to any
amount in US Dollars, such amount and (b) with respect to any amount in any Alternative Currency,
the equivalent in US Dollars of such amount, determined by the Administrative Agent pursuant to
Section 1.5 using the Exchange Rate with respect to such Alternative Currency at the time
in effect for such amount under the provisions of such Section.



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



     “US Subsidiary” means any Subsidiary that is organized under the laws of the United
States of America, any state thereof or the District of Columbia.



26









 





     “US Subsidiary Borrower” means any US Subsidiary that has been designated as a US
Subsidiary Borrower pursuant to Section 2.21, other than any of the foregoing Subsidiaries
that has ceased to be a US Subsidiary Borrower as provided in such Section 2.21.



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



     “Yen” means that lawful currency of Japan.



     SECTION 1.2. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by
Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a
“Eurocurrency Revolving Loan”). Borrowings also may be classified and referred to by Class
(e.g., a “Revolving Borrowing”) or by Type (e.g., a “Eurocurrency
Borrowing”) or by Class and Type (e.g., a “Eurocurrency Revolving Borrowing”).



     SECTION 1.3. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.



     SECTION 1.4. Accounting Terms; GAAP. If at any time any change in GAAP would affect
the computation of any financial ratio or requirement set forth in any Loan Document, and either
the Administrative Borrower or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Administrative Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided, that until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such change therein and
(ii) the Administrative Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP. Administrative Borrower has advised the
Administrative Agent that it does, and is required to, consolidate CCT



27









 







in its consolidated financial statements, but that Administrative Borrower does not have the power to control CCT.
Accordingly, financial position, results of operations and cash flows of CCT shall be included for
the purpose of (a) the definitions of “Consolidated EBITDA”, “Consolidated Interest Charges”,
“Consolidated Net Worth” and “Consolidated Total Debt”, (b) the financial statements and reporting
requirements in Section 5.1 and (c) determining compliance with the financial covenants in
Section 6.9. CCT shall not be deemed to be a Subsidiary for the purposes of the
representations and warranties in Article III, the closing conditions in Article
IV, the affirmative covenants in Article V, the negative covenants in Article
VI, and the events of default in Article VII.



     SECTION 1.5. Currency Translation. (a) For purposes of any determination under any
provision of this Agreement expressly requiring the use of a current exchange rate, all amounts
incurred, outstanding or proposed to be incurred or outstanding in currencies other than US
Dollars shall be translated into US Dollars at currency exchange rates in effect on the date of
such determination. Such currency exchange rates shall be determined in good faith by the
Administrative Agent.



          (b) The Administrative Agent shall determine the US Dollar Equivalent of any Borrowing
denominated in an Alternative Currency as of the date of the commencement of the initial Interest
Period therefor and as of the date of the commencement of each subsequent Interest Period therefor,
in each case using the Exchange Rate for the applicable currency in relation to US Dollars in
effect on the date that is three Business Days prior to the date on which the applicable Interest
Period shall commence, and each such amount shall be the US Dollar Equivalent of such Borrowing
until the next required calculation thereof pursuant to this paragraph. The Administrative Agent
shall determine the US Dollar Equivalent of any Letter of Credit denominated in a currency other
than US Dollars as of the date such Letter of Credit is issued, amended to increase its face
amount, extended or renewed and as of the last Business Day of each subsequent calendar month, in
each case using the Exchange Rate for such currency in relation to US Dollars in effect on the date
that is three Business Days prior to the date on which such Letter of Credit is issued, amended to
increase its face amount, extended or renewed or the last Business Day of such subsequent calendar
quarter, as the case may be, and each such amount shall be the US Dollar Equivalent of such Letter
of Credit until the next required calculation thereof pursuant to this sentence. The Exchange Rate
used to determine the US Dollar Equivalent of any LC Disbursement shall be that used to determine
the US Dollar Equivalent of the related Letter of Credit. The Administrative Agent shall notify
the Administrative Borrower and the applicable Lenders of each calculation of the US Dollar
Equivalent of each Borrowing or Letter of Credit.




ARTICLE II.

THE CREDITS




     SECTION 2.1. Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees (a) to make a Term Loan denominated in US Dollars, Sterling or Euro on the Initial
Funding Date in a principal amount the US Dollar Equivalent of which does not exceed its Term
Commitment to, as directed by the Administrative Borrower, the Administrative Borrower, the Dutch
Borrower or Bidco and (b) to make Revolving Loans denominated in US Dollars and Alternative
Currencies to the Borrowers from time to time during the Availability Period in an



28









 







aggregate principal amount that will not result in such Lender’s Revolving Credit Exposure exceeding such
Lender’s Revolving Commitment. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans. Amounts repaid in
respect of Term Loans may not be reborrowed.



     SECTION 2.2. Loans and Borrowings. (a) Each Term Loan shall be made as part of a
Borrowing consisting of Term Loans made by the Lenders ratably in accordance with their Term
Commitments. Each Revolving Loan shall be made as part of a Borrowing consisting of
Revolving Loans made by the Lenders ratably in accordance with their respective Revolving
Commitments. The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans
as required.




     (b) Subject to Section 2.13, (i) each Term Borrowing denominated in US Dollars
shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may request
in accordance herewith; (ii) each Revolving Borrowing denominated in US Dollars shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Borrowers may request in
accordance herewith; (iii) each Borrowing denominated in Euros shall be comprised entirely
of EURIBOR Loans; and (iv) each Borrowing denominated in an Alternative Currency (other than
Euros) shall be comprised entirely of Eurocurrency Loans. Each Swingline Loan shall be an
ABR Loan. Each Lender at its option may make any Eurocurrency Loan or EURIBOR Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (so
long as such election of a foreign branch or Affiliate does not increase the Borrowers’
costs hereunder); provided that any exercise of such option shall not affect the
obligation of the applicable Borrower to repay such Loan in accordance with the terms of
this Agreement.



     (c) At the commencement of each Interest Period for any Eurocurrency Borrowing or any
EURIBOR Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum. At the time
that each ABR Borrowing (other than a Swingline Loan) is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of US$250,000 and not less than US$1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal
to the entire unused balance of the total Revolving Commitments or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section 2.5(e). Each
Swingline Loan shall be in an amount that is an integral multiple of US$100,000 and not less
than US$1,000,000. Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of (i) 7
Eurocurrency Term Borrowings or (ii) 12 Eurocurrency Revolving Borrowings or EURIBOR
Revolving Borrowings outstanding.



     (d) Notwithstanding any other provision of this Agreement, the Borrowers shall not be
entitled to request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity Date.



29









 





     SECTION 2.3. Requests for Borrowings. To request a Term Borrowing or Revolving
Borrowing, the Administrative Borrower, on behalf of the requesting Borrower, shall notify the
Applicable Agent of such request by telecopy of a written Borrowing Request in the form of
Exhibit G or any other form approved by the London Agent and signed by a Responsible
Officer of the Administrative Borrower (or, in the case of the Administrative Agent, by telephone
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing
Request in the form of Exhibit G or any other form approved by the Administrative Agent and
signed by a Responsible Officer of the Administrative Borrower) (a) in the case of a Eurocurrency
Borrowing denominated in US Dollars, not later than 11:00 a.m., New York City time, three Business
Days before the date of the proposed Borrowing, (b) in the case of a Eurocurrency Borrowing
denominated in any other Alternative Currency (other than Yen) or a EURIBOR Borrowing, not later
than 11:00 a.m., Local Time, three Business Days before the date of the proposed Borrowing, (c) in
the case of a Eurocurrency Borrowing denominated in Yen, not later than 11:00 a.m., Local Time,
four Business Days before the date of the proposed Borrowing and (d) in the case of an ABR
Borrowing, not later than 11:00 a.m., Local Time, on the same day of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.5(e) may be given not later than 10:00
a.m., New York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Applicable Agent of a written Borrowing Request in a form approved by the Applicable Agent and
signed by the Administrative Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.2:




     (i) the Borrower requesting such Borrowing;




     (ii) whether the requested Borrowing is to be a Term Borrowing or a Revolving
Borrowing;




     (iii) the currency and aggregate amount of the requested Borrowing;




     (iv) the date of such Borrowing, which shall be a Business Day;




     (v) whether such Borrowing is to be an ABR Borrowing, a Eurocurrency Borrowing
or a EURIBOR Borrowing;




     (vi) in the case of a Eurocurrency Borrowing or a EURIBOR Borrowing, the
initial Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term “Interest Period”;




     (vii) the location and number of such Borrower’s account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.6; and




     (viii) in the case of a Borrowing in an Alternative Currency, the jurisdiction
from which payments of the principal and interest on such Borrowing will be made.




30











 




If no currency is specified with respect to any requested Eurocurrency Borrowing, then (i) if the
applicable Borrower is a US Borrower, it shall be deemed to have selected US Dollars and (ii) if
the applicable Borrower is not a US Borrower, the applicable Borrowing Request will be of no force
or effect. If no election as to the Type of Borrowing is specified, then the requested Borrowing
shall be (A) in the case of a Borrowing denominated in US Dollars made to a US Borrower, an ABR
Borrowing, (B) in the case of a Borrowing denominated in US Dollars made to any other Borrower
(other than a US Borrower), a Eurocurrency Borrowing, (C) in the case of a Borrowing denominated in
Euros, a EURIBOR Borrowing and (D) in the case of a Borrowing denominated in an Alternative
Currency (other than Euros), a Eurocurrency Borrowing. If no Interest Period is specified with
respect to any requested (or deemed requested) Eurocurrency Borrowing or EURIBOR Borrowing, then
the applicable Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the applicable Class of the
details thereof and of the amount of such Lender’s Loan to be made as part of the requested
Borrowing.




     SECTION 2.4. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Administrative Borrower from
time to time during the Availability Period in US Dollars, in an aggregate principal amount at any
time outstanding that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding US$20,000,000 or (ii) the aggregate Revolving Credit Exposures of all
Lenders exceeding the total Revolving Commitments; provided that the Swingline Lender shall
not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the Administrative
Borrower may borrow, prepay and reborrow Swingline Loans.




     (b) To request a Swingline Loan, the Administrative Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not later than
1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice
shall be irrevocable and shall specify the requested date (which shall be a Business Day)
and amount of the requested Swingline Loan and other relevant information that would be
required under Section 2.3 if the Swingline Loan were a Revolving Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received
from the Administrative Borrower. The Swingline Lender shall make each Swingline Loan
available to the Administrative Borrower by means of a credit to the general deposit account
of the Administrative Borrower with the Swingline Lender (or, in the case of a Swingline
Loan made to finance the reimbursement of an LC Disbursement as provided in Section
2.5(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.




     (c) The Swingline Lender may by written notice given to the Administrative Agent not
later than 1:00 p.m., New York City time, on any Business Day require the Revolving Lenders
to acquire participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the
Revolving Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each applicable Lender, specifying in such
notice such Lender’s Applicable Percentage of such Swingline



31









 







Loan or Loans. Each applicable Lender hereby absolutely and unconditionally agrees,
upon receipt of notice as provided above, to promptly pay to the Administrative Agent, for
the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline
Loan or Loans. Each applicable Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination of the Revolving
Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.6 with respect to Revolving Loans made by such Lender (and
Section 2.6 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Revolving Lenders. The
Administrative Agent shall notify the Administrative Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of
such Swingline Loan shall be made to the Administrative Agent and not to the Swingline
Lender. Any amounts received by the Swingline Lender from the Administrative Borrower (or
other party on behalf of the Administrative Borrower) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders
that shall have made their payments pursuant to this paragraph and to the Swingline Lender,
as their interests may appear; provided that any such payment so remitted shall be
repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the
extent such payment is required to be refunded to the Administrative Borrower for any
reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve the Administrative Borrower of any default in the payment thereof.



     SECTION 2.5. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Administrative Borrower may request the issuance of Letters of
Credit denominated in US Dollars or any Alternative Currency for its own account, or for the
account of any other Borrower or any US Subsidiary, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time during the
Availability Period, provided, that with respect to any Letter of Credit issued for the
account of any US Subsidiary, the Administrative Borrower shall be a co-applicant and shall be
deemed to be jointly and severally liable with respect to any such Letter of Credit. In the event
of any inconsistency between the terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other agreement submitted by the
Administrative Borrower to, or entered into by the Administrative Borrower with, the Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement shall control. On the
Initial Funding Date, the Issuing Bank shall be deemed, without further action by any party hereto,
to have granted to each Revolving Lender, and each Revolving Lender shall be deemed to have
purchased from the Issuing Bank, a participation in each Transferred Letter of Credit in accordance
with paragraph (d) below. The Issuing Bank agrees that, concurrently with such grant, the
participations in the Transferred Letters of Credit granted to the lenders under the



32









 







Existing Credit Agreement shall be automatically canceled without further action by any of the
parties thereto. On and after the Initial Funding Date each Transferred Letter of Credit shall
constitute a Letter of Credit for all purposes hereof.




     (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Administrative Borrower shall hand deliver or telecopy
(or transmit by electronic communication, if arrangements for doing so have been approved by
the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice signed by a
Responsible Officer of the Administrative Borrower requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be a Business
Day), the date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount and currency of such Letter of Credit,
the name and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the
Issuing Bank, the Administrative Borrower also shall submit a letter of credit application
on the Issuing Bank’s standard form in connection with any request for a Letter of Credit.
A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Administrative Borrower shall
be deemed to represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed US$10,000,000 and (ii) the
aggregate Revolving Credit Exposures of all Lenders shall not exceed the total Revolving
Commitments.




     (c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the issuance of
such Letter of Credit (or, in the case of any renewal or extension thereof, one year after
such renewal or extension) and (ii) the date that is five Business Days prior to the
Maturity Date; provided that any Letter of Credit with a one-year term may provide
for the renewal thereof for additional one-year periods (which in no event shall extend
beyond the date referred to in clause (ii) above).




     (d) Participations. Effective with respect to the Transferred Letters of
Credit upon the occurrence of the Initial Funding Date, and by the issuance of each other
Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof), and
in each case without any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal to such
Lender’s Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement
made by the Issuing Bank and not reimbursed by the Administrative Borrower on the date due
as provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Administrative Borrower



33









 







for any reason. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction whatsoever.




     (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Administrative Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement
not later than 12:00 noon, New York City time, on the date that such LC Disbursement is
made, if the Administrative Borrower shall have received notice of such LC Disbursement
prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been
received by the Administrative Borrower prior to such time on such date, then not later than
12:00 noon, New York City time, on the Business Day immediately following the day that the
Administrative Borrower receives such notice; provided that if such LC Disbursement
is not less than US$100,000, the Administrative Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.3 or 2.4
that such payment be financed with an ABR Revolving Borrowing or Swingline Loan in an
equivalent amount (and if such Letter of Credit is issued in an Alternative Currency, the US
Dollar Equivalent of such amount) and, to the extent so financed, the Administrative
Borrower’s obligation to make such payment shall be discharged and replaced by the resulting
ABR Revolving Borrowing or Swingline Loan. If the Administrative Borrower fails to make
such payment when due, the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from the Administrative Borrower in respect
thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt of such
notice, each Revolving Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Administrative Borrower, in the same manner as
provided in Section 2.6 with respect to Loans made by such Lender (and Section
2.7 shall apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the Administrative Agent of
any payment from the Administrative Borrower pursuant to this paragraph, the Administrative
Agent shall distribute such payment to the Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a Lender pursuant
to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Administrative Borrower of its obligation to
reimburse such LC Disbursement.




     (f) Obligations Absolute. Subject to the provisions of the next sentence, the
Administrative Borrower’s obligation to reimburse LC Disbursements as provided in paragraph
(e) of this Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and all



34









 







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




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




     (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Administrative Borrower shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear interest,



35









 







for each day from and including the date such LC Disbursement is made to but excluding
the date that the Administrative Borrower reimburses such LC Disbursement, at (i) in the
case of any LC Disbursement denominated in US Dollars, the rate per annum then applicable to
ABR Revolving Loans and (ii) in the case of an LC Disbursement denominated in any other
currency, a rate per annum determined by the Issuing Bank (which determination will be
conclusive absent manifest error) to represent its cost of funds plus the Applicable
Rate that would be used to determine the interest rates applicable to a Eurocurrency Loan in
the applicable currency with an Interest Period of one month’s duration made on the date of
such LC Disbursement; provided that if the Administrative Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section,
then Section 2.12(d) shall apply. Interest accrued pursuant to this paragraph shall
be for the account of the Issuing Bank, except that interest accrued on and after the date
of payment by any Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such payment.




     (i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any
time by written agreement among the Administrative Borrower, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify
the Lenders of any such replacement of the Issuing Bank. At the time any such replacement
shall become effective, the Administrative Borrower shall pay all unpaid fees accrued for
the account of the replaced Issuing Bank pursuant to Section 2.11(b). From and
after the effective date of any such replacement, (i) the successor Issuing Bank shall have
all the rights and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such
successor and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing Bank under
this Agreement with respect to Letters of Credit issued by it prior to such replacement, but
shall not be required to issue additional Letters of Credit.




     (j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Administrative Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing greater than 66 and 2/3% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the
Administrative Borrower shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal
to the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with respect to the
Administrative Borrower described in clause (h) or (i) of Article VII. Such deposit shall
be held by the Administrative Agent as collateral for the payment and performance of the
obligations of the Administrative Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the



36









 







exclusive right of withdrawal, over such account. Other than any interest earned on
the investment of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Administrative Borrower’s risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has
not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of
the reimbursement obligations of the Administrative Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing greater than 66 and 2/3% of the total LC Exposure),
be applied to satisfy other obligations of the Administrative Borrower under this Agreement.
If the Administrative Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to the extent
not applied as aforesaid) shall be returned to the Administrative Borrower within three
Business Days after all Events of Default have been cured or waived.



     SECTION 2.6. Funding of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately available funds in the
applicable currency by 12:00 noon, Local Time, to the account of the Applicable Agent most recently
designated by it for such purpose by notice to the Lenders; provided that Swingline Loans
shall be made as provided in Section 2.4. The Applicable Agent will make such Loans
available to the applicable Borrower by promptly crediting the amounts so received, in like funds,
to an account of such Borrower designated by such Borrower in the applicable Borrowing Request;
provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.5(e) shall be remitted by the Administrative Agent to the Issuing
Bank.




     (b) Unless the Applicable Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Applicable
Agent such Lender’s share of such Borrowing, the Applicable Agent may assume that such
Lender has made such share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the applicable Borrower
a corresponding amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Applicable Agent, then the applicable Lender and such
Borrower severally agree to pay to the Applicable Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the date such
amount is made available to such Borrower to but excluding the date of payment to the
Applicable Agent, at (i) in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Applicable Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of such Borrower, the interest
rate applicable to the subject Loan. If such Lender pays such amount to the Applicable
Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.



     SECTION 2.7. Interest Elections. (a) Each Term Borrowing and Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a



37









 







Eurocurrency Borrowing or a EURIBOR Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request or as otherwise specified in Section 2.3. Thereafter, the
applicable Borrower may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Borrowing or a EURIBOR Borrowing, may elect Interest
Periods therefor, all as provided in this Section. A Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This Section shall not
apply to Swingline Borrowings, which may not be converted or continued.




     (b) To make an election pursuant to this Section, a Borrower shall notify the
Applicable Agent of such election by telecopy (or, in the case of the Administrative Agent,
by telephone) by the time that a Borrowing Request would be required under Section
2.3 if such Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by a Responsible Officer of the
Administrative Borrower, on behalf of the applicable Borrower. Notwithstanding any other
provision of this Section, no Borrower shall be permitted to (i) change the currency of any
Borrowing, (ii) elect an Interest Period for Eurocurrency Loans or EURIBOR Loans that does
not comply with Section 2.2(d) or (iii) convert any Borrowing to a Borrowing of a
Type not available to such Borrower pursuant to which such Borrowing was made.




     (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.2:




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




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




     (iii) whether the resulting Borrowing is to be an ABR Borrowing, a Eurocurrency
Borrowing or a EURIBOR Borrowing; and




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



38









 






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




     (d) Promptly following receipt of an Interest Election Request, the Applicable Agent
shall advise each applicable Lender of the details thereof and of such Lender’s portion of
each resulting Borrowing.




     (e) If the applicable Borrower fails to deliver a timely Interest Election Request with
respect to a Eurocurrency Borrowing or a EURIBOR Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the
end of such Interest Period such Borrowing shall (i) in the case of a Eurocurrency Borrowing
made to a US Borrower denominated in US Dollars, be converted to an ABR Borrowing, and (ii)
in the case of a EURIBOR Borrowing or any other Eurocurrency Borrowing, become due and
payable on the last day of such Interest Period. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Administrative Borrower, then, so
long as an Event of Default is continuing (A) no outstanding Revolving Borrowing made to a
Borrower may be converted to or continued as a Eurocurrency Borrowing or a EURIBOR Borrowing
and (B) unless repaid, each Eurocurrency Borrowing if in US Dollars shall be converted to an
ABR Borrowing at the end of the Interest Period applicable thereto.



     SECTION 2.8. Termination and Reduction of Commitments. (a) Unless previously
terminated, (i) the Term Commitments shall terminate at 5:00 p.m., New York City time, on the first
to occur of the Initial Funding Date and the date of termination of the Certain Funds Period and
(ii) the Revolving Commitments shall terminate at 5:00 p.m., New York City time, on the Maturity
Date; provided that the Revolving Commitments shall terminate at 5:00 p.m., New York City
time, on the date of termination of the Certain Funds Period if such period terminates under clause
(a) or (b) of the definition of Certain Funds Period prior to the occurrence of the Initial Funding
Date.




     (b) The Administrative Borrower may at any time terminate, or from time to time reduce,
the Commitments of any Class; provided that (i) each reduction of the Commitments of
any Class shall be in an amount that is an integral multiple of the Borrowing Multiple and
not less than the Borrowing Minimum, in each case for Borrowings denominated in US Dollars
and (ii) the Administrative Borrower shall not terminate or reduce the Revolving Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.10, the aggregate Revolving Credit Exposures of all Lenders would exceed
the total Revolving Commitments.




     (c) The Administrative Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the other Agents and the Lenders of the applicable Class
of the contents thereof. Each notice delivered by the Administrative



39









 







Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Revolving Commitments delivered by a Responsible Officer of the
Administrative Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the Administrative
Borrower (by notice to the Administrative Agent on or prior to the specified effective date)
if such condition is not satisfied. Any termination or reduction of the Commitments shall
be permanent but shall not affect the right of the Administrative Borrower to increase the
Commitment in accordance with Section 2.22. Each reduction of the Commitments of
any Class shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.



     SECTION 2.9. Repayment of Loans; Evidence of Debt; Amortization of Term Loans.
Subject to Section 10.18, (a) each Borrower hereby unconditionally promises to pay (i) to
the Applicable Agent for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Borrower on the Maturity Date, (ii) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Term Loan of such Lender as
provided in paragraph (f) of this Section and (iii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of the Maturity Date and the first date
after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least
two Business Days after such Swingline Loan is made; provided that on each date that a
Revolving Borrowing denominated in US Dollars is made, the Borrowers shall repay all Swingline
Loans then outstanding. On the Maturity Date, all Loans shall become absolutely due and payable
and the Borrowers shall pay all of the Loans outstanding, together with any and all accrued and
unpaid interest thereon.




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




     (c) The Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Borrower to each Lender hereunder and (iii) the amount of
any sum received by any Agent hereunder for the account of the Lenders and each Lender’s
share thereof. The London Agent shall furnish to the Administrative Agent, promptly after
the making of any Loan or Borrowing with respect to which it is the Applicable Agent or the
receipt of any payment of principal or interest with respect to any such Loan or Borrowing,
information with respect thereto that will enable the Administrative Agent to maintain the
accounts referred to in the preceding sentence.




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



40









 






     (e) Any Lender may request that Loans made by it be evidenced by a promissory note. In
such event, the applicable Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 10.4) be represented by one or
more promissory notes in such form payable to the order of the payee named therein (or, if
such promissory note is a registered note, to such payee and its registered assigns).




     (f) (i) The Borrower shall repay Term Borrowings on each June 30, September 30,
December 31 and March 31 following the Initial Funding Date and on the Maturity Date (each
such date, an “Installment Date”). The amount of the repayment to be made on each
Installment Date shall be (1) the aggregate principal amount that equals the percentage set
forth in the chart below for the period in which such Installment Date occurs of the
aggregate principal amount of the Term Loans made on the Initial Funding Date, divided by
(2) the actual number of Installment Dates included in such period (as such aggregate
principal amounts may be adjusted pursuant to subparagraph (iii) of this Section):



	 	 	 	 	 
	Period	 	Percentage of Initial Term Loans
	Initial Funding Date — June 30, 2009
	 	 	5	%
	July 1, 2009 — June 30, 2010
	 	 	20	%
	July 1, 2010 — June 30, 2011
	 	 	20	%
	July 1, 2011 — June 30, 2012
	 	 	25	%
	July 1, 2012 — Maturity Date
	 	 	30	%







     (ii) To the extent not previously paid, all Term Loans shall be due and payable on the
Maturity Date.




     (iii) Any prepayment of a Term Borrowing shall be applied to reduce the subsequent
scheduled repayments of the Term Borrowings to be made pursuant to this paragraph (f) in
direct order of maturity.




     (iv) Prior to any repayment of any Term Borrowings under this Section, the Borrower
shall select the Borrowing or Borrowings to be repaid and shall notify the Administrative
Agent by telephone (confirmed by hand delivery or facsimile) of such selection not later
than 11:00 a.m., New York City time, three Business Days before the scheduled date of such
repayment. Each repayment of a Term Borrowing shall be applied ratably to the Loans
included in the repaid Term Borrowing. Repayments of Term Borrowings shall be accompanied
by accrued interest on the amounts repaid.



41









 





     SECTION 2.10. Prepayment of Loans. (a) Any Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section.




     (b) The Administrative Borrower, on behalf of the applicable Borrower, shall notify the
Applicable Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender)
by a telecopy notice signed by a Responsible Officer of the Administrative Borrower of any
prepayment hereunder (i) in the case of prepayment of a Eurocurrency Borrowing denominated
in US Dollars, not later than 11:00 a.m., Local Time, three Business Days before the date of
prepayment, (ii) in the case of a Eurocurrency Borrowing denominated in an Alternative
Currency (other than Yen) or a EURIBOR Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of prepayment, (iii) in the case of a Eurocurrency
Borrowing denominated in Yen, not later than 11:00 a.m., Local Time, four Business Days
before the date of prepayment, (iv) in the case of prepayment of an ABR Borrowing, not later
than 11:00 a.m., Local Time, one Business Day before the date of prepayment or (v) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on
the date of prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid;
provided that if a notice of prepayment is given in connection with a conditional
notice of termination of the Revolving Commitments as contemplated by Section 2.8,
then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.8. Promptly following receipt of any such notice relating
to a Borrowing, the Applicable Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be permitted in the
case of an advance of a Borrowing of the same Type as provided in Section 2.2. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.12.




     (c) If, on any date, the aggregate amount of the Revolving Credit Exposures shall
exceed 105% of the aggregate Revolving Commitments as a result of currency fluctuations,
then the applicable Borrowers shall, within three Business Days, prepay one or more
Borrowings in an aggregate principal amount sufficient to eliminate such excess.



     SECTION 2.11. Fees. (a) The Administrative Borrower agrees to pay to the
Administrative Agent, in US Dollars, for the account of each Lender (i) in respect of such Lender’s
Term Commitment, a commitment fee, which shall accrue daily at the rate of 0.300% per annum, on
such Lender’s unused Term Commitment, during the period from and including the date hereof to but
excluding the date on which such Term Commitment terminates, and (ii) in respect of such Lender’s
Revolving Commitment, a commitment fee, which shall accrue daily at the rates set forth below
(calculated in accordance with the definition of “Applicable Rate”) on such Lender’s unused
Revolving Commitment (with the portion of such Lender’s Revolving Commitment equal to its LC
Exposure, but not its Swingline Exposure, being deemed to be used), during the period from and
including the date hereof to but excluding the date on which such Revolving Commitment terminates;
provided that if such Lender continues to have any Revolving Credit Exposure after its
Revolving Commitment terminates, then such commitment



42









 







fee shall continue to accrue on the daily amount of such Lender’s Swingline Exposure and LC
Exposure from and including the date on which its Revolving Commitment terminates to but excluding
the date on which such Lender ceases to have any Revolving Credit Exposure:



	 	 	 	 	 	 	 	 	 
	Pricing Level	 	Leverage Ratio:	 	Commitment Fee
	 	1	 	 	≤ 0.75:1.00
	 	 	0.200	%
	 	2	 	 	> 0.75:1.00 and ≤ 1.50:1.00
	 	 	0.250	%
	 	3	 	 	> 1.50:1.00 and ≤ 2.25:1.00
	 	 	0.300	%
	 	4	 	 	> 2.25:1.00
	 	 	0.375	%





Accrued commitment fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Term Commitments terminate and the date on which
the Revolving Commitments terminate, commencing on the first such date to occur after the date
hereof; provided that any commitment fees accruing after the date on which the Commitments
terminate shall be payable on demand. All commitment fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).





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



43









 







computed on the basis of a year of 360 days and shall be payable for the actual number
of days elapsed (including the first day but excluding the last day).




     (c) The Administrative Borrower agrees to pay to each of the Administrative Agent and
the Initial Lenders, for its own account, the fees payable in the amounts and at the times
provided in the Syndication and Fee Letter and the Administrative Agent Fee Letter or as
separately agreed among them upon from time to time.




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



     SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.




     (b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate and the Loans comprising such EURIBOR Revolving Borrowing shall bear interest at the
Adjusted EURIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.




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




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




     (e) All interest hereunder shall be computed on the basis of a year of 360 days, except
that (i) interest on Borrowings denominated in Sterling and (ii) interest computed by
reference to the Alternate Base Rate at times when the Alternate Base Rate



44









 







is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366
days in a leap year, except in the case of Borrowings denominated in Sterling), and in each
case shall be payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate, Adjusted
EURIBO Rate, LIBO Rate or EURIBO Rate shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.



     SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurocurrency Borrowing or a EURIBOR Borrowing:




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




     (b) the Applicable Agent is advised by the Required Lenders that the LIBO Rate or the
EURIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect
the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for such Interest Period;


then the Applicable Agent shall give notice thereof to the Administrative Borrower, the applicable
Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until
the Applicable Agent notifies the Administrative Borrower, the applicable Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any Interest Election
Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a
Eurocurrency Borrowing or a EURIBOR Borrowing, as the case may be, shall be ineffective, and (ii)
if any Borrowing Request requests a Eurocurrency Borrowing in US Dollars, such Borrowing shall be
made as an ABR Borrowing; provided that if the circumstances giving rise to such notice
affect less than all Types of Borrowings, then the other Types of Borrowings shall be permitted.




     SECTION 2.14. Increased Costs. (a) If any Change in Law shall:




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




     (ii) impose on any Lender or the Issuing Bank or the London or European
interbank market any other condition affecting this Agreement or Eurocurrency Loans
or EURIBOR Loans made by such Lender or any Letter of Credit or participation
therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan or EURIBOR Loan (or of maintaining its obligation to make any
such Loan) or to increase the cost to such Lender or the Issuing Bank of participating in, issuing
or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or


45









 






otherwise and other than with respect to Excluded Taxes), then the applicable Borrower will pay to
such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred
or reduction suffered.





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




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




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




     (e) Payments of any amounts under this Section 2.14 shall be without
duplication of any payments required to be made under Section 2.16 or Section
2.19. To the extent that payment with respect to Indemnified Taxes or Other Taxes is
required under both Section 2.16 and this Section 2.14, a Lender may elect
to require payment, without duplication, under either Section 2.16 or this
Section 2.14, provided that, notwithstanding anything to the contrary in
this Section 2.14, nothing in this Section 2.14 shall require any payment
with respect to any Excluded Taxes.



46









 





     SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan or EURIBOR Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) the conversion of any
Eurocurrency Loan or EURIBOR Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency Loan or EURIBOR
Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.10(b) and is revoked in accordance therewith), or (d)
the assignment of any Eurocurrency Loan or EURIBOR Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the applicable Borrower pursuant to
Section 2.18, then, in any such event, the applicable Borrower shall compensate each Lender
for the actual loss, cost and expense attributable to such event. In the case of a Eurocurrency
Loan or EURIBOR Loan, such loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate
or the Adjusted EURIBO Rate, as applicable (and without reference to the Applicable Margin) that
would have been applicable to such Loan, for the period from the date of such event to the last day
of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period, for deposits in the
applicable currency of a comparable amount and period from other banks in the London or European
interbank market. A certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the Administrative Borrower
and shall be conclusive absent manifest error. The Administrative Borrower shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt thereof.



     SECTION 2.16. Taxes. (a) Any and all payments by or on account of any obligation of
any Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if such Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) each Agent, each Lender or the Issuing Bank (as the
case may be) receives an amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.




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




     (c) Each relevant Borrower shall indemnify each Agent, each Lender and the Issuing
Bank, within 10 days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by such Agent, such Lender or the Issuing Bank, as the case may
be, on or with respect to any payment by or on account of any obligation of such Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section) and any penalties,



47









 







interest and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Administrative Borrower by a Lender or the Issuing Bank, or by
the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank,
shall be conclusive absent manifest error.




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




     (e) Any Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which a Borrower is located, or any treaty to which
such jurisdiction is a party, with respect to payments under this Agreement shall deliver to
the Administrative Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Administrative Borrower as will permit such
payments to be made without withholding or at a reduced rate. Each Lender shall promptly
notify the Administrative Agent of any change in circumstances which would modify or render
invalid any such claimed exemption or reduction. Without limiting the generality of the
foregoing, if a relevant Borrower is resident for tax purposes in the United States, any
Foreign Lender shall deliver to the Administrative Borrower (with a copy to the
Administrative Agent) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement, and upon the occurrence of any event that would result in the
invalidity or obsolescence of any previously-provided form, but only in each event if such
Foreign Lender is legally entitled to do so, whichever of the following is applicable:




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




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




          (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (A) a certificate to the effect that
such Foreign Lender is not (1) a “bank” within the meaning of Section 881(c)(3)(A) of the
Code, (2) a “10 percent shareholder” of the Administrative Borrower, or (3) a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the Code and (B) duly completed
copies of Internal Revenue Service Form W-8BEN, or




          (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law



48









 







to permit the Administrative Borrower to determine the withholding or deduction
required to be made.




In addition, if a relevant Borrower is resident for tax purposes in the United States, any
Lender that is not a Foreign Lender shall deliver to the Administrative Borrower (with a
copy to the Administrative Agent) on or prior to the date on which such Lender becomes a
Lender under this Agreement, and upon the occurrence of any event that would result in the
invalidity or obsolescence of any previously-provided form (but only in each such case if
such Lender is legally entitled to deliver such form), a duly executed and properly
completed copy of Internal Revenue Service Form W-9 (or applicable successor form)
establishing an exemption from United States federal backup withholding tax.




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




     (g) Payments of any amounts under this Section 2.16 shall be without
duplication of any payments required to be made under Section 2.14 or Section
2.19. To the extent that payment with respect to Indemnified Taxes or Other Taxes is
required under both Section 2.14 and this Section 2.16, Lender may elect to
require payment, without duplication, under either Section 2.14 or this Section
2.16.



     SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) Each
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.14, 2.15, 2.16 or 2.19, or otherwise) prior to 12:00 noon, Local
Time, on the date when due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the Applicable Agent, be
deemed to have been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Applicable Agent for the account of the
Lenders to such account as the Applicable Agent shall from time to time specify in one or more
notices delivered to the Administrative Borrower, except payments to be made directly to the
Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to
Sections 2.14, 2.15, 2.16, 2.19 and 10.3 shall be made
directly to the Persons entitled thereto. The Applicable Agent shall distribute any such payments
received by it for the account of any other



49









 







Person to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments of principal or interest
in respect of any Loan or LC Disbursement shall, except as otherwise expressly provided herein, be
made in the currency of such Loan or LC Disbursement; all other payments hereunder and under each
other Loan Document shall be made in US Dollars. Any payment required to be made by any Agent
hereunder shall be deemed to have been made by the time required if such Agent shall, at or before
such time, have taken the necessary steps to make such payment in accordance with the regulations
or operating procedures of the clearing or settlement system used by such Agent to make such
payment.




     (b) If at any time insufficient funds are received by and available to the Agents from
any Borrower (or from the Administrative Borrower as guarantor of the Obligations of such
Borrower pursuant to Article IX) and available to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due from such Borrower hereunder, such
funds shall be applied (i) first, towards payment of interest and fees then due from such
Borrower hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due from such Borrower hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.




     (c) If any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of its Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving rise thereto
is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provisions of this paragraph shall
not be construed to apply to any payment made by any Borrower pursuant to and in accordance
with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to the
Administrative Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). Subject to Section 10.18, each Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under applicable law, that
any Lender acquiring a participation pursuant to the foregoing arrangements may exercise
against each Borrower’s rights of set-off and counterclaim



50









 







with respect to such participation as fully as if such Lender were a direct creditor of
such Borrower in the amount of such participation.




     (d) Unless an Agent shall have received notice from a Borrower prior to the date on
which any payment is due to such Agent for the account of the Lenders or the Issuing Bank
hereunder that such Borrower will not make such payment, such Agent may assume that such
Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the
amount due. In such event, if such Borrower has not in fact made such payment, then each of
the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to such Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to it to but
excluding the date of payment to such Agent, at the greater of the Federal Funds Effective
Rate and a rate determined by such Agent in accordance with banking industry rules on
interbank compensation.




     (e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.4(c), 2.5(d) or (e), 2.6(b), 2.17(d) or
10.3(c), then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.



     SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.14 or 2.19, or if any Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, or if any Borrower is required to pay any additional amount to
any Lender pursuant to Section 2.19, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.14, 2.16 or 2.19, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. Each Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.




     (b) If (i) any Lender requests compensation under Section 2.14 or 2.19,
(ii) any Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, (iii) any Borrower
is required to pay any additional amount to any Lender pursuant to Section 2.19 or
(iv) any Lender defaults in its obligation to fund Loans hereunder, then the applicable
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 10.4), all its
interests, rights and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment);
provided that (x) such Borrower shall have received the prior written



51









 







consent of the Administrative Agent (and if a Revolving Commitment is being assigned,
the Issuing Bank), which consent shall not unreasonably be withheld, (y) such Lender shall
have received payment of an amount equal to the outstanding principal of its Loans and
funded participations in LC Disbursements and Swingline Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or such Borrower (in the case
of all other amounts) and (z) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or 2.19 or payments required to be made
pursuant to Section 2.16, or additional amount required pursuant to Section
2.19, such assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if, within five
Business Days after being notified that the applicable Borrower proposes to require a Lender
to make such assignment and delegation hereunder, as a result of a waiver by such Lender or
otherwise, the circumstances entitling such Borrower to require such assignment and
delegation cease to apply.



     SECTION 2.19. Foreign Subsidiary Costs. (a) If the cost to any Lender of making or
maintaining any Loan to any Borrower is increased (or the amount of any sum received or receivable
by any Lender (or its applicable lending office) is reduced) by an amount (other than with respect
to Excluded Taxes) deemed in good faith by such Lender to be material, by reason of the fact that
such Borrower is incorporated in, or conducts business in, a jurisdiction other than the United
States of America, then, to the extent such increase or reduction (i) results from a Change in Law
or (ii) relates to a Borrower in a jurisdiction other than the United Kingdom or The Netherlands
such Borrower shall indemnify such Lender for such increased cost or reduction within 30 days after
demand by such Lender (with a copy to the Administrative Agent). A certificate of such Lender
claiming compensation under this paragraph and setting forth the additional amount or amounts to be
paid to it hereunder (and the basis for the calculation of such amount or amounts) shall be
conclusive in the absence of manifest error.




     (b) Each Lender will promptly notify the Administrative Borrower and the Administrative
Agent of any event of which it has knowledge that will entitle such Lender to compensation
or payments pursuant to paragraph (a) above, but in any event within 45 days after such
Lender obtains actual knowledge thereof; provided that (i) if any Lender fails to
give such notice within 45 days after it obtains actual knowledge of such an event, such
Lender shall, with respect to compensation payable pursuant to this Section in respect of
any costs resulting from such event, only be entitled to payment under this Section for
costs incurred from and after the date 45 days prior to the date that such Lender does give
such notice and (ii) each Lender will designate a different applicable lending office, if,
in the reasonable judgment of such Lender, such designation will avoid the need for, or
reduce the amount of, such compensation and will not be otherwise disadvantageous to such
Lender.




     (c) Payments of any amounts under this Section 2.19 shall be without
duplication of any payments required to be made under Section 2.14 or Section
2.16. To the extent that payment with respect to Indemnified Taxes or Other Taxes is
required under both Section 2.16 and this Section 2.19, Lender may elect to
require payment, without duplication, under either Section 2.16 or this Section
2.19, provided that,



52









 







notwithstanding anything to the contrary in this Section 2.19, nothing in this
Section 2.19 shall require any payment with respect to any Excluded Taxes.



     SECTION 2.20. Redenomination of Certain Alternative Currencies. (a) Each obligation
of any party to this Agreement to make a payment denominated in the national currency unit of any
member state of the European Union that adopts the Euro as its lawful currency after the Effective
Date shall be redenominated into Euro at the time of such adoption (in accordance with the EMU
Legislation). If, in relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be inconsistent with any
convention or practice in the London interbank market for the basis of accrual of interest in
respect of the Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful currency;
provided that if any Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with respect to such Borrowing,
at the end of the then current Interest Period.




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



     SECTION 2.21. Designation of US Subsidiary Borrowers and Foreign Borrowers. The
Administrative Borrower may at any time and from time to time designate (a) any US Subsidiary as a
US Subsidiary Borrower, or (b) any Foreign Subsidiary as a Foreign Borrower, in each case by
delivery to the Administrative Agent of a Borrower Joinder Agreement executed by such Subsidiary
and the Administrative Borrower and upon such delivery such Subsidiary shall for all purposes of
this Agreement be a US Subsidiary Borrower or a Foreign Borrower, as the case may be, and a party
to this Agreement. Any US Subsidiary Borrower and Foreign Borrower shall continue to be a Borrower
and a party hereunder until the Administrative Borrower shall have executed and delivered to the
Administrative Agent a Borrower Termination Agreement with respect to such Borrower, whereupon such
Borrower shall cease to be a Borrower and a party hereunder. Notwithstanding the preceding
sentence, (a) no Borrower Joinder Agreement shall become effective as to any US Subsidiary Borrower
or any Foreign Borrower if it shall be unlawful for such Subsidiary to become a Borrower hereunder
or for any Lender to make Loans to such Subsidiary as provided herein and (b) no Borrower
Termination Agreement will become effective as to any US Subsidiary Borrower or any Foreign
Borrower until all Loans made to such Subsidiary shall have been repaid and all amounts payable by
such Subsidiary in respect of interest and/or fees (and, to the extent notified by the
Administrative Agent or any Lender, any other amounts payable under this Agreement by such
Subsidiary) shall have been paid in full; provided that such Borrower Termination Agreement
shall be effective to terminate the right of such Subsidiary to request or receive further
Borrowings under this Agreement.



     SECTION 2.22. Incremental Facilities. (a) The Administrative Borrower shall have
the right upon up to two occasions (i) by written notice to the Administrative Agent (a
“Commitment Increase Notice”) to request an increase in the aggregate Revolving
Commitments, or (ii) to establish one or more additional classes of term loans by an agreement (a
“Term Increase 



53









 




Amendment”) in writing entered into by the Administrative Borrower, the Borrower of
such term loans (if not the Administrative Borrower), the Administrative Agent and each Person
(including any Lender) that shall agree to make a term loan of any class so established. Any
increase in the aggregate Revolving Commitments or establishment of an additional class of term
loans, and any Term Increase Amendment, shall require the consent only of the Lenders or other
Persons increasing their Revolving Commitments or extending new Revolving Commitments or term
commitments but not the consents of any other Lenders, and each such Person that shall not already
be a Lender shall, at the time such agreement becomes effective, become a Lender with the same
effect as if it had originally been a Lender under this Agreement. The amount of any increase of
the Revolving Commitments or the principal amount of any new term loans is referred to herein as
the “Increase Amount”). It shall be a condition to any increase in the aggregate Revolving
Commitments or establishment of an additional class of term loans that at the time of any
Commitment Increase Notice and at the time such increase or the applicable Term Increase Amendment
would become effective, as applicable (i) no Default shall have occurred and be continuing or would
exist after giving effect to such increase in the Revolving Commitments or such additional term
loans, (ii) the Administrative Borrower shall be in pro forma compliance with all of the covenants
of Section 6.9 after giving effect to such increase in the Revolving Commitments or the
borrowing of such additional term loans as if incurred on the first day of the applicable Reference
Period, and (iii) the aggregate amount of all Increase Amounts during the term of this Agreement
shall not exceed US$50,000,000.




     (b) In the case of an increase of the aggregate Revolving Commitments, the Commitment
Increase Notice shall be delivered by the Administrative Agent to the Lenders and shall specify a
time period selected by the Administrative Borrower within which each Lender is requested to
respond to such Commitment Increase Notice (which shall in no event be less than ten Business Days
from the date of delivery of such Commitment Increase Notice to the Lenders). Each Lender shall
notify the Administrative Agent within such time period whether or not it agrees to increase its
Revolving Commitment and, if so, whether by an amount equal to, greater than, or less than its
Applicable Percentage of such requested increase. Any such Lender not responding within such time
period shall be deemed to have declined to increase its Revolving Commitment. The Administrative
Agent shall notify the Administrative Borrower and each Lender of the Lenders’ responses to each
request made hereunder. After the expiration of the time period set forth in the Commitment
Increase Notice or receipt by the Administrative Agent of responses to the Commitment Increase
Notice from each of the Lenders, then the Administrative Borrower may, to achieve the full amount
of the requested increase in the Revolving Commitments, invite one or more other Persons (other
than individuals) (each an “Additional Lender”) that have agreed to provide the Increase
Amount and that are acceptable to each of the Administrative Agent, Swingline Lender and Issuing
Bank (such consent not to be unreasonably withheld) (it being agreed that any Lender as of the date
of the Commitment Increase Notice would be acceptable) may be admitted as a Lender party to this
Agreement in accordance with the provisions of Section 10.4(e). None of the Administrative
Agent, the Initial Lenders or any other Lender shall have any obligation or other commitment to
provide all or any portion of the Increase Amount. Any such increase in the Revolving Commitment
shall become effective upon written notice by the Administrative Agent (which shall be promptly
delivered by the Administrative Agent) to the Administrative Borrower and the Lenders specifying
the effective date of such increase in Revolving Commitments, together with a revised Schedule
2.1 stating the new Revolving Commitments, and, in respect thereof, the Revolving Commitment of



54









 







each Additional Lender, the respective continuing Revolving Commitments of the other Lenders and
the new Revolving Credit Exposure of the Lenders. Upon the effective date of the increased
Revolving Commitments, each Additional Lender shall make all (if any) such payments to the
Administrative Agent for distribution to the other Lenders as may be necessary to result in the
respective Revolving Loans being held by such Additional Lender and the other Lenders ratably in
accordance with their Applicable Percentages. The Administrative Borrower hereby agrees that any
Additional Lender so paying any such amount to the other Lenders pursuant to the preceding sentence
shall be entitled to all the rights of a Lender having a Revolving Commitment hereunder in respect
of such amounts, that such payments to such other Lenders shall thereafter constitute Revolving
Loans made by such Additional Lender hereunder and that such Additional Lender may exercise all of
its rights of payment with respect to such amounts as fully as if such Additional Lender had
initially advanced to the Administrative Borrower directly the amount of such payments. If any
such adjustment payments pursuant to the preceding sentences of this Section 2.22 are made
by an Additional Lender to other Lenders at a time other than the end of an Interest Period in the
case of all or any portion of Revolving Loans constituting Eurocurrency Loans or EURIBOR Loans, the
Administrative Borrower shall pay to each of the Lenders receiving any such payment, at the time
that such payment is made pursuant to this Section 2.22, the amount that would be required
to be paid by the Administrative Borrower pursuant to Section 2.15 had such payments been
made directly by the Administrative Borrower.



     (c) In the case of the establishment of a new class of term loans, the Term Increase
Amendment shall amend the provisions of this Agreement and the other Loan Documents to set forth
the terms of the class of loans established thereby, including the amount and final maturity
thereof (which shall not be earlier than the Maturity Date), any provisions relating to
amortization (it being agreed that the weighted average life of such loans may be no less than the
then current weighted average life of the Term Loans and that there shall be no provisions for
mandatory prepayments of and offers to prepay the term loans of any such class) and the interest to
accrue and be payable thereon and any fees to be payable in respect thereof, and to effect such
other changes (including changes to the provisions of Sections 2.17 and 10.2, the definition of
“Required Lenders” and any other provision of any Loan Document specifying the number or percentage
of Lenders (or Lenders of any Class) required to waive, amend or modify any rights under the Loan
Documents or make any determination or grant any consent under the Loan Documents) as the
Administrative Borrower and the Administrative Agent shall deem necessary or advisable in
connection with the establishment of any such class of term loans; provided that no such
agreement shall amend Article V, VI or VII to establish any affirmative or negative covenant, Event
of Default or remedy that by its terms benefits any such class of term loans but not the then
outstanding Classes of Loans and Commitments without the prior written consent of Lenders holding
a majority in interest of each such Class. The term loans of any class established pursuant to
this Section shall, to the extent provided in the agreement entered into in connection therewith,
be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall
benefit equally and ratably from the Subsidiary Guarantee Agreement.




55











 





ARTICLE III.

REPRESENTATIONS AND WARRANTIES




     Each Loan Party represents and warrants to the Lenders that:



     SECTION 3.1. Organization; Powers. Each Borrower and each Material Subsidiary is
duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, to the extent legally required, and has all requisite power and authority to carry on
its business as now conducted. Each Subsidiary other than a Material Subsidiary is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, to
the extent legally required, and has all requisite power and authority to carry on its business as
now conducted, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. Except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, each Loan Party and each Subsidiary is qualified to do business in, and is in good standing
in, every jurisdiction where such qualification is required.



     SECTION 3.2. Authorization; Enforceability. The Transactions are within each Loan
Party’s corporate powers and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by each Loan Party and
constitutes a legal, valid and binding obligation of each Loan Party, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors’ rights generally and subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at law.



     SECTION 3.3. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect
and such as are required to consummate the ClinPhone Acquisition and shall have been obtained or
made and be in full force and effect on the Initial Funding Date, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational documents of the
Administrative Borrower or any of its Subsidiaries or any order of any Governmental Authority, (c)
will not violate or result in a default under any indenture, agreement or other instrument binding
upon the Administrative Borrower or any of its Subsidiaries or their assets, or give rise to a
right thereunder to require any payment to be made by the Administrative Borrower or any of its
Subsidiaries (other than Indebtedness of ClinPhone and its subsidiaries that will be repaid on or
prior to or immediately after the Initial Funding Date and obligations of ClinPhone and its
subsidiaries (other than in respect of Indebtedness) in an aggregate amount that is immaterial),
and (d) will not result in the creation or imposition of any Lien on any asset of the
Administrative Borrower or any of its Subsidiaries.



     SECTION 3.4. Financial Condition; No Material Adverse Change. (a) The Administrative
Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of
income, stockholders equity and cash flows (i) as of and for the fiscal year ended June 30, 2007,
reported on by Ernst & Young LLP, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended March 31, 2008, certified by its chief financial
officer. Such financial statements present fairly, in all material



56









 







respects, the financial position and results of operations and cash flows of the
Administrative Borrower and its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the
case of the statements referred to in clause (ii) above.




     (b) The Administrative Borrower has heretofore furnished to the Lenders the
consolidated balance sheet and statements of income, recognized income and expense and cash
flow of ClinPhone as of and for the fiscal year ended February 29, 2008, reported on by
PricewaterhouseCoopers LLP, independent public accountants. To Administrative Borrower’s
knowledge, such financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of ClinPhone and its consolidated
subsidiaries as of such dates and for such periods in accordance with International
Financial Reporting Standards, as adopted by the European Union.




     (c) Since June 30, 2007, there has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of the Administrative
Borrower and its Subsidiaries, taken as a whole.



     SECTION 3.5. Properties. (a) Each of the Administrative Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property
material to its business, except for minor defects in title that do not interfere with its ability
to conduct its business as currently conducted or to utilize such properties for their intended
purposes.




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



     SECTION 3.6. Litigation and Environmental Matters. (a) There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of any Loan Party, threatened against or affecting the Administrative Borrower or any of
its Subsidiaries (i) that would reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement
or the Transactions.




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



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     (c) Since the date of this Agreement, there has been no change in the status of the
Disclosed Matters that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.



     SECTION 3.7. Compliance with Laws and Agreements. Each of the Administrative
Borrower and its Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default
has occurred and is continuing.



     SECTION 3.8. Investment Company Status. Neither the Administrative Borrower nor any
of its Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.



     SECTION 3.9. Taxes. Each of the Administrative Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have been filed (within
any applicable extension) and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for
which such Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves
or (b) to the extent that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.



     SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the
most recent financial statements reflecting such amounts, exceed the fair market value of the
assets of such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial statements reflecting such
amounts, exceed the fair market value of the assets of all such underfunded Plans.



     SECTION 3.11. Disclosure. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or on behalf of any
Loan Party to any Agent or any Lender in connection with the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that (a) with respect to projected financial information, each Loan Party
represents only that such information was prepared in good faith based upon assumptions believed to
be reasonable at the time, and (b) to the extent the representations made in this Section
3.11 relate to CCT or Behavioral and Medical Research, LLC, such representations are made to
the best of the knowledge of each Loan Party.



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     SECTION 3.12. Subsidiaries. As of the date hereof, Schedule 3.12 is a
complete list of each of the Administrative Borrower’s Subsidiaries and such Subsidiary’s
jurisdiction of incorporation.



     SECTION 3.13. Federal Regulations. Neither the Administrative Borrower nor any of
its Subsidiaries is engaged or will engage in any activities, nor shall use any portion of the
proceeds of the Loans be used for any purpose, which in either case violate or are inconsistent
with the provisions of Regulations U and X of the Board of Governors of the Federal Reserve System
as now and from time to time hereafter in effect.



     SECTION 3.14. Pensions. (a) Neither ClinPhone nor any of its subsidiaries is or, to
its knowledge and belief, has at any time been an employer (for the purposes of sections 38 to 51
of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme
(both terms as defined in the Pension Schemes Act 1993); and (b) to its knowledge and belief,
neither ClinPhone nor any of its subsidiaries is or has at any time been “connected” with or an
“associate” of (as those terms are used in sections 39 and 43 of the Pensions Act 2004) such an
employer.



     SECTION 3.15. Scheme Documents. (a) The Scheme Documents contain all the material
terms of the Scheme Acquisition and the Scheme Circular reflects the Press Release in all material
respects; and (b) to the knowledge and belief of each of the Administrative Borrower and Bidco the
information included in the Scheme Documents (i) is factually correct and (ii) does not omit
anything material in the context of the relevant Scheme Document.



     SECTION 3.16. Offer Documents. (a) The Offer Documents contain all the material
terms of the Takeover Offer Acquisition and the Takeover Offer Document reflects the Offer Press
Announcement in all material respects; and (b) to the knowledge and belief of each of the
Administrative Borrower and Bidco the information included in the Offer Documents (i) is factually
correct and (ii) does not omit anything material in the context of the relevant Offer Document.



     SECTION 3.17. Press Release. (a) The Press Release or, if the Offer Conversion has
occurred, the Offer Press Announcement contains all the material terms of the Scheme (or the
Takeover Offer Acquisition, as the case may be); and (b) to the knowledge and belief of each of the
Administrative Borrower and Bidco the information included in the Press Release (or, if the Offer
Conversion has occurred, the Offer Press Announcement) (i) is in accordance with the facts and (ii)
does not omit anything material in the context of the relevant Scheme Document or Offer Document
(as applicable).



     SECTION 3.18. Material CF Subsidiaries. The Administrative Borrower hereby
represents and warrants that (a) the Material CF Subsidiaries are the only Subsidiaries that,
together with their own subsidiaries, accounted for 5% or more of the Administrative Borrower’s
Consolidated EBITDA for the Reference Period ended on March 31, 2008, and (b) no Event of Default
in respect of the Material CF Subsidiaries exists under Section 6.2, or under the
corresponding covenant in the Existing Credit Agreement, on the date of this Agreement.



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     SECTION 3.19. Specially Designated Nationals or Blocked Persons List. None of the
Borrowers, the Subsidiaries or any Affiliates of the Administrative Borrower are named on the
United States Department of the Treasury’s Specially Designated Nationals or Blocked Persons list.



ARTICLE IV.

CONDITIONS




     SECTION 4.1. Effective Date. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section
10.2):




     (a) The Administrative Agent (or its counsel) shall have received (i) from each Lender
and each other party hereto either (A) a counterpart of this Agreement signed on behalf of
such party or (B) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement) that such party
has signed a counterpart of this Agreement and (ii) from each Subsidiary Guarantor (other
than any Subsidiary Guarantor that the Initial Lenders have agreed may defer entry into the
Subsidiary Guarantee Agreement to a date not more than 10 Business Days after the Effective
Date, and the Administrative Borrower agrees to cause each such deferred Subsidiary
Guarantor to enter into the Subsidiary Guarantee Agreement on or prior to such 10th Business
Day), a counterpart of the Subsidiary Guarantee Agreement signed on behalf of such
Subsidiary Guarantor.




     (b) The Administrative Agent shall have received written opinions (addressed to the
Agents and the Lenders and dated the Effective Date) of (i) Wilmer Cutler Pickering Hale
and Dorr LLP, counsel for the Administrative Borrower and each other Loan Party and (ii)
Clifford Chance LLP, United Kingdom counsel for the Initial Lenders, in each case in form
and substance satisfactory to the Administrative Agent and covering such matters relating to
each Loan Party, this Agreement or the Transactions as the Administrative Agent shall
reasonably request. The Borrowers hereby request counsel referred to in clause (i) above to
deliver such opinion. In addition, the Borrowers agree that they shall cause the
Administrative Agent to receive the written opinion (addressed to the Agents and the Lenders
and dated the Effective Date or the Business Day immediately following the Effective Date,
as applicable) of Baker & McKenzie Amsterdam N.V., local counsel to the Dutch Borrower, not
later than the Business Day immediately following the Effective Date (it being understood
that the delivery of such opinion is not a condition to the occurrence of the Effective
Date). The Borrowers hereby request counsel referred to in the immediately preceding
sentence to deliver such opinion.




     (c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of each Loan Party, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, this Agreement or the Transactions,
all in form and substance satisfactory to the Administrative Agent and its counsel.



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     (d) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of the
Administrative Borrower, confirming compliance with the conditions set forth in paragraphs
(a) and (b) of Section 4.3.




     (e) The Administrative Agent shall have received all fees and other amounts due and
payable pursuant to this Agreement and the Syndication and Fee Letter on or prior to the
Effective Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Administrative Borrower
hereunder.




     (f) The Administrative Agent shall have received evidence that all governmental and
third party approvals necessary or, in the discretion of the Administrative Agent, advisable
in connection with the financing contemplated hereby (other than such approvals required in
connection with the ClinPhone Acquisition) and the continuing operations of the
Administrative Borrower and its Subsidiaries shall have been obtained and be in full force
and effect.




     (g) The Administrative Agent shall have received a copy of:




     (i) the Implementation Agreement; and




     (ii) a copy of the Press Release.




     (h) The Lenders shall have received (or waived receipt of) such other documents and
instruments as are customary for transactions of this type or as they may reasonably
request.


The Administrative Agent shall notify the Administrative Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the
obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit
hereunder shall not become effective unless each of the foregoing conditions is satisfied (or
waived pursuant to Section 10.2) at or prior to 3:00 p.m., New York City time, on June 13,
2008.




     SECTION 4.2. Initial Funding Date. The obligations of the Lenders to make the
initial Loans and of the Issuing Bank to issue the initial Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 10.2):




     (a) If the Offer Conversion has not occurred, on or prior to the Initial Funding Date,
the Administrative Agent shall have received:




     (i) a certificate of Bidco signed by a director certifying:




     (1) the date on which the Announcement Date occurred (which
shall be a date on or prior to the tenth calendar day after the date of this
Agreement);



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     (2) the date on which the Scheme Circular was posted to the
shareholders of ClinPhone;




     (3) the date that the Court has sanctioned the Scheme and the Capital
Reduction relating to the Scheme and that the relevant order of the Court
has been duly delivered to the Registrar of Companies in accordance with
Section 899(4) of the Companies Act 2006 and has been registered and a
certificate of registration from the Register of Companies under section
138(4) of the Companies Act 1985 has been issued in relation to the Capital
Reduction relating to the Scheme;




     (4) that the conditions applicable to the ClinPhone Acquisition have
been satisfied or waived in accordance with their terms and the terms of
this Agreement or as otherwise agreed by the Initial Lenders; and




     (5) each copy document specified in paragraphs (ii) to (v) below is
correct, complete and in full force and effect and has not been amended or
superseded as at a date no earlier than the proposed date of the relevant
Borrowing;




     (ii) a copy of each of the Scheme Documents.




     (iii) a copy of the certificate of the Register of Companies confirming
registration of the order of the Court sanctioning the Scheme and a copy of that
order of the Court; and




     (iv) a copy of the certificate of registration from the Registrar of Companies
under section 138(4) of the Companies Act 1985 and a copy of the order of the Court
and minute which is the subject of that certificate.




     (v) evidence that all necessary regulatory and competition authority approvals
for the ClinPhone Acquisition have been obtained.




     (b) If the Offer Conversion has occurred, prior to or on the Initial Funding Date, the
Administrative Agent shall have received:




     (i) a certificate of Bidco signed by a director certifying:




     (1) the date on which the Announcement Date occurred;




     (2) the date on which the Takeover Offer Document was posted to the
shareholders of ClinPhone;




     (3) that the conditions applicable to the ClinPhone Acquisition have
been satisfied or waived in accordance with their terms and the terms of
this Agreement or otherwise agreed by the Initial Lenders; and



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     (5) each copy document specified in paragraph (ii) below is correct,
complete and in full force and effect and has not been amended or superseded
as at a date no earlier than the proposed date of the relevant Borrowing;
and




     (ii) a copy of each of the Offer Documents.




     (c) In the case of a Borrowing to be made by any Borrower other than Bidco, Bidco has
consented to such Borrowing.




     (d) The Administrative Agent shall have received all fees and other amounts due and
payable pursuant to this Agreement and the Syndication and Fee Letter on or prior to the
Initial Funding Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Administrative Borrower
hereunder.




     (e) The Administrative Agent shall have received a certificate of a Financial Officer
of the Administrative Borrower certifying that (1) a portion of the Borrowings to be made on
such date will constitute a Certain Funds Utilisation (other than a Certain Funds
Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of
Certain Funds Purpose), (2) the remainder of such Borrowings and all the Letters of Credit
to be issued on that date, up to an aggregate amount of not more than US$65,000,000, will be
used to ensure that the representation made in the last paragraph of Section 4.2 shall be
true and (3) on the date of the applicable Borrowing Request and on the proposed date of
such Borrowings and Letter of Credit issuances:




     (i) no Certain Funds Default is continuing or would result from the proposed
Borrowings and Letter of credit issuances; and




     (ii) all the Certain Funds Representations are true.




The Administrative Agent shall notify the Administrative Borrower and the Lenders of the
Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the
foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of
the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or
prior to 3:00 p.m., New York City time, on the last day of the Certain Funds Period.




During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e)
above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be
entitled to:




     (i) cancel any of its Commitments to the extent to do so would prevent or limit the
making of a Certain Funds Utilisation;




     (ii) rescind, terminate or cancel this Agreement or the Commitments or exercise any
similar right or remedy or make or enforce any claim under the Loan



63









 







Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;




     (iii) refuse to participate in the making of a Certain Funds Utilisation if the
conditions set forth in this Section 4.2 have been satisfied as of the Initial Funding Date;




     (iv) exercise any right of set-off or counterclaim in respect of a Borrowing to the
extent to do so would prevent or limit the making of a Certain Funds Utilisation; or




     (v) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder
or under any other Loan Document to the extent to do so would prevent or limit the making of
a Certain Funds Utilisation,




provided that immediately upon the expiry of the Certain Funds Period all such
rights, remedies and entitlements shall be available to the Lenders and Agents
notwithstanding that they may not have been used or been available for use during the
Certain Funds Period.




Immediately following the initial funding of Loans on the Initial Funding Date, the
Administrative Borrower shall cause all principal, premium, if any, interest, fees and other
amounts due or outstanding under the Existing Credit Agreement to be paid in full, the
commitments thereunder to be terminated and all guarantees and Liens existing in connection
therewith to be discharged and released, and the Administrative Borrower hereby directs the
Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the
payment of the foregoing amounts until they are paid in full.




The Administrative Borrower represents and covenants that, after the borrowings on the
Initial Funding Date and the application of funds provided for in the immediately preceding
paragraph, none of the Borrowers or any other Subsidiary shall have outstanding any shares
of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i)
Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1
and Schedule 6.15, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv)
other Indebtedness in an aggregate principal amount not to exceed US$12,000,000.



     SECTION 4.3. Each Credit Event after the Initial Funding Date. After the Initial
Funding Date, the obligation of each Lender to make a Loan on the occasion of any Borrowing, and of
the Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:




     (a) The representations and warranties of the Loan Parties set forth in this Agreement
shall be true and correct on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable.




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



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Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Administrative Borrower on the date
thereof as to the matters specified in paragraphs (a) and (b) of this Section 4.3.




     SECTION 4.4. Initial Credit Event for each Additional Borrower. The obligation of
each Lender to make Loans to any Borrower that becomes a Borrower after the Effective Date is
subject to the satisfaction of the following conditions:




     (a) The Administrative Agent (or its counsel) shall have received such Borrower’s
Borrower Joinder Agreement duly executed by all parties thereto.




     (b) The Administrative Agent shall have received such documents (including such legal
opinions) as the Administrative Agent or its counsel may reasonably request relating to the
existence and good standing of such Borrower, the authorization of the Transactions insofar
as they relate to such Borrower and any other legal matters relating to such Borrower, its
Borrower Joinder Agreement or such Transactions, including, with respect to any Borrower
organized under the laws of any jurisdiction outside of the United States, a legal opinion
from such Borrower’s counsel in such jurisdiction, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.




     (c) The Administrative Agent and the Lenders shall have received all documentation and
other information reasonably requested by the Lenders or the Administrative Agent under
applicable “know your customer” and anti-money laundering rules and regulations, including
the USA Patriot Act.



ARTICLE V.

AFFIRMATIVE COVENANTS




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



     SECTION 5.1. Financial Statements; Ratings Change and Other Information. The
Administrative Borrower will furnish to the Administrative Agent and each Lender:




     (a) within 90 days after the end of each fiscal year of the Administrative Borrower,
its audited consolidated balance sheet and related statements of operations, stockholders’
equity and cash flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on by Ernst & Young
LLP or other independent public accountants of recognized national standing (without a
“going concern” or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Administrative Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;



65









 






     (b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Administrative Borrower, its consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods of (or, in the case
of the balance sheet, as of the end of) the previous fiscal year, all certified by one of
its Financial Officers as presenting fairly in all material respects the financial condition
and results of operations of the Administrative Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes;




     (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Administrative Borrower (i) certifying as
to whether a Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with Section 6.9 and
(iii) stating whether any change in GAAP or in the application thereof has occurred since
the date of the audited financial statements referred to in Section 3.4 and, if any
such change has occurred, specifying the effect of such change on the financial statements
accompanying such certificate;




     (d) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Administrative Borrower or any
Subsidiary with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any national
securities exchange, or distributed by the Administrative Borrower to its shareholders
generally, as the case may be; and




     (e) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Administrative Borrower or any
Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent may
reasonably request.


Any delivery of the items required to be delivered by (i) clauses (a), (b), and (d) of this Section
by the Administrative Borrower shall be deemed to have been delivered to the Administrative Agent
and the Lenders upon the filing of such items with the Securities and Exchange Commission,
provided that such items are readily available for public viewing on EDGAR, or (ii) clause
(c) of this Section by the Administrative Borrower shall be deemed satisfied by delivery to the
Administrative Agent of such items for posting to Intralinks or other such similar system (to the
extent Intralinks or such other system has been established, is functioning and is accessible to
each Lender).




     SECTION 5.2. Notices of Material Events. The Administrative Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:




     (a) the occurrence of any Default;



66









 






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




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




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


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




     SECTION 5.3. Existence; Conduct of Business. The Administrative Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence and the rights, licenses, permits,
privileges and franchises material to the conduct of the business of the Administrative Borrower
and its Subsidiaries, taken as a whole; provided that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 6.3.



     SECTION 5.4. Payment of Obligations. The Administrative Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax liabilities, that, if not
paid, could result in a Material Adverse Effect before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Administrative Borrower or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make
payment pending such contest could not reasonably be expected to result in a Material Adverse
Effect.



     SECTION 5.5. Maintenance of Properties; Insurance. The Administrative Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property material to the
conduct of the business of the Administrative Borrower and its Subsidiaries, taken as a whole, in
good working order and condition, ordinary wear and tear excepted, and (b) maintain, with
financially sound and reputable insurance companies, insurance in such amounts and against such
risks as are customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.



     SECTION 5.6. Books and Records; Inspection Rights. The Administrative Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its
business and activities. The Administrative Borrower will, and will cause each of its Subsidiaries
to, permit any representatives designated by the Administrative Agent or the Required Lenders, upon
reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its
books and records, and to discuss its affairs, finances and condition with its officers and



67









 







independent accountants, all at such reasonable times and as often as reasonably requested,
provided that such visits shall not occur more than once per calendar year unless an Event
of Default has occurred and is continuing.



     SECTION 5.7. Compliance with Laws. The Administrative Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.



     SECTION 5.8. Use of Proceeds and Letters of Credit. Letters of Credit and the
proceeds of the Loans will be used:




     (a) during the Certain Funds Period, for Certain Funds Purposes only, provided that
only an aggregate amount of up to $65 million may be applied for the purpose referred to at
paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose and provided further
that, once the requirements of the penultimate paragraph of Section 4.2 have been
discharged, the balance of the $65 million referred to in the foregoing proviso (if any) may
be applied to refinance the indebtedness of the ClinPhone Group;




     (b) after the expiry of the Certain Funds Period, only (i) for Certain Funds Purposes,
(ii) to finance Permitted Acquisitions; (iii) to finance Permitted Stock Repurchases, (iv)
to refinance the indebtedness of the ClinPhone Group and (v) for general corporate purposes
of the Administrative Borrower and its Subsidiaries, provided that no amount shall be
applied for the purpose set out at (iv) above until the requirements of the penultimate
paragraph of Section 4.2 have been discharged.


No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose
that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.




     SECTION 5.9. Additional Subsidiaries. In the event the Administrative Borrower
acquires, designates or creates any Material US Subsidiaries or if any existing Subsidiary becomes
or is designated as or is deemed to be a Material US Subsidiary after the date hereof, the
Administrative Borrower shall forthwith promptly (and in any event within 15 Business Days after
knowledge of such Subsidiary being or being designated or deemed to be a Material US Subsidiary)
cause such Subsidiary to become a Subsidiary Guarantor; provided that, at the reasonable
discretion of the Administrative Agent, no such Material US Subsidiary shall be required to become
a Subsidiary Guarantor to the extent that doing so would be reasonably likely to cause material
adverse tax consequences to the Administrative Borrower and its Subsidiaries.



ARTICLE VI.

NEGATIVE COVENANTS




     Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements have been reimbursed, each Loan Party covenants and agrees
(except and solely to the extent that the existence at any time of any



68









 







agreement contained in this Article VI would at such time violate Section 6.8 of the Existing Credit Agreement)
with the Lenders that:



     SECTION 6.1. Indebtedness. The Administrative Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:




     (a) Indebtedness created hereunder and, prior to the Initial Funding Date, Indebtedness
created under the Existing Credit Agreement; provided that the aggregate amount of
the “Loans” and the “LC Exposures” (each as defined in the Existing Credit Agreement) shall
not at any time exceed US$65,000,000;




     (b) Indebtedness set forth in Schedule 6.1, and any extensions, renewals or
replacements of any such Indebtedness to the extent the principal amount thereof is not
increased;




     (c) Indebtedness of (i) a Credit Party to a Credit Party, (ii) a Non-Credit Party to a
Non-Credit Party, (iii) a Credit Party to a Non-Credit Party, and (iv) a Non-Credit Party to
a Credit Party in an amount not to exceed the amount provided for in Section 6.12;




     (d) Guarantees by (i) a Credit Party of Indebtedness of a Credit Party, (ii) a
Non-Credit Party of Indebtedness of a Non-Credit Party, (iii) a Non-Credit Party of the
Indebtedness of a Credit Party, and (iv) a Credit Party of Indebtedness of a Non-Credit
Party in an amount not to exceed the amount provided for in Section 6.12;




     (e) Indebtedness of the Administrative Borrower or any Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital assets, including
Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of
any such assets or secured by a Lien on any such assets prior to the acquisition thereof,
and extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (i) such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal amount of Indebtedness
permitted by this clause (e) shall not exceed US$30,000,000 at any time outstanding;




     (f) Indebtedness of any Credit Party not otherwise contemplated in the foregoing
clauses provided that (i) the Credit Parties and their Subsidiaries, on a combined and
consolidating basis, will be solvent upon the incurrence of such Indebtedness; (ii) the
Credit Parties shall be in compliance with Section 6.9 on a pro forma basis as at the end of and for the most recently ended Reference Period for which
financial statements have been furnished to the Administrative Agent under Section
5.1(a) or Section 5.1(b) (or, prior to the delivery of any such statements, for
the Reference Period ended on March 31, 2008) (and, at the request of the Administrative
Agent, the Administrative Borrower shall deliver to the Administrative Agent a certificate
of a Financial Officer certifying the foregoing in reasonable detail), and (iii) no



69









 







Default or Event of Default then exists or would result after giving effect to the incurrence of
such Indebtedness;




     (g) Indebtedness of the Administrative Borrower or any Subsidiary as an account party
in respect of trade letters of credit;




     (h) a Cash Pooling Financing; and




     (i) Indebtedness of Non-Credit Parties in a principal amount not to exceed
US$30,000,000.



     SECTION 6.2. Liens. The Administrative Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned
or hereafter acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:




     (a) Permitted Encumbrances;




     (b) any Lien on any property or asset of the Administrative Borrower or any Subsidiary
set forth in Schedule 6.2; provided that (i) such Lien shall not apply to
any other property or asset of the Administrative Borrower or any Subsidiary and (ii) such
Lien shall secure only those obligations which it secures on the date hereof;




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




     (d) Liens on fixed or capital assets acquired, constructed or improved by the
Administrative Borrower or any Subsidiary; provided that (i) such security interests
secure Indebtedness permitted by clause (e) of Section 6.1, (ii) such security
interests and the Indebtedness secured thereby are incurred prior to or within 90 days after
such acquisition or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed the cost of acquiring, constructing or
improving such fixed or capital assets and (iv) such security interests shall not apply to any other
property or assets of the Administrative Borrower or any Subsidiary; and




     (e) any Liens in the form of cash collateral securing letters of credit;
provided that the Indebtedness secured thereby shall not exceed US$15,000,000;




     (f) Liens securing Indebtedness permitted by clause (h) of Section 6.1;



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     (g) Liens on the related accounts and assets contained in such accounts securing a Cash
Pooling Financing; and




     (h) rights of pledge and set-off arising pursuant to the general banking conditions
declared applicable to Dutch bank accounts.



     SECTION 6.3. Fundamental Changes. (a) The Administrative Borrower will not, and will
not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in
one transaction or in a series of transactions) all or any substantial part of its assets, or all
or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing:




          (i) any Subsidiary may merge with the Administrative Borrower in a transaction in which
the Administrative Borrower is the surviving corporation;




          (ii) any Credit Party may (A) sell, transfer, lease or otherwise dispose of its assets
(1) to a Credit Party or (2) to a Non-Credit Party in an amount not to exceed the maximum
amount permitted under Section 6.12, or (B) merge with a Credit Party (other than
the Administrative Borrower);




          (iii) any Non-Credit Party may (A) sell, transfer, lease or otherwise dispose of its
assets to a Non-Credit Party or a Credit Party, or (B) merge into or consolidate with a
Non-Credit Party, or (C) merge with a Credit Party if a Credit Party is the survivor;




          (iv) any Subsidiary (other than a Borrower) may liquidate or dissolve if the
Administrative Borrower determines in good faith that such liquidation or dissolution is in
the best interests of the Borrowers taken as a whole and is not materially disadvantageous
to the Lenders;




          (v) any Subsidiary may sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions), assets and properties so long as:




               (A) if any such disposition shall constitute more than 2% of the consolidated tangible
assets of the Administrative Borrower and its Subsidiaries (as measured at the end of the
most recently ended fiscal quarter for which financial statements have been furnished to the
Administrative Agent under Section 5.1(a) or Section 5.1(b) (or, prior to
the delivery of any such statements, for the Reference Period ended on March 31, 2008)), then (i) the Administrative Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer attaching calculations reasonably
satisfactory to the Administrative Agent evidencing compliance with Section 6.9 on a
pro forma basis as at the end of and for the most recently ended Reference Period for which
financial statements have been furnished to the Administrative Agent under Section
5.1(a) or Section 5.1(b) (or, prior to the delivery of any such statements, for
the Reference Period ended on March 31, 2008), (iii) demonstrating that pro-forma
Consolidated EBITDA for the Reference Period most recently ended for which financial



71









 







statements have been furnished to the Administrative Agent under Section 5.1(a) or
Section 5.1(b) (or, prior to the delivery of any such statements, for the Reference
Period ended on March 31, 2008) after giving effect to any such disposition is not more than
10% lower than Consolidated EBITDA for such Reference Period without giving effect to such
disposition, and (iv) certifying that no Default or Event of Default then exists or would
result after giving effect to such disposition; and




               (B) such dispositions shall not, in the aggregate, exceed an amount equal to 10% of the
Administrative Borrower’s consolidated tangible assets as set forth on the Administrative
Borrower’s most recently delivered audited financial statements referred to in Section 5.1;
and




          (vi) any person that is not a Subsidiary may merge with and into the Administrative
Borrower or any of its wholly-owned Subsidiaries in a Permitted Acquisition or consolidate
with any of its wholly-owned Subsidiaries; provided that if such Subsidiary is a
Credit Party the survivor shall be a Credit Party.




     (b) The Administrative Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the type
conducted by the Administrative Borrower and its Subsidiaries on the date of execution of
this Agreement and businesses reasonably related thereto or, after the Initial Funding date,
businesses of the type conducted by ClinPhone and its subsidiaries on the date of execution
of this Agreement and businesses reasonably related thereto.



     SECTION 6.4. Investments, Loans, Advances, Guarantees and Acquisitions. The
Administrative Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or
acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary
prior to such merger) any capital stock, evidences of indebtedness or other securities (including
any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or
any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business unit, except:




     (a) Permitted Investments;




     (b) Investments by the Administrative Borrower existing on the date hereof in the
capital stock of its Subsidiaries;




     (c) investments in, including loans and advances made by (i) a Credit Party to any
other Credit Party, (ii) a Non-Credit Party to a Non-Credit Party, (iii) a Non-Credit Party
to a Credit Party, and (iv) a Credit Party to a Non-Credit Party to the extent permitted by
Section 6.12.




     (d) Guarantees constituting Indebtedness permitted by Section 6.1;




     (e) investments in Permitted Acquisitions; and



72









 






     (f) investments in the capital stock or other securities of a Person (not constituting
an Acquisition) in an amount not to exceed US$15,000,000 for the period from and after the
Effective Date.



     SECTION 6.5. Swap Agreements. The Administrative Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements
entered into to hedge or mitigate risks to which the Administrative Borrower or any Subsidiary has
actual exposure (other than those in respect of Equity Interests of the Administrative Borrower or
any of its Subsidiaries), and (b) Swap Agreements entered into in order to effectively cap, collar
or exchange interest rates (from fixed to floating rates, from one floating rate to another
floating rate or otherwise) with respect to any interest-bearing liability or investment of the
Administrative Borrower or any Subsidiary.



     SECTION 6.6. Restricted Payments. The Administrative Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except (a) the Administrative Borrower may declare and pay
dividends with respect to its Equity Interests payable solely in additional shares of its common
stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity
Interests, (c) the Administrative Borrower may make Restricted Payments pursuant to and in
accordance with stock option plans or other benefit plans for management or employees of the
Administrative Borrower and its Subsidiaries, and (d) Permitted Stock Repurchases.



     SECTION 6.7. Transactions with Affiliates. The Administrative Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or
assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage
in any other transactions with, any of its Affiliates, except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable to the Administrative Borrower or
such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (b)
transactions between or among the Administrative Borrower and its wholly owned Subsidiaries not
involving any other Affiliate and (c) any Restricted Payment permitted by Section 6.6. The
CCT Transactions shall not be prohibited by this Section 6.7.



     SECTION 6.8. Restrictive Agreements. The Administrative Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Administrative Borrower or any Subsidiary to create, incur or permit to exist any
Lien upon any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to any shares of its capital stock or to make or repay loans or
advances to the Administrative Borrower or any other Subsidiary or to Guarantee Indebtedness
of the Administrative Borrower or any other Subsidiary; provided that (i) the foregoing
shall not apply to restrictions and conditions imposed by law, by the Existing Credit Agreement (as
in effect on the date hereof) or by this Agreement, (ii) the foregoing shall not apply to
restrictions and conditions (x) existing on the date hereof identified on Schedule 6.8 (but
shall apply to any extension or renewal of, or any amendment or modification expanding the scope
of, any such restriction or condition) or (y) pursuant to the provisions governing Indebtedness
permitted pursuant to clause (f) or (h) of Section 6.1, so long as such restrictions are not more
restrictive than any restriction in this Agreement, (iii) the foregoing shall not apply to
customary



73









 







restrictions and conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is
to be sold and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply
to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property or assets securing
such Indebtedness; (v) clause (a) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof; and (vi) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating to a Cash Pooling
Financing.



     SECTION 6.9. Financial Covenants.




     (a) The Administrative Borrower will not permit the Consolidated Leverage Ratio as of
the last day of any Reference Period to be greater than 2.50:1.00.




     (b) The Administrative Borrower will not permit the Consolidated Interest Coverage
Ratio as of the last day of any Reference Period to be less than 3.00:1.00.




     (c) The Administrative Borrower will not permit Consolidated Net Worth as of the last
day of any fiscal quarter to be less than 80% of Consolidated Net Worth as of March 31, 2008
(as set forth in the Administrative Borrower’s Form 10-Q for such period), increasing by 50%
of Consolidated Net Income (with no reduction for losses) from and after March 31, 2008,
plus 100% of all Net Equity Proceeds which are received and retained by the Administrative
Borrower from and after March 31, 2008, plus 100% of the incremental amount added to
Consolidated Net Worth immediately upon the consummation of the ClinPhone Acquisition.




     (d) For purposes of determining the Consolidated Leverage Ratio and Consolidated
Interest Coverage Ratio for any Reference Period, in connection with any acquisition (other
than the ClinPhone Acquisition) or disposition, there shall be (i) included in Consolidated
EBITDA all Consolidated EBITDA attributable to any Person or business acquired by (and
thereafter owned by) the Administrative Borrower or any Subsidiary of the Administrative
Borrower during such period as if such Person or business had been acquired on the day
before the first day of such period and (ii) excluded from such Consolidated EBITDA all
Consolidated EBITDA attributable to any Person or business disposed of by the Administrative
Borrower or any Subsidiary of the Administrative Borrower during such period as if such
Person or business were disposed of on the first day of such period. For purposes hereof,
the Consolidated EBITDA attributable to any such acquired or disposed Person or business prior to the date of
acquisition or disposition thereof shall be determined in a manner consistent with the
method for determining Consolidated EBITDA hereunder.



     SECTION 6.10. Capital Expenditures. The Administrative Borrower will not permit
Consolidated Capital Expenditures to exceed (a) US$85,000,000 for any fiscal year through fiscal
year 2009 and (b) US$100,000,000 for any fiscal year thereafter through fiscal year 2013;
provided that so long as no Default has occurred and is continuing or would result
therefrom, to the extent that any portion of the amount set forth above is not expended in the
fiscal year for



74









 







which it is permitted, such unused amounts may be carried over for expenditure in
the next following fiscal year.



     SECTION 6.11. Fiscal Year. The Administrative Borrower will not, and will not
permit any Subsidiary to, change the manner of determining the date on which their respective
fiscal year ends without giving prior notice to the Administrative Agent.



     SECTION 6.12. Transfers from Credit Parties to Non-Credit Parties. The Credit
Parties will not allow the sum of (a) Indebtedness of a Non-Credit Party to a Credit Party incurred
pursuant to Section 6.1(c)(iv), plus (b) Guarantees of Indebtedness of a Non-Credit
Party by a Credit Party incurred pursuant to Section 6.1(d)(iv), plus (c) the fair market
value of any assets disposed of by a Credit Party to a Non-Credit Party pursuant to Section
6.3(a)(ii)(A)(2), net of any transfer to such Credit Party in consideration of such
disposition, plus (d) without duplication of amounts referenced in clause (c) above,
Investments by a Credit Party to a Non-Credit Party pursuant to Section 6.4(c)(iv), net of
any transfer to such Credit Party in consideration of such Investment, to exceed US$30,000,000 at
any time after the Effective Date.



     SECTION 6.13. Amendments. The Administrative Borrower shall not and shall ensure that
no Subsidiary will amend, vary, novate, supplement, supersede, waive or terminate any term of any
document delivered to the Administrative Agent pursuant to Section 4.1 or Section
4.2 except in writing:




     (a) prior to or on the Initial Funding Date, with the prior written consent of the
Initial Lenders; or




     (b) in the case of any document other than a Scheme Document, in a way which could not
be reasonably expected to materially and adversely affect the interests of the Lenders; or




     (c) in the case of a Scheme Document, in accordance with Section 6.14.



     SECTION 6.14. The Scheme or Takeover Offer. The Administrative Borrower, Bidco and
each other Loan Party undertakes that:




     (a) it will not, without the prior consent of the Initial Lenders:




     (i) take or permit to be taken any step as a result of which there shall occur
any increase in the offer price for any of the ClinPhone Shares above the price referred to in the Press Release, except where the Required Lenders have
consented to such increase




     (ii) waive, amend or vary any other term or condition of the Scheme or Takeover
Offer in any respect which is material and which might reasonably be expected to be
adverse to the interests of the Lenders unless such waiver, amendment or variation
(1) is required by the Panel or a court of competent jurisdiction or (2) is made
with the consent of the Initial Lenders (acting reasonably); or



75









 






     (iii) without the consent of the Initial Lenders, any Lender whose name appears
therein and the Agents (such consent not to be unreasonably withheld or delayed):




     (1) issue any press release (other than the Press Release or, if the
Offer Conversion has occurred, the Offer Press Announcement, or any updated
or amended press release approved by the Administrative Agent); or




     (2) make any statement or announcement which makes reference to this
Agreement, the Commitments or the Loans made or Letters of Credit issued
hereunder or to some or all of the Lenders, the Agents and the Lead
Arrangers,




unless required by law, or by the Panel or the City Code (in which case the
Administrative Borrower shall notify the Administrative Agent as soon as practicable
upon becoming aware of the requirement and the Administrative Borrower shall use all
reasonable endeavours to consult with the Administrative Agent prior to making such
announcement or statement or issuing such press release); and




     (b) it will, save as agreed otherwise with the Initial Lenders:




     (i) comply with the City Code (subject to any waivers granted by the Panel) and
all applicable laws and regulations relevant in the context of the Takeover Offer or
the Scheme;




     (ii) keep the Administrative Agent informed as to the status and progress of
(or otherwise relating to) the Scheme or, if the Offer Conversion has occurred, the
Takeover Offer, and, in particular, will from time to time and promptly upon request
give to the Administrative Agent reasonable details as to the current level of
proxies received in respect of the Scheme or acceptances received in respect of the
Takeover Offer;




     (iii) (subject to applicable legal or regulatory restrictions on disclosure of
such information) promptly supply to the Administrative Agent:




     (1) a copy of any Scheme Circular or, if the Offer Conversion has
occurred, the Takeover Offer Document after its posting to the shareholders
of ClinPhone;




     (2) copies of all other documents, certificates, notices or
announcements received or issued by it (or on its behalf) in relation to the
Scheme or, if the Offer Conversion has occurred, the Takeover Offer to the
extent material to the interests of the Lenders and any material documents
or statements issued by the Panel, The European Commission or any other
regulatory authority in relation to the Scheme or, if the Offer Conversion
has occurred, the Takeover Offer;



76









 






     (3) details of the date of purchase, price, period and number of all
ClinPhone Shares purchased by Bidco other than pursuant to the Scheme or, if
the Offer Conversion has occurred, the Takeover Offer; and




     (4) any other information regarding the progress of the Scheme or
Takeover Offer as the Administrative Agent may reasonably request;




     (iv) ensure that it is not obliged to make a mandatory offer under Rule 9 of
the City Code;




     (c) if it becomes aware of a circumstance or event which if not waived is reasonably
likely to entitle Bidco (with the Panel’s consent, if needed) to lapse or withdraw the
Scheme or Takeover Offer, it shall promptly notify the Administrative Agent and if the
Administrative Agent informs Bidco that the event could reasonably be expected to be of
material significance to the Lenders, Bidco will promptly request the Panel to confirm that
the Panel will not object to the lapsing of the Scheme and if so permitted by the Panel, the
ClinPhone Acquisition should only proceed with the consent of all the Initial Lenders;




     (d) save as the same may be varied or amended pursuant to section 6.14(a)(i) or
6.14(a)(ii), it will ensure that the Scheme Documents or, if the Offer Conversion has
occurred, the Offer Documents are in all material respects on the terms set out in the Press
Release or, if the Offer Conversion has occurred, the Offer Press Announcement; and




     (e) if the Offer Conversion has occurred, promptly (and in any event within 14 days of
becoming entitled to do so) give Takeover Offer Squeeze-Out Notices in respect of all
classes of the ClinPhone Shares upon the conditions contained in the Companies Act 2006 for
the giving of those notices being satisfied.



     SECTION 6.15. Conversion from Scheme Acquisition to Takeover Offer Acquisition. Bidco
may elect to cease (and procure that ClinPhone cease) the process of a Scheme Acquisition and may
commence a Takeover Offer Acquisition (in which case all the provisions of this Agreement relating
to a Takeover Offer Acquisition will apply) if:




     (a) the Takeover Offer is on substantially the terms set out in the Press Release (save
only for any changes necessary to reflect the fact that the Acquisition will be completed by
way of Takeover Offer rather than by way of Scheme and to permit an acceptance level not
less than 50% in value of the each class of the ClinPhone Shares (including options and
equivalent or similar) to which the Takeover Offer relates and, where the ClinPhone Shares
are voting shares, not less than 50% of the voting rights carried by those ClinPhone
Shares);




     (b) the making of the Takeover Offer would not breach any term of the Loan Documents
(including the undertaking as to price in Section 6.14(a)(i)); and




     (c) (iii) copies of the Offer Documents have been delivered to the Agent.



77









 





     SECTION 6.16. ClinPhone Acquisition and Reorganization Steps. Notwithstanding any
provision of this Article VI to the contrary, the transactions specified in Schedule 6.16 hereto
shall be permitted and shall not be deemed to use any basket under any covenant contained in this
Article VI.



ARTICLE VII.

EVENTS OF DEFAULT




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




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




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




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




     (d) any Borrower or any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.2, 5.3 (with respect to any
Borrower’s existence) or 5.8, in Article VI, or in the final paragraph of
Section 4.2;




     (e) any Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to any Borrower (which notice will be
given at the request of any Lender);




     (f) any Borrower or any Subsidiary shall fail to make any payment (whether of principal
or interest and regardless of amount) in respect of any Material Indebtedness, when and as
the same shall become due and payable;




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



78









 







transfer of the property or assets securing such Indebtedness; or (ii) an “Event of
Default” (as defined in the Existing Credit Agreement) shall exist under the Existing Credit
Agreement;




     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of any Borrower or
any Material Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrowers or any Material Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;




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




     (j) any Borrower or any Subsidiary shall admit in writing its inability to pay its
debts as they become due;




     (k) one or more judgments for the payment of money in an aggregate amount in excess of
US$10,000,000 shall be rendered against any Borrower, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any
Borrower or any Subsidiary to enforce any such judgment that is not promptly stayed;




     (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, could reasonably be
expected to result in liability of any Borrower and its Subsidiaries in an aggregate amount
exceeding US$10,000,000 from and after the Effective Date; or




     (m) a Change in Control shall occur;


then, and in every such event (other than an event with respect to any Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Administrative Borrower, take either or both of the following actions, at the same or different


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times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately,
and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of each Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to
the Borrowers described in clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of each Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers.




     Notwithstanding the foregoing, no event or condition that (a) is not known to the
Administrative Borrower on the date hereof, (b) shall have occurred or existed prior to the Initial
Funding Date or shall have occurred or existed on or after the Initial Funding Date other than as a
result of a voluntary act or a voluntary failure to act on the part of the Administrative Borrower
or any Subsidiary and (c) shall occur or exist only at ClinPhone and its subsidiaries, and not at
the Administrative Borrower or any other Subsidiary, shall (i) constitute a Default or an Event of
Default prior to the 90th day after the Initial Funding Date (and then shall only constitute a
Default or an Event of Default if still continuing); provided, that nothing in this
paragraph shall prevent or delay the occurrence of a Default or an Event of Default under Section
6.9, or (ii) constitute a breach of a representation and warranty made at any time prior to the
90th day after the Initial Funding Date; provided that if the Administrative Borrower is
aware of such event or condition giving rise to the breach it will be deemed at the time of each
borrowing prior to such 90th day to have represented that it reasonably believes that such event or
condition will be remedied on or prior to such 90th day so that such a breach would not exist on
the 91st day after the Initial Funding Date were the representations and warranties to be made on
such 91st day.



ARTICLE VIII.

THE AGENTS




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



     Any Person serving as an Agent hereunder shall have the same rights and powers in its capacity
as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind
of business with the Administrative Borrower or any Subsidiary or other Affiliate thereof as if it
were not an Agent hereunder.



     The Agents shall not have any duties or obligations except those expressly set forth herein.
Without limiting the generality of the foregoing, (a) the Agents shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Agents shall not have any duty to take any discretionary action or exercise



80









 







any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the
Agents are required to exercise in writing as directed by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 10.2), and (c) except as expressly set forth herein, the Agents shall not have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Administrative Borrower or any of its Subsidiaries that is communicated to or obtained by them
or any of their Affiliates in any capacity. The Agents shall not be liable for any action taken or
not taken by them with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 10.2) or in the absence of their own gross negligence or willful misconduct. Each
Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof
is given to such Agent by the Administrative Borrower or a Lender, and the Agents shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to such Agent.



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



     Each Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by it. The London Agent shall have no duties or rights
hereunder until the Administrative Borrower provides the London Agent with a Borrowing Request and
requests a Borrowing in an Alternative Currency. At such time, the London Agent shall be appointed
as an Agent by the Administrative Agent and the London Agent shall become party to this Agreement
as an Agent. Thereafter, the London Agent shall be an Agent hereunder. Each Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent,
and shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.



     Subject to the appointment and acceptance of a successor Agent as provided in this paragraph,
each Agent may resign at any time by notifying the other Agents, the Lenders, the Issuing Bank and
the Administrative Borrower. Upon any such resignation, the Required Lenders (in the case of a
resignation by the Administrative Agent) or the Administrative Agent



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(in the case of a resignation by any other Agent) shall have the right, in consultation with the Administrative Borrower, to
appoint a successor. If no successor Agent shall have been so appointed and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its resignation, then the
retiring Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by
the Administrative Borrower to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Administrative Borrower and such successor. After
an Agent’s resignation hereunder, the provisions of this Article and Section 10.3 shall
continue in effect for the benefit of such retiring Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while it was
acting as Agent.



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



     The Initial Lenders shall have no duties, responsibilities or obligations to, no authority to
act for, any other party to this Agreement by virtue of their status as Initial Lenders hereunder.



ARTICLE IX.

GUARANTEE




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



     The Administrative Borrower waives presentment to, demand of payment from and protest to any
Borrower of any of the Obligations, and also waives notice of acceptance of its obligations and
notice of protest for nonpayment. The obligations of the Administrative Borrower hereunder shall
not be affected by (a) the failure of any Agent or Lender to assert any claim or demand or to
enforce any right or remedy against any Loan Party under the provisions of this Agreement, any
other Loan Document or otherwise, (b) any extension or renewal of any of the Obligations, (c) any
rescission, waiver, amendment or modification of, or release from, any of the terms or provisions
of this Agreement, or any other Loan Document or agreement, (d) any default, failure or delay,
willful or otherwise, in the performance of any of the Obligations or (e) any other act, omission
or delay to do any other act which may or might in any



82









 







manner or to any extent vary the risk of the Administrative Borrower or otherwise operate as a discharge of a guarantor as a matter of law or
equity or which would impair or eliminate any right of the Administrative Borrower to subrogation.



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



     The obligations of the Administrative Borrower hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than the indefeasible
payment in full of all the Obligations owed by the Administrative Borrower to the Agents, the
Issuing Bank and the Lenders), and shall not be subject to any defense or set-off, counterclaim,
recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability
of any of the Obligations, any impossibility in the performance of any of the Obligations or
otherwise (other than for the indefeasible payment in full of all the Obligations owed by the
Administrative Borrower to the Agents, the Issuing Bank and the Lenders).



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



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



     Upon payment by the Administrative Borrower of any sums as provided above, all rights of the
Administrative Borrower against any Borrower arising as a result thereof by way of right of
subrogation or otherwise shall in all respects be subordinated and junior in right of payment to




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the prior indefeasible payment in full of all the Obligations owed by such Borrower to the
Agents, the Issuing Bank and the Lenders.




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



ARTICLE X.

MISCELLANEOUS




     SECTION 10.1. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:




     (i) if to the Administrative Borrower, to it at 200 West Street, Waltham,
Massachusetts 02451-1163, Attention of James F. Winschel, Jr. (Telecopy No. (781)
487-9931); with a copy to Office of the General Counsel, Attention of General
Counsel (Telecopy No. 781-487-0525); with a copy to Treasurer, Parexel International
Corp., Herman Heijermansweg 20, 1077 WL Amsterdam, Netherlands, Attention of Peter
Rietman (Telecopy No. 31 20 572 11 09).




     (ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and
Agency Services Group, 10 South Dearborn, 7th floor, Suite 0010, Chicago, IL 60603,
Attention of Joyce P. King (Telecopy No. (312) 385-7096), with a copy to JPMorgan
Chase Bank, N.A., 277 Park Avenue, New York 10017, Attention of Maria Domantay
(Telecopy No. (646) 534-3081); with a copy to Bingham McCutchen LLP, 399 Park
Avenue, New York, New York 10022, Attention of Frederick F. Eisenbiegler (Telecopy
No. (212) 702-3646);




     (iii) if to the Issuing Bank, to it at JPMorgan Chase Bank, N.A., Loan and
Agency Services Group, 10 South Dearborn, 7th floor, Suite 0010, Chicago, IL 60603,
Attention of Joyce P. King (Telecopy No. (312) 385-7096);




     (iv) if to the London Agent, to J.P. Morgan Europe Limited, 125 London Wall,
London EC2Y 5AJ, Attention of Agency Department (Telecopy No. 44-207-777-2360), with
copies as provided under clause (ii) above;




     (v) if to the Swingline Lender, to JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, JPMorgan Chase Bank, N.A., Loan and Agency Services Group, 10 South
Dearborn, 7th floor, Suite 0010, Chicago, IL 60603, Attention of Joyce P. King
(Telecopy No. (312) 385-7096); and




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



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




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



     SECTION 10.2. Waivers; Amendments. (a) No failure or delay by any Agent, the Issuing
Bank or any Lender in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Agents, the
Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this Agreement or consent
to any departure by any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. Without limiting the generality
of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether any Agent, any Lender or the Issuing Bank may have
had notice or knowledge of such Default at the time.




     (b) Neither this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the Administrative
Borrower and the Required Lenders or by the Administrative Borrower and the Administrative
Agent with the consent of the Required Lenders; provided that no such agreement
shall (i) increase the Commitment of any Lender without the written consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each
Lender affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or the date of any scheduled payment of the principal
amount of any Term Loan under Section 2.9 or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone
the scheduled date of expiration of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.17(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the written consent
of each Lender, (v) change in any provision of Article IX without written consent of each
Lender, (vi) change any of the provisions of this Section or the definition of “Required
Lenders”, “Alternative Currency” or any other provision hereof specifying the number or
percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any
rights hereunder or make any determination or grant any



85









 







consent hereunder, without the written consent of each Lender (or each Lender of such
Class, as the case may be), or (vii) change any provision of any Loan Document in a manner
that by its terms adversely affects the rights in respect of payments due to Lenders holding
Loans of any Class differently than those holding Loans of any other Class, without the
written consent of Lenders representing a Majority in Interest of each affected Class;
provided further that (1) no such agreement shall amend, modify or otherwise
affect the rights or duties of any Agent, the Issuing Bank or the Swingline Lender hereunder
without the prior written consent of such Agent, the Issuing Bank or the Swingline Lender,
as the case may be and (2) any waiver, amendment or modification of this Agreement that by
its terms affects the rights or duties under this Agreement of the Lenders of a particular
Class (but not the Lenders of any other Class), may be effected by an agreement or
agreements in writing entered into by the Borrowers and the requisite number or percentage
in interest of the affected Class of Lenders that would be required to consent thereto under
this Section if such Class of Lenders were the only Class of Lenders hereunder at the time.
“Majority in Interest”, when used in reference to Lenders of any Class, means, at
any time, (a) in the case of the Revolving Lenders, Lenders having Revolving Credit
Exposures and unused Revolving Commitments representing more than 50% of the sum of the
aggregate Revolving Credit Exposures and the unused aggregate Revolving Commitments at such
time and (b) in the case of the Term Lenders, Lenders holding outstanding Term Loans
representing more than 50% of all Term Loans outstanding at such time.



     SECTION 10.3. Expenses; Indemnity; Damage Waiver. (a) The Administrative Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents, the Initial Lenders and
their Affiliates, including the reasonable fees, charges and disbursements of counsel for the
Agents and Initial Lenders, in connection with the syndication of the credit facilities provided
for herein, the preparation and administration of this Agreement or any amendments, modifications
or waivers of the provisions hereof (whether or not the transactions contemplated hereby or thereby
shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the Agents, the Initial
Lenders, the Issuing Bank or any Lender, including the fees, charges and disbursements of any
counsel for the Agents, the Initial Lenders, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights after a Default in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.




     (b) The Administrative Borrower shall indemnify the Agents, the Initial Lenders, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”), against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with or as a result of (i)
the execution or delivery of this Agreement or any agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective obligations hereunder or
the consummation of the Transactions or any other transactions



86









 







contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Administrative Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Administrative Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether any Indemnitee
is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such Indemnitee.




     (c) To the extent that the Administrative Borrower fails to pay any amount required to
be paid by it to any Agent, either Initial Lender, the Issuing Bank or the Swingline Lender
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to such
Agent, such Initial Lender, the Issuing Bank or the Swingline Lender, as the case may be,
such Lender’s pro rata share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against such Agent, such Initial Lender, the
Issuing Bank or the Swingline Lender in its capacity as such. For purposes hereof, a
Lender’s “pro rata share” shall be determined based upon its share of the sum of the total
Revolving Credit Exposures, outstanding Term Loans and unused Commitments at the time (or
most recently outstanding and in effect).




     (d) To the extent permitted by applicable law, the Administrative Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.




     (e) All amounts due under this Section shall be payable promptly after written demand
therefor.



     SECTION 10.4. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) the Loan Parties may not assign or otherwise transfer any of their rights
or obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by a Loan Party without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted



87









 







hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, the Initial Lenders, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.




     (b) Subject to the conditions set forth in paragraph (b)(iii) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the time owing to
it):




     (i) during the Certain Funds Period (1) if the proposed transferee is on the
Pre-Approved Lender List or (2) with the prior written consent (such consent not to
be unreasonably withheld) of the Administrative Borrower and Bidco (provided
that consent shall be considered to have been reasonably withheld if Bidco has
sought the consent of its financial adviser in relation to the ClinPhone Acquisition
for the proposed assignment and such financial adviser has notified Bidco that it
does not consent to such assignment on the basis of its credit assessment of the
proposed assignee); or




     (ii) after the expiry of the Certain Funds Period, with the prior written
consent (such consent not to be unreasonably withheld) of:




     (A) the Administrative Borrower, provided that no consent of
the Administrative Borrower shall be required for an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund, or, if an Event of Default has
occurred and is continuing, any other assignee, provided that in
each case in respect of the Dutch Borrower the assigned principal amount
shall be at least 50,000 Euros (or its equivalent); and




     (B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of (1) any
Commitment to an assignee that is a Lender with a Commitment immediately
prior to giving effect to such assignment or (2) any Term Loan to a Lender,
an Affiliate of a Lender or an Approved Fund.




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




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



88









 







Event of Default has occurred and is continuing; provided that in each
case in respect of the Dutch Borrower the assigned principal amount shall be
at least 50,000 Euros (or its equivalent);




     (B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations
under this Agreement;




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




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




     (E) the assignee (1) if it is a Foreign Lender, shall have delivered
tax certificates described in Section 2.16, which indicate that such
Foreign Lender is exempt from any withholding tax under the laws of the
United States on payments by Borrowers in such jurisdiction, and (2) shall
have confirmed that it is exempt from any withholding tax under the laws of
the United Kingdom and The Netherlands on payments by Borrowers in such
jurisdictions, except, in the case of clauses (1) and (2), to the extent the
assigning Lender was entitled, at the time of the assignment, to receive
additional amounts with respect to such withholding taxes pursuant to
Section 2.16;




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




     (G) so long as no Event of Default shall have occurred and be
continuing, no such assignment shall be made to any Person that is not



89









 







capable of lending (1) the applicable Alternative Currencies to the
relevant Borrower and (2) each Type of Loan.




     For the purposes of this Section 10.4(b), the term “Approved Fund” has
the following meaning:




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




     (iv) Subject to acceptance and recording thereof pursuant to paragraph (b)(v)
of this Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.14, 2.15, 2.16,
2.19 and 10.3). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 10.4
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.




     (v) The Administrative Agent, acting for this purpose as an agent of the
Administrative Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitment of, and principal amount of
the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Administrative Borrower, the Administrative Agent, the Issuing
Bank and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be available
for inspection by the Administrative Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.




     (vi) Upon its receipt of a duly completed Assignment and Assumption executed by
an assigning Lender and an assignee, any certificates required by Section
2.16(e), the assignee’s completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation fee
referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative
Agent



90









 







shall accept such Assignment and Assumption and record the information
contained therein in the Register; provided that if either the assigning
Lender or the assignee shall have failed to make any payment required to be made by
it pursuant to Section 2.4(c), 2.5(d) or (e),
2.6(b), 2.17(d) or 10.3(c), the Administrative Agent shall
have no obligation to accept such Assignment and Assumption and record the
information therein in the Register unless and until such payment shall have been
made in full, together with all accrued interest thereon. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the Register
as provided in this paragraph.




     (c) (i) Any Lender may, without the consent of the Administrative Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell participations to one
or more banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender’s obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations and (C) the
Administrative Borrower, the Administrative Agent, the Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 10.2(b) that
affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Administrative Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.14, 2.15, 2.16, and 2.19 to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.8 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.17(c) as though it were a Lender.




     (ii) A Participant shall not be entitled to receive any greater payment under
Section 2.14, 2.16 or 2.19 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.16 unless the Administrative
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Administrative Borrower, to comply with
Section 2.16(e) as though it were a Lender.




     (d) Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest shall



91









 







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




     (e) On one or more occasions, one or more Additional Lenders may be admitted as Lenders
party to this Agreement in connection with an increase of the total Commitment pursuant to
Section 2.22, subject to (i) execution and delivery by any such Additional Lender to
the Administrative Agent, for recording in the Register, of an Instrument of Adherence
substantially in the form of Exhibit F hereto (an “Instrument of
Adherence”), (ii) acceptance of such Instrument of Adherence by each of the
Administrative Agent and the Administrative Borrower by their respective executions thereof,
and (iii) the completion of an Administrative Questionnaire by such Additional Lender
promptly delivered to the Administrative Agent. Upon the satisfaction of the foregoing
conditions, from and after the effective date specified in each such Instrument of
Adherence, the Additional Lender shall be a Lender party hereto and have the rights and
obligations of a Lender hereunder.



     SECTION 10.5. Survival. All covenants, agreements, representations and warranties
made by the Borrowers and the Loan Parties herein and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery of this Agreement and
the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made
by any such other party or on its behalf and notwithstanding that any Agent, the Issuing Bank or
any Lender may have had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force and effect as long
as the principal of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long
as the Commitments have not expired or terminated. The provisions of Sections 2.14,
2.15, 2.16, 2.19 and 10.3 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.



     SECTION 10.6. Counterparts; Integration; Effectiveness. (a) This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the Syndication and Fee Letter, the Administrative Agent Fee Letter and
any separate letter agreements with respect to fees payable to the Issuing Bank constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 4.1, this Agreement shall become effective when it shall have
been executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.



92









 





     (b) Notwithstanding anything in paragraph (a) of this Section or any other provision of this
Agreement to the contrary, the provisions set forth in the Syndication and Fee Letter under the
heading “Flex Rights” (the “Flex Provisions”) shall survive the execution and delivery of
this Agreement and the making of the Loans and the issuance of the Letters of Credit hereunder and
shall continue in effect until “successful syndication”, as defined in the Syndication and Fee
Letter, shall have been achieved. The Borrowers agree promptly to enter into such amendments to
this Agreement as shall be appropriate to implement any changes to the terms and provisions hereof
that shall be made pursuant to the Flex Provisions.



     SECTION 10.7. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



     SECTION 10.8. Right of Setoff. Subject to the provisions of Section 10.18
hereof, if an Event of Default shall have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by such Lender or Affiliate to
or for the credit or the account of any Borrower against any of and all the obligations of any
Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. Subject to the provisions of Section 10.18 hereof, the
rights of each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.



     SECTION 10.9. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.




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



93









 






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




     (d) Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 10.1. Nothing in this Agreement will affect
the right of any party to this Agreement to serve process in any other manner permitted by
law.



     SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.



     SECTION 10.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



     SECTION 10.12. Confidentiality. (a) Each of the Agents, the Issuing Bank and the
Lenders agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in,
or any prospective assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Administrative Borrower and its obligations, (g) with the
consent of the Administrative Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes available to
any Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source other than



94









 







the Administrative Borrower. For the purposes of this Section, “Information”
means all information received from the Administrative Borrower relating to the Administrative
Borrower or its business, other than any such information that is available to any Agent, the
Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Administrative
Borrower. Any Person required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information. Each of the Agents, Issuing Bank, and the
Lenders agrees to use reasonable commercial efforts (if it may legally do so) to provide prior
notice of any disclosure of Information pursuant to clauses (b) or (c) above.




     (b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 10.12(a)
FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION
CONCERNING THE ADMINISTRATIVE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE
SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF
MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION
IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE
SECURITIES LAWS.




     (c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE
ADMINISTRATIVE BORROWER OR THE AGENTS PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS
AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC
INFORMATION ABOUT THE ADMINISTRATIVE BORROWER, THE OTHER LOAN PARTIES AND THEIR RELATED
PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE
ADMINISTRATIVE BORROWER AND EACH AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE
QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.



     SECTION 10.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest
and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together



95









 







with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have
been received by such Lender.



     SECTION 10.14. Conversion of Currencies. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest extent that it may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal banking procedures
in the relevant jurisdiction the first currency could be purchased with such other currency on the
Business Day immediately preceding the day on which final judgment is given.




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



     SECTION 10.15. Releases of Guarantees. (a) In the event of a disposition of all the
Equity Interests in a Subsidiary Guarantor to a Person other than the Administrative Borrower or a
Subsidiary of the Administrative Borrower in a transaction not prohibited by any covenant contained
in this Agreement, the Administrative Agent is hereby directed and authorized to take such action
and to execute such documents as the Administrative Borrower may reasonably request, at the
Administrative Borrower’s sole expense, to evidence or effect the release of the Guarantee by such
Subsidiary Guarantor under the Subsidiary Guarantee Agreement.




     (b) Without limiting the provisions of Section 10.3, the Administrative
Borrower shall reimburse the Administrative Agent for all costs and expenses, including
reasonable attorney’s fees and disbursements, incurred by it in connection with any action
contemplated by this Section 10.15.



     SECTION 10.16. USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”)
hereby notifies each of the Loan Parties that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Loan Parties, which
information includes the name and address of each Loan Party and other information that will allow
such Lender to identify such Loan Parties in accordance with the Act.



     SECTION 10.17. No Fiduciary Duty. The Administrative Borrower, on behalf of itself
and the Subsidiaries, agrees that in connection with all aspects of the transactions contemplated



96









 







hereby and any communications in connection therewith, the Administrative Borrower, the
Subsidiaries and their Affiliates, on the one hand, and the Agents, the Issuing Bank, the Lenders
and their Affiliates, on the other hand, will have a business relationship that does not create, by
implication or otherwise, any fiduciary duty on the part of the Agents, the Issuing Bank, the
Lenders or their Affiliates, and no such duty will be deemed to have arisen in connection with any
such transactions or communications.



     SECTION 10.18. Liability for Obligations. Notwithstanding anything to the contrary
contained in this Agreement or in the other Loan Documents to the contrary, the parties agree that:
(a) the Foreign Subsidiaries shall not be liable for any obligation of the Administrative Borrower
or any US Subsidiary Borrower arising under or with respect to any of the Loan Documents; (b) each
Foreign Borrower shall be severally liable only for the obligations of such Foreign Borrower; and
(c) no Agent or Lender, or any Affiliate thereof, may set-off or apply any deposits of a Foreign
Subsidiary or any other obligations at the time owing to or for the credit of the account of any
Foreign Subsidiary by such Agent, Lender or Affiliate thereof, against any or all of the
obligations of the Administrative Borrower or any US Subsidiary Borrower.



97









 





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



	 	 	 	 	 
	 	PAREXEL INTERNATIONAL CORPORATION

 	 
	 	By:  	/S/ James F. Winschel, Jr.
 	 
	 	 	Name:  	James F. Winschel, Jr. 	 
	 	 	Title:  	Sr. Vice President and Chief Financial Officer 	 
	 
	 	PAREXEL INTERNATIONAL HOLDING B.V.

 	 
	 	By:  	/S/ Peter Rietman
 	 
	 	 	Name:  	Peter Rietman 	 
	 	 	Title:  	Managing Director 	 
	 
	 	PAREXEL INTERNATIONAL HOLDING UK LIMITED

 	 
	 	By:  	/S/ James F. Winschel, Jr.
 	 
	 	 	Name:  	James F. Winschel, Jr. 	 
	 	 	Title:  	Director 	 
	 
	 	SUBSIDIARY GUARANTORS:




PAREXEL INTERNATIONAL LLC

 	 
	 	By:  	/S/ James F. Winschel, Jr.
 	 
	 	 	Name:  	James F. Winschel, Jr. 	 
	 	 	Title:  	Treasurer 	 
	 
	 	PERCEPTIVE INFORMATICS, INC.

 	 
	 	By:  	/S/ James F. Winschel, Jr.
 	 
	 	 	Name:  	James F. Winschel, Jr. 	 
	 	 	Title:  	Treasurer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., individually and as

Administrative Agent

 	 
	 	By:  	/S/ D. Scott Farquhar
 	 
	 	 	Name:  	D. Scott Farquhar 	 
	 	 	Title:  	Vice President 	 
	 
	 	J.P. MORGAN EUROPE LIMITED, as London Agent

 	 
	 	By:  	/S/ Belinda Lucas
 	 
	 	 	Name:  	Belinda Lucas 	 
	 	 	Title:  	Associate 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as Lender

 	 
	 	By:  	/S/ J.T. Taylor
 	 
	 	 	Name:  	J.T. Taylor 	 
	 	 	Title:  	Senior Vice President 	 



 









 






SIGNATURE PAGE TO

THE CREDIT AGREEMENT

OF PAREXEL INTERNATIONAL

CORPORATION




	 	 	 	 	 	 	 
	 	 	Name of Institution:  
	 
	 	 	 	 	 	 
	 

	 	 		 	 	 
	 
	 	 	by 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	For any Lender requiring a second signature block:
	 
	 	 	 	 	 	 
	 

	 	 	 		 	 
	 
	 	 	by 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 







 












 





EXHIBIT A




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.



	 	 	 	 	 	 	 
	1.

	 	Assignor:	 	 	 	 
	 

	 	 	 	 
	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee:	 	 	 	 
	 

	 	 	 	 
	 	 
	 	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 	 	 	 	 
	3.

	 	Borrowers:	 	PAREXEL International Corporation, PAREXEL International Holding
B.V. and PAREXEL International Holding UK Limited.      
	 
	 	 	 	 	 	 
	4.	 	Administrative Agent:	 	JPMorgan Chase Bank, N.A.,

as the administrative agent under the Credit Agreement








 




			
	1	 	Select as applicable.





Exhibit A — Assignment and Assumption





1









 








	 	 	 	 	 	 	 
	5.	 	Credit Agreement:	 	The Credit Agreement dated as of June 13, 2008 among PAREXEL International
Corporation, PAREXEL International Holding B.V., PAREXEL International Holding UK Limited, the
Subsidiary Guarantors signatory thereto, the Lenders parties thereto, JPMorgan Chase Bank,
N.A., as Administrative Agent and J.P. Morgan Europe Limited, as London Agent.      
	 
	6.

	 	Assigned Interest:	 	 	 	 






	 	 	 	 	 	 	 	 	 
	Aggregate Amount of	 	Amount of	 	
	Commitment/Loans	 	Commitment/Loans	 	Percentage Assigned of
	for all Lenders	 	Assigned	 	Commitment/Loans2
	$  
	 	$	 	 	 	 	  	%
	$  
	 	$	 	 	 	 	   	%
	$  
	 	$	 	 	 	 	  	%






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



     The Assignee agrees to deliver to the Administrative Agent a completed Administrative
Questionnaire in which the Assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public information about the
Administrative Borrower, the other Loan Parties and their Related Parties or their respective
securities) will be made available and who may receive such information in accordance with the
Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.



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



	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE] 

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	2	 	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.





Exhibit A — Assignment and Assumption




2









 








Consented to and Accepted:




	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A., as

Administrative Agent

 	 
	By  	 	 
	 	Title: 	 
	 	 	 
	 
	[Consented to:]3



[NAME OF RELEVANT PARTY]

 	 
	By  	 	 
	 	Title: 	 





 




			
	3	 	To be added only if the consent of the Borrower
and/or other parties (e.g. Swingline Lender, Issuing Bank) is required by the
terms of the Credit Agreement.





Exhibit A — Assignment and Assumption





3









 











ANNEX 1




STANDARD TERMS AND CONDITIONS FOR 

ASSIGNMENT AND ASSUMPTION





     1. Representations and Warranties.



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



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.1(a)
and 5.1(b) thereof, as applicable, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent or any other Lender,
and (v) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation
required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and
executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on
the Administrative Agent, the Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.



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



Exhibit A — Assignment and Assumption




1









 







Effective Date and to the Assignee for amounts which have accrued from and after the Effective
Date.




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



Exhibit A — Assignment and Assumption




2









 








EXHIBIT C




MANDATORY COSTS RATE



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



2. On the first day of each Interest Period (or as soon as possible thereafter) the London Agent
shall calculate a rate (the “Additional Costs Rate”), expressed as a percentage, for each
Lender, in accordance with the paragraphs set out below. The Mandatory Costs Rate will be
calculated by the London Agent as a weighted average of the Lenders’ Additional Costs Rates
(weighted in proportion to the percentage participation of each Lender in the applicable Borrowing)
and will be expressed as a percentage rate per annum. The London Agent will, at the request of the
Administrative Borrower or any Lender, deliver to the Administrative Borrower or such Lender, as
the case may be, a statement setting forth the calculation of the Mandatory Cost Rate.



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



4. The Additional Costs Rate for any Lender lending from a lending office in the United Kingdom
will be calculated by the London Agent as follows:




(a) with respect to any Loan denominated in Sterling:




 percent per annum




(b) with respect to any Loan denominated in any currency (other than Sterling):




 percent per annum.




Where:



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




Exhibit C — Mandatory Costs Rate




1









 







“B” means the percentage rate of interest (excluding the Applicable Margin and the
Mandatory Costs Rate and any additional rate of interest specified in Section 2.12(c)) payable for
the applicable Interest Period on the Loan.



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



“D” means the percentage rate per annum payable by the Bank of England to the London Agent
on interest bearing Special Deposits.



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




5. For the purposes of this Schedule:



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



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



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



(d) “Participating Member State” means any member state of the European Communities that
adopts or has adopted the Euro as its lawful currency in accordance with legislation of the
European Community relating to Economic and Monetary Union.



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



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



7. If requested by the London Agent or the Administrative Borrower, each Lender with a lending
office located in the United Kingdom or a Participating Member State shall, as soon as practicable
after publication by the Financial Services Authority, supply to the London Agent and the
Administrative Borrower, the rate of charge payable by such Lender to the Financial Services
Authority pursuant to the Fees Rules in respect of the relevant financial year of the




Exhibit C — Mandatory Costs Rate




2









 







Financial Services Authority (calculated for this purpose by such Lender as being the average of
the Fee Tariffs applicable to such Lender for that financial year) and expressed in Sterling per
£1,000,000 of the Tariff Base of such Lender.



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



(a) the jurisdiction of its applicable lending office; and



(b) any other information that the London Agent may reasonably require for such purpose.



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



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



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



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



12. Any determination by the London Agent pursuant to this Schedule in relation to a formula, the
Mandatory Costs Rate, an Additional Costs Rate or any amount payable to a Lender shall, in the
absence of manifest error, be conclusive and binding.



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




Exhibit C — Mandatory Costs Rate





3