exv10w1



 





Exhibit 10.1




Execution Version




 







AMENDED AND RESTATED CREDIT AGREEMENT




dated as of September 18, 2007




among




PAREXEL INTERNATIONAL CORPORATION

and

PAREXEL INTERNATIONAL HOLDING B.V.

as Borrowers,




Certain Subsidiaries of the Borrowers,




The Lenders Party Hereto,




JPMORGAN CHASE BANK,

NATIONAL ASSOCIATION

as Administrative Agent




and




J.P. MORGAN EUROPE LIMITED

as London Agent




 






J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger




and




ABN AMRO BANK N.V., as Syndication Agent




and




WACHOVIA BANK, N.A., as Documentation Agent

 





 









 





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 Revolving 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
	 	 	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	 
	ARTICLE III. Representations and Warranties
	 	 	45	 






i









 





TABLE OF CONTENTS

(cont’d.)




	 	 	 	 	 
	 	 	Page
	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	 
	Section 6.1. Indebtedness
	 	 	54	 






ii









 






TABLE OF CONTENTS

(cont’d.)




	 	 	 	 	 
	 	 	Page
	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 Loan Parties to Non-Loan 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	 
	Section 10.15. Releases of Guarantees
	 	 	76	 






iii









 






TABLE OF CONTENTS

(cont’d.)




	 	 	 	 	 
	 	 	Page
	Section 10.16. USA PATRIOT Act
	 	 	77	 
	Section 10.17. No Fiduciary Duty
	 	 	77	 
	Section 10.18. Liability for Obligations
	 	 	78	 
	Section 10.19. No Novation
	 	 	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









 





     AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of September 18,
2007, 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”; and together
with the Administrative Borrower and the other Persons who are or hereafter are designated as a
Borrower pursuant to Section 2.21 hereto, the “Borrowers”), the Subsidiaries of the
Borrowers party hereto, the LENDERS party hereto, JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as
Administrative Agent, and J.P. MORGAN EUROPE LIMITED, as London Agent.



     WHEREAS, the Administrative Borrower, certain Subsidiaries of the Administrative Borrower, the
Administrative Agent, and the Existing Lenders (as defined below) are party to a $100,000,000
revolving Credit Agreement (as in effect immediately prior to the Effective Date referred to below,
the “Existing Credit Agreement”) dated as of January 12, 2007 (the “Original Effective
Date”);



     WHEREAS the Administrative Borrower has requested that the Existing Lenders, the Lenders and
the Administrative Agent agree to amend and restate the Existing Credit Agreement, and the Lenders
are willing to so amend and restate the Existing Credit Agreement on the terms and conditions
herein set forth;



     NOW, THEREFORE, 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.



     “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, National Association, in its
capacity as administrative agent for the Lenders hereunder.



     “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.



     “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.



     “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
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Revolving Credit Exposure
then in effect, giving effect to any assignments.



     “Applicable Rate” means the following percentages per annum, based on the Total
Leverage Ratio as set forth in the most recent certificate received by the Administrative Agent
pursuant to Section 5.1(c):



2









 





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

	 	< 0.50:1.00
	 	 	0.625	%	 	 	0	%
	2

	 	3 0.50:1.00 and <
1.00:1.00
	 	 	0.750	%	 	 	0	%
	3

	 	3 1.00:1.00 and <
1.50:1.00
	 	 	0.875	%	 	 	0	%
	4

	 	3 1.50:1.00 and <
2.00:1.00
	 	 	1.125	%	 	 	0	%
	5

	 	3 2.00:1.00
	 	 	1.375	%	 	 	0	%





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 5
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 Effective Date through
the date on which the first such certificate is delivered to the Administrative Agent and the
Lenders in accordance with Section 5.1(c) shall be determined based upon Pricing Level 2.




     “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.



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



     “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.



3









 





     “Borrowing” means (a) Revolving Loans of the same Type and currency, 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.



     “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.



4









 





     “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.



     “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.



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



     “Commitment” means, with respect to each Lender, the commitment 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 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 Commitment is set forth on Schedule 2.1, or
in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment,
as applicable. The initial aggregate amount of the Lenders’ Commitments is US$100,000,000.



     “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



5









 







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.



     “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 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.



     “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 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 such 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.



     “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.



6









 





     “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) 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) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), 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



7









 







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.



     “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 on the Reuters WRLD Page for 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



8









 







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 on amounts payable to
such Lender 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, 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).



     “Existing Credit Agreement” has the meaning set forth in the recitals hereto.



     “Existing Guarantee” means the Guarantee, dated as of the Original Effective Date,
made by the Guarantors in favor of the Administrative Agent pursuant to the Existing Credit
Agreement.



     “Existing Lenders” means the lenders party to the Existing Credit Agreement.



     “Existing Loan” means the Loans (as defined in the Existing Credit Agreement) held by
the Existing Lenders under the Existing Credit Agreement immediately prior to the effectiveness of
the amendment and restatement of the Existing Credit Agreement provided for hereby.



     “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.



9









 





     “Fee Letter” means that confidential fee letter agreement dated as of November 6,
2006, among the Administrative Agent, the Lead Arranger and the Administrative Borrower.



     “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 organized under the laws of a jurisdiction
other than that in which the Administrative Borrower is located. For purposes of this definition,
the United States of America, each state thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



     “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.



     “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.



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



10









 





     “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (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 dated November,
2006 relating to the Administrative Borrower and the Transactions.



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



     “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



11









 







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, National Association, 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, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Administrative Borrower 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.



     “Lead Arranger” means J.P. Morgan Securities Inc., acting in the capacity as sole
bookrunner and sole lead arranger, or its successor in such role.



     “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 or an Instrument of
Adherence, 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.



     “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
the London Agent 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



12









 







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 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 the Transactions 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 or Borrowing
denominated in an Alternative Currency, London time.



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



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



     “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 Foreign Subsidiary” means a Subsidiary of the Administrative Borrower
organized in a jurisdiction outside of the United States of America, any state thereof or the
District of Columbia, which, (a) is a Borrower or (b) by itself or together with its Subsidiaries,
accounts (excluding intercompany receivable and goodwill) for a portion of assets or EBITDA
comprising 5% or more of the Administrative Borrower’s consolidated assets or Consolidated EBITDA
for the most recently ended Reference Period.



     “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 Subsidiary of the Administrative Borrower organized
in a jurisdiction within the United States of America which, by itself or together with its



13









 







Subsidiaries, accounts for a portion of assets or EBITDA comprising 5% or more of the
Administrative Borrower’s Consolidated EBITDA or consolidated assets for the most recently ended
Reference Period.



     “Maturity Date” means January 12, 2012.



     “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, less (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.



     “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.



     “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.



     “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 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 and the Person to be



14









 







acquired has approved such merger, consolidation or acquisition); (e) the Loan 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; (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), is not more than 10% lower than Consolidated EBITDA for the Reference Period
most recently ended 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 (determined on a pro-forma basis in the manner described in Section
6.9(d) for the Reference Period most recently ended), 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.




15









 








     “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;




     (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$25,000,000.



     “Permitted Stock Repurchases” means any buyback or repurchase of stock issued by the
Administrative Borrower or any other Loan Party in an 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.



     “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, National Association, as its prime rate in effect at its office located at



16









 




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.




     “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
(4) 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 and
unused Commitments representing more than 50% of the sum of the aggregate Revolving Credit
Exposures 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.




17











 





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



     “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.



     “Revolving Loan” means a Loan made pursuant to Section 2.3.



     “S&P” means Standard & Poor’s.



     “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.



     “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 that is or is required to be a party to the Subsidiary Guarantee Agreement;
provided, that so long as the proviso of Section 5.9 would apply to PAREXEL
International Holding



18









 







Corporation, a Delaware corporation if it was a newly created Subsidiary, it shall not be
deemed to be 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, National Association, in its capacity as
lender of Swingline Loans hereunder.



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



     “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.



     “Transactions” means 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.



     “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 or Loans in
Alternative Currencies (other than Euros) and (b) 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 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.



19









 





     “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



20









 







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 EBTIDA”, “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 (A) 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 and (B) notify the
Administrative Borrower and the Lenders of each calculation of the US Dollar Equivalent of each
Borrowing.




ARTICLE II.

THE CREDITS




     SECTION 2.1. Commitments. (a) Subject to the terms and conditions set forth herein,
each Lender agrees to make Revolving Loans denominated in US Dollars and Alternative Currencies to
the Borrowers from time to time during the Availability Period in an aggregate principal amount
that will not result in such Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment.
Within the foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Revolving Loans.




     (b) On the Effective Date, the Existing Loan held by the Existing Lenders under the
Existing Credit Agreement shall automatically, and without any action on the part of any
Person, be deemed to be a Loan hereunder and such Loan shall be deemed to reflect advances
made by each Lender under paragraph (a) above to the extent of the unpaid principal amount
of the Existing Loan held by each Existing Lender.



     SECTION 2.2. Loans and Borrowings. (a)  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 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



21









 







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 Revolving Borrowing denominated in US
Dollars shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrowers may
request in accordance herewith, (ii) each Revolving Borrowing denominated in Euros shall be
comprised entirely of EURIBOR Loans and (iii) each Revolving 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 Revolving
Borrowing or any EURIBOR Revolving 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 Revolving Borrowing 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 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 12
Eurocurrency Revolving Borrowings or EURIBOR Revolving Borrowings outstanding.




     (d) Notwithstanding any other provision of this Agreement, no Borrower shall 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.



     SECTION 2.3. Requests for Revolving Borrowings. To request a 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 or a EURIBOR Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of the proposed Borrowing and (c) in the case of an ABR
Borrowing, not later than 11:00 a.m., Local



22









 







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) the currency and aggregate amount of the requested Borrowing;




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




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




     (v) 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”;




     (vi) 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




     (vii) 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.


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 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 Applicable Agent shall
advise each Lender 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 an aggregate principal amount at any time
outstanding



23









 







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 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 applicable 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
applicable 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 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 Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each applicable 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 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 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



24









 







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.




     (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 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 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



25









 







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. By the issuance of a Letter of Credit (or an amendment to
a Letter of Credit increasing the amount thereof) and without any further action on the part
of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each
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 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 for any reason. Each 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 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 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



26









 







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
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



27









 







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, 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 the rate per annum then
applicable to ABR Revolving Loans, denominated in US Dollars; 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



28









 







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 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



29









 







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 Revolving Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Revolving
Borrowing or a EURIBOR Revolving Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request. 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 Revolving
Borrowing or a EURIBOR Revolving 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 Revolving 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;



30









 






     (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”.


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 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 Revolving Borrowing or a EURIBOR Revolving 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 Revolving
Borrowing or a EURIBOR Revolving Borrowing and (B) unless repaid, each Eurocurrency
Revolving Borrowing if in US Dollars made to a US Borrower denominated 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, the Commitments shall terminate on the Maturity Date.




     (b) The Administrative Borrower may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments 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 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 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,



31









 







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
contents thereof. Each notice delivered by the Administrative Borrower pursuant to this
Section shall be irrevocable; provided that a notice of termination of the
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 shall be made ratably among the
Lenders in accordance with their respective Commitments.



     SECTION 2.9. Repayment of Loans; Evidence of Debt. 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 and (ii) 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 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.




32












 






     (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).



     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 Revolving 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 Revolving Borrowing denominated
in an Alternative Currency 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 prepayment of an ABR
Revolving Borrowing, not later than 11:00 a.m., Local Time, one Business Day before the date
of prepayment or (iv) 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 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 Revolving Borrowing, the Applicable Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing shall
be in an amount that would be permitted in the case of an advance of a Revolving Borrowing
of the same Type as provided in Section 2.2. Each prepayment of a Revolving
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 US Dollar Equivalent of the aggregate amount of the Revolving
Credit Exposures shall exceed 105% of the aggregate 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 a commitment fee, which shall
accrue daily at the rates set forth below (calculated in accordance with the definition of



33









 




“Applicable Rate”) on such Lender’s unused Commitment (less such Lender’s Applicable Percentage of
the average daily balance of Letters of Credit), during the period from and including the Effective
Date to but excluding the date on which such Commitment terminates; provided that if such
Lender continues to have any Revolving Credit Exposure after its Commitment terminates with respect
thereto, then such commitment 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 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
	 	< 0.50:1.00	 	0.125%
	2
	 	3 0.50:1.00 and < 1.00:1.00	 	0.150%
	3
	 	3 1.00:1.00 and < 1.50:1.00	 	0.175%
	4
	 	3 1.50:1.00 and < 2.00:1.00	 	0.200%
	5
	 	3 2.00:1.00	 	0.300%





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 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 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 Effective 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 Effective 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



34









 






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 Effective 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 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 the Administrative Agent or the Lead
Arranger, for its own account, fees payable in the amounts and at the times provided in the
Fee Letter or as separately agreed upon from time to time between the Administrative
Borrower and the Administrative Agent and/or the Lead Arranger.




     (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 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 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
Revolving Loan or EURIBOR Revolving Loan prior to



35









 






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 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 or LIBO 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 Revolving Borrowing to, or continuation of any
Revolving 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



36









 






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 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.



37









 






     (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, 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.



     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 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.



38









 






     (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, 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,



39









 





               (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 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, 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,



40









 




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 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 Revolving
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 Revolving 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 Revolving 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 Revolving 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



41









 






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 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.



42









 






     (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 consent of the
Administrative Agent (and if a 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, due to a Change in Law and
by reason of the fact that such Borrower is incorporated in, or conducts business in, a
jurisdiction other than the United States of America, 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



43









 






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, 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



44









 




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. Increase in Commitments. The Administrative Borrower shall have the
right upon one or more occasions by written notice to the
Administrative Agent (a “Commitment
 Increase Notice”) to request an increase in the aggregate Commitment (the amount of increase
requested on any occasion being referred to herein as the
“Increase Amount”), to a maximum
aggregate Commitment of US$150,000,000; provided that at the time of the Commitment
Increase Notice and at the time such request would become effective (i) no Default has occurred and
is continuing or would exist after giving effect to such increase in the Commitment, and (ii) the
Administrative Borrower will be in pro forma compliance with all of the covenants of Section
6.9 after giving effect to such increase in the Commitment. 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 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 Commitment. The Administrative Agent shall notify the Administrative
Borrower and each Lender of such other Lender’s 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
Commitments, invite one or more other Persons (other than individuals) (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, Lead Arranger 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 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
Commitment, together with a revised Schedule 2.1 stating the new Commitment, and, in
respect thereof, the Commitment of each Additional Lender, the respective continuing Commitment of
the other Lenders and the new Revolving Credit Exposure of the Lenders. Upon the effective date of
the increased Commitment, 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 held by such Additional Lender and the other Lenders being equal to such
applicable Lender’s Revolving Credit Exposure (as set forth in the revised Schedule 2.1) of
the aggregate principal amount of all Revolving Loans outstanding as of such date. The
Administrative Borrower hereby agrees that any Additional Lender so paying any such amount



45









 




to the
other Lenders pursuant to the preceding sentence shall be entitled to all the rights of a Lender
having Commitments 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 right 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.




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,
(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,



46









 




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, 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, 2006,
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, 2007, certified by its chief financial
officer. Such financial statements present fairly, in all material 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) Since June 30, 2006, 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.



47









 






     (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 and Holding Company Status. Neither the Administrative
Borrower nor any of its Subsidiaries is (a) an “investment company” as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a “holding company” as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 2005.



     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 the each Loan Party.




48











 





     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. 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 Existing Credit Agreement shall not be amended and
restated, and 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 from the Required
Lenders and each other party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) 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.




     (b) The Administrative Agent shall have received a written opinion (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)
Baker & McKenzie Amsterdam N.V., local counsel to the Dutch Borrower, 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 Administrative Borrower hereby requests such counsel 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.




     (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



49









 







Administrative Borrower, confirming compliance with the conditions set forth in paragraphs
(a) and (b) of Section 4.2.




     (e) The Administrative Agent shall have received all fees and other amounts due and
payable pursuant to this Agreement and the 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 and the continuing operations of the
Administrative Borrower and its Subsidiaries shall have been obtained and be in full force
and effect.




     (g) On or prior to the Original Closing Date, the Administrative Agent shall have
received (i) satisfactory audited consolidated financial statements of the Administrative
Borrower for the two most recent fiscal years ended prior to the Effective Date as to which
such financial statements are available and (ii) satisfactory unaudited interim consolidated
and consolidating financial statements of the Administrative Borrower for each fiscal
quarterly period ended subsequent to the date of the latest financial statements delivered
pursuant to clause (i) of this paragraph as to which such financial statements were
available (receipt of the financial statements delivered pursuant to clauses (i) and (ii)
are hereby acknowledged by the Administrative Agent).




     (h) The Lenders shall have received 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 September
18, 2007.




     SECTION 4.2. Each Credit Event. 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.



50









 




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 4.2.




     SECTION 4.3. 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;



51









 






     (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;



52









 






     (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



53









 







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. The proceeds of the Loans will
be used only (a) to finance Permitted Acquisitions; (b) to finance Permitted Stock Repurchases, and
(c) for general corporate purposes of the Administrative Borrower and its Subsidiaries. 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 or creates any Material US Subsidiaries or if any existing Subsidiary becomes a Material
US Subsidiary after the Effective Date, the Administrative Borrower shall forthwith promptly (and
in any event within 15 Business Days after knowledge of such Subsidiary being 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 shall have been reimbursed, each Loan Party covenants and
agrees 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;




     (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 Loan Party to a Loan Party, (ii) a Non-Loan Party to a
Non-Loan Party, (iii) a Loan Party to a Non-Loan Party, and (iv) a Non-Loan Party to a Loan
Party in an amount not to exceed the amount provided for in Section 6.12;



54









 






     (d) Guarantees by (i) a Loan Party of Indebtedness of a Loan Party, (ii) a Non-Loan
Party of Indebtedness of a Non-Loan Party, (iii) a Non-Loan Party of the Indebtedness of a
Loan Party, and (iv) a Loan Party of Indebtedness of a Non-Loan 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$20,000,000 at any time outstanding;




     (f) Indebtedness of any Loan Party not otherwise contemplated in the foregoing clauses
provided that (i) that the Loan Parties and their Subsidiaries, on a combined and
consolidating basis, will be solvent upon the incurrence of such Indebtedness; (ii) the Loan
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 (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 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; and




     (h) Indebtedness of Non-Loan Parties in a principal amount not to exceed US$20,000,000.



     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



55









 







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 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 obligation which does not increase the principal amount
of any 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$10,000,000;




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




     (g) 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 any Borrower in a transaction in which a Borrower is
the surviving corporation,




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




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




          (iv) any Subsidiary 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;



56









 






          (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 for the most
recently ended fiscal quarter), then (i) the Administrative Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer (i) certifying that the Loan
Parties and their Subsidiaries, on a combined and consolidating basis, will be solvent upon
the consummation of the disposition; (ii) 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, (iii) demonstrating that
pro-forma Consolidated EBITDA for the Reference Period most recently ended after giving
effect to any such disposition is not more than 10% lower than Consolidated EBITDA for the
Reference Period most recently ended 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 delivered pursuant to
Section 4.1(g); 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.




     (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.



     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 Loan Party to any other
Loan Party, (ii) a Non-Loan Party to a Non-Loan Party, (iii) a Non-Loan Party



57









 







to a Loan Party, and (iv) a Loan Party to a Non-Loan Party to the extent permitted by
Section 6.12.




     (d) Guarantees constituting Indebtedness permitted by Section 6.1;




     (e) investments in Permitted Acquisitions; and




     (f) investments in the capital stock or other securities of a Person (not constituting
an Acquisition) in an amount not to exceed US$10,000,000 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



58









 







apply to restrictions and conditions imposed by law 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 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; and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the assignment thereof.



     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 the Consolidated Net Worth as of the
last day of any fiscal quarter to be less than 80% of Consolidated Net Worth as of September
30, 2006, (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 after
September 30, 2006, plus 100% of all Net Equity Proceeds which are retained by the
Administrative Borrower.




     (d) For purposes of determining the Consolidated Leverage Ratio and Consolidated
Interest Coverage Ratio for any Reference Period, 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$45,000,000 for any fiscal year through fiscal
year 2009 and (b) US$55,000,000 for any fiscal year through fiscal year 2011; provided that
so long as no Default has occurred and is continuing or would result therefrom, to the extent



59









 







that any portion of the amount set forth above is not expended in the fiscal year for 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 Loan Parties to Non-Loan Parties. The Loan Parties will
not allow the sum of (a) Indebtedness of a Non-Loan Party to a Loan Party incurred pursuant to
Section 6.1(c)(iv), plus (b) Guarantees of Indebtedness of a Non-Loan Party by a
Loan Party incurred pursuant to Section 6.1(d)(iv), plus (c) the fair market value of any
assets disposed of by a Loan Party to a Non-Loan Party pursuant to Section
6.3(a)(ii)(A)(2), net of any transfer to such Loan Party in consideration of such disposition,
plus (d) without duplication of amounts referenced in clause (c) above, Investments by a
Loan Party to a Non-Loan Party pursuant to Section 6.4(c)(iv), net of any transfer to such
Loan Party in consideration of such Investment to exceed US$20,000,000 at any time after the
Effective Date.



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 or in Article VI;




     (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



60









 







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) 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 transfer of the property
or assets securing such Indebtedness;




     (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;



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     (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
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.




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 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



62









 







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 (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,




63












 




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 Lead Arranger shall have no duties, responsibilities or obligations to, no authority to
act for, any other party to this Agreement by virtue of its status as Lead Arranger 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 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.



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     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 owned 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
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.



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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, National
Association, 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, National Association, 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, National
Association, 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, National Association,
Loan and Agency Services Group, JPMorgan Chase Bank, National Association, 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.




          (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



66









 







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 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 or
(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 required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender; provided
further that 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.



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     SECTION 10.3. Expenses; Indemnity; Damage Waiver. (a) The Administrative Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents and their Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Agents, 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 Issuing Bank or any Lender, including
the fees, charges and disbursements of any counsel for the Agents, 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 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 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, the Issuing Bank or the Swingline Lender under paragraph (a) or
(b) of this Section, each Lender severally agrees to pay to such Agent, the Issuing Bank or
the Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may



68









 







be, was incurred by or asserted against such Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.




     (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
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 Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.




     (b) (i) Subject to the conditions set forth in paragraph (b)(ii) 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) 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, an Approved Fund or, if an 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), any other assignee; and




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




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



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     (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 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) any 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 law of the jurisdiction in which the
Administrative Borrower is located, or any treaty to which such jurisdiction
is a party;




     (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



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     (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
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.




     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
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.




     (iv) 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.




     (v) 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



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(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 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,



72









 







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 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. 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 and any separate letter agreements with respect to fees payable to the
Agents or 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



73









 







executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.



     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.




     (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.



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     (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 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



75









 







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 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



76









 







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 10.5, 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
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.



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     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.



     SECTION 10.19. No Novation. Nothing herein contained shall be construed as a
substitution or novation of the obligations outstanding under the Existing Guarantee, which shall
remain in full force and effect, except as modified hereby or by instruments executed concurrently
herewith. Nothing expressed or implied in this Agreement shall be construed as a release or other
discharge of the Guarantors under the Existing Guarantee from any of their obligations and
liabilities as a “Guarantor” thereunder. Each Guarantor hereby confirms and agrees that, except as
modified hereby or by instruments executed concurrently herewith, each Loan Document to which it is
a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed
in all respects except that on and after the Effective Date, all references in any such Loan
Document to “the Guarantee,” “thereto,” “thereof,” “thereunder” or words of like import referring
to the Existing Guarantee shall mean the Existing Guarantee as amended and restated by this
Agreement.



78









 





     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:
	 	Senior Vice President &CFO	 	 
	 
	 	 	 	 	 	 
	 	 	PAREXEL INTERNATIONAL HOLDING B.V.
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ Peter Rietman
 

Peter Rietman
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	SUBSIDIARY GUARANTORS:
	 
	 	 	 	 	 	 
	 	 	PAREXEL INTERNATIONAL LLC
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ James F. Winschel, Jr.
 

James F. Winschel, Jr.
	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	PERCEPTIVE INFORMATICS, INC.
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ James F. Winschel, Jr.
 

James F. Winschel, Jr.
	 	 
	 

	 	Title:
	 	Treasurer	 	 






 









 





	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
individually and as Administrative Agent
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ Kenneth Coons
 

Kenneth Coons
	 	 
	 

	 	Title:
	 	Underwriter	 	 






 









 





	 	 	 	 	 	 	 
	 	 	J.P. MORGAN EUROPE LIMITED, as London Agent
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ Belinda Lucas
 

Belinda Lucas
	 	 
	 

	 	Title:
	 	Associate	 	 






 









 





	 	 	 	 	 	 	 
	 	 	ABN AMRO BANK N.V.,
 as Syndication Agent
and a Lender
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ Kathleen L. Ross
 

Kathleen L. Ross
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ David J. Thoms
 

David J. Thomas
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






 









 





	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, N.A., 
as Documentation Agent and a
Lender
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ John J. Wedemeyer
 

John J. Wedemeyer
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






 









 





	 	 	 	 	 	 	 
	 	 	COMERICA BANK,
 as a Lender
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ John M. Costa
 

John M. Costa
	 	 
	 

	 	Title:
	 	First Vice President	 	 






 









 





	 	 	 	 	 	 	 
	 	 	CITIBANK, N.A.,
 as a Lender
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ Jeffrey A. Neikirk
 

Jeffrey A. Neikirk
	 	 
	 

	 	Title:
	 	Managing Director	 	 






 









 





	 	 	 	 	 	 	 
	 	 	CITIZEN BANK OF MASSACHUSETTS,
 as a Lender
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ Cindy Chen
 

Cindy Chen
	 	 
	 

	 	Title:
	 	Senior Vice President