AMENDED AND RESTATED CREDIT AGREEMENT



 




AMENDED AND RESTATED CREDIT AGREEMENT




dated as of




February 14, 2003




As Amended and Restated as of




September 10, 2003




among




FISHER SCIENTIFIC INTERNATIONAL INC.




FISHER SCIENTIFIC COMPANY L.L.C.




The Lenders Party Hereto




and




JPMORGAN CHASE BANK,

as Administrative Agent













J.P. MORGAN SECURITIES INC.,

as Advisor, Bookrunner and Co-Arranger




DEUTSCHE BANK SECURITIES INC.,

as Co-Arranger and Syndication Agent




CREDIT SUISSE FIRST BOSTON,

acting through its Cayman Islands Branch,

as Syndication Agent



 







 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	 	 	 	 	 	

	ARTICLE I

	Definitions

	SECTION 1.01.
	 	Defined Terms
	 	 	1	 
	SECTION 1.02.
	 	Classification of Loans and Borrowings
	 	 	35	 
	SECTION 1.03.
	 	Terms Generally
	 	 	35	 
	SECTION 1.04.
	 	Accounting Terms; GAAP
	 	 	35	 
	ARTICLE II

	The Credits

	SECTION 2.01.
	 	Commitments
	 	 	35	 
	SECTION 2.02.
	 	Loans and Borrowings
	 	 	36	 
	SECTION 2.03.
	 	Requests for Borrowings
	 	 	36	 
	SECTION 2.04.
	 	Swingline Loans
	 	 	37	 
	SECTION 2.05.
	 	Letters of Credit
	 	 	39	 
	SECTION 2.06.
	 	Funding of Borrowings
	 	 	45	 
	SECTION 2.07.
	 	Interest Elections
	 	 	46	 
	SECTION 2.08.
	 	Termination and Reduction of Commitments
	 	 	47	 
	SECTION 2.09.
	 	Repayment of Loans; Evidence of Debt
	 	 	48	 
	SECTION 2.10.
	 	Amortization of Term Loans
	 	 	49	 
	SECTION 2.11.
	 	Prepayment of Loans
	 	 	51	 
	SECTION 2.12.
	 	Fees
	 	 	53	 
	SECTION 2.13.
	 	Interest
	 	 	54	 
	SECTION 2.14.
	 	Alternate Rate of Interest
	 	 	55	 
	SECTION 2.15.
	 	Increased Costs
	 	 	55	 
	SECTION 2.16.
	 	Break Funding Payments
	 	 	57	 
	SECTION 2.17.
	 	Taxes
	 	 	57	 
	SECTION 2.18.
	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	59	 
	SECTION 2.19.
	 	Mitigation Obligations; Replacement of Lenders
	 	 	60	 
	SECTION 2.20.
	 	Incremental Term Loans
	 	 	61	 
	SECTION 2.21.
	 	Local Currency Loans
	 	 	63	 
	SECTION 2.22.
	 	Currency Fluctuations
	 	 	66	 
	SECTION 2.23.
	 	Subsidiary Borrowers
	 	 	66	 
	ARTICLE III

	Representations
and Warranties

	SECTION 3.01.
	 	Organization; Powers
	 	 	67	 
	SECTION 3.02.
	 	Authorization; Enforceability
	 	 	67	 
	SECTION 3.03.
	 	Governmental Approvals; No Conflicts
	 	 	67	 



i







 





	 	 	 	 	 	 	 	 	 
	SECTION 3.04.
	 	Financial Condition; No Material Adverse Change
	 	 	68	 
	SECTION 3.05.
	 	Properties
	 	 	68	 
	SECTION 3.06.
	 	Litigation and Environmental Matters
	 	 	69	 
	SECTION 3.07.
	 	Compliance with Laws and Agreements
	 	 	69	 
	SECTION 3.08.
	 	Investment and Holding Company Status
	 	 	70	 
	SECTION 3.09.
	 	Taxes
	 	 	70	 
	SECTION 3.10.
	 	ERISA
	 	 	70	 
	SECTION 3.11.
	 	Disclosure
	 	 	70	 
	SECTION 3.12.
	 	Subsidiaries
	 	 	70	 
	SECTION 3.13.
	 	Insurance
	 	 	70	 
	SECTION 3.14.
	 	Labor Matters
	 	 	71	 
	SECTION 3.15.
	 	Senior Indebtedness
	 	 	71	 
	ARTICLE IV

	Conditions

	SECTION 4.01.
	 	Effective Date
	 	 	71	 
	SECTION 4.02.
	 	Each Credit Event
	 	 	73	 
	SECTION 4.03.
	 	Borrowings by Subsidiary Borrowers; Letters of Credit for
Subsidiary Borrowers
	 	 	74	 
	ARTICLE V

	Affirmative
Covenants

	SECTION 5.01.
	 	Financial Statements and Other Information
	 	 	74	 
	SECTION 5.02.
	 	Notices of Material Events
	 	 	76	 
	SECTION 5.03.
	 	Information Regarding Collateral
	 	 	76	 
	SECTION 5.04.
	 	Existence; Conduct of Business
	 	 	76	 
	SECTION 5.05.
	 	Payment of Obligations
	 	 	77	 
	SECTION 5.06.
	 	Maintenance of Properties
	 	 	77	 
	SECTION 5.07.
	 	Insurance
	 	 	77	 
	SECTION 5.08.
	 	Casualty and Condemnation
	 	 	77	 
	SECTION 5.09.
	 	Books and Records; Inspection and Audit Rights
	 	 	77	 
	SECTION 5.10.
	 	Compliance with Laws
	 	 	78	 
	SECTION 5.11.
	 	Use of Proceeds and Letters of Credit; Margin Regulations
	 	 	78	 
	SECTION 5.12.
	 	Additional Subsidiaries
	 	 	78	 
	SECTION 5.13.
	 	Further Assurances
	 	 	79	 
	SECTION 5.14.
	 	End of Fiscal Years; Fiscal Quarters
	 	 	82	 
	SECTION 5.15.
	 	Foreign Subsidiaries’ Security
	 	 	82	 
	ARTICLE VI

	Negative
Covenants

	SECTION 6.01.
	 	Indebtedness; Designated Senior Debt
	 	 	84	 
	SECTION 6.02.
	 	Liens
	 	 	86	 




 ii 








 




	 	 	 	 	 	 	 	 	 
	SECTION 6.03.
	 	Fundamental Changes
	 	 	88	 
	SECTION 6.04.
	 	Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	89	 
	SECTION 6.05.
	 	Asset Sales
	 	 	92	 
	SECTION 6.06.
	 	Swap Agreements
	 	 	94	 
	SECTION 6.07.
	 	Restricted Payments; Certain Payments of Indebtedness
	 	 	94	 
	SECTION 6.08.
	 	Transactions with Affiliates
	 	 	97	 
	SECTION 6.09.
	 	Restrictive Agreements
	 	 	98	 
	SECTION 6.10.
	 	Amendment of Material Documents
	 	 	98	 
	SECTION 6.11.
	 	Capital Expenditures
	 	 	98	 
	SECTION 6.12.
	 	Interest Expense Coverage Ratio
	 	 	99	 
	SECTION 6.13.
	 	Total Leverage Ratio
	 	 	99	 
	SECTION 6.14.
	 	Senior Leverage Ratio
	 	 	99	 
	ARTICLE VII

	Events of Default

	ARTICLE VIII

	The Administrative Agent

	ARTICLE IX

	Collection Allocation Mechanism

	SECTION 9.01.
	 	Implementation of CAM
	 	 	105	 
	SECTION 9.02.
	 	Letters of Credit
	 	 	105	 
	ARTICLE X

	Miscellaneous

	SECTION 10.01.
	 	Notices
	 	 	107	 
	SECTION 10.02.
	 	Waivers; Amendments
	 	 	108	 
	SECTION 10.03.
	 	Expenses; Indemnity; Damage Waiver
	 	 	110	 
	SECTION 10.04.
	 	Successors and Assigns
	 	 	111	 
	SECTION 10.05.
	 	Survival
	 	 	114	 
	SECTION 10.06.
	 	Counterparts; Integration; Effectiveness
	 	 	114	 
	SECTION 10.07.
	 	Severability
	 	 	115	 
	SECTION 10.08.
	 	Right of Set-Off
	 	 	115	 
	SECTION 10.09.
	 	Governing Law; Jurisdiction; Consent to Service of Process
	 	 	115	 
	SECTION 10.10.
	 	WAIVER OF JURY TRIAL
	 	 	116	 
	SECTION 10.11.
	 	Headings
	 	 	116	 
	SECTION 10.12.
	 	Confidentiality
	 	 	116	 
	SECTION 10.13.
	 	Interest Rate Limitation
	 	 	117	 
	SECTION 10.14.
	 	Intercreditor Agreements
	 	 	117	 



iii







 



SCHEDULES:




	 	 	 	 	 	 	 	 	 
	Schedule 1.01
	 	 	—	 	 	Initial Mortgaged Properties

	Schedule 2.01
	 	 	—	 	 	Commitments

	Schedule 3.05
	 	 	—	 	 	Real Properties

	Schedule 3.06
	 	 	—	 	 	Disclosed Matters

	Schedule 3.12
	 	 	—	 	 	Subsidiaries

	Schedule 3.13
	 	 	—	 	 	Insurance

	Schedule 6.01
	 	 	—	 	 	Existing Indebtedness

	Schedule 6.02
	 	 	—	 	 	Existing Liens

	Schedule 6.04
	 	 	—	 	 	Existing Investments

	Schedule 6.08
	 	 	—	 	 	Existing Affiliate Transactions

	Schedule 6.09
	 	 	—	 	 	Existing Restrictions





EXHIBITS:




	 	 	 	 	 	 	 	 	 
	Exhibit A
	 	 	—	 	 	Form of Assignment and Assumption

	Exhibit B-1
	 	 	—	 	 	Form of Opinion of Debevoise & Plimpton (Effective Date)

	Exhibit B-2
	 	 	—	 	 	Form of Opinion of General Counsel

	Exhibit B-3
	 	 	—	 	 	Form of Opinion of Delaware Counsel

	Exhibit B-4
	 	 	—	 	 	Form of Opinion of Local Counsel

	Exhibit B-5
	 	 	—	 	 	Form of Opinion of Counsel for Subsidiary Borrower

	Exhibit C
	 	 	—	 	 	Form of Guarantee and Collateral Agreement

	Exhibit D
	 	 	—	 	 	Form of Collateral Sharing Agreement

	Exhibit E
	 	 	—	 	 	Form of Competitive Bid





iv








 




		
	 	     AMENDED AND RESTATED CREDIT AGREEMENT dated as of
February 14, 2003, as amended and restated as of September
10, 2003, among FISHER SCIENTIFIC INTERNATIONAL INC.,
FISHER SCIENTIFIC COMPANY L.L.C., the LENDERS party hereto
and JPMORGAN CHASE BANK, as Administrative Agent.



          WHEREAS, the Company, the Initial Borrower, the lenders party thereto and
JPMorgan Chase Bank, as administrative agent, are parties to a Credit Agreement
dated as of February 14, 2003 (as amended, the “Original Credit Agreement”), as
in effect immediately prior to the Restatement Effective Date (as defined
herein); and



          WHEREAS, the Company, the Initial Borrower, the Tranche B-1 Lenders and
JPMorgan Chase Bank, as administrative agent, are parties to an Amendment and
Restatement Agreement dated as of September 10, 2003 (the “Amendment and
Restatement Agreement”); and



          WHEREAS, subject to the satisfaction of the conditions set forth in the
Amendment and Restatement Agreement, the Original Credit Agreement shall be
amended and restated as provided herein;



          NOW, THEREFORE, the parties hereto agree as follows:




ARTICLE I




Definitions



          SECTION 1.01. 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.



          “Account” means, collectively, (a) an “account” as such term is defined in
the Uniform Commercial Code as in effect from time to time in the State of New
York or under other relevant law, and (b) the Company’s or any Subsidiary’s
rights to payment for goods sold or leased or services performed, including all
such rights evidenced by an account, note, contract, security agreement,
chattel paper, or other evidence of indebtedness or security.



          “Acquired Business” means any Person, property, business or asset acquired
(or, as applicable, proposed to be acquired) by the Company or a Subsidiary
pursuant to a Permitted Acquisition.



          “Adjusted EBITDA” means, for any period, the Consolidated EBITDA of the
Company for such period, adjusted (a) to include the Consolidated EBITDA of any
Acquired Business acquired during such period (and, solely for purposes of
determining whether a proposed acquisition is a Permitted Acquisition pursuant
to clause (f) of the









 





 2



definition of the term “Permitted Acquisition”, any Acquired Business
that, at the time of calculation of Adjusted EBITDA for such purpose, has been
acquired subsequent to the end of such period and prior to such time as well as
that proposed to be acquired) pursuant to a Permitted Acquisition and not
subsequently sold, transferred or otherwise disposed of during such period (or,
solely for purposes of determining whether a proposed acquisition is a
Permitted Acquisition, subsequent to the end of such period and prior to such
time), based on (i) the actual Consolidated EBITDA of such Acquired Business
for such period (including the portion thereof attributable to such period
prior to the date of acquisition of such Acquired Business), (ii) for purposes
of determining whether a proposed acquisition is a Permitted Acquisition
pursuant to clause (f) of the definition of the term “Permitted Acquisition”,
giving pro forma effect to identified cost savings from any such Permitted
Acquisition (or proposed acquisition), but only to the extent such cost savings
would be permitted in a pro forma financial statement prepared in compliance
with Regulation S-X, and (iii) for purposes of determining the Total Leverage
Ratio and Senior Leverage Ratio, giving pro forma effect, in the portion of
such period occurring prior to the date of consummation of any such Permitted
Acquisition, to identified cost savings from any such Permitted Acquisition,
but only to the extent such cost savings would be permitted in a pro forma
financial statement prepared in compliance with Regulation S-X, and (b) to
exclude the Consolidated EBITDA of any Sold Business sold, transferred or
otherwise disposed of during such period (and, solely for purposes of
determining whether a proposed acquisition is a Permitted Acquisition pursuant
to clause (f) of the definition of the term “Permitted Acquisition”, any Sold
Business that, at the time of calculation of Adjusted EBITDA for such purpose,
has been sold, transferred or otherwise disposed of subsequent to the end of
such period and prior to such time), based on the actual Consolidated EBITDA of
such Sold Business for such period (including the portion thereof attributable
to such period prior to the date of sale, transfer or disposition of such Sold
Business).



          “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing or
Eurocurrency Competitive Local Currency Borrowing for any Interest Period, an
interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate.



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



          “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.



          “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.

 







 





 3



          “Amendment and Restatement Agreement” has the meaning given such term in
the recitals hereto.



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



          “Applicable Rate” means, for any day (a) with respect to any Original Term
Loan, (i) 1.50% per annum, in the case of an ABR Loan, or (ii) 2.50% per annum,
in the case of a Eurodollar Loan, (b) with respect to any Tranche B-1 Term
Loan, (i) 1.25% per annum in the case of an ABR Loan, or (ii) 2.25% per annum,
in the case of a Eurodollar Loan, and (c) with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan, or with respect to the commitment
fees payable hereunder, as the case may be, the applicable rate per annum set
forth below under the caption “ABR Spread”, “Eurodollar Spread” or “Commitment
Fee Rate”, as the case may be, based upon the Total Leverage Ratio as of the
most recent determination date:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	ABR	 	Eurodollar	 	Commitment Fee
	Leverage Ratio:	 	Spread	 	Spread	 	Rate
	
	 	
	 	
	 	

	 	Category 1
	 	 	 	 	 	 	 	 	 	 	 	 
	 	>3.0:1.0
	 	 	2.00	%	 	 	3.00	%	 	 	0.50	%
	 	Category 2
	 	 	 	 	 	 	 	 	 	 	 	 
	<3.0:1.0 and >2.5:1.0
	 	 	1.75	%	 	 	2.75	%	 	 	0.50	%
	 	Category 3
	 	 	 	 	 	 	 	 	 	 	 	 
	<2.5:1.0 and >2.0:1.0
	 	 	1.50	%	 	 	2.50	%	 	 	0.50	%
	 	Category 4
	 	 	 	 	 	 	 	 	 	 	 	 
	 	<2.0:1.0
	 	 	1.25	%	 	 	2.25	%	 	 	0.375	%



          For purposes of the foregoing, (i) the Total Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Company’s fiscal year
based upon the Company’s consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Total Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next such change; provided
that the Total Leverage Ratio shall be deemed to be in Category 1 (A) at any
time that an Event of Default has occurred and is continuing or (B) at the
option of the Administrative Agent or at the request of the Required Lenders if
the Company fails to deliver the consolidated financial statements required to
be delivered by it pursuant to Section 5.01(a) or (b), during the period from
the expiration of the time for delivery thereof until such consolidated
financial statements are delivered; provided further that for purposes of
determining the fees payable pursuant to Section 2.12(a) and (b), each change
in the Applicable Rate resulting from a change in the Total Leverage Ratio
shall be effective during the period (1) commencing on and including the first
day of the fiscal quarter during which such consolidated financial

 







 





 4



statements indicating such change were delivered (except with respect to
any such fees accrued during such fiscal quarter and required to be paid prior
to delivery of such financial statements, in which case such change shall not
be effective for the portion of such period during which such fees accrued) and
(2) ending on the date immediately preceding the effective date of the next
such change.



          “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 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.



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



          “Borrowers” means the Initial Borrower, the Term Loan Borrower and the
Subsidiary Borrowers. If the Company is designated as the Term Loan Borrower,
then the Company shall also be deemed a Borrower with respect to the Revolving
Loans.



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



          “Borrowing Request” means a request by a Borrower (or by the Company on
behalf of a Borrower) for a Revolving Borrowing, Original Term Borrowing or
Incremental Term Borrowing in accordance with Section 2.03.



          “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 Eurodollar
Loan, the term “Business Day” shall also exclude any day on which banks are not
open for dealings in Dollar deposits in the London interbank market and (b)
when used in connection with a Local Currency Loan or Local Letter of Credit,
the term “Business Day” shall also exclude any day on which commercial banks in
the principal financial center of such Local Currency (as determined by the
Administrative Agent) are authorized or required by law to remain closed.



          “Calculation Date” means the last Business Day of March, June, September
and December of each year.



          “CAM” means the mechanism for the allocation and exchange of interests in
the Credit Facilities and Local Currency Loans and collections thereunder
established under Article IX.



          “CAM Exchange” means the exchange of the Lenders’ interests provided for
in Section 9.01.



          “CAM Exchange Date” means the date on which (a) any event referred to in
paragraph (h) or (i) of Article VII shall occur in respect of the Company or
any Subsidiary Borrower or (b) an acceleration of the maturity of the Loans
pursuant to Article VII shall occur.

 







 





 5



          “CAM Percentage” means, as to each Lender, a fraction, expressed as a
decimal, of which (a) the numerator shall be the aggregate Dollar Equivalent
(determined on the basis of Exchange Rates or Spot Exchange Rates, as
applicable, prevailing on the CAM Exchange Date) of the Specified Obligations
owed to such Lender and such Lender’s participation in undrawn amounts of
Letters of Credit immediately prior to the CAM Exchange Date and (b) the
denominator shall be the aggregate Dollar Equivalent (as so determined) of the
Specified Obligations owed to all the Lenders and the aggregate undrawn amount
of outstanding Letters of Credit immediately prior to such CAM Exchange Date.



          “Capital Expenditures” means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Company and
its consolidated Subsidiaries that are (or would be) set forth in a
consolidated statement of cash flows of the Company for such period prepared in
accordance with GAAP (including expenditures for maintenance and repairs which
should be capitalized in accordance with GAAP) and (b) Capital Lease
Obligations incurred by the Company and its consolidated Subsidiaries during
such period, but (c) excluding any such expenditures constituting Permitted
Acquisitions.



          “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.



          “Cash Consideration” means (a) cash, (b) Permitted Investments or (c)
promissory notes or other obligations received by the Company or a Subsidiary
that are promptly, but in no event more than 60 days after receipt, converted
into cash or Permitted Investments.



          “Cash Pooling Arrangement” means a deposit account arrangement among a
single depository institution, the Company and one or more Foreign Subsidiaries
involving the pooling of cash deposits in one or more deposit accounts with
such institution by the Company and such Foreign Subsidiaries for cash
management purposes.



          “Change in Control” means (a) the beneficial ownership or acquisition of
beneficial ownership, directly or indirectly, 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 Effective
Date), other than Permitted Holders, of Equity Interests representing more than
30% of either the aggregate ordinary voting power or the aggregate equity value
represented by the issued and outstanding Equity Interests in the Company
(unless, and only so long as, a Permitted Holder or any combination of
Permitted Holders beneficially own and control Equity Interests representing
more than the percentages of each of the aggregate ordinary voting power and
the aggregate equity value represented by the issued and outstanding Equity
Interests in the Company owned by such other Person or group), (b) occupation
of a majority of the seats (other than vacant seats) on the board of directors
of the Company by Persons who were neither (i) nominated by the board of
directors of the Company nor (ii) appointed by directors so nominated or (c)
the Initial Borrower ceases to be a wholly

 







 





 6



owned Subsidiary of the Company (unless the Company shall have delivered
an Election to Terminate with respect to the Initial Borrower pursuant to
Section 2.23).



          “Change in Law” means (a) the adoption of any law, rule or regulation
after the Effective Date, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the Effective Date or (c) compliance by any Lender or Issuing Bank (or, for
purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender’s or 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 Effective Date.



          “Class”, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Local Currency Loans, Original Term Loans, Incremental Term Loans or Swingline
Loans and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment, Term Loan Commitment or a commitment to
make an Incremental Term Loan. Incremental Term Loans that have different
terms and conditions shall be construed to be in different Classes. Tranche
B-1 Term Loans constitute a Class of Incremental Term Loans.



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



          “Collateral” means any and all “Collateral”, as defined in any applicable
Security Document.



          “Collateral Agent” means the Administrative Agent or other Person acting
as collateral agent under the Security Documents for the Secured Parties.



          “Collateral Agreement” means the Guarantee and Collateral Agreement among
the Domestic Loan Parties and the Collateral Agent, substantially in the form
of Exhibit C.



          “Collateral and Guarantee Requirement” means the requirement that:





		
	 	     (a) the Collateral Agent shall have received from each Domestic Loan
Party either (i) a counterpart of each of the Collateral Agreement and
the Collateral Sharing Agreement duly executed and delivered on behalf of
such Domestic Loan Party or (ii) in the case of any Person that becomes a
Domestic Loan Party after the Effective Date, a supplement to the
Collateral Agreement, in the form specified therein, duly executed and
delivered on behalf of such Domestic Loan Party; provided that a Foreign
Subsidiary Holding Company shall not be required to Guarantee the
Obligations thereunder, but shall execute the Collateral Agreement (or
supplement thereto, as applicable) for purposes of complying with clauses
(b) and (c) below;
	 
	 	     (b) all outstanding Equity Interests of each Material Subsidiary and
Receivables Subsidiary owned by or on behalf of any Domestic Loan Party
shall have been pledged pursuant to the Collateral Agreement (except
that, subject to Section 5.15, the Domestic Loan Parties shall not be
required to pledge more than



 







 




 7





	 	 	65% of the outstanding voting Equity Interests of any Foreign
Subsidiary Holding Company or any Foreign Subsidiary) and the Collateral
Agent shall have received certificates or other instruments representing
all such Equity Interests, together with stock powers or other
instruments of transfer with respect thereto endorsed in blank; provided
that any such Equity Interests of a Foreign Subsidiary are not required
to be pledged if (i) such Equity Interests are acquired by or on behalf
of a Domestic Loan Party with the intent of transferring such Equity
Interest to a Foreign Subsidiary and (ii) within 30 days after the date
of the acquisition of such Equity Interests, such Domestic Loan Party
transfers such Equity Interests to a Foreign Subsidiary;





		
	 	     (c) the requirements of Sections 5.13 and 5.15 shall have been
satisfied if and to the extent applicable;
	 
	 	     (d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Documents and perfect such Liens
to the extent required by, and with the priority required by, the
Security Documents, shall have been filed, registered or recorded or
delivered to the Collateral Agent for filing, registration or recording;
	 
	 	     (e) the Collateral Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy
or policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid
first Lien on the Mortgaged Property described therein, free of any other
Liens except as expressly permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Collateral Agent or the
Required Lenders may reasonably request, and (iii) such surveys,
abstracts, appraisals, legal opinions and other documents as the
Collateral Agent or the Required Lenders may reasonably request with
respect to any such Mortgage or Mortgaged Property; provided that, in the
case of the initial Mortgaged Properties, the requirements of clauses
(ii) and (iii) shall not be required to be satisfied until the date that
is 90 days after the Effective Date; and
	 
	 	     (f) each Loan Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and
delivery of all Security Documents to which it is a party, the
performance of its obligations thereunder and the granting by it of the
Liens thereunder; provided that the foregoing shall not require that
consents to the assignment of Excluded Contracts (as defined in the
Collateral Agreement) be obtained.



          “Collateral Sharing Agreement” means the Collateral Sharing Agreement
among the Domestic Loan Parties and the Collateral Agent, substantially in the
form of Exhibit D.



          “Commitment” means a Revolving Commitment, Original Term Loan Commitment,
Tranche B-1 Term Loan Commitment or any combination thereof (as the context
requires).





 









 




 8



          “Company” means Fisher Scientific International Inc., a Delaware
corporation.



          “Competitive Bid” means an offer by a Revolving Lender to make a
Competitive Local Currency Loan pursuant to Section 2.21 substantially in the
form of Exhibit E.



          “Competitive Bid Accept/Reject Letter” means a notification made by the
Company pursuant to Section 2.21(c) substantially in the form of Exhibit F.



          “Competitive Bid Rate” means, as to any Competitive Bid, (a) in the case
of a Eurocurrency Competitive Local Currency Loan, the sum of (x) the Margin
and (y) the Adjusted LIBO Rate, and (b) in the case of a Fixed Rate Loan, the
fixed rate of interest offered by the Revolving Lender making such Competitive
Bid.



          “Competitive Bid Request” means a request made pursuant to Section 2.21
substantially in the form of Exhibit G.



          “Competitive Local Currency Borrowing” means a Borrowing consisting of a
Competitive Local Currency Loan or concurrent Competitive Local Currency Loans
from the Revolving Lender or Revolving Lenders whose Competitive Bids for such
Borrowing have been accepted under the bidding procedure described in Section
2.21.



          “Competitive Local Currency Loan” has the meaning assigned to such term in
Section 2.21. Each Competitive Local Currency Loan shall be a Eurocurrency
Competitive Local Currency Loan or a Fixed Rate Loan.



          “Compulsory Acquisition Security” means security for the payment of
consideration in respect of the compulsory acquisition of the remaining Equity
Interests in Perbio after the acquisition of 90% or more of such Equity
Interests pursuant to the compulsory acquisition procedures under the laws of
Sweden, which security shall be in the form of (a) a bank guarantee or letter
of credit, (b) a pledge of cash collateral or liquid investments (which may
secure either the obligation to pay consideration in respect of the compulsory
acquisition of the remaining Equity Interests in Perbio or the bank guarantee
or letter of credit referred to in clause (a) above) or (c) such other form of
security required by the compulsory acquisition procedures under the laws of
Sweden and reasonably acceptable to the Administrative Agent; provided that the
aggregate amount of such security shall not exceed the sum of (i) the highest
price paid per share to acquire Equity Interests of Perbio pursuant to the
Perbio Acquisition multiplied by the number of shares to be acquired pursuant
to such compulsory acquisition plus (ii) an amount equal to three years of
interest on the amount calculated pursuant to clause (i) above at the rate
required by the compulsory acquisition procedures under the laws of Sweden plus
(iii) any additional amounts required by the compulsory acquisition procedures
under the laws of Sweden and reasonably acceptable to the Administrative Agent.



          “Consolidated Cash Interest Expense” means, for any period, the excess of
(a) the sum (without duplication) of (i) the interest expense (including
imputed interest expense in respect of Capital Lease Obligations) of the
Company and its Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP, (ii) any interest accrued during such period in
respect of Indebtedness of the Company or any Subsidiary that is required to be
capitalized rather than included in consolidated interest



 







 





 9



expense for such period in accordance with GAAP, (iii) any cash payments
made during such period in respect of obligations referred to in clause (b)(ii)
below that were amortized or accrued in a previous period, and (iv)
interest-equivalent costs associated with any Permitted Receivables Financing,
whether accounted for as interest expense or loss on the sale of receivables,
minus (b) the sum (without duplication) of (i) to the extent included in such
consolidated interest expense for such period, non-cash amounts attributable to
amortization of financing costs previously paid, (ii) to the extent included in
such consolidated interest expense for such period, non-cash amounts
attributable to amortization of debt discounts, accrued interest payable in
kind or interest that is capitalized and added to principal rather than being
paid in cash, in each case for such period and (iii) to the extent included in
such consolidated interest expense for such period, with respect to any
non-wholly owned Subsidiary, the percentage of such Subsidiary’s interest
expense (including imputed interest expense in respect of Capital Lease
Obligations) for such period, and the percentage of any cash payments described
in clause (a)(iii) above made by such Subsidiary during such period, in each
case attributable to the minority equity interest in such Subsidiary
determined on a consolidated basis in accordance with GAAP. Consolidated Cash
Interest Expense shall be calculated giving effect to the net payments made or
received under any interest rate protection agreements (other than up-front
payments made to obtain any such agreement).



          “Consolidated EBITDA” means, for any period, Consolidated Net Income for
such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense for such period,
(iii) all amounts attributable to depreciation and amortization for such
period, (iv) any extraordinary charges and any losses on sales of assets
outside of the ordinary course of business for such period, (v) all noncash
charges for such period (including amortization of debt discounts, but
excluding any such charge that consists of a write-down or write-off of any
current asset), (vi) noncash expenses attributable to grants of stock options,
(vii) charges representing anticipated cash payments to be made in a future
period, (viii) cash charges attributable to the refinancing or redemption of
Indebtedness, including in respect of redemption premiums, (ix) charges and
expenses up to $50,000,000 in the aggregate in respect of the Redemption and
the establishment of the Company’s current Permitted Receivables Financing and
the credit facilities established under this Agreement, (x) unusual and
non-recurring cash charges not exceeding $50,000,000 in the aggregate for all
periods after the Effective Date, (xi) noncash expenses attributable to grants
of stock and restricted stock and other noncash stock-based awards (including
but not limited to performance units, stock appreciation rights, restricted
stock units or dividend equivalents payable solely in shares of stock), and
(xii) cash fees and expenses paid or incurred in connection with Perbio
Transaction Investments; provided that clauses (xi) and (xii) shall not apply
for purposes of calculating the Total Leverage Ratio to determine the
Applicable Rate, and minus (b) the sum of (i) without duplication and to the
extent included in determining such Consolidated Net Income, any extraordinary
gains and any gains on sales of assets outside of the ordinary course of
business for such period, all determined on a consolidated basis in accordance
with GAAP and (ii) any cash payments made during such period that were not
deducted in determining Consolidated Net Income for such period but for which a
charge of the type described in clause (a)(vii) above was taken in any previous
period. For purposes of determining the Consolidated EBITDA of an Acquired
Business or Sold Business as provided in the definition of Adjusted EBITDA,
references in this definition and in the definition of Consolidated Net Income
to the



 







 





10



Company and its Subsidiaries shall be deemed to refer to such Acquired
Business or Sold Business, as applicable. If the allocation of the purchase
price for the Perbio Acquisition results in a write-up in the book value of any
inventory owned by Perbio and its subsidiaries, then (except for purposes of
calculating the Total Leverage Ratio to determine the Applicable Rate)
Consolidated EBITDA shall be calculated as though such write-up had not
occurred.



          “Consolidated Net Income” means, for any period, the net income or loss of
the Company and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded (a) the
net income of any Subsidiary (other than a Subsidiary Guarantor) to the extent
that the distribution of such net income by such Subsidiary to a Domestic Loan
Party or a Subsidiary Guarantor (directly or indirectly, by dividends, payment
of intercompany indebtedness or otherwise) is restricted by the terms of any
contract or agreement, (b) any unrealized losses and gains for such period
resulting from mark-to-market of Swap Agreements and (c) to the extent included
therein in accordance with GAAP, the income or loss of any Person accrued prior
to the date it becomes a Subsidiary or is merged into or consolidated with the
Company or any Subsidiary or the date that such Person’s assets are acquired by
the Company or any Subsidiary.



          “Contract” means, with respect to any Receivable, any and all instruments,
agreements, invoices or other writings pursuant to which such Receivable arises
or which evidences such Receivable.



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



          “Credit Facility” means (a) any Class of Commitments and extensions of
credit thereunder (regardless of whether such Commitments have terminated) or
(b) any group of Incremental Term Loans having the same terms and conditions.



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



          “Disclosed Matters” means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.



          “Dollars” or “$” refers to lawful money of the United States of America.



          “Dollar Amount” means, with respect to any Local Letter of Credit or LC
Disbursement in respect thereof, the amount determined pursuant to Section
2.05(l).



          “Dollar Equivalent” means, on any date of determination, (a) with respect
to any amount in Dollars, such amount, and (b) with respect to any amount in
any Local Currency, the equivalent in Dollars of such amount, determined by the
Administrative Agent pursuant to Section 2.22(a) using (i) the Exchange Rate
with respect to such Local Currency at the time in effect under such Section
2.22(a), in the case of any determination relating to any Local Currency Loan,
or (ii) the relevant Dollar Amount, in



 







 





11



the case of any determination relating to any Local Letter of Credit or LC
Disbursement thereunder.



          “Domestic Loan Parties” means the Company, the Initial Borrower, the
Material Domestic Subsidiaries (excluding any Receivables Subsidiaries and
Excluded Subsidiaries) and any Subsidiary Borrower that is a Domestic
Subsidiary.



          “Domestic Subsidiary” means any Subsidiary that is not a Foreign
Subsidiary.



          “Dutch Partnership” means Fisher Scientific Worldwide Holdings I. C.V., a
limited partnership organized under the laws of the Netherlands and a
Subsidiary.



          “Effective Date” means February 14, 2003, the date on which the conditions
specified in Section 4.01 of the Original Credit Agreement were satisfied.



          “Election to Participate” means an election by the Company to designate a
Subsidiary as a Subsidiary Borrower hereunder executed by the Company and such
Subsidiary Borrower substantially in the form of Exhibit I or any other form
approved by the Administrative Agent.



          “Election to Terminate” means an election by the Company to terminate a
Subsidiary Borrower’s or, to the extent permitted by Section 2.23, the Initial
Borrower’s status as a Borrower hereunder, executed by the Company
substantially in the form of Exhibit J or any other form approved by the
Administrative Agent.



          “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 public and occupational health matters.



          “Environmental Liability” means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Company 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 by or imposed on the Company or a
Subsidiary 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.



 







 





12



          “ERISA Affiliate” means any trade or business (whether or not
incorporated) that, together with the Company, 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(m) or (o) 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 Company 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 Company or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Company 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 Company or any ERISA Affiliate of any notice, or the receipt
by any Multiemployer Plan from the Company 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.



          “Eurocurrency”, when used in reference to any Competitive Local Currency
Loan or Competitive Local Currency Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest based on the Adjusted
LIBO Rate.



          “Eurodollar”, 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; provided that
references herein to a Eurodollar Loan or Borrowing shall not be construed to
include any Local Currency Loan or Local Currency Borrowing.



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



          “Exchange Rate” means on any day, with respect to any Local Currency, the
rate at which such Local Currency may be exchanged into Dollars, as set forth
at approximately 11:00 a.m., London time, on such day on the Bloomberg Index
WCR page for such currency. In the event that such rate does not appear on any
Bloomberg Index WCR 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 Administrative Agent and the Company, or, in the absence of
such agreement, such Exchange Rate shall instead be the arithmetic average of
the spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such Local Currency are then
being conducted, at or about 10:00 a.m., local time, on such date for the
purchase of 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 Administrative Agent, after consultation with the Company, may use



 







 





13



any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.



          “Excluded Subsidiary” means any Domestic Subsidiary resulting from a
Permitted Acquisition after the Effective Date that is not wholly owned by the
Company and has not satisfied the Collateral and Guarantee Requirement.



          “Excluded Taxes” means, with respect to the Administrative Agent, any
Lender, any Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of any Borrower hereunder, (a) any Tax imposed on
the Administrative Agent, any Lender, any Issuing Bank or any other recipient
that would not have been imposed but for a connection between such Person or
its branch, Affiliate, principal office or, in the case of any Lender,
applicable lending office and the jurisdiction of the Governmental Authority
imposing such Tax or any political subdivision thereof or therein (other than a
connection arising solely as a result of entering into any Loan Document or
performing any obligations, receiving any payments or enforcing any rights
thereunder), (b) any branch profits taxes or any similar tax imposed by any
jurisdiction described in clause (a) above and (c) in the case of any such
payment by the Company or any Borrower organized under the laws of the United
States or any political subdivision thereof or therein to a Foreign Lender or
the Administrative Agent (other than an assignee pursuant to a request by the
Company under Section 2.19(b)), any U.S. Federal withholding tax that (i) is in
effect and would apply to such amounts payable to such Foreign Lender or the
Administrative Agent at the time such Foreign Lender or the Administrative
Agent becomes a party to this Agreement or designates a new lending office
(provided that, in the case of an assignment of a Loan made to any such
Borrower to a Foreign Lender that is entitled to receive additional amounts
from such Borrower under Section 2.17, the term “Excluded Taxes” shall include
(subject to the following clause (x)), for purposes of applying Section 2.17 to
payments in respect of such Loan, any U.S. Federal withholding tax that is in
effect and would apply to amounts payable to such Lender in respect of such
Loan at the time such assignment is effective), except to the extent that (x)
in the case of an assignment, such Foreign Lender’s assignor was entitled, at
the time of such assignment, to receive additional amounts from such Borrower
with respect to any withholding tax pursuant to Section 2.17(a), (y) in the
case of a designation of a new lending office, such Foreign Lender was
entitled, at the time of designation of such new lending office, to receive
additional amounts from such Borrower with respect to any withholding tax
pursuant to Section 2.17(a) or (z) such withholding tax is applicable as a
result of a CAM Exchange, or (ii) is attributable to such Foreign Lender’s or
the Administrative Agent’s failure to comply with Section 2.17(e).



          “Existing Credit Agreement” means the credit agreement dated as of January
21, 1998, as amended or otherwise modified, among the Company, certain of its
Subsidiaries, the lenders party thereto and JPMorgan Chase Bank, as
administrative agent, which is being refinanced and replaced by this Agreement.



          “Existing Letters of Credit” means any letters of credit issued pursuant
to the Existing Credit Agreement and outstanding as of the Effective Date.



          “Existing Receivables Purchase Agreement” means the amended and restated
receivables purchase agreement dated as of February 14, 2003, among Cole-



 







 





14



Parmer Instrument Company, Fisher Clinical Services Inc., Fisher Hamilton
L.L.C., the Initial Borrower, the Company and FSI Receivables Company LLC.



          “Existing Receivables Transfer Agreement” means the receivables transfer
agreement dated as of February 14, 2003, among FSI Receivables Company LLC, the
Company, Blue Ridge Asset Funding Corporation, Wachovia Bank, National
Association, Liberty Street Funding Corporation and The Bank of Nova Scotia.



          “Existing Subordinated Debt” means (a) the 9% Senior Subordinated Notes
due 2008 issued pursuant to the Indenture, dated as of January 21, 1998,
between the Company and State Street Bank and Trust Company, as Trustee and (b)
the 8 1/8% Senior Subordinated Notes due 2012 issued pursuant to the Indenture,
dated as of April 24, 2002, between the Company and J.P. Morgan Trust Company,
National Association, as Trustee, in each case outstanding on the Effective
Date.



          “Existing Subordinated Indentures” means the Indentures referred to in the
definition of “Existing Subordinated Debt”.



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



          “Financial Officer” means, with respect to the Company or the Initial
Borrower, the chief financial officer, principal accounting officer, treasurer,
controller or Manager thereof, as applicable.



          “Fixed Rate Borrowing” means a Competitive Local Currency Borrowing
comprised of Fixed Rate Loans.



          “Fixed Rate Loan” means any Competitive Local Currency Loan bearing
interest at a fixed percentage rate per annum (the “Fixed Rate”) (expressed in
the form of a decimal to no more than four decimal places) specified by the
Revolving Lender making such Loan in its Competitive Bid.



          “Foreign Lender” means, with respect to any Loan or Letter of Credit, any
Lender or Issuing Bank that is organized under the laws of a jurisdiction other
than the United States of America. 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 any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.



          “Foreign Subsidiary Holding Company” means, at any time, any Domestic
Subsidiary that at such time (a) does not have any assets other than Equity
Interests of



 







 





15



Foreign Subsidiaries (or any Domestic Subsidiaries that qualify to be a
“Foreign Subsidiary Holding Company” under this definition) and immaterial
assets, if any, incidental to its activities as a holding company, (b) is not
liable for any Indebtedness and (c) does not engage in any activities other
than those of a holding company for investments in Foreign Subsidiaries (and
other Foreign Subsidiary Holding Companies) and activities incidental thereto.



          “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 or other obligation 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 other obligation 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 or other obligation of the payment thereof (including
pursuant to any “synthetic” lease arrangement), (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 other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. If it shall be
necessary at any time to determine the amount of any Guarantee of any
guarantor, such amount shall be deemed to be the lower at such time of (i) an
amount equal to the outstanding, stated or determinable amount of the
obligation of the primary obligor in respect of which such Guarantee is made
and (ii) the maximum amount for which such guarantor may be liable pursuant to
the terms embodying such Guarantee, unless such primary obligation is not
outstanding, stated or determinable at such time, in which case the amount of
the Guarantee shall be the guarantor’s maximum reasonably anticipated liability
in respect thereof, as determined by the Company in good faith.



          “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
applicable Environmental Law.



          “Immaterial Subsidiaries” means Subsidiaries, that, on a consolidated
basis with their respective Subsidiaries and treated as if all such
Subsidiaries and their respective Subsidiaries were combined and consolidated
as a single Subsidiary, (a) had less than 5% of the consolidated assets of the
Company and its consolidated Subsidiaries



 







 





16



as of the last day of the most recently ended fiscal quarter of the
Company and (b) had less than 5% of the revenues of the Company and its
consolidated Subsidiaries for the period of four consecutive fiscal quarters
most recently ended.



          “Incremental Term Lender” means a Lender with an outstanding Incremental
Term Loan.



          “Incremental Term Loan” has the meaning assigned to such term in Section
2.20. The Tranche B-1 Term Loans are Incremental Term Loans.



          “Incremental Term Loan Amendment” has the meaning assigned to such term in
Section 2.20. The Amendment and Restatement Agreement is an Incremental Term
Loan Amendment.



          “Indebtedness” of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) 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), (e) 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 (but if the recourse to
such Person for such Indebtedness is limited to such property, then, for
purposes of this clause (e), the amount of such Indebtedness of such Person
shall be deemed to be limited to an amount equal to the lesser of (i) the
outstanding amount of such secured Indebtedness and (ii) the fair market value
of the property subject to such Lien securing such Indebtedness), (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 January 2003, relating to the Company and the financing contemplated
hereby.



          “Initial Borrower” means Fisher Scientific Company L.L.C., a Delaware
limited liability company.



          “Intercreditor Agreement” means an agreement between the Collateral Agent
and any financing parties providing financing pursuant to a Permitted
Receivables Financing (or an agent or trustee for such financing parties)
providing for arrangements the effect of which is to restrict the Collateral
Agent and the Lenders from asserting



 







 





17



claims or Liens in respect of the Obligations against a Receivables
Subsidiary or any Receivables and Related Security subject to a Permitted
Receivables Financing, which may include (a) the release or disclaimer of any
Lien under the Security Documents on any Receivables and Related Security
subject to a Permitted Receivables Financing and the proceeds therefrom, (b)
the return by any party to such agreement to the others, as appropriate, of any
funds or other property wrongfully obtained, (c) cooperation in the separation
of any commingled assets, (d) restrictions on challenging transfers of
Receivables and Related Security to a Receivables Subsidiary and (e)
restrictions on instituting bankruptcy or insolvency proceedings with respect
to a Receivables Subsidiary or any conduit through which financing is provided
to a Receivables Subsidiary.



          “Interest Election Request” means a request by or on behalf of the
applicable Borrower to convert or continue a Revolving Borrowing or Term
Borrowing in accordance with Section 2.07.



          “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 Eurodollar Loan or Local Currency 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 Eurodollar Borrowing or Local Currency 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 (a) with respect to any Eurodollar 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, six or (if
agreed by all Lenders participating in such Borrowing) nine months thereafter
or, with respect to any Eurodollar Borrowing that is a Revolving Borrowing (and
if agreed by all Lenders participating in such Borrowing), on the date that is
one week thereafter, (b) with respect to any Fixed Rate Borrowing, the period
commencing on the date of such Borrowing and ending on the date specified in
the applicable Competitive Bid Request, (c) with respect to any Eurocurrency
Competitive Local Currency Borrowing, the period commencing on the date of such
Borrowing and ending on the date specified in the applicable Competitive Bid
Request, which shall be the numerically corresponding day in the calendar month
that is one, two, three, six or nine months thereafter and (d) with respect to
any Negotiated Local Currency Borrowing, the period commencing on the date of
such Borrowing and ending on a day mutually agreed upon by the applicable
Lender and the applicable Borrower (which shall not be later than twelve months
after the date of such Borrowing); 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 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 with respect to any Eurodollar Borrowing or Eurocurrency Competitive
Local Currency 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 thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.



 







 





18



          “Issuing Bank” means (a) initially JPMorgan Chase Bank, in its capacity as
the issuer of Letters of Credit hereunder, (b) any other Lender that agrees
with the Company and the Administrative Agent to be an issuer of Letters Of
Credit hereunder as provided in Section 2.05(i), in its capacity as such, and
(c) in respect of any Existing Letter of Credit, the bank that issued such
Letter of Credit, in its capacity as such. An Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.



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



          “LC Disbursement Borrowing” has the meaning assigned to such term in
Section 2.05(e).



          “LC Exposure” means, at any time, the sum of (a) the aggregate then
undrawn and unexpired amount of all the then 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 a Borrower at such time. In the case of
any Local Letters of Credit or any LC Disbursement in respect thereof, the LC
Exposure attributable thereto shall be the Dollar Amount thereof. The LC
Exposure of any Revolving Lender at any time shall be its Applicable Percentage
of the total LC Exposure at such time.



          “Lenders” means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption
or an Incremental Term Loan Amendment, other than any such Person that ceases
to be a party hereto pursuant to an Assignment and Assumption. Unless the
context otherwise requires, the term “Lenders” includes the Swingline Lenders.



          “Letter of Credit” means any letter of credit (including Local Letters of
Credit and Existing Letters of Credit) issued pursuant to this Agreement.



          “LIBO Rate” means (a) with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
reasonably determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to Dollar
deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for Dollar deposits with a maturity comparable to such Interest Period
or (b) with respect to any Eurocurrency Competitive Local Currency Borrowing
for any Interest Period, the rate determined by reference to the British
Bankers’ Association Interest Settlement Rates (as reflected on the applicable
Telerate screen) at approximately 11:00 a.m., London time, on the Quotation Day
for such Interest Period, as the rate for deposits in such Local Currency with
a maturity comparable to such Interest Period. In the event that such rate is
not available at such time for any reason, then the “LIBO Rate” with respect to
such Eurodollar Borrowing or Eurocurrency Competitive Local Currency Borrowing
for such Interest Period shall be the rate at which deposits in Dollars (or, in
the case of a Eurocurrency Competitive Local Currency Borrowing, deposits in
the applicable Local Currency for the Local Currency Equivalent) of $5,000,000
and for a maturity



 







 





19



comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.



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



          “Loan” means any loan made by a Lender to a Borrower pursuant to this
Agreement or the Amendment and Restatement Agreement.



          “Loan Documents” means this Agreement, the Amendment and Restatement
Agreement, the Reaffirmation Agreement, the Collateral Agreement and the other
Security Documents.



          “Loan Parties” means the Domestic Loan Parties, any Subsidiary Borrower
that is a Foreign Subsidiary and any Foreign Subsidiary that enters into any
Loan Document with the Collateral Agent.



          “Local Currency” means any currency other than Dollars as to which an
Exchange Rate may be calculated.



          “Local Currency Borrowing” means a Borrowing comprised of Local Currency
Loans.



          “Local Currency Equivalent” means, on any date of determination with
respect to any amount in Dollars in relation to any specified Local Currency,
the amount of such specified Local Currency that may be purchased with such
amount of Dollars at the relevant Exchange Rate (in the case a determination
relating to a Local Currency Loan) or Spot Exchange Rate (in the case of a
determination relating to a Local Letter of Credit) on such date.



          “Local Currency Loan” means any Loan denominated in a Local Currency that
is made by a Revolving Lender pursuant to Section 2.21. Each Local Currency
Loan shall be either a Competitive Local Currency Loan or a Negotiated Local
Currency Loan.



          “Local Currency Loan Exposure” means at any time the Dollar Equivalent of
the aggregate principal amount of all outstanding Local Currency Loans at such
time.



          “Local Currency Sublimit” means $75,000,000.



          “Local Letter of Credit” means any Letter of Credit which provides for the
payment of drawings in a Local Currency.



          “Margin” means, as to any Eurocurrency Competitive Local Currency Loan,
the marginal rate of interest, if any, to be added to or subtracted from the
Adjusted



 







 





20



LIBO Rate to determine the rate of interest applicable to such Loan, as
specified by the Revolving Lender making such Loan in its Competitive Bid.



          “Material Adverse Effect” means a material adverse effect on (a) the
business, properties, assets, liabilities or condition (financial or otherwise)
of the Company and the Subsidiaries taken as a whole, (b) the ability of the
Loan Parties, taken as a whole, to perform their material obligations under the
Loan Documents or (c) the rights of or benefits available to the Lenders in
relation to the Loan Parties under any Loan Document.



          “Material Domestic Subsidiary” means any Domestic Subsidiary that is a
Material Subsidiary.



          “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 Company and its Subsidiaries in an aggregate
principal amount exceeding $20,000,000. For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of the Company 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 Company or
such Subsidiary would be required to pay if such Swap Agreement were terminated
at such time.



          “Material Subsidiary” means, at any time, any Subsidiary that is not an
Immaterial Subsidiary at such time.



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



          “Mortgage” means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.



          “Mortgaged Property” means, initially, each parcel of real property and
the improvements thereto identified on Schedule 1.01, and includes each other
parcel of real property and improvements thereto with respect to which a
Mortgage is granted pursuant to Section 5.13.



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



          “Negotiated Local Currency Loan” has the meaning assigned to such term in
Section 2.21.



          “Negotiated Local Currency Loan Agreement” has the meaning assigned to
such term in Section 2.21.



          “Net Investment Amount” means, at any time, (a) the sum of all investments
(determined based on fair market value, in the case of non-cash investments)
made during the period from the Effective Date to such time by the Company and
the Subsidiary Guarantors in, and loans and advances made during such period by
the Company and the Subsidiary Guarantors to, Subsidiaries that are not
Subsidiary



 







 





21



Guarantors (including any such investments constituting Permitted
Acquisitions or resulting from the transfer of any amount deposited by the
Company pursuant to a Cash Pooling Arrangement to or for the benefit of any
Foreign Subsidiary, but excluding (i) loans and advances to a Receivables
Subsidiary constituting Subordinated Receivables Transfer Debt and cash equity
investments in a Receivables Subsidiary to the extent that the proceeds thereof
are applied by such Receivables Subsidiary to pay the purchase price of
Receivables and Related Security or to pay Receivables Transfer Debt, in each
case except to the extent that any such loans or advances to or investments in
a Receivables Subsidiary are made by the Company or a Subsidiary Guarantor and
the proceeds thereof are applied to purchase Receivables or Related Security
from a Subsidiary that is not a Subsidiary Guarantor, (ii) Special Notes, (iii)
investments consisting of the transfer to a Foreign Subsidiary or a Foreign
Subsidiary Holding Company of Equity Interests in a Foreign Subsidiary, (iv)
investments in and loans and advances to Excluded Subsidiaries, (v) Perbio
Transaction Investments and (vi) other investments made in reliance on clause
(l) of Section 6.04) minus (b) the sum of (i) the sum of all dividends and
distributions paid during the period from the Effective Date to such time by
Subsidiaries that are not Subsidiary Guarantors to, and repayments during such
period by Subsidiaries that are not Subsidiary Guarantors of loans and advances
owing to, the Company and Subsidiary Guarantors, and all Net Proceeds received
during such period by the Company and Subsidiary Guarantors from the sale or
disposition (to a Person other than the Company or a Subsidiary Guarantor) of
such investments in Subsidiaries that are not Subsidiary Guarantors (excluding
(A) any such dividends, distributions or payments by a Subsidiary the
investments in which were made in reliance on clause (l) of Section 6.04, or by
an Excluded Subsidiary or a Receivables Subsidiary or in respect of any
Subordinated Receivables Transfer Debt or any Perbio Transaction Investments,
(B) any such Net Proceeds from the sale or disposition of investments in
Subsidiaries made in reliance on clause (l) of Section 6.04, the sale or
disposition of an Excluded Subsidiary, the sale or disposition of investments
in a Receivables Subsidiary or any Subordinated Receivables Transfer Debt or
any Perbio Transaction Investments and (C) Special Notes) and (ii) the portion
of the Net Investment Amount attributable to any such investments held in a
Subsidiary at the time that such Subsidiary becomes a Subsidiary Guarantor;
provided that for purposes of calculating the Net Investment Amount (A) the
amount of any cash loan or advance made by the Company or a Subsidiary
Guarantor to a Subsidiary that is not a Subsidiary Guarantor shall not increase
the Net Investment Amount to the extent that a reasonably contemporaneous cash
loan or advance (a “Matching Advance”) is made by a Subsidiary that is not a
Subsidiary Guarantor to the Company or a Subsidiary Guarantor, but (B) any
repayment of a Matching Advance shall increase the Net Investment Amount. It
is understood that the purchase by the Company or any Subsidiary Guarantor from
the Company or any other Subsidiary Guarantor of an investment in a Subsidiary
shall not be construed to constitute an investment that will increase the Net
Investment Amount.



          “Net Proceeds” means, with respect to any event (a) the cash proceeds
(which shall include all Cash Consideration, in the case of a sale, transfer or
other disposition of an asset) received in respect of such event including (i)
any cash received in respect of any non-cash proceeds, but only as and when
received, (ii) in the case of a casualty, theft, physical damage or other
similar event, or any other insured event or occurrence, insurance proceeds,
and (iii) in the case of a condemnation, taking, seizing or similar event,
condemnation awards and similar payments, net of (b) the sum of (i) all
out-of-pocket costs and expenses (including reasonable fees) paid by the
Company and the Subsidiaries to third parties (other than Affiliates) in
connection with such event,



 







 





22



(ii)  in the case of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by the Company and the Subsidiaries as a result of such event to repay
Indebtedness (other than Loans, senior unsecured Indebtedness and Subordinated
Debt) secured by such asset or otherwise subject to mandatory prepayment or
redemption as a result of such sale, (iii) the amount of all taxes paid (or
reasonably estimated to be payable) by the Company and the Subsidiaries (as
determined reasonably and in good faith by a Financial Officer), (iv) the
amount of any reserves established by the Company and the Subsidiaries to fund
contingent liabilities reasonably estimated to be payable and that are directly
attributable to such event (as determined reasonably and in good faith by a
Financial Officer) and (v) in the case of any such proceeds received by a
Subsidiary that is not a Subsidiary Guarantor and is not wholly owned by a
Subsidiary Guarantor, the portion of such proceeds described in clause (a)
above received by such Subsidiary (net of amounts described in the preceding
subclauses of this clause (b) paid or incurred by such Subsidiary) that would
be distributable in respect of minority interests if distributed as a dividend
or similar distribution by such Subsidiary.



          “Obligations” has the meaning assigned to such term in the Collateral
Agreement.



          “Original Credit Agreement” has the meaning given such term in the
recitals hereto.



          “Original Term Loan Commitment” means, with respect to each Lender, the
commitment, if any, of such Lender to make Original Term Loans pursuant to
clause (a) of Section 2.01 of the Original Credit Agreement. The initial
aggregate amount of the Lenders’ Original Term Loan Commitments was
$400,000,000.



          “Original Term Loan Funding Date” means March 21, 2003.



          “Original Term Loan Lender” means a Lender with an outstanding Original
Term Loan.



          “Original Term Loan” means a Loan made pursuant to clause (a) of Section
2.01 of the Original Credit Agreement.



          “Other Taxes” means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from the execution, delivery or enforcement of any Loan
Document.



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



          “Perbio” means Perbio Science AB.



          “Perbio Acquisition” means (a) the acquisition by a wholly-owned
Subsidiary of the Company of at least a majority of the outstanding Equity
Interests of Perbio pursuant to a tender offer and (b) if such tender offer
results in less than 100% of the Equity Interests of Perbio being so acquired,
any subsequent acquisitions by a wholly owned Subsidiary of the Company of
additional Equity Interests of Perbio from third



 







 





23



parties (including pursuant to any compulsory acquisition procedure under
the laws of Sweden).



          “Perbio Reorganization” means any transaction or series of transactions
pursuant to which all assets and businesses of Perbio and its subsidiaries that
are located in the United States are owned by or are segregated and transferred
to, or otherwise become owned by, the Company or Subsidiaries that are or
become Subsidiary Guarantors following the consummation of the Perbio
Acquisition, without any net cash consideration. For the avoidance of doubt,
Domestic Subsidiaries that own the assets and businesses of Perbio in the
United States becoming Subsidiary Guarantors shall constitute the Perbio
Reorganization.



          “Perbio Transaction Investments” means (a) the acquisition of Equity
Interests from time to time in Perbio pursuant to the Perbio Acquisition, (b)
additional investments in Perbio to the extent necessary to repay Indebtedness
of Perbio and its subsidiaries outstanding at the time that a majority of the
outstanding Equity Interests of Perbio are acquired pursuant to the Perbio
Acquisition and (c) any cash loans and advances to, or other cash investments
in, Foreign Subsidiaries made by the Company or any Subsidiary Guarantor, to
the extent that the proceeds thereof are used directly or indirectly to make
investments described in clause (a) or (b) above or to pay fees and expenses
incurred in connection with the Perbio Acquisition.



          “Perfection Certificate” means a certificate in the form of Exhibit K or
any other form approved by the Collateral Agent.



          “Permitted Acquisition” means any acquisition by the Company or a
Subsidiary of Equity Interests in a Person or assets constituting a division or
line of business of a Person if (a) the business or businesses engaged in by
such Person, division or line of business are permitted by Section 6.03(b), (b)
no Default has occurred and is continuing or would result therefrom, (c) all
transactions related thereto are consummated in all material respects in
accordance with applicable laws, (d) in the case of an acquisition of Equity
Interests in a Person, subject to the last sentence of this definition, after
giving effect to such acquisition, 100% of the Equity Interests in such Person
and any other Subsidiary resulting from such acquisition shall be owned
directly or indirectly by the Company (it being understood that (i) the merger
of any such Person or Subsidiary with or into the Company or a Subsidiary
pursuant to a transaction resulting in the surviving Person being the Company
or a Subsidiary shall constitute an acquisition of 100% of the Equity Interests
in such Person or Subsidiary, (ii) the acquisition of 90% or more of the Equity
Interests of any such Person by the Company or a Subsidiary shall be deemed to
be the acquisition of 100% of the Equity Interests of such Person by the
Company or such Subsidiary if the Company or such Subsidiary has the right
under applicable law to acquire all remaining Equity Interests in such Person
not owned by the Company or such Subsidiary through a short form merger,
compulsory acquisition or other compulsory process and the Company or such
Subsidiary promptly initiates appropriate proceedings under applicable law to
acquire such remaining Equity Interests and diligently pursues the acquisition
of such Equity Interests and (iii) the acquisition, directly or indirectly, of
at least a majority of the Equity Interests of Perbio by the Company and any
subsequent acquisition of such Equity Interests shall be deemed to satisfy the
requirements of this clause (d) with respect to the Perbio Acquisition), (e)
all actions required to be taken, if any, with respect to each Subsidiary or
asset resulting from such acquisition under Sections 5.12 and 5.13 shall be
taken, (f) the Company and



 







 





24



the Subsidiaries are in compliance, on a pro forma basis after giving
effect to such acquisition, with the covenants contained in Sections 6.12, 6.13
and 6.14 recomputed as of the last day of the most recently ended fiscal
quarter of the Company for which financial statements are available as if such
acquisition had occurred on the first day of each relevant period for testing
compliance, (g) the Company has delivered to the Administrative Agent a
certificate signed by a Financial Officer to the effect set forth in clauses
(a), (b), (d) and (f) above, together with all relevant financial information
for the Person or assets being acquired and, with respect to clause (f),
including reasonably detailed calculations demonstrating compliance therewith
and (h) if any Subsidiary resulting from such acquisition does not become a
Subsidiary Guarantor promptly following such acquisition, the Company is in
compliance with the proviso to clause (d) of Section 6.04 after giving effect
to such acquisition; provided that clauses (f) and (g) shall not apply to any
such acquisition that involves a value of $20,000,000 or less. Notwithstanding
clause (d) above, in the case of an acquisition that results in a Subsidiary or
Subsidiaries that are not wholly owned Subsidiaries but that satisfies the
other conditions applicable to a Permitted Acquisition, such acquisition shall
not fail to qualify as a Permitted Acquisition solely by reason of such
Subsidiaries not being wholly owned; provided that (i) the Person acquired
becomes a Subsidiary and (ii) the aggregate consideration paid for, and other
investments in and loans and advances to, all Subsidiaries so acquired that are
Excluded Subsidiaries shall not at any time exceed $300,000,000 (other than
Perbio Transaction Investments in respect of Excluded Subsidiaries resulting
from the Perbio Acquisition).



          “Permitted Encumbrances” means:





		
	 	     (a) Liens imposed by law for taxes, assessments or governmental
charges or claims that are not yet due or are being contested in
compliance with Section 5.05;
	 
	 	     (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 30 days or are being contested in compliance with Section 5.05;
	 
	 	     (c) Liens incurred or pledges and deposits made, in each case, 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;
	 
	 	     (f) easements, zoning restrictions, rights-of-way, covenants,
irregularities in title 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 Company or any Subsidiary; and





 









 




25





		
	 	     (g) customary rights of setoff upon deposit accounts and securities
accounts of cash in favor of banks or other depository institutions and
securities intermediaries;



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



          “Permitted Holders” means (a) Thomas H. Lee Company, a sole proprietorship
located in Massachusetts (“THL”), (b) any Affiliate of THL (other than a
portfolio company), (c) any officer, employee or consultant of THL, (d) either
Thomas H. Lee Equity Fund, III L.P., Thomas H. Lee Foreign Fund III, L.P.,
THL-CCI Limited Partnership or THL FSI Equity Investors, L.P. (the “THL
Investors”), (e) any limited or general partner, stockholder, officer, employee
or consultant of any THL Investor; provided that consultants of THL and
consultants of THL Investors shall not be Permitted Holders to the extent of
Equity Interests in the Company having an aggregate value exceeding $3,000,000
and (f) Paul M. Montrone, Paul M. Meister and individuals who are officers,
directors, employees and other members of the management of the Company as of
the Effective Date, or immediate family members or relatives thereof, or trusts
or partnerships for the benefit of, or companies or other entities owned by,
any of the foregoing, or any of their heirs, executors, successors or legal
representatives, who at any particular date shall beneficially own or have the
right to acquire, directly or indirectly, common stock of the Company.



          “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) marketable direct obligations issued by any state of the United
States of America, or any political subdivision of any such state or any
public instrumentality thereof, maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having either the
highest, the second-highest or the third-highest credit ratings
obtainable (i.e., “A” or better) from S&P or Moody’s;
	 
	 	     (c) investments in commercial paper (i) maturing within one year
from the date of acquisition thereof and (ii) (A) issued by any Lender
(or the parent company of such Lender), (B) issued by any domestic office
of any commercial bank (or the parent company of such bank) organized
under the laws of the United States of America or any State thereof and
having, at the date of acquisition, the highest, second-highest or
third-highest credit rating obtainable (i.e., “A” or better) from S&P or
from Moody’s or (C) issued by, or guaranteed by, any industrial or
financial company and having, at the date of acquisition, either the
highest, the second-highest or the third-highest credit rating obtainable
(i.e., “A” or better) from S&P or from Moody’s;
	 
	 	     (d) investments in Dollar denominated certificates of deposit,
banker’s acceptances and time deposits maturing within one year from the
date of



 







 




26





		
	 	acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, (i) any Lender or
(ii) any domestic office of any commercial bank organized under the laws
of the United States of America or any State thereof (or the holding
company of such bank) whose short-term commercial paper (or that of its
parent company) has the highest or second-highest credit rating
obtainable from S&P or from Moody’s;
	 
	 	     (e) investments in money market deposit accounts of which
substantially all the assets are securities of the types described in
clauses (c) through (d) of this definition; and
	 
	 	     (f) in the case of investments by a Foreign Subsidiary, investments
in certificates of deposit, banker’s acceptances and time deposits
maturing within twelve months from the date of acquisition thereof issued
or guaranteed by or placed with any bank organized under the laws of
Canada, Japan or any Member State of the European Union whose short-term
commercial paper rating has the highest or the second-highest credit
rating obtainable from S&P or from Moody’s.



          “Permitted Receivables Financing” means financing arrangements pursuant to
which the Company or one or more of its Subsidiaries (or a combination thereof)
realizes cash proceeds in respect of Receivables and Related Security by
selling or otherwise transferring such Receivables and Related Security (on a
non-recourse basis, other than Standard Securitization Undertakings) to one or
more Receivables Subsidiaries, and such Receivables Subsidiary or Receivables
Subsidiaries realize cash proceeds in respect of such Receivables and Related
Security pursuant to a revolving committed financing arrangement; provided that
(a) the Company shall deliver to the Administrative Agent copies of all
documentation entered into in connection with any such financing arrangements
and (b) the Company represents, in a certificate of a Financial Officer
delivered to the Administrative Agent, that the terms and conditions of such
financing arrangements are customary for accounts receivable securitization
financings. It is understood that the financing arrangements provided for
pursuant to the Existing Receivables Purchase Agreement and the Existing
Receivables Transfer Agreement, as in effect on the Effective Date, constitute
a Permitted Receivables Financing; provided that the proviso to the preceding
sentence shall have been satisfied with respect thereto.



          “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 Company 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.



          “Prepayment Event” means:





		
	 	     (a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Company
or any Subsidiary,



 







 




27





		
	 	     other than dispositions described in any of clauses (a) through (h)
or clause (j) or (k) of Section 6.05;
	 
	 	     (b) any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Company or any Subsidiary, but only to the
extent that the Net Proceeds therefrom have not been applied to repair,
restore or replace such property or asset (or are otherwise applied to
make Permitted Acquisitions or to acquire real property, equipment or
other tangible assets to be used in the business of the Company and the
Subsidiaries) within 360 days after such event; or
	 
	 	     (c) the incurrence by the Company or any Subsidiary of any
Indebtedness, other than Indebtedness permitted by Section 6.01.



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



          “Principal Property” has the meaning assigned to such term in the
Collateral Sharing Agreement.



          “Quotation Day” means, with respect to any Eurocurrency Competitive Local
Currency Borrowing and any Interest Period, the day on which it is market
practice in the relevant interbank market for prime banks to give quotations
for deposits in the currency of such Borrowing for delivery on the first day of
such Interest Period. If such quotations would normally be given by prime
banks on more than one day, the Quotation Day will be the last of such days.



          “Reaffirmation Agreement” means the Reaffirmation Agreement, entered into
in connection with the Amendment and Restatement Agreement, substantially in
the form attached thereto as Exhibit C.



          “Receivable” means an Account owing to the Company or any Subsidiary
(before its transfer to a Receivables Subsidiary), whether now existing or
hereafter arising, together with all cash collections and other cash proceeds
in respect of such Account, including all yield, finance charges or other
related amounts accruing in respect thereof and all cash proceeds of Related
Security with respect to such Receivable.



          “Receivables Financing Debt” means, as of any date with respect to any
Permitted Receivables Financing, the amount of the outstanding Receivables
subject to such Permitted Receivables Financing that would be required to
discharge all principal obligations to financing parties (and would not be
returned, directly or indirectly, to the Company) if all such Receivables were
to be collected at such date and such Permitted Receivables Financing were to
be terminated at such date.



          “Receivables Subsidiary” means a wholly owned Subsidiary of the Company
that does not engage in any activities other than participating in one or more
Permitted Receivables Financings and activities incidental thereto; provided
that (a) such Subsidiary does not have any Indebtedness other than (i)
Indebtedness incurred pursuant to a Permitted Receivables Financing owed to
financing parties supported by Receivables

 







 





28



and Related Security and (ii) Subordinated Receivables Transfer Debt, (b)
neither the Company nor any other Subsidiary Guarantees any Indebtedness or
other obligation of such Subsidiary, other than Standard Securitization
Undertakings and (c) all Equity Interests of and other investments in such
Subsidiary that are owned by the Company or any other Subsidiary are pledged
pursuant to the Collateral Agreement; provided further that clause (c) above
shall not apply to Equity Interests and investments owned by a Foreign
Subsidiary if the Permitted Receivables Financing conducted through the
relevant Subsidiary is used solely to finance Receivables and Related Security
of Foreign Subsidiaries and all investments in such Subsidiary are made by
Foreign Subsidiaries.



          “Redemption” means the redemption of the entire $600,000,000 principal
amount of the Company’s 9.0% senior subordinated notes due February 2008,
including the payment of the redemption price (including principal, interest
and call premium) with respect thereto.



          “Regulation S-X” means Regulation S-X of the Securities and Exchange
Commission.



          “Register” has the meaning set forth in Section 10.04.



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



          “Related Security” means, with respect to any Receivable:





		
	 	     (a) all of the Company’s or the applicable Subsidiary’s right, title
and interest in and to any goods, the sale of which gave rise to such
Receivable;
	 
	 	     (b) all security pledged, assigned, hypothecated or granted to or
held by the Company or the applicable Subsidiary to secure such
Receivable;
	 
	 	     (c) all guaranties, endorsements and indemnifications on, or of, any
Receivable or any of the foregoing (other than by the Company or any
Subsidiary that is not a Receivables Subsidiary);
	 
	 	     (d) all powers of attorney for the execution of any evidence of
indebtedness or security or other writing in connection therewith;
	 
	 	     (e) all books, records, ledger cards and invoices related to such
Receivable or any of the foregoing, whether maintained electronically, in
paper form or otherwise;
	 
	 	     (f) all evidences of the filing of financing statements and other
statements and the registration of other instruments in connection
therewith and amendments thereto, notices to other creditors or secured
parties, and certificates from filing or other registration officers;
	 
	 	     (g) all credit information, reports and memoranda relating thereto;
	 
	 	     (h) all other writings related thereto; and



 







 




29





		
	 	     (i) all proceeds of any of the foregoing.



          “Required Lenders” means, at any time, Lenders having Revolving Exposures,
Original Term Loans, Tranche B-1 Term Loans, other Incremental Term Loans and
unused Commitments representing more than 50% of the sum of the total Revolving
Exposures, outstanding Original Term Loans, outstanding Tranche B-1 Term Loans,
other outstanding Incremental Term Loans and unused Commitments at such time.



          “Reset Date” has the meaning assigned to such term in Section 2.22.



          “Restatement Effective Date” has the meaning given such term in the
Amendment and Restatement Agreement.



          “Restatement Transactions” means the execution and delivery of the
Amendment and Restatement Agreement by each Person party thereto, the
satisfaction of the conditions (c), (d), (e), (f), (g), (h), (j), (n) and (o)
to the effectiveness thereof, the consummation of the transactions contemplated
by conditions (c), (d), (e), (f), (g), (h), (j), (n) and (o) to the
effectiveness thereof, the consummation of the tender offer constituting part
of the Perbio Acquisition and the financing transactions relating thereto,
including the borrowing of Tranche B-1 Term Loans on the Restatement Effective
Date and the use of the proceeds thereof.



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



          “Restricted Subsidiary” has the meaning assigned to such term in the
Collateral Sharing Agreement.



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



          “Revolving Commitment” means, with respect to each Lender, the commitment,
if any, of such Lender to make Revolving Loans and to acquire participations in
Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender’s Revolving Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04. The initial amount
of each Lender’s Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The initial aggregate amount of the
Lenders’ Revolving Commitments is $175,000,000.



 







 





30



          “Revolving 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 Lender” means a Lender with a Revolving Commitment or, if the
Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure or a Local Currency Loan.



          “Revolving Loan” means a Loan made pursuant to clause (b) of Section 2.01
or Section 2.05 (with respect to an LC Disbursement).



          “Revolving Maturity Date” means March 31, 2008.



          “S&P” means Standard & Poor’s.



          “Secured Parties” has the meaning assigned to such term in the Security
Documents.



          “Security Documents” means the Collateral Agreement, the Swedish Pledge
Agreements, the Collateral Sharing Agreement and the Mortgages and each other
security agreement or other instrument or document executed and delivered
pursuant to Section 5.12, 5.13 or 5.15 to secure any of the Obligations.



          “Senior Bridge Debt” means Indebtedness of the Company in respect of
senior unsecured bridge loans or notes in respect thereof; provided that (a)
such loans or notes mature later than, and there are not any scheduled
principal payments in respect thereof due prior to, the date that is six months
after the last scheduled maturity date of the Loans (other than Incremental
Term Loans) and scheduled termination date of the Commitments hereunder
outstanding or in effect when such loans are made or such notes are issued (it
being understood that if the terms of such loans or notes provide for an
initial maturity upon which there is any mandatory extension or exchange for
longer term debt securities, then such loans or notes shall not be deemed to
mature prior to the final maturity date after giving effect to the mandatory
extension or the final maturity of any securities so issued in exchange) and
(b) the other terms and conditions of such loans or notes (or any such debt
securities issued in exchange therefor) are customary for bridge loan
facilities intended to be refinanced with debt issued in the capital markets,
and in any event are no more restrictive than those applicable to the Loans
under this Agreement (except that the pricing terms thereof may be different
then those applicable to the Loans under this Agreement).



          “Senior Debt” means (a) Indebtedness in respect of senior unsecured debt
securities; provided that, (i) such securities are issued by the Company in the
capital markets pursuant to an offering that is either registered under the
Securities Act of 1933 or made to one or more initial purchasers for
distribution pursuant to Rule 144A and/or Regulation S and/or Regulation D
thereunder, (ii) such securities mature later than, and there are not any
scheduled principal payments in respect thereof due prior to, the date that is
six months after the last scheduled maturity date of the Loans (other than
Incremental Term Loans) and scheduled termination date of the Commitments
hereunder outstanding or in effect when such securities are issued, and (iii)
the other terms and conditions of such securities and related documentation
are, in all material respects, customary for those of similar debt securities
issued in capital markets offerings by

 







 





31



issuers of comparable creditworthiness and (b) Indebtedness in respect of
Senior Bridge Debt. Senior Debt also shall include any Indebtedness of a
Subsidiary in respect of its Guarantee of any Indebtedness described in the
preceding sentence; provided that a Subsidiary shall not Guarantee such
Indebtedness unless such Subsidiary is a Subsidiary Guarantor.



          “Senior Leverage Ratio” means, on any date, the ratio of (a) Total
Indebtedness as of such date (excluding any Subordinated Debt included in Total
Indebtedness) to (b) Adjusted EBITDA for the period of four consecutive fiscal
quarters of the Company ended on such date (or, if such date is not the last
day of a fiscal quarter, ended on the last day of the fiscal quarter of the
Company most recently ended).



          “Sold Business” means any Person, property, business or asset sold,
transferred or otherwise disposed of by the Company or any Subsidiary, other
than in the ordinary course of business.



          “Special Note” means a promissory note of a Foreign Subsidiary that is
issued by such Foreign Subsidiary (without any consideration) as a dividend or
distribution with respect to Equity Interests in such Foreign Subsidiary held
by the Company or a Subsidiary Guarantor.



          “Specified Obligations” means Obligations consisting of the principal of
and interest on the Loans, reimbursement obligations in respect of LC
Disbursements and fees payable hereunder to the Revolving Lenders.



          “Spot Exchange Rate” means, on any day, with respect to any Local Currency
in which a Local Letter of Credit (or LC Disbursement thereunder) is
denominated, the spot rate at which Dollars are offered on such day by the
applicable Issuing Bank in London for such Local Currency at approximately
11:00 a.m. (London time).



          “Standard Securitization Undertakings” means representations, warranties,
covenants and indemnities made by the Company or any of the Subsidiaries in
connection with a Permitted Receivables Financing that are customary for
accounts receivables securitization financings; provided that Standard
Securitization Undertakings shall not include any Guarantee of any Indebtedness
or collectability of any Receivables.



          “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 (or in the case of Local Currency Borrowings, the
applicable Governmental Authority) 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). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
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 applicable law, rule or regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change
in any reserve percentage.



 







 





32



          “Subordinated Debt” means any subordinated notes or senior subordinated
notes issued pursuant to or evidenced by any Subordinated Debt Documents and
the Indebtedness evidenced thereby (including the Existing Subordinated Debt).
Subordinated Debt shall also include any Indebtedness of a Subsidiary in
respect of its Guarantee of any Indebtedness described in the preceding
sentence.



          “Subordinated Debt Documents” means any indenture or indentures under
which subordinated notes or senior subordinated notes are issued by the Company
(including the Existing Subordinated Indentures), all subordinated notes and
senior subordinated notes issued thereunder and all other instruments,
agreements and other documents evidencing or governing the Indebtedness
represented thereby or providing for any Guarantee or other right in respect
thereof; provided that the terms and conditions thereof (other than the terms
and conditions of the Existing Subordinated Debt) satisfy the conditions set
forth in clause (iii) of Section 6.01(a).



          “Subordinated Receivables Transfer Debt” means Indebtedness of a
Receivables Subsidiary owed to the Company or another Subsidiary and incurred
to finance the purchase of Receivables and Related Security from the Company or
another Subsidiary in connection with a Permitted Receivables Financing;
provided that (a) such Indebtedness is evidenced by a promissory note pledged
pursuant to the Collateral Agreement (unless such promissory note is held by a
Foreign Subsidiary and the conditions set forth in the second proviso to the
definition of “Receivables Subsidiary” are satisfied with respect to such
Receivables Subsidiary) and (b) all proceeds of such Indebtedness are applied
by such Receivables Subsidiary to pay the purchase price of such Receivables
and Related Security.



          “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 subsidiary of the Company.



          “Subsidiary Borrower” means any Subsidiary as to which an Election to
Participate shall have been delivered to the Administrative Agent and as to
which an Election to Terminate shall not have been delivered to the
Administrative Agent, in each case pursuant to Section 2.23. The Initial
Borrower is not a Subsidiary Borrower.



          “Subsidiary Guarantors” means the Initial Borrower and any other Domestic
Subsidiaries that, as of any date of determination, are “Guarantors” under, and
as defined in, the Collateral Agreement.



          “Swap Agreement” means any agreement with respect to any swap, forward,
spot or forward foreign exchange transaction, future or derivative transaction
or

 







 





33



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 Company or the Subsidiaries shall be
a Swap Agreement.



          “Swedish Intercompany Loan” means the loan or loans, in an aggregate
principal amount at any time equal to not less than (x) the aggregate Perbio
Transaction Investments as of such time minus (y) $25,000,000 (to the extent
such amount is contributed as common equity by the Dutch Partnership to the
Foreign Subsidiary that is the direct parent of the Foreign Subsidiaries that
acquire direct ownership of the Equity Interests in Perbio), made by the Dutch
Partnership (which loans shall be represented by promissory notes pledged to
the Collateral Agent pursuant to Section 5.13) to the Foreign Subsidiary that
is the direct parent of the Foreign Subsidiaries that acquire direct ownership
of the Equity Interests in Perbio.



          “Swedish Liquidating Subsidiaries” has the meaning assigned to such term
in the proviso to clause (e) of Section 5.13.



          “Swedish Reorganization” means any liquidation, dissolution, merger or
consolidation contemplated by the proviso to clause (e) of Section 5.13.



          “Swedish Pledge Agreements” means the Swedish Pledge Agreements, entered
into in connection with the Amendment and Restatement Agreement, substantially
in the form attached thereto as Exhibit D.



          “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 (a) JPMorgan Chase Bank, in its capacity as
lender of Swingline Loans hereunder or (b) any other Lender that agrees with
the Company and the Administrative Agent to make Swingline Loans hereunder as
provided in Section 2.04, in its capacity as such.



          “Swingline Loan” means a Loan made pursuant to Section 2.04.



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



          “Term Loan” means an Original Term Loan or Tranche B-1 Term Loan.



          “Term Loan Borrower” means the Initial Borrower, unless a Financial
Officer of the Initial Borrower and a Financial Officer of the Company notify
the Administrative Agent in writing prior to the Term Loan Funding Date that
the Company is to be the Term Loan Borrower, in which case “Term Loan Borrower”
means the Company.



 







 





34



          “Term Loan Maturity Date” means March 31, 2010.



          “Total Indebtedness” means, as of any date, the sum (without duplication)
of (a) the aggregate principal amount of Indebtedness of the Company and its
Subsidiaries outstanding as of such date, in the amount that would be reflected
on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, (b) the aggregate principal amount of Indebtedness
outstanding as of such date of Persons other than the Company and its
Subsidiaries, in the amount that would be reflected on a balance sheet of any
such Person prepared as of such date on a consolidated basis in accordance with
GAAP, to the extent Guaranteed by the Company or any Subsidiary and (c)
Receivables Financing Debt as of such date.



          “Total Leverage Ratio” means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Adjusted EBITDA for the period of four
consecutive fiscal quarters of the Company ended on such date (or, if such date
is not the last day of a fiscal quarter, ended on the last day of the fiscal
quarter of the Company most recently ended prior to such date).



          “Tranche B-1 Lender” means a Lender with a Tranche B-1 Term Loan
Commitment or an outstanding Tranche B-1 Term Loan.



          “Tranche B-1 Term Loan” means a Loan made pursuant to Section 3 of the
Amendment and Restatement Agreement.



          “Tranche B-1 Term Loan Commitment” means, with respect to each Lender, the
commitment, if any, of such Lender to make Tranche B-1 Term Loans under the
Amendment and Restatement Agreement, expressed as an amount representing the
maximum principal amount of Tranche B-1 Term Loans to be made by such Lender
thereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 or (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04. The initial amount
of each Lender’s Tranche B-1 Term Loan Commitment is set forth on Schedule 1 to
the Amendment and Restatement Agreement, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Tranche B-1 Term Loan
Commitment, as applicable. The initial aggregate amount of the Lenders’
Tranche B-1 Term Loan Commitments is $250,000,000.



          “Transactions” means, collectively, (a) the execution, delivery and
performance by each Loan Party of the Loan Documents to which it is or is to be
a party, (b) the borrowing of Loans, the use of the proceeds thereof and the
issuance of Letters of Credit, (c) the Redemption, and (d) the payment of fees
and expenses in connection with the foregoing.



          “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 the Adjusted LIBO Rate or the Alternate Base
Rate.



          “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.



 







 





35



          SECTION 1.02. 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 “Eurodollar Loan”) or by Class and Type
(e.g., a “Eurodollar Revolving Loan”). Borrowings also may be classified and
referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a
“Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving
Borrowing”).



          SECTION 1.03. 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 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Effective Date in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies the
Company that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.




ARTICLE II




The Credits



     SECTION 2.01. Commitments. (a) Subject to the terms and conditions set
forth herein, each Revolving Lender agrees to make Revolving Loans to one or
more of the Borrowers from time to time during the Revolving Availability
Period in an aggregate principal amount that will not result in (i) such
Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment or
(ii) the sum of the total Revolving Exposures plus the Local Currency Loan
Exposure exceeding the total Revolving

 







 





36



Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
Revolving Loans.



          (b) The Original Term Loans were made to the Term Loan Borrower on the
Term Loan Funding Date and the Tranche B-1 Term Loans were made to the Term
Loan Borrower on the Restatement Effective Date.



          (c) Amounts repaid in respect of Term Loans may not be reborrowed.



          SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a
Swingline Loan or a Local Currency Loan) shall be made in Dollars as part of a
Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the applicable
Class. The failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder; provided that
the Commitments of the Lenders are several and no Lender shall be responsible
for any other Lender’s failure to make Loans as required.



          (b) Subject to Section 2.14, each Revolving Borrowing and Term Borrowing
shall be comprised entirely of ABR Loans or Eurodollar Loans as the applicable
Borrower may request in accordance herewith. Each Swingline Loan shall be an
ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing
any domestic or foreign branch or Affiliate of such Lender to make such Loan;
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 Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $100,000 and not less than $5,000,000 (in the case of a Term
Borrowing) or $2,500,000 (in the case of a Revolving Borrowing). At the time
that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $100,000 and not less than
$2,500,000. Each Swingline Loan shall be in an amount that is an integral
multiple of $100,000 and not less than $100,000. 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 20 Eurodollar Borrowings outstanding.
Notwithstanding anything to the contrary in this Section 2.02(c), any ABR
Revolving Borrowing or Swingline Loan may be in an aggregate amount that is
equal to the entire unused balance of the total Revolving Commitments or that
is required to finance the reimbursement of an LC Disbursement as contemplated
by Section 2.05(e), in each case subject to the limitations set forth elsewhere
in this Agreement.



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



          SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing,
Original Term Borrowing or Incremental Term Borrowing, the applicable Borrower
(or the Company, on behalf of the applicable Borrower) shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 12:30 p.m., New York City time, three
Business Days before

 







 





37



the date of the proposed Borrowing or (b) in the case of an ABR Borrowing,
not later than 12:30 p.m., New York City time, one Business Day before the date
of the proposed Borrowing; provided that a Borrowing Request shall not be
required with respect to any LC Disbursement Borrowing, as provided in Section
2.05(e). Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or facsimile to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the applicable Borrower (or the Company, on behalf of the
applicable Borrower). Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:





		
	 	     (i) whether the requested Borrowing is to be a Revolving Borrowing,
Original Term Borrowing or Incremental Term Borrowing;
	 
	 	     (ii) the aggregate amount of such Borrowing;
	 
	 	     (iii) the date of such Borrowing, which shall be a Business Day
(and, in the case of an Original Term Borrowing, shall be the Original
Term Loan Funding Date);
	 
	 	     (iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
	 
	 	     (v) in the case of a Eurodollar 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 the applicable Borrower’s account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.06; and
	 
	 	     (vii) the identity of the applicable Borrower.



If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the applicable
Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance
with this Section, the Administrative Agent shall advise each participating
Lender of the details thereof and of the amount of such Lender’s Loan to be
made as part of the requested Borrowing.



          SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions
set forth herein, each Swingline Lender agrees to make Swingline Loans to one
or more of the Borrowers in Dollars from time to time during the Revolving
Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans of all Swingline Lenders exceeding $30,000,000 or (ii) the sum
of the total Revolving Exposures and Local Currency Loan Exposure exceeding the
total Revolving Commitments; provided that a Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits



 







 





38



and subject to the terms and conditions set forth herein, each Borrower
may borrow, prepay and reborrow Swingline Loans.



          (b) To request a Swingline Loan, a Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by facsimile), not
later than 12:00 noon, 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 the Swingline Lender that is to make such Swingline Loan. The
Administrative Agent will promptly advise the applicable Swingline Lender of
any such notice received from a Borrower. The applicable Swingline Lender
shall make each Swingline Loan available to the applicable Borrower by means of
a credit to the general deposit account of such Borrower with such Swingline
Lender (or, in the case of a Swingline Loan made to finance the reimbursement
of an LC Disbursement as provided in Section 2.05(e), by remittance to the
applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested
date of such Swingline Loan.



          (c) A Swingline Lender may by written notice given to the Administrative
Agent not later than 12:00 noon, New York City time, on any Business Day
require the Revolving Lenders to acquire participations on such Business Day in
all or a portion of such Swingline Lender’s Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender’s Applicable Percentage of such Swingline
Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the applicable Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Loans. Each Revolving 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 Revolving Lender shall comply with
its obligation under this paragraph by wire transfer of immediately available
funds, in the same manner as provided in Section 2.06 with respect to Loans
made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the applicable Swingline Lender the amounts so received
by it from the Revolving Lenders. The Administrative Agent shall notify the
Company 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 applicable Swingline Lender.
Any amounts received by a Swingline Lender from the applicable Borrower (or
other party on behalf of such Borrower) in respect of a Swingline Loan after
receipt by such 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 Revolving Lenders that shall have made their
payments pursuant to this paragraph and to such Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the applicable Borrower of any
default in the payment thereof.

 







 





39



          (d) Any Swingline Lender may be terminated, and any existing Revolving
Lender may become a Swingline Lender, in each case at any time by written
agreement among the Company, the Administrative Agent and the terminated
Swingline Lender or additional Swingline Lender (as applicable). The
Administrative Agent shall notify the Lenders of any such additional Swingline
Lender. From and after the effective date of any such addition of a Swingline
Lender, the additional Swingline Lender shall have all the rights and
obligations of a Swingline Lender with respect to Swingline Loans made by it.
After the termination of a Swingline Lender hereunder, the terminated Swingline
Lender shall continue to have all the rights and obligations of a Swingline
Lender under this Agreement with respect to Swingline Loans made by it prior to
such termination, but shall not be required to make additional Swingline Loans.



          SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, each Borrower may request the issuance of Letters
of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Revolving Availability Period, and each Issuing Bank agrees,
subject to the terms and conditions set forth herein, to issue such Letters 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 any Borrower to, or entered into by
any Borrower with, any Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control. All Letters of Credit shall
provide for drawings thereunder to be denominated in Dollars except as provided
for Local Letters of Credit pursuant to Section 2.05(l).



          (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 applicable Borrower shall
hand deliver or facsimile (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank (which may be any Issuing Bank selected by such
Borrower if there is more than one Issuing Bank, except that the Issuing Banks
in respect of Existing Letters of Credit shall not be required to issue
additional Letters of Credit or renew or extend an Existing Letter of Credit
unless agreed by them) and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice
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
applicable Issuing Bank, such Borrower also shall submit a letter of credit
application on such 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 applicable 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 $150,000,000 and (ii) the sum of
the total Revolving Exposures and the Local Currency Loan Exposure shall not
exceed the total Revolving Commitments.



 







 





40



          (c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.



          (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 applicable Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender
hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Lender’s Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC
Disbursement made by such Issuing Bank and not reimbursed by the applicable
Borrower on the date due as provided in paragraph (e) of this Section, or of
any reimbursement payment required to be refunded to such Borrower for any
reason (subject to Section 2.05(l), in the case of Local Letters of Credit).
Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.



          (e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the applicable 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 is
two Business Days after such LC Disbursement is made; provided that, if such LC
Disbursement is denominated in Dollars and is not less than $100,000, then,
unless the applicable Borrower notifies the Administrative Agent and the
applicable Issuing Bank prior to the time that such LC Disbursement is made
(or, if earlier, promptly after receipt by such Borrower of notice from such
Issuing Bank that such LC Disbursement will be made) that such Borrower does
not wish to finance reimbursement of such LC Disbursement with an ABR Revolving
Borrowing (i) on the date that such LC Disbursement is made the applicable
Issuing Bank shall notify the Administrative Agent by telephone (confirmed by
facsimile) that such LC Disbursement is being or has been made (specifying the
amount thereof and identifying the applicable Borrower) and is to be reimbursed
pursuant to an ABR Revolving Borrowing (referred to herein as an “LC
Disbursement Borrowing”), (ii) the Administrative Agent shall thereupon notify
each Revolving Lender of such LC Disbursement, the amount of the LC
Disbursement Borrowing that is to be made to finance reimbursement of such LC
Disbursement (which shall be in an amount equal to such LC Disbursement plus,
if such Borrowing will not be funded on the same day that such LC Disbursement
was made, interest thereon accrued pursuant to paragraph (h) of this Section to
the date that such Borrowing will be funded) and such Revolving Lender’s
Applicable Percentage thereof, (iii) promptly following receipt of such notice,
each Revolving Lender shall make its Revolving Loan in respect of such LC
Disbursement Borrowing as provided in Section 2.06, and the Administrative
Agent will remit the proceeds of such Loans to the applicable Issuing Bank as
provided



 







 





41



in Section 2.06 and (iv) thereupon, such Borrower’s obligation to
reimburse such LC Disbursement shall be discharged and replaced by such LC
Disbursement Borrowing to the extent of the proceeds of such Loans so remitted.
No Borrowing Request shall be required for any LC Disbursement Borrowing and
the obligation of each Revolving Lender to make its ABR Revolving Loan as part
of any LC Disbursement Borrowing shall be unconditional as provided in
paragraph (d) of this Section with respect to participations (but shall be
subject to clause (b) of Section 2.01); provided that such obligation of each
Revolving Lender shall not be unconditional with respect to its Applicable
Percentage of any portion of such LC Disbursement Borrowing in excess of its
Applicable Percentage of the principal amount of the LC Disbursement to be
financed with such LC Disbursement Borrowing (it being understood that any
portion of any LC Disbursement Borrowing to be used to finance interest accrued
pursuant to paragraph (h) of this Section shall be subject to the same
conditions applicable to any other Revolving Borrowing hereunder, other than
the minimum amount (which shall be $100,000 in the case of an LC Disbursement
Borrowing) and delivery of a Borrowing Request). If a Borrower fails to make
any payment required to be made by it pursuant to the first sentence of this
paragraph to reimburse any LC Disbursement when due (whether as a result of an
LC Disbursement Borrowing not being required to finance such payment or any
other reason), then (A) the Administrative Agent shall notify each Revolving
Lender of the applicable LC Disbursement, the payment then due from such
Borrower in respect thereof and such Revolving Lender’s Applicable Percentage
thereof and (B) promptly following receipt of such notice (but subject to
Section 2.05(l), in the case of Local Letters of Credit), each Revolving Lender
shall pay to the Administrative Agent its Applicable Percentage of the payment
then due from such Borrower, in the same manner as provided in Section 2.06
with respect to Loans made by such Revolving Lender (and Section 2.06 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the applicable Issuing Bank
the amounts so received by it from the Revolving Lenders; provided that, if the
Revolving Lenders are required to make Revolving Loans to fund an LC
Disbursement Borrowing as contemplated above in the preceding sentence with
respect to any LC Disbursement, and the applicable Borrower’s obligation to
make payment to reimburse such LC Disbursement is not fully discharged because
one or more of the Revolving Lenders fails to make any such Revolving Loan so
required to be made by it, then (1) neither this sentence nor any other
provision of this Agreement shall be construed to require any Revolving Lender
that has made its Revolving Loan pursuant to such LC Disbursement Borrowing to
make any additional payment to fund any portion of such LC Disbursement, (2)
the obligations of each Revolving Lender that has failed to make any such
Revolving Loan required to be made by it shall not be reduced as a result of
any other Revolving Lender having made any such Revolving Loan (it being
understood that any such Revolving Lender shall be responsible for its
Applicable Percentage of the relevant LC Disbursement Borrowing, and not
limited to its Applicable Percentage of the relevant shortfall attributable to
the partial funding of the applicable LC Disbursement Borrowing) and (3) the
applicable Borrower shall not be relieved of its obligations hereunder in
respect of the unpaid portion of any LC Disbursement attributable to any
Revolving Lender’s failure to make a Revolving Loan to fund an LC Disbursement
Borrowing. Promptly following receipt by the Administrative Agent of any
payment from a Borrower pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the applicable Issuing Bank or, to the extent
that Revolving Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Bank, then to such Lenders and the applicable Issuing
Bank as their interests may appear. If any LC Disbursement Borrowing is
required to be made hereunder, the Administrative Agent will



 







 



42



notify the Company of the amount thereof and of any failure by any
Revolving Lender to fund its Applicable Percentage thereof.



          (f) Obligations Absolute. Each 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 an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit,, (iv) failure of any Revolving Lender
to fund any LC Disbursement Borrowing, or (v) 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 set-off against, each Borrower’s obligations hereunder.
Neither the Administrative Agent, the Lenders nor any 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
any Issuing Bank; provided that the foregoing shall not be construed to excuse
the applicable Issuing Bank from liability to the applicable Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by each of the Borrowers to the extent
permitted by applicable law) suffered by such Borrower that are caused by such
Issuing Bank’s failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit issued by it comply with the
terms thereof. The parties hereto expressly agree that, in the absence of
gross negligence or wilful misconduct on the part of an Issuing Bank (as
finally determined by a court of competent jurisdiction), such 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
applicable Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.



          (g) Disbursement Procedures. An Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The applicable Issuing Bank shall promptly
notify the Administrative Agent and the applicable Borrower by telephone
(confirmed by facsimile) of such demand for payment and whether such 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 applicable
Borrower of its obligation to reimburse the applicable Issuing Bank and the
Revolving Lenders with respect to any such LC Disbursement.



 







 





43



          (h) Interim Interest. If an Issuing Bank shall make any LC Disbursement,
then, unless the applicable Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made (including pursuant to an ABR
Revolving Borrowing or Swingline Loan made on the date such LC Disbursement is
required to be reimbursed), 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 such Borrower reimburses such LC Disbursement, at the
rate per annum then applicable to ABR Revolving Loans; provided that, if such
Borrower fails to reimburse such LC Disbursement within two Business Days after
such LC Disbursement is made as provided in paragraph (e) of this Section, then
Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall
be for the account of the applicable Issuing Bank, except that interest accrued
on and after the date of payment by any Revolving Lender pursuant to paragraph
(e) of this Section to reimburse such Issuing Bank shall be for the account of
such Lender to the extent of such payment.



          (i) Issuing Banks. Any Issuing Bank may be terminated, and any existing
Revolving Lender may become an Issuing Bank, in each case at any time by
written agreement among the Company, the Administrative Agent and the
terminated Issuing Bank or additional Issuing Bank (as applicable). The
Administrative Agent shall notify the Lenders of any such additional Issuing
Bank. At the time any such termination shall become effective, the applicable
Borrower or Borrowers shall pay all unpaid fees accrued for the account of the
terminated Issuing Bank pursuant to Section 2.12(b). From and after the
effective date of any such addition of an Issuing Bank, the additional Issuing
Bank shall have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it. After the
termination of an Issuing Bank hereunder, the terminated 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 termination, 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 Company (on behalf of itself and the
Borrowers) receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Revolving
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph,
each 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 attributable to Letters of Credit issued for
the account of such Borrower 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 any Borrower described in
clause (h) or (i) of Article VII. The applicable Borrowers also shall deposit
cash collateral pursuant to this paragraph as and to the extent required by
Section 2.11(b). Each such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the
Borrowers 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 applicable Borrower’s risk and expense, such
deposits shall not bear interest. Interest or profits, if any, on such

 







 





44



investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse the applicable
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 such Borrowers for their respective LC Exposure at
such time or, if the maturity of the Loans has been accelerated (but subject to
the consent of Revolving Lenders with LC Exposure representing greater than 50%
of the total LC Exposure), be applied to satisfy other obligations of the
Borrowers under this Agreement. If a 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 such Borrower promptly after all Events of Default have been cured or
waived. If a Borrower is required to provide an amount of cash collateral
hereunder pursuant to Section 2.11(b), such amount (to the extent not applied
as aforesaid) shall be returned to such Borrower promptly as, and to the extent
that (after giving effect to such return), the sum of the Revolving Exposures
no longer exceeds the Revolving Commitments; provided that no Default shall
have occurred and be continuing.



          (k) Existing Letters of Credit. On the Effective Date, each Existing
Letter of Credit shall be deemed to be a Letter of Credit issued hereunder for
the account of the Initial Borrower on the Effective Date and the Existing
Credit Agreement shall no longer apply to such Existing Letters of Credit (but
fees payable to the Issuing Bank in respect thereof shall remain the same
unless otherwise agreed by such Issuing Bank).



          (l) Local Letters of Credit. Subject to the terms and conditions set
forth herein, the other conditions applicable to the issuance of Letters of
Credit hereunder and the approval of the applicable Issuing Bank, each Borrower
may request the issuance of Local Letters of Credit. Upon the issuance of any
Local Letter of Credit, and so long as any Local Letter of Credit remains
outstanding, the following provisions shall apply:





		
	 	     (i) For purposes of determining the total LC Exposure at any time
and for purposes of calculating fees payable under Section 2.12(b), the
amount of any Local Letter of Credit and of any LC Disbursements in
respect thereof shall be deemed to be, as of any date of determination,
the Dollar Amount thereof at such date. The initial Dollar Amount of any
Local Letter of Credit shall be determined by the applicable Issuing Bank
on the date of issuance thereof and adjusted from time to time
thereafter, in each case, as provided below. The Dollar Amount of each
Local Letter of Credit outstanding shall be adjusted by the applicable
Issuing Bank on each Calculation Date as provided in Section 2.22(a). If
an LC Disbursement is made by the Issuing Bank under any Local Letter of
Credit, the Dollar Amount of such LC Disbursement shall be determined by
such Issuing Bank on the date that such LC Disbursement is made. The
applicable Issuing Bank shall make each such determination to be made by
it by calculating the amount in Dollars that would be required in order
for such Issuing Bank to purchase an amount of the applicable Local
Currency equal to the amount of the relevant Local Letter of Credit or
unpaid LC Disbursement, as the case may be, on the date of determination
at the Spot Exchange Rate with respect to such Local Currency on such
date of determination. Each applicable Issuing Bank shall notify the
Administrative Agent and the Company promptly of each such Dollar Amount
determined by it, on the date that such determination is required to be
made.



 







 






45





		
	 	     (ii) Subject to paragraph (iv) below, the obligation of the
applicable Borrower to reimburse the applicable Issuing Bank for any LC
Disbursement under any Local Letter of Credit, and to pay interest
thereon, shall be payable only in the Local Currency in which such LC
Disbursement is made, and shall not be discharged by paying an amount in
Dollars or any other currency; provided that the applicable Issuing Bank
may agree, in its sole discretion, to accept reimbursement in another
currency, but any such agreement shall not affect the obligations of the
Revolving Lenders or the Borrowers under paragraphs (iii) and (iv) below
if such reimbursement is not actually made to the applicable Issuing Bank
when due.
	 
	 	     (iii) The obligation of each Revolving Lender under paragraphs (d)
and (e) of this Section to pay its Applicable Percentage of any unpaid LC
Disbursement under any Local Letter of Credit shall be payable only in
Dollars and shall be in an amount equal to such Applicable Percentage of
the Dollar Amount of such unpaid drawing determined as provided in
paragraph (i) above. Under no circumstances shall the provisions hereof
permitting the issuance of Letters of Credit in a Local Currency be
construed, by implication or otherwise, as imposing any obligation upon
any Revolving Lender to make any Loan or other payment under the Loan
Documents, or to accept any payment from any Borrower in respect of any
unreimbursed LC Disbursement, in any currency other than Dollars, it
being understood that the parties intend all payments of Indebtedness
created under the Loan Documents (other than the Local Currency Loans as
set forth in this Agreement) to be denominated and payable only in
Dollars except as expressly provided in paragraph (ii) above.
	 
	 	     (iv) If and to the extent that any Revolving Lender pays its
Applicable Percentage of any unreimbursed LC Disbursement under any Local
Letter of Credit, then, notwithstanding clause (ii) above, the obligation
of the applicable Borrower to reimburse the portion of such unreimbursed
LC Disbursement funded by such Revolving Lender shall be converted to,
and shall be payable only in, Dollars (in an amount equal to the Dollar
amount funded by such Revolving Lender as provided above) and shall not
be discharged by paying an amount in any other currency. Interest
accrued on such unreimbursed LC Disbursement to and excluding the date of
such payment by such Revolving Lender shall be for the account of the
applicable Issuing Bank and be payable in the applicable Local Currency,
but interest thereafter shall accrue on the Dollar amount owed to such
Revolving Lender and shall be payable in Dollars.



          SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan (other then a Local Currency Loan) to be made by it hereunder, pursuant to
the notice delivered to it by the Administrative Agent under Section 2.03 (or,
in the case of an LC Disbursement Borrowing, Section 2.05(e)), on the proposed
date thereof by wire transfer of immediately available funds by 12:00 noon, New
York City time, to the account of the Administrative 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 2.04. Each Lender shall
make each Local Currency Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon, London
time (or the time of such other city designated by the Administrative Agent),
to the account of the Administrative Agent most recently designated by it for
such purpose by notice to the applicable Lenders. The

 







 





46



Administrative 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 maintained with the Administrative Agent in New York
City (or, in the case of any Local Currency, such other city as the
Administrative Agent may designate in respect of the applicable Local Currency)
and 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 2.05(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.



          (b) Unless the Administrative 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 Administrative Agent such Lender’s share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with 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 Administrative
Agent, then the applicable Lender and the applicable Borrower severally agree
to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to such Borrower to but excluding the date of payment
to the Administrative Agent, at (i) in the case of such Lender, the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of such Borrower, the interest rate applicable to ABR Loans.
If such Lender pays such amount to the Administrative Agent, then such amount
shall constitute such Lender’s Loan included in such Borrowing and the
applicable Borrower shall have no further obligations under this Section in
respect thereof.



          SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing and Term
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the
applicable Borrower (or the Company, on behalf of a Borrower) may elect to
convert such Borrowing to a different Type or to continue such Borrowing and,
in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all
as provided in this Section. The applicable Borrower (or the Company, on
behalf of the applicable 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 or
Local Currency Borrowings, which may not be converted or continued pursuant to
this Section.



          (b) To make an election pursuant to this Section, the applicable Borrower
(or the Company, on behalf of the applicable Borrower) shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 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 facsimile to the Administrative Agent of a written Interest Election Request
in a form approved by the Administrative Agent and



 







 





47



signed by the applicable Borrower (or the Company, on behalf of the
applicable Borrower).



          (c) Each
telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:





		
	 	     (i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
	 
	 	     (ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
	 
	 	     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
	 
	 	     (iv) if the resulting Borrowing is a Eurodollar 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 Eurodollar 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
Administrative Agent shall advise each participating Lender of the details
thereof and of such Lender’s portion of each resulting Borrowing.



          (e) If the applicable Borrower (or the Company on behalf of the applicable
Borrower) fails to deliver a timely Interest Election Request with respect to a
Eurodollar 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 be converted to an ABR Borrowing.
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 Company, then, so long as an Event of Default
is continuing (i) no outstanding Borrowing may be converted to or continued as
a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall
be converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.



          SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Revolving Commitments shall terminate on the
Revolving Maturity Date. The Original Term Loan Commitments have terminated.



          (b) The Company (on behalf of the Borrowers) may at any time terminate, or
from time to time reduce, without premium or penalty, the Commitments of any
Class; provided that (i) each reduction of the Commitments of any Class shall
be in an amount that is an integral multiple of $1,000,000 and not less than
$1,000,000 and (ii) the Company shall not terminate or reduce the Revolving
Commitments if, after giving effect



 







 





48



to any concurrent prepayment of the Revolving Loans or Local Currency
Loans in accordance with this Agreement, the sum of the total Revolving
Exposures plus the Local Currency Loan Exposure would exceed the total
Revolving Commitments.



          (c) The Company (on behalf of the Borrowers) shall notify the
Administrative Agent of any election to terminate or reduce the Commitments
under paragraph (b) of this Section at least one Business Day prior to the
effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Company pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Revolving Commitments delivered by
the Company may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the
Company (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 of any Class shall be permanent. Each reduction
of the Commitments of any Class shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.



          SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) Each Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Revolving Lender on the Revolving Maturity Date the then unpaid
principal amount of each Revolving Loan made to such Borrower by such Revolving
Lender, (ii) to the Administrative Agent for the account of each Lender on the
last day of the Interest Period of each Local Currency Loan made to such
Borrower by such Lender (and in any event not later then the Revolving Maturity
Date) the then unpaid principal amount of each Local Currency Loan made to such
Borrower by such Lender, (iii) to the Administrative Agent for the account of
each Term Loan Lender on the Term Loan Maturity Date the then unpaid principal
amount of each Term Loan made to such Borrower by such Term Loan Lender as
provided in Section 2.10 and (iv) to each Swingline Lender the then unpaid
principal amount of each Swingline Loan made to such Borrower by such Swingline
Lender on the earlier of the Revolving Maturity Date and the date is two weeks
after such Swingline Loan is made.



          (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 the
Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.



          (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



 







 





49



manner affect the obligation of any Borrower to repay the Loans in
accordance with the terms of this Agreement.



          (e) Any Lender may request that Loans of any Class 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 10.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and
its registered assigns).



          (f) With respect to each repayment of Loans required by this Section 2.09,
the Company may designate (by notice to the Administrative Agent prior to such
repayment) the Borrowing or Borrowings of the applicable Class which are to be
repaid.



          SECTION 2.10. Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (d) of this Section, the Term Loan Borrower shall repay
Original Term Borrowings on each date set forth below in the aggregate
principal amount set forth opposite such date:




	 	 	 	 	 
	Date	 	Amount
	
	 	

	June 30, 2003
	 	$	1,000,000	 
	September 30, 2003
	 	$	1,000,000	 
	December 31, 2003
	 	$	1,000,000	 
	March 31, 2004
	 	$	1,000,000	 
	June 30, 2004
	 	$	1,000,000	 
	September 30, 2004
	 	$	1,000,000	 
	December 31, 2004
	 	$	1,000,000	 
	March 31, 2005
	 	$	1,000,000	 
	June 30, 2005
	 	$	1,000,000	 
	September 30, 2005
	 	$	1,000,000	 
	December 31, 2005
	 	$	1,000,000	 
	March 31, 2006
	 	$	1,000,000	 
	June 30, 2006
	 	$	1,000,000	 
	September 30, 2006
	 	$	1,000,000	 
	December 31, 2006
	 	$	1,000,000	 
	March 31, 2007
	 	$	1,000,000	 
	June 30, 2007
	 	$	1,000,000	 
	September 30, 2007
	 	$	1,000,000	 



 







 



50




	 	 	 	 	 
	Date	 	Amount
	
	 	

	December 31, 2007
	 	$	1,000,000	 
	March 31, 2008
	 	$	1,000,000	 
	June 30, 2008
	 	$	1,000,000	 
	September 30, 2008
	 	$	1,000,000	 
	December 31, 2008
	 	$	1,000,000	 
	March 31, 2009
	 	$	1,000,000	 
	June 30, 2009
	 	$	94,000,000	 
	September 30, 2009
	 	$	94,000,000	 
	December 31, 2009
	 	$	94,000,000	 
	March 31, 2010
	 	$	94,000,000	 



          (b) Subject to adjustment pursuant to paragraph (d) of this Section, the
Term Loan Borrower shall repay Tranche B-1 Term Borrowings on each date set
forth below in the aggregate principal amount set forth opposite such date:




	 	 	 	 	 
	Date	 	Amount
	
	 	

	September 30, 2003
	 	$	625,000	 
	December 31, 2003
	 	$	625,000	 
	March 31, 2004
	 	$	625,000	 
	June 30, 2004
	 	$	625,000	 
	September 30, 2004
	 	$	625,000	 
	December 31, 2004
	 	$	625,000	 
	March 31, 2005
	 	$	625,000	 
	June 30, 2005
	 	$	625,000	 
	September 30, 2005
	 	$	625,000	 
	December 31, 2005
	 	$	625,000	 
	March 31, 2006
	 	$	625,000	 
	June 30, 2006
	 	$	625,000	 
	September 30, 2006
	 	$	625,000	 
	December 31, 2006
	 	$	625,000	 
	March 31, 2007
	 	$	625,000	 
	June 30, 2007
	 	$	625,000	 
	September 30, 2007
	 	$	625,000	 
	December 31, 2007
	 	$	625,000	 
	March 31, 2008
	 	$	625,000	 



 







 



51




	 	 	 	 	 
	Date	 	Amount
	
	 	

	June 30, 2008
	 	$	625,000	 
	September 30, 2008
	 	$	625,000	 
	December 31, 2008
	 	$	625,000	 
	March 31, 2009
	 	$	625,000	 
	June 30, 2009
	 	$	58,906,250	 
	September 30, 2009
	 	$	58,906,250	 
	December 31,2009
	 	$	58,906,250	 
	March 31, 2010
	 	$	58,906,250	 



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



          (d) Any prepayment of a Term Borrowing of either Class shall be applied to
reduce the subsequent scheduled repayments of the Term Borrowings of such Class
to be made pursuant to this Section ratably; provided that any prepayment of a
Term Borrowing or Term Borrowings made pursuant to Section 2.11(a) may, at the
election of the Term Loan Borrower (by notice to the Administrative Agent prior
to the date of such prepayment), be applied, first, to reduce the next
scheduled repayments of the Term Borrowings of the applicable Class to be made
pursuant to this Section within the next 12 months after the date of such
prepayment unless and until such next scheduled repayments have been eliminated
as a result of reductions hereunder and, second, ratably.



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



          SECTION 2.11. Prepayment of Loans. (a) Each Borrower shall have the
right at any time and from time to time to prepay any Borrowing made by it in
whole or in part, without premium or penalty (other than payments required by
Section 2.16), subject to the requirements of this Section.



          (b) In the event and on such occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the Borrowers shall prepay
Revolving Borrowings or Swingline Borrowings or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such excess.
In the event that, on any Reset Date, the Local Currency Loan Exposure exceeds
105% of the Local Currency Sublimit, then, within three Business Days after
notice thereof to the Company from the Administrative Agent, the Borrowers
shall prepay Local Currency Loans in an aggregate amount such that, after
giving effect thereto, the Local Currency Loan Exposure does not



 







 




52




exceed the Local Currency Sublimit. In the event that, on any Reset Date,
the sum of the total Revolving Exposures and the Local Currency Loan Exposure
exceeds 105% of the total Revolving Commitments, then, within three Business
Days after notice thereof to the Company from the Administrative Agent, the
Borrowers shall prepay the Revolving Loans or Local Currency Loans (or a
combination thereof) such that, after giving effect thereto, the sum of the
total Revolving Exposures plus the Local Currency Loan Exposure does not exceed
the total Revolving Commitment.



          (c) In the event and on each occasion that any Net Proceeds are received
by or on behalf of the Company or any Subsidiary in respect of any Prepayment
Event, the Term Loan Borrower shall, within five Business Days after such Net
Proceeds are received, prepay Term Borrowings in accordance with paragraph (d)
of this Section in an aggregate amount equal to such Net Proceeds; provided
that (i) in the case of any event described in clause (a) of the definition of
the term “Prepayment Event”, if the Company shall deliver to the Administrative
Agent a certificate of a Financial Officer to the effect that the Company and
the Subsidiaries intend to apply the Net Proceeds from such event (or a portion
thereof specified in such certificate), within 360 days after receipt of such
Net Proceeds, to make Permitted Acquisitions or acquire real property,
equipment or other tangible assets to be used in the business of the Company
and the Subsidiaries, and certifying that no Default has occurred and is
continuing, then no prepayment shall be required pursuant to this paragraph in
respect of the Net Proceeds in respect of such event (or the portion of such
Net Proceeds specified in such certificate, if applicable) except to the
extent of any such Net Proceeds therefrom that have not been so applied by the
end of such 360-day period, at which time a prepayment shall be required in an
amount equal to such Net Proceeds that have not been so applied and (ii) in the
case of any event described in clause (b) of the definition of the term
“Prepayment Event”, the Term Loan Borrower shall not be required to make any
prepayment required by this sentence in respect of such event in an aggregate
principal amount less than $2,500,000. In addition, in the event and on each
occasion that the Company or any Subsidiary shall sell, convey, transfer,
lease, assign or otherwise transfer any asset (whether or not constituting a
Prepayment Event), if the Company would be required to prepay or otherwise
redeem, or offer to prepay or redeem, any Subordinated Debt as a result of such
transaction unless the proceeds of such transaction are applied by or on behalf
of the Term Loan Borrower within a specified period to prepay Term Borrowings
in accordance with paragraph (d) of this Section (or otherwise prepay other
Indebtedness or reinvested as permitted by the terms of such Subordinated
Debt), then the Term Loan Borrower shall (unless such proceeds are otherwise
reinvested within the specified period in a manner that relieves the Company of
any such requirement) prepay Term Borrowings in accordance with paragraph (d)
of this Section within such specified period to the extent necessary to relieve
the Company of any such requirement.



          (d) Prior to any optional or mandatory prepayment of Borrowings hereunder,
the applicable Borrower (or the Company on its behalf) shall select the
Borrowing or Borrowings to be prepaid and shall specify such selection in the
notice of such prepayment pursuant to paragraph (e) of this Section. In the
event of any optional or mandatory prepayment of Term Borrowings made at a time
when Term Borrowings of more than one Class remain outstanding, the applicable
Borrowers shall select Term Borrowings to be prepaid so that the aggregate
amount of such prepayment is allocated between the Original Term Borrowings and
Tranche B-1 Term Borrowings pro rata based on the aggregate principal amount of
outstanding Borrowings of each such Class.





 









 




53



          (e) The applicable Borrower (or the Company on its behalf) shall notify
the Administrative Agent (and, in the case of prepayment of a Swingline Loan,
the applicable Swingline Lender) by telephone (confirmed by facsimile) of any
prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing,
not later than 12:30 p.m., New York City time, three Business Days before the
date of prepayment, (ii) in the case of prepayment of an ABR Borrowing, not
later than 11:00 a.m., New York City time, on the date of prepayment or (iii)
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, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as contemplated
by Section 2.08, then such notice of prepayment may be revoked if such notice
of termination is revoked in accordance with Section 2.08. Promptly following
receipt of any such notice (other than a notice relating solely to Swingline
Loans), the Administrative Agent shall advise the Lenders participating in the
relevant Borrowing or Borrowings of the contents thereof. Each partial
prepayment of any Borrowing shall be in an amount that would be permitted in
the case of an advance of a Borrowing of the same Type as provided in Section
2.02, except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably to the
Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.13.



          SECTION 2.12. Fees. (a) The Initial Borrower agrees to pay or cause to
be paid to the Administrative Agent for the account of each Revolving Lender a
commitment fee, which shall accrue at the Applicable Rate on the average daily
unused amount of the Revolving Commitment of such Lender during the period from
and including the Effective Date to but excluding the date on which such
Commitment terminates. Accrued commitment fees with respect to Revolving
Commitments 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 Revolving
Commitments terminate, commencing on the first such date to occur after the
Effective Date. All commitment fees with respect to Revolving Commitments
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). For purposes of computing commitment fees with respect to Revolving
Commitments, a Revolving Commitment of a Lender shall be deemed to be used to
the extent of the outstanding Revolving Loans and LC Exposure of such Lender
(and the Swingline Exposure of such Lender and Local Currency Loan Exposure
shall be disregarded for such purpose).



          (b) The Initial Borrower agrees to pay or cause to be paid (i) to the
Administrative Agent for the account of each Revolving Lender a participation
fee with respect to its participations in Letters of Credit, which shall accrue
at the same Applicable Rate as is applicable to interest on Eurodollar
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 Revolving Commitment terminates and
the date on which such Revolving Lender ceases to have any LC Exposure, and
(ii) to each Issuing Bank a fronting fee, which shall accrue at the rate per
annum separately agreed upon between the Company (or the Initial Borrower) and



 







 





54



such Issuing Bank, on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
attributable to Letters of Credit issued by such Issuing Bank during the period
from and including the Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as such Issuing Bank’s standard fees with respect
to the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of March, June, September and
December of each year shall be payable on or prior to 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 Revolving Commitments terminate and any such fees accruing after the
date on which the Revolving Commitments terminate shall be payable on demand.
Any other fees payable to an 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 Initial Borrower agrees to pay or cause to be paid to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Company (or the Initial Borrower)
and the Administrative Agent.



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



          SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest on the unpaid principal
amount thereof at the Alternate Base Rate plus the Applicable Rate.



          (b) The Loans comprising each Eurodollar Borrowing shall bear interest on
the unpaid principal amount thereof at the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate.



          (c) The Loans comprising each Local Currency Borrowing shall bear interest
on the unpaid principal amount thereof (i) in the case of a Negotiated Local
Currency Loan, at the interest rate agreed upon by the applicable Revolving
Lender and the applicable Borrower, (ii) in the case of a Fixed Rate Loan, at
the applicable Competitive Bid Rate and (iii) in the case of Eurocurrency
Competitive Local Currency Loans, at the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the applicable Margin.



          (d) 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



 







 





55



other amount, 2% plus the rate applicable to ABR Revolving Loans as
provided in paragraph (a) of this Section.



          (e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; provided that (i) interest accrued
pursuant to paragraph (d) 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 Revolving 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 Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.



          (f) All interest hereunder shall be computed on the basis of a year of 360
days, except that 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), 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 or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.



          SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:





		
	 	     (a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate for such Interest
Period; or
	 
	 	     (b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;



then the Administrative Agent shall give notice thereof to the Company (on
behalf of itself and the Borrowers) and the Lenders by telephone or facsimile
as promptly as practicable thereafter and, until the Administrative Agent
notifies the Company (on behalf of itself and the Borrowers) and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any
Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.



          SECTION 2.15. 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 any Issuing Bank; or



 







 






56





		
	 	     (ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition (other than in respect of Taxes,
which shall be governed by Section 2.17) affecting this Agreement or
Eurodollar 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 Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or any
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
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Initial Borrower will pay or cause to be paid to such Lender or Issuing Bank,
as the case may be, such additional amount or amounts as will compensate such
Lender or Issuing Bank, as the case may be, for such additional costs incurred
or reduction suffered; provided that, in any such case, any applicable Borrower
may elect to convert Eurodollar Loans made by such Lender hereunder to ABR
Loans by giving the Administrative Agent at least one Business Day’s notice of
such election, in which case the Initial Borrower shall promptly pay or cause
to be paid to such Lender, upon demand, without duplication, amounts
theretofore required to be paid to such Lender pursuant to this Section
2.15(a).



          (b) If any Lender or any Issuing Bank determines 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 Issuing Bank’s capital or on the capital of
such Lender’s or 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 such Issuing Bank, to
a level below that which such Lender or Issuing Bank or such Lender’s or
Issuing Bank’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s or Issuing Bank’s policies and the
policies of such Lender’s or Issuing Bank’s holding company with respect to
capital adequacy), then from time to time the Initial Borrower will pay or
cause to be paid to such Lender or Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or Issuing Bank or
such Lender’s or Issuing Bank’s holding company for any such reduction
suffered.



          (c) A certificate of a Lender or Issuing Bank setting forth the amount or
amounts necessary to compensate such Lender or 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 Company or the Initial Borrower and shall be
conclusive absent manifest error. Any such certificate shall be accompanied by
an explanation of the circumstances or event that resulted in such claim for
compensation. The Initial Borrower shall pay or cause to be paid to such
Lender or 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 Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender’s or Issuing Bank’s right to demand such compensation; provided that the
Initial Borrower shall not be required to compensate a Lender or an 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 Issuing Bank, as the
case may be, notifies the Company or the Initial Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s or
Issuing Bank’s intention to claim compensation therefor; provided



 







 





57



further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.



          (e) Notwithstanding any other provision of this Section 2.15, no Lender or
Issuing Bank shall be entitled to compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
under this Section unless such Lender or Issuing Bank, as the case may be,
represents to the Company or the Initial Borrower that at the time it is the
policy or general practice of such Lender or Issuing Bank to demand such
compensation for comparable costs or reductions, if any, in similar
circumstances, if any, under comparable provisions of other credit agreements
for comparable customers.



          SECTION 2.16. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan or any Competitive Local Currency 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 Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Revolving Loan or Term Loan
on the date specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.11(e) and is revoked in
accordance therewith), or (d) the assignment of any Eurodollar Loan or any
Competitive Local Currency 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 2.19, then, in any such event, the applicable Borrower
shall compensate each Lender for the loss, cost and expense attributable to
such event. In the case of a Eurodollar Loan or Eurocurrency Competitive Local
Currency 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 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 same currency and of a comparable amount and period from other
banks in the eurocurrency 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 Company or the Initial Borrower and shall be
conclusive absent manifest error. The applicable Borrower shall pay or cause
to be paid to such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.



          SECTION 2.17. Taxes. (a) Any and all payments by or on account of any
obligation of any Borrower hereunder or under any other Loan Document 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)
the Administrative Agent, 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



 







 





58



(iii)  such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.



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



          (c) Each Borrower shall indemnify the Administrative Agent, each Lender
and each Issuing Bank, within 30 days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent, such Lender or such 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 or
under any other Loan Document (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 (other than penalties, interest and expenses arising as a
result of such Person’s willful misconduct or gross negligence). A certificate
as to the amount of such payment or liability delivered to the Company or the
Initial Borrower by a Lender or an Issuing Bank, or by the Administrative Agent
on its own behalf or on behalf of a Lender or an Issuing Bank, shall be
conclusive absent manifest error.



          (d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by a 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) Each Foreign Lender shall deliver to the Company and the
Administrative Agent two copies of either United States Internal Revenue
Service Form W-8BEN or Form W-8ECI, or, in the case of a Foreign Lender
claiming exemption from U.S. Federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of “portfolio interest”, a Form
W-8BEN and a certificate representing that such Foreign Lender is not a bank
for purposes of Section 881(c)(3)(A) of the Code, is not a 10 percent
shareholder (within the meaning of Section 881(c)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 881(c)(3)(C) of the Code), or any subsequent
versions thereof or successors thereto, properly completed and duly executed by
such Foreign Lender claiming complete exemption from U.S. Federal withholding
tax on all payments by the Domestic Loan Parties under this Agreement. Such
forms shall be delivered by each such Foreign Lender on or before the date it
becomes a party to this Agreement and on or before the date, if any, such
Foreign Lender changes its applicable lending office. In addition, each
Foreign Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Foreign Lender. For
purposes of this Section 2.17(e) only, the term “Foreign Lender” shall include
the Administrative Agent at any time that the Administrative Agent is a Person
organized under the laws of a jurisdiction other than the United States of
America or any political subdivision thereof or is treated as such for U.S.
Federal income tax purposes.



          (f) If the Administrative Agent or a Lender determines, in its reasonable
sole discretion, that it has received a refund of any Indemnified Taxes or
Other Taxes as to which it has been indemnified by a Borrower or with respect
to which a Borrower has



 







 





59



paid additional amounts pursuant to this Section 2.17, 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 2.17 with
respect to the Indemnified Taxes or Other Taxes giving rise to such refund),
net of all reasonable out-of-pocket expenses of the Administrative Agent or
such Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund, which shall not be subject
to the limitations set forth in the immediately preceding parenthetical);
provided that such Borrower, upon the request of the Administrative Agent or
such Lender, agrees to repay the amount paid over to such Borrower (plus any
interest imposed by the relevant Governmental Authority) to the Administrative
Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section
shall not be construed to require the Administrative Agent or any Lender to
make available its tax returns (or any other information relating to its taxes
which it deems confidential) to any Borrower or any other Person.



          SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Each Borrower shall make each payment required to be made by it hereunder
or under any other Loan Document (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 1:00 p.m., New York City time or, in the case of
an amount payable in a Local Currency, 1:00 p.m. local time at the place of
payment), 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 Administrative 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 Administrative Agent at its offices at 270
Park Avenue, New York, New York (or as otherwise instructed by the
Administrative Agent in the case of amounts payable in a Local Currency),
except payments to be made directly to an Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 10.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons
specified therein. The Administrative 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 under any Loan Document
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 under each Loan Document shall be made in Dollars,
except as expressly provided herein.



          (b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due 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 hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.



 







 





60



          (c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements or Swingline
Loans resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and participations in LC Disbursements and
Swingline Loans and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment
made by any Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to a Borrower or
any Subsidiary thereof (as to which the provisions of this paragraph shall
apply). The Borrowers consent to the foregoing and agree, to the extent they
may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against any
Borrower 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 the Administrative Agent shall have received notice from the
Company or the applicable Borrower prior to the date on which any payment is
due to the Administrative Agent for the account of the Lenders or an Issuing
Bank hereunder that the applicable Borrower will not make such payment, the
Administrative Agent may assume that the applicable Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the applicable Issuing Bank, as the
case may be, the amount due. In such event, if the applicable Borrower has not
in fact made such payment, then each of the Lenders or the applicable Issuing
Bank, as the case may be, severally agrees to repay to the Administrative 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 the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative 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 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 10.03(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 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.15, or if any Borrower is required
to pay any additional amount or indemnification to any Lender or any
Governmental



 







 





61



Authority for the account of any Lender pursuant to Section 2.17, 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 2.15 or 2.17, 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. The
Initial Borrower hereby agrees to pay or cause to be paid all reasonable costs
and expenses incurred by any Lender in connection with any such designation or
assignment.



          (b) If any Lender requests compensation under Section 2.15, or if any
Borrower is required to pay any additional amount or indemnification to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, or if any Lender fails to approve any waiver, amendment or
modification to this Agreement that is approved by the Required Lenders, then
the Company or the affected 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 10.04), 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 (i) the Company or the affected Borrower, as
applicable, shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Commitment is being assigned, each Issuing Bank and
each Swingline Lender), which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and 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 the applicable Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17, such assignment will result, in the Company’s or the
affected Borrower’s reasonable judgment, in a material reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company and the affected
Borrower to require such assignment and delegation cease to apply.



          SECTION 2.20. Incremental Term Loans. The Term Loan Borrower may (on
behalf of any Borrower) at any time or from time to time, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver
a copy to each of the Lenders), request one or more additional tranches of term
loans (the “Incremental Term Loans”); provided that both at the time of any
such request and upon the effectiveness of any Incremental Term Loan Amendment
referred to below, no Default shall exist and at the time that any such
Incremental Term Loan is made (and after giving effect thereto) no Default
shall exist and the Company shall be in compliance with Sections 6.12, 6.13 and
6.14, determined on a pro forma basis as if such Incremental Term Loans had
been outstanding on the last day of the most recent fiscal quarter for testing
compliance therewith (and, for purposes of Section 6.12, as if such Incremental
Term Loans had been outstanding during the period of four consecutive fiscal
quarters then ended). Each tranche of Incremental Term Loans shall be in an
aggregate principal amount that is not less than $25,000,000. The Incremental
Term Loans (a) shall be in an



 







 





62



aggregate principal amount not exceeding (i) $375,000,000, or, if (x) the
Perbio Reorganization has been consummated, (y) the Total Leverage Ratio is
less than 3.50 to 1.00 at the time such Incremental Term Loan is incurred
(after giving pro forma effect to the Incremental Term Loan to be incurred) and
(z) the Senior Leverage Ratio is less than 3.00 to 1.00 at the time such
Incremental Term Loan is incurred (after giving pro forma effect to the
Incremental Term Loan to be incurred), $500,000,000 minus (ii) the aggregate
principal amount of Senior Debt issued after the Effective Date in excess of
$400,000,000 (if the Senior Leverage Ratio is greater than or equal to 3.50 to
1.00 at the time such Incremental Term Loan is incurred (after giving pro forma
effect to the Incremental Term Loan to be incurred)), $525,000,000 (if the
Senior Leverage Ratio is less than 3.50 to 1.00 but greater than or equal to
3.00 to 1.00 at the time such Incremental Term Loan is incurred (after giving
pro forma effect to the Incremental Term Loan to be incurred)) or $650,000,000
(if the Senior Leverage Ratio is less than 3.00 to 1.00 at the time such
Incremental Term Loan is incurred (after giving pro forma effect to the
Incremental Term Loan to be incurred)), (b) shall rank pari passu in right of
payment and of security with the Revolving Loans and the Term Loans, (c) shall
not mature earlier than the Term Loan Maturity Date (but may, subject to clause
(d) below, have amortization prior to such date), (d) shall not have a weighted
average life that is shorter than that of the Term Loans, and (e) except as set
forth above, shall be treated substantially the same as (and in any event no
more favorably than) the Term Loans (in each case, including with respect to
mandatory and voluntary prepayments); provided that (i) the terms and
conditions applicable to Incremental Term Loans maturing after the Term Loan
Maturity Date may provide for material additional or different financial or
other covenants or prepayment requirements applicable only during periods after
the Term Loan Maturity Date and (ii) the Incremental Term Loans may be priced
differently than the Term Loans. Each notice shall set forth the requested
amount and proposed terms of the relevant Incremental Term Loans and the
Borrower in respect thereof. Each existing Lender shall be afforded the
opportunity, but shall not be required, to provide a ratable share (including a
share of any Incremental Term Loans not subscribed to by other existing
Lenders) of any Incremental Term Loans. In the event that existing Lenders
provide commitments in an aggregate amount less than the total amount of the
Incremental Term Loans requested by the Term Loan Borrower, the Term Loan
Borrower may arrange for one or more banks or other financial institutions (any
such bank or other financial institution being called an “Additional Lender”)
to extend commitments to provide Incremental Term Loans in an aggregate amount
equal to the unsubscribed amount. Commitments in respect of Incremental Term
Loans shall become Commitments under this Agreement pursuant to an amendment
(an “Incremental Term Loan Amendment”) to this Agreement and, as appropriate,
the other Loan Documents, executed by the Company (and the applicable Borrower,
if other than the Company), each Lender agreeing to provide such Commitment, if
any, each Additional Lender, if any, and the Administrative Agent. The
Incremental Term Loan Amendment may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the reasonable opinion of the Administrative
Agent, to effect the provisions of this Section. The effectiveness of any
Incremental Term Loan Amendment shall be subject to the satisfaction on the
date thereof of each of the conditions set forth in Section 4.02 (it being
understood that all references to “the date of such Borrowing” in such Section
4.02 shall be deemed to refer to the effective date of such Incremental Term
Loan Amendment) and such other conditions as the parties thereto shall agree.
No Lender shall be obligated to provide any Incremental Term Loans, unless it
so agrees (it being acknowledged that the Tranche B-1 Lenders have agreed
pursuant to the Amendment and Restatement Agreement to provide



 







 



63



the Tranche B-1 Term Loans). The Tranche B-1 Term Loans constitute
Incremental Term Loans.



          SECTION 2.21. Local Currency Loans. (a) General. Subject to the terms
and conditions set forth herein, one or more of the Borrowers may borrow Local
Currency Loans in the form of Competitive Local Currency Loans, Negotiated
Local Currency Loans or any combination thereof; provided that on the date of
the proposed borrowing and after giving effect thereto (i) the Local Currency
Loan Exposure shall not exceed the Local Currency Sublimit and (ii) the sum of
the total Revolving Exposures and the Local Currency Loan Exposure shall not
exceed the total Revolving Commitments. All Local Currency Loans shall be
subject to the terms and conditions of this Agreement and, in the event of any
inconsistency between the terms of this Agreement and the terms of any
Negotiated Local Currency Loan Agreement, the terms of this Agreement shall
prevail.



          (b) Negotiated Local Currency Loans. Subject to the terms and conditions
set forth herein, upon the request of any Borrower a Revolving Lender may, in
its sole discretion, make a Loan (a “Negotiated Local Currency Loan”) to such
Borrower; provided that such Negotiated Local Currency Loan shall (i) be
denominated in a Local Currency, (ii) mature within one year after the date
such Loan is made (subject to the right of such Revolving Lender and the
applicable Borrower to agree to extend such maturity at any time to a date
within one year after the date of such maturity or extension) and in any event
shall mature on or prior to the Revolving Maturity Date, (iii) be in an
aggregate principal amount the Dollar Equivalent of which, on the date such
Loan is made, is an integral multiple of $100,000 and not less than $100,000
and (iv) otherwise comply with the applicable requirements of this Agreement.
For purposes of subclause (iii) above, a Negotiated Local Currency Loan may be
aggregated with other Negotiated Local Currency Loans being made by other
Revolving Lenders on the same date to the same Borrower in the same Local
Currency and with the same maturity. Prior to making any Negotiated Local
Currency Loan, the Revolving Lender making such Loan shall deliver a written
notice to the Administrative Agent (countersigned or acknowledged by the
applicable Borrower or by the Company on behalf of such Borrower) specifying
(A) the aggregate principal amount of such Loan expressed in Dollars (which
shall comply with subclause (iii) above) and expressed in the applicable units
of Local Currency (determined by such Revolving Lender based on the Exchange
Rate), (B) the date on which such Loan is to be made, (C) the Borrower of such
Loan and (D) the interest rate (or basis for determining the interest rate) and
maturity of such Loan. Thereafter, such Revolving Lender shall notify the
Administrative Agent of each payment received in respect of such Loan and of
any change in the interest rate or maturity of such Loan or any other terms of
such Loan. Such Revolving Lender also shall deliver to the Administrative
Agent copies of any agreements and other documents (“Negotiated Local Currency
Loan Agreements”) entered into with the applicable Borrower or any other Loan
Party in connection with such Loan, including any promissory note evidencing
such Loan, as well as all amendments and modifications thereto.



          (c) Competitive Local Currency Loans. (i) Subject to the terms and
conditions set forth herein, upon the request of the Company a Revolving Lender
may, in its sole discretion, make a Loan (a “Competitive Local Currency Loan”)
to a Borrower in the form of a Eurocurrency Competitive Local Currency Loan or
a Fixed Rate Loan; provided that (i) no Competitive Local Currency Loan shall
be requested or made



 







 





64



hereunder if after giving effect thereto any of the conditions applicable
to Revolving Loans set forth in Section 4.02 would not be met, (ii) each
Competitive Local Currency Loan shall be made pursuant to the procedures set
forth in the following paragraphs of this Section and (iii) the amount of any
Competitive Local Currency Loan shall be funded in the applicable Local
Currency in an amount equal to the Local Currency Equivalent of the amount of
such Competitive Local Currency Loan expressed in Dollars as provided above, as
determined by the Administrative Agent.




               (ii) In order to request Competitive Bids, the Company shall hand deliver
or facsimile to the Administrative Agent a duly completed Competitive Bid
Request, to be received by the Administrative Agent (A) in the case of a
Eurocurrency Competitive Local Currency Loan, not later than 10:00 a.m., New
York City time, five Business Days before a proposed Competitive Local Currency
Borrowing and (B) in the case of a Fixed Rate Borrowing, not later than 10:00
a.m., New York City time, two Business Days before a proposed Competitive Local
Currency Borrowing. A Competitive Bid Request that does not conform
substantially to the format of Exhibit G may be rejected in the Administrative
Agent’s sole discretion, and the Administrative Agent shall promptly notify the
Company of such rejection by facsimile. Each Competitive Bid Request shall
refer to this Agreement and specify (A) the identity of the applicable Borrower
and whether the Borrowing then being requested is to be a Eurocurrency
Competitive Local Currency Borrowing or a Fixed Rate Borrowing, (B) the
requested currency of such Borrowing, which must be a Local Currency, (C) the
date of such Borrowing (which shall be a Business Day) and the aggregate
principal amount thereof, which shall be expressed in Dollars in an integral
multiple of $100,000 and equal to or greater than $100,000, (D) the Interest
Period with respect thereto (which shall be a period contemplated by the
definition of the term “Interest Period” and may not end after the Revolving
Maturity Date), (E) the maturity date of such Competitive Local Currency
Borrowing, which shall be the last day of the Interest Period with respect to
such Competitive Local Currency Borrowing and (F) the location and number of
the applicable Borrower’s account to which funds are to be disbursed (which
must comply with Section 2.06), and such Competitive Bid Request shall be
signed by the Company. Promptly after its receipt of a Competitive Bid Request
that is not rejected as aforesaid, the Administrative Agent shall deliver by
facsimile to the Revolving Lenders a Notice of Competitive Bid Request
substantially in the form of Exhibit H inviting the Revolving Lenders to bid,
on the terms and conditions of this Agreement, to make Competitive Local
Currency Loans.




               (iii) Each Competitive Bid by a Revolving Lender must be received by the
Administrative Agent by facsimile (A) in the case of a Eurocurrency Competitive
Local Currency Loan, not later than 9:30 a.m., New York City time, four
Business Days before the proposed Competitive Local Currency Borrowing and (B)
in the case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City
time, one Business Day before the proposed Competitive Local Currency
Borrowing. A Lender may submit multiple bids to the Administrative Agent.
Competitive Bids that do not conform substantially to the format of Exhibit E
may be rejected by the Administrative Agent, and the Administrative Agent shall
notify the Revolving Lender making such nonconforming bid of such rejection as
promptly as practicable. Each Competitive Bid shall refer to this Agreement
and specify (1) the principal amount (which shall be expressed in Dollars in a
minimum principal amount of $100,000 and in an integral multiple of $100,000
and which may equal the entire principal amount of the Competitive Local
Currency Borrowing requested) of the Competitive Local Currency Loan or Loans
that the



 







 





65



Revolving Lender is willing to make, (2) the Competitive Bid Rate or Rates
at which the Revolving Lender is prepared to make the Competitive Local
Currency Loan or Loans and (3) the Interest Period and the last day thereof.
If the Administrative Agent shall not have received a Competitive Bid from any
Lender by the time required above, such Lender shall be deemed to have elected
not to make a Competitive Bid; provided that failure by any Lender to give such
notice shall not cause such Lender to be obligated to make any Competitive
Local Currency Loan as part of such Competitive Local Currency Borrowing. A
Competitive Bid submitted by a Revolving Lender pursuant to this paragraph
(iii) shall be irrevocable.




               (iv) The Administrative Agent shall notify the Company, by facsimile, of
all the Competitive Bids made, the Competitive Bid Rate and the principal
amount and the Interest Period (including the last day thereof) of each
Competitive Local Currency Loan in respect of which a Competitive Bid was made
and the identity of the Revolving Lender that made each bid by 12:00 noon (A)
in the case of a Eurocurrency Competitive Local Currency Borrowing, four
Business Days before the Competitive Local Currency Borrowing and (B) in the
case of a Fixed Rate Borrowing, one Business Day before the proposed
Competitive Local Currency Borrowing. The Administrative Agent shall send a
copy of all Competitive Bids to the Company for its records as promptly as
practicable after completion of the bidding process set forth in this Section.




               (v) The Company may in its sole discretion, subject only to the
provisions of this paragraph (v), accept or reject any Competitive Bid referred
to in paragraph (iv) above. The Company shall notify the Administrative Agent
by telephone, confirmed by facsimile (which shall be signed by the Company) in
a Competitive Bid Accept/Reject Letter substantially in the form of Exhibit F,
whether and to what extent it has decided to accept or reject any of or all the
Competitive Bids referred to in paragraph (iv) above not more than one hour
after it shall have been notified of all such Competitive Bids by the
Administrative Agent pursuant to such paragraph (iv); provided that (A) the
failure of the Company to give such notice shall be deemed to be a rejection of
all the Competitive Bids referred to in paragraph (iv) above, (B) the Company
shall not accept a Competitive Bid made at a particular Competitive Bid Rate if
it has decided to reject a Competitive Bid made at a lower Competitive Bid
Rate, (C) the aggregate amount of the Competitive Bids accepted by the Company
shall not exceed the principal amount specified in the Competitive Bid Request,
(D) if the Company shall accept a Competitive Bid or Competitive Bids made at a
particular Competitive Bid Rate but the amount of such Competitive Bid or
Competitive Bids shall cause the total amount of Competitive Bids to be
accepted to exceed the amount specified in the Competitive Bid Request, then
the Company shall accept a portion of such Competitive Bid or Competitive Bids
in an amount equal to the amount specified in the Competitive Bid Request less
the amount of all other Competitive Bids accepted with respect to such
Competitive Bid Request, which acceptance, in the case of multiple Competitive
Bids at such Competitive Bid Rate, shall be made pro rata in accordance with
the amount of each such Competitive Bid at such Competitive Bid Rate, and (E)
except pursuant to clause (D) above, no Competitive Bid shall be accepted for a
Competitive Local Currency Loan unless such Competitive Local Currency Loan is
in a minimum principal amount the Dollar Equivalent of which is $100,000, and
in an integral multiple of units of the relevant Local Currency the Dollar
Equivalent of which is $100,000; provided further, that if a Competitive Local
Currency Loan must be in an amount the Dollar Equivalent of which is less than
$100,000 because of the provisions of clause (D) above, such Competitive Local
Currency Loan may be for a minimum amount the Dollar Equivalent of which is
$20,000 or any integral multiple



 







 





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thereof and in calculating the pro rata allocation of acceptances of
portions of multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (D) the amounts shall be rounded to integral multiples the
Dollar Equivalent of which is $20,000 in a manner which shall be in the
discretion of the Company. A notice given by the Company pursuant to this
paragraph (v) shall be irrevocable.




               (vi) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at which Competitive Bid Rate) by facsimile, and each successful bidder
will thereupon become bound, subject to the other applicable conditions hereof,
to make the Competitive Local Currency Loan in respect of which its Competitive
Bid has been accepted.




               (vii) No Competitive Local Currency Borrowing shall be requested or made
hereunder if after giving effect thereto any of the conditions applicable to
Revolving Loans set forth in Section 4.02 would not be met.




               (viii) If the Administrative Agent shall elect to submit a Competitive Bid
in its capacity as a Revolving Lender, it shall submit such Competitive Bid
directly to the Company one quarter of an hour earlier than the latest time at
which the other Revolving Lenders are required to submit their Competitive Bids
to the Administrative Agent pursuant to paragraph (iii) above.




               (ix) All notices required by this Section shall be given in accordance
with Section 10.01.



          SECTION 2.22. Currency Fluctuations. (a) Not later than 1:00 p.m., New
York City time, on each Calculation Date (i) each Issuing Bank that has
outstanding any Local Letter of Credit or LC Disbursement thereunder shall
determine the Dollar Amount as of such Calculation Date of each outstanding
Local Letter of Credit issued by it or LC Disbursement thereunder, and such
Issuing Bank shall notify the Administrative Agent and the Company of each
Dollar Amount so determined and the relevant Spot Exchange Rate used by it to
make such determination, (ii) the Administrative Agent shall determine the
Exchange Rate as of such Calculation Date with respect to each Local Currency
for which there is at such time any outstanding Local Currency Loan and (iii)
the Administrative Agent shall give notice to the Revolving Lenders and the
Company of the Spot Exchange Rates and Exchange Rates so determined. The Spot
Exchange Rates and the Exchange Rates so determined shall become effective on
the first Business Day immediately following the relevant Calculation Date (a
“Reset Date”) and (subject to Section 2.05(l) in the case of Spot Exchange
Rates) shall remain effective until the next succeeding Reset Date.



          (b) Not later than 5:00 p.m., New York City time, on each Reset Date and
the date of each Borrowing, the Administrative Agent shall (i) determine the
Dollar Equivalent of the Local Currency Loans and Local Letters of Credit then
outstanding (after giving effect to any Loans to be made or repaid on such
date) and (ii) notify the Revolving Lenders and the Company of the results of
such determination and of the resulting total Revolving Exposures and Local
Currency Loan Exposure.



          SECTION 2.23. Subsidiary Borrowers. The Company may at any time and from
time to time elect that any Subsidiary become a Borrower eligible to borrow



 







 





67



Revolving Loans or Local Currency Loans, or to have Letters of Credit
issued for its account, by delivering to the Administrative Agent an Election
to Participate with respect to such Subsidiary. The eligibility of any such
Subsidiary to borrow hereunder shall terminate when the Administrative Agent
receives an Election to Terminate with respect to such Subsidiary. If the
Company is the Term Loan Borrower, then the Company may deliver an Election to
Terminate with respect to the Initial Borrower, but only if (a) either (i) all
principal and interest on all Loans of the Initial Borrower shall have been
repaid and there are no outstanding Letters of Credit for the account of the
Initial Borrower or (ii) all obligations of the Initial Borrower in respect of
such Loans and Letters of Credit shall have been assigned to, and assumed by,
the Company, as the Borrower in respect thereof, pursuant to a written
agreement reasonably satisfactory in form and substance to the Administrative
Agent and (b) the Company shall have assumed in a written agreement with the
Administrative Agent all obligations of the Initial Borrower under this
Agreement. Each Election to Participate delivered to the Administrative Agent
shall be duly executed on behalf of the relevant Subsidiary and the Company,
and each Election to Terminate delivered to the Administrative Agent shall be
duly executed on behalf of the Company, in such number of copies as the
Administrative Agent may request. The delivery of an Election to Terminate
shall not affect any obligation of the relevant Subsidiary theretofore
incurred. The Administrative Agent shall promptly give notice to the Lenders
of its receipt of any Election to Participate or Election to Terminate.




ARTICLE III




Representations and Warranties



          The Company represents and warrants to the Lenders that:



          SECTION 3.01. Organization; Powers. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business
in, and is in good standing in, every jurisdiction where such qualification is
required.



          SECTION 3.02. Authorization; Enforceability. The Transactions and the
Restatement Transactions to be entered into by each Loan Party are within such
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 the Company and each Borrower and constitutes, and
each other Loan Document to which any Loan Party is to be a party, when
executed and delivered by such Loan Party, will constitute, a legal, valid and
binding obligation of the Company, such Borrower or such Loan Party (as the
case may be), 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 3.03. Governmental Approvals; No Conflicts. The Transactions and
the Restatement Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental
Authority, except



 







 





68



such as have been obtained or made and are in full force and effect and
except filings necessary to perfect Liens created under the Loan Documents, (b)
will not violate any applicable law or regulation in any material respect or
the charter, by-laws or other organizational documents of the Company or any of
its Subsidiaries or any order of any Governmental Authority, (c) will not
violate in any material respect or result in a default under any indenture,
agreement or other instrument binding upon the Company or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Company or any of its Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of the Company or
any of its Subsidiaries, except Liens created under the Loan Documents.



          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
Company 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 December 31, 2001, reported on by Deloitte & Touche LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended September 30, 2002, 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 Company and its consolidated Subsidiaries as of such dates and for such
periods in accordance with GAAP, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii)
above.



          (b) The Company has heretofore furnished to the Lenders its pro forma
consolidated balance sheet as of December 31, 2002, prepared giving effect to
the Transactions and the Permitted Receivables Financing contemplated by
Section 4.01(i) as if the Transactions had occurred, and such Permitted
Receivables Financing was in effect, on such date. Such pro forma consolidated
balance sheet (i) has been prepared in good faith based on the same assumptions
used to prepare the pro forma financial statements included in the Information
Memorandum (which assumptions are believed by the Company to be reasonable),
(ii) is based on the best information available to the Company after due
inquiry, as of the Effective Date, (iii) accurately reflects all material
adjustments necessary to give effect to the Transactions and (iv) presents
fairly, in all material respects, based on information available to the Company
as of the Effective Date, the pro forma financial position of the Company and
its consolidated Subsidiaries as of December 31, 2002 as if the Transactions
and the Permitted Receivables Financing had occurred on such date.



          (c) Except as disclosed in the financial statements referred to above or
the notes thereto or in the Information Memorandum and except for the Disclosed
Matters, after giving effect to the Transactions, neither the Company nor any
of its Subsidiaries has, as of the Effective Date, any material contingent
liabilities, unusual long-term commitments or unrealized losses.



          (d) Since December 31, 2001, there has been no material adverse change in
the business, properties, assets, liabilities or condition (financial or
otherwise) of the Company and its Subsidiaries, taken as a whole.



          SECTION 3.05. Properties. (a) Each of the Company and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to its business (including its Mortgaged Properties), except
for minor



 







 





69



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) Each of the Company 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 Company 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.



          (c) Schedule 3.05 sets forth the address of each real property that is
owned or leased by the Company or any of its Subsidiaries as of the Effective
Date, indicating in each case whether such property is owned or leased and, in
the case of each owned property, the record owner thereof and whether such
property is a Principal Property.



          (d) As of the Effective Date, neither the Company nor any of its
Subsidiaries has received notice of, or has knowledge of, any pending or
contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. As of the Effective Date,
neither any Mortgaged Property nor any interest therein is subject to any right
of first refusal, option or other contractual right to purchase such Mortgaged
Property or interest therein.



          SECTION 3.06. 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 the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) as to which an
adverse determination is reasonably likely and that, if adversely determined,
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
any of the Loan Documents or the Transactions.



          (b) Except for the Disclosed Matters and except with respect to any other
matters that, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, neither the Company 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 applicable
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.



          (c) Since the Effective Date, 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 3.07. Compliance with Laws and Agreements. Each of the Company
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, would not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and
is continuing.



 







 





70



          SECTION 3.08. Investment and Holding Company Status. Neither the Company
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 1935.



          SECTION 3.09. Taxes. Each of the Company and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) any Taxes that are being contested in good faith by appropriate
proceedings and for which the Company 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 by an amount that, if
required to be funded, would be reasonably likely to result in a Material
Adverse Effect, 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 by an amount that, if
required to be funded, would be reasonably likely to result in a Material
Adverse Effect.



          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 the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or any other Loan
Document or delivered hereunder or thereunder (as modified or supplemented by
other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected and pro forma financial information
and estimates, the Company represents only that such information and estimates
were prepared in good faith based upon assumptions believed to be reasonable at
the time.



          SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name and
jurisdiction of organization of, and the ownership interest of the Company in,
each Subsidiary of the Company and identifies with respect to each such
Subsidiary whether it is a Domestic Subsidiary (and, in the case of each such
Domestic Subsidiary, whether it is a Material Subsidiary or an Immaterial
Subsidiary), a Foreign Subsidiary, a Receivables Subsidiary, a Foreign
Subsidiary Holding Company or a Restricted Subsidiary (or any combination
thereof), in each case as of the Effective Date.



          SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of the Company and its Subsidiaries as of
the



 







 





71



Effective Date. As of the Effective Date, all premiums in respect of such
insurance have been paid. The Company believes that the insurance maintained
by or on behalf of the Company and its Subsidiaries complies with all
applicable requirements of the Loan Documents.



          SECTION 3.14. Labor Matters. As of the Effective Date, there are no
material strikes, lockouts or slowdowns against the Company or any Subsidiary
pending or, to the knowledge of the Company, threatened. The hours worked by
and payments made to employees of the Company and the Subsidiaries have not
been in material violation of the Fair Labor Standards Act or any other
applicable Federal, state, local or foreign law dealing with such matters. All
payments due from the Company or any Subsidiary, or for which any claim may be
made against the Company or any Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of the Company or such Subsidiary. The consummation of
the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining
agreement to which the Company or any Subsidiary is bound.



          SECTION 3.15. Senior Indebtedness. The Obligations constitute “Senior
Indebtedness” and “Designated Senior Indebtedness” under, and as defined in,
the Subordinated Debt Documents.




ARTICLE IV




Conditions



          SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans and of any 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 10.02):





		
	 	     (a) The Administrative Agent (or its counsel) shall have received
from each 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 facsimile 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 favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of each of (i) Debevoise & Plimpton, special counsel
for the Loan Parties, substantially in the form of Exhibit B-1, (ii) Todd
M. DuChene, Esq., general counsel of the Company, substantially in the
form of Exhibit B-2 and (iii) Richards, Layton & Finger, P.A., Delaware
counsel of the Company, substantially in the form of Exhibit B-3, and, in
the case of each such opinion required by this paragraph, covering such
other matters relating to the Loan Parties or the Loan Documents or the
Transactions as the Administrative Agent shall reasonably request. The
Borrowers hereby request such counsel to deliver such opinions.
	 
	 	     (c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request



 







 






72





		
	 	relating to the organization, existence and good standing of each
Loan Party, the corporate authorization of the Transactions and any other
legal matters relating to the Loan Parties, the Loan Documents or the
Transactions, all in form and substance reasonably 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 Company, (i) confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02 and (ii)
stating that the incurrence by the Borrowers of all Indebtedness
permitted to be incurred hereunder in respect of the Original Term Loans,
Revolving Loans, Letters of Credit and Local Currency Loans (determined
for this purpose as if the entire amount of Original Term Loan
Commitments and Revolving Commitments were to be funded on the Effective
Date) does not violate any provisions of any Existing Subordinated
Indenture limiting the incurrence of Indebtedness.
	 
	 	     (e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel) required
to be reimbursed or paid by any Loan Party hereunder or under any other
Loan Document.
	 
	 	     (f) The Collateral and Guarantee Requirement shall have been
satisfied and the Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by an
executive officer or Financial Officer of the Company, together with all
attachments contemplated thereby, including the results of a search of
the Uniform Commercial Code (or equivalent) filings made with respect to
the Domestic Loan Parties in the jurisdictions contemplated by the
Perfection Certificate and copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably satisfactory
to the Administrative Agent that the Liens indicated by such financing
statements (or similar documents) are permitted by Section 6.02 or have
been released.
	 
	 	     (g) The Administrative Agent shall have received evidence that the
insurance required by Section 5.07 and the Security Documents is in
effect.
	 
	 	     (h) The Lenders shall have received a pro forma consolidated balance
sheet of the Company as of December 31, 2002, reflecting all pro forma
adjustments as if the Transactions had been consummated on such date, and
such pro forma consolidated balance sheet shall be consistent in all
material respects with the forecasts and other information previously
provided to the Lenders. Based on such pro forma consolidated balance
sheet, (i) the unused portion of the total Revolving Commitments shall
not be less than $50,000,000 and (ii) the sum of the unused portion of
the total Revolving Commitments and availability under the Permitted
Receivables Financing referred to in paragraph (i) below shall not be
less than $100,000,000. For purposes of clause (ii) above, availability
under the Permitted Receivables Financing shall be based on the lesser of
the unused funding commitments thereunder and the amount of proceeds that
could be obtained thereunder if all eligible accounts receivable at such
time were financed thereunder.





 









 




73





		
	 	     (i) The Company shall have entered into a Permitted Receivables
Financing (providing for financing commitments not less than
$225,000,000) and all conditions to the availability of financing
thereunder shall have been satisfied. The Company shall have delivered
to the Administrative Agent copies of all documents entered into in
connection with such Permitted Receivables Financing together with a
certificate signed by a Financial Officer to the effect that the terms
and conditions thereof are customary for accounts receivable
securitization financings.
	 
	 	     (j) The Company shall have terminated all commitments under, and
paid all amounts accrued and owing under, the Existing Credit Agreement
(it being understood that Existing Letters of Credit will remain
outstanding as provided in Section 2.05(k)).



The Administrative Agent shall notify the Company (on behalf of itself and the
Initial 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 any 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 10.02) at or prior to 5:00 p.m., New
York City time, on February 14, 2003 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).



          SECTION 4.02. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing, and of each Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the
following conditions:





		
	 	     (a) The representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects
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,
except to the extent such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties
shall have been true and correct as of such earlier date.
	 
	 	     (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 shall have occurred and be
continuing.
	 
	 	     (c) In the case of Borrowings to finance the Redemption, (i) there
shall have been no termination or reduction of the Revolving Commitments,
(ii) the Permitted Receivables Financing referred to in paragraph (i) of
Section 4.01 shall remain available and in effect and there shall have
been no reduction in the committed amount of financing thereunder, (iii)
the Administrative Agent shall have received a certificate, dated the
date of such Borrowing and signed by a Financial Officer, stating that
such Borrowings do not violate any provisions of any Existing
Subordinated Indenture limiting the incurrence of Indebtedness and (iv)
the Administrative Agent shall have received an opinion (addressed to the
Administrative Agent and the Lender and dated the Term Loan Funding Date)
of each of (A) Debevoise & Plimpton, special counsel to the Company, in
the same








 



74




		
	 	form, on a mutatis mutandis basis, as the opinion set forth in
paragraph (3) of Exhibit B-1 with respect to violations of scheduled
contracts, or such other form as may be reasonably acceptable to the
Administrative Agent, and (B) if the Company is the Term Loan Borrower,
an opinion of Todd DuChene, Esq., general counsel of the Company, in the
same form, on a mutatis mutandis basis, as paragraph (1)(b) of Exhibit
B-1 with respect to the Company’s authority to borrow the Original Term
Loans, or such other form as may be reasonably acceptable to the
Administrative Agent.



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
Company on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section and, in the case of Borrowings to finance the Redemption,
paragraph (c) of this Section.



          SECTION 4.03. Borrowings by Subsidiary Borrowers; Letters of Credit for
Subsidiary Borrowers. The obligation of each Lender to make the initial Loan
to any Subsidiary Borrower, and of each Issuing Bank to issue, amend, renew or
extend any Letter of Credit on the first occasion for the account of any
Subsidiary Borrower is subject to the satisfaction of the following further
conditions (in addition to the applicable conditions set forth in Section
4.02):





		
	 	     (a) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders) of one or
more counsel for such Subsidiary Borrower, reasonably acceptable to the
Administrative Agent, substantially in the form of Exhibit B-5 or such
other form as shall be reasonably acceptable to the Administrative Agent.
	 
	 	     (b) 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 such
Subsidiary Borrower, its authorization to be a Subsidiary Borrower
hereunder and any other legal matters relating to such Subsidiary
Borrower or its status as a Subsidiary Borrower, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel.




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, the Company covenants and agrees with
the Lenders that:



          SECTION 5.01. Financial Statements and Other Information. The Company
will furnish to the Administrative Agent (for distribution to each Lender):





		
	 	     (a) promptly when available and in any event within 100 days after
the end of each fiscal year of the Company, its audited consolidated
balance sheet and related statements of income, stockholders’ equity and
cash flows as of the end of








 



75




		
	 	and for such year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on by Deloitte &
Touche 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 Company and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied (except
for inconsistencies required by changes to GAAP and changes approved by
such accountants in accordance with GAAP);
	 
	 	     (b) promptly when available and in any event within 50 days after
the end of each of the first three fiscal quarters of each fiscal year of
the Company, its consolidated balance sheet and related statements of
income, 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 Company and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied (except for inconsistencies required by changes to GAAP and
changes approved by the accountants referred to in clause (a) above in
accordance with GAAP), 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
Company (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 Sections
6.11, 6.12, 6.13 and 6.14, (iii) if any change in GAAP or in the
application thereof has occurred since the date of the Company’s audited
financial statements referred to in Section 3.04 that would affect the
calculations referred to in clause (ii) above in any material respect if
such change had not occurred, identifying such change and describing its
effect on such calculations, and (iv) certifying that no change has
occurred in any Subsidiary’s status as a Material Subsidiary, an
Immaterial Subsidiary or a Foreign Subsidiary Holding Company (or, if any
such change has occurred, specifying such change) and identifying each
new Subsidiary formed or acquired since the previous report hereunder and
its status as a Material Subsidiary, an Immaterial Subsidiary and/or a
Foreign Subsidiary Holding Company;
	 
	 	     (d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any
Default (which certificate may be limited to the extent required by
accounting rules or guidelines); and
	 
	 	     (e) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any Subsidiary, or compliance with the terms of any Loan
Document, as the








 



76




		
	 	Administrative Agent or any Lender (acting through the
Administrative Agent) may reasonably request.



          SECTION 5.02. Notices of Material Events. The Company will furnish to the
Administrative Agent (for distribution to each Lender), prompt written notice
of the following:





		
	 	     (a) the occurrence of any Default;
	 
	 	     (b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Company or any Affiliate thereof that, if adversely determined, 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 Company and its Subsidiaries in an
aggregate amount exceeding $20,000,000; and
	 
	 	     (d) any other development that results in a Material Adverse Effect.



Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company 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 5.03. Information Regarding Collateral. The Company will furnish
to the Administrative Agent prompt written notice of any change (a) in any Loan
Party’s name, (b) in the location of any Loan Party’s chief executive office,
(c) in any Loan Party’s identity, type of organization or corporate structure,
(d) in any Loan Party’s Federal Taxpayer Identification Number or other
organizational number or (e) in any Loan Party’s jurisdiction of organization.
The Company agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for the Collateral
Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. The Company will furnish to
the Administrative Agent within 90 days after the Effective Date the documents
contemplated by the proviso to clause (e) of the definition of “Collateral and
Guarantee Requirement”, including a favorable written opinion of local counsel
in each jurisdiction where an initial Mortgaged Property is located,
substantially in the form of Exhibit B-4 (or such other form as shall be
reasonably acceptable to the Administrative Agent).



          SECTION 5.04. Existence; Conduct of Business. The Company 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, franchises, patents, copyrights,
trademarks and trade names material to the Company and the Subsidiaries (as a
whole); provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03 or any
sale, transfer, lease or disposition permitted by Section 6.05.








 



77

          SECTION 5.05. Payment of Obligations. The Company will, and will cause
each of its Subsidiaries to, pay its Indebtedness and other obligations,
including Tax liabilities, 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 Company or such Subsidiary has
set aside on its books reserves with respect thereto to the extent required by
GAAP, (c) such contest effectively suspends collection of the contested
obligation and the enforcement of any Lien securing such obligation and (d) the
failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Effect.



          SECTION 5.06. Maintenance of Properties. The Company will, and will cause
each of its Subsidiaries to, keep and maintain all property material to the
Company and the Subsidiaries (as a whole) in good working order and condition,
ordinary wear and tear excepted; provided that the foregoing shall not prohibit
any sale, transfer or disposition permitted by Section 6.05.



          SECTION 5.07. Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain, with financially sound and reputable insurance
companies (a) insurance in such amounts (with no greater risk retention) and
against such risks as are customarily maintained by companies of established
repute engaged in the same or similar businesses operating in the same or
similar locations and (b) all insurance required to be maintained pursuant to
the Security Documents. The Company will furnish to the Lenders, upon request
of the Administrative Agent, information in reasonable detail as to the
insurance so maintained.



          SECTION 5.08. Casualty and Condemnation. The Company (a) will furnish to
the Administrative Agent prompt written notice of any casualty or other insured
damage to any material portion of any Collateral or the commencement of any
action or proceeding for the taking of any material portion of any Collateral
or any part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding and (b) will ensure that the Net Proceeds of
any such event (whether in the form of insurance proceeds, condemnation awards
or otherwise) are collected and applied in accordance with the applicable
provisions of the Security Documents.



          SECTION 5.09. Books and Records; Inspection and Audit Rights. The Company
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in accordance with GAAP. The Company will, and will cause each of
its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender (after notice to, and coordination with, the
Administrative Agent), at the expense of the Administrative Agent or Lender
(unless a Default has occurred and is continuing, in which case the Company
shall pay such expenses) and upon two Business Days’ notice (unless a Default
has occurred and is continuing, in which case only reasonable notice under the
circumstances shall be required), 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 independent accountants,
all at such reasonable times and as often as reasonably requested; provided
that all such visits and inspections by each Lender shall be limited to one
such inspection and visit per Lender in each year (except when a Default has
occurred and is continuing, in which case there shall be no such limitations on
such inspections and visits).








 



78

          SECTION 5.10. Compliance with Laws. The Company 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 5.11. Use of Proceeds and Letters of Credit; Margin Regulations.
(a) The proceeds of the Original Term Loans will be used only to fund the
Redemption. The proceeds of the Revolving Loans, Local Currency Loans and
Swingline Loans will be used only for working capital and other general
corporate purposes of the Company or any of its Subsidiaries. Letters of
Credit will be issued only to support obligations incurred in the ordinary
course of business of the Company and its Subsidiaries. The proceeds of the
Tranche B-1 Term Loans will be used only to fund Perbio Transaction Investments
and/or Compulsory Acquisition Security, provided that in the event the Company
has funded a portion of the purchase price payable in connection with the
Perbio Acquisition prior to the Restatement Effective Date with Revolving
Borrowings and/or cash proceeds from borrowings under Permitted Receivables
Financings, the Company may repay with proceeds of the Tranche B-1 Term Loans
(x) such Revolving Borrowings and such borrowings under the Permitted
Receivables Financings and (y) any Revolving Borrowings made on or prior to the
Restatement Effective Date for working capital purposes of the Company and its
Subsidiaries to the extent the Company could not make borrowings under the
Permitted Receivables Financings for such working capital purposes in lieu
thereof as a result of the lack of availability of cash proceeds under the
Permitted Receivables Financings resulting from the Company’s funding of a
portion of the purchase price payable in connection with the Perbio Acquisition
prior to the Restatement Effective Date with the proceeds of borrowings under
the Permitted Receivables Financings (but not, for the avoidance of doubt, any
other Revolving Borrowings or any other borrowings under Permitted Receivables
Financings).



          (b) 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 5.12. Additional Subsidiaries. If any additional Subsidiary is
formed or acquired after the Effective Date, the Company will, within 30 days
after the last day of the fiscal quarter of the Company in which such
Subsidiary was formed or acquired (or in the case of a Material Domestic
Subsidiary, within 30 days after the date that such Subsidiary is formed or
acquired), notify the Administrative Agent and the Lenders thereof (which
notice shall indicate the name of such Subsidiary, the jurisdiction in which it
is organized and its status as a Domestic Subsidiary, a Foreign Subsidiary, a
Material Subsidiary, an Immaterial Subsidiary, a Receivables Subsidiary, a
Foreign Subsidiary Holding Company or any combination thereof) and cause the
Collateral and Guarantee Requirement (as applicable) to be satisfied with
respect to such Subsidiary and with respect to any Equity Interest in or
Indebtedness of such Subsidiary owned by or on behalf of any Domestic Loan
Party. If any Subsidiary that was not previously a Material Domestic
Subsidiary becomes a Material Domestic Subsidiary, the Company will, within 30
days after such Subsidiary becomes a Material Domestic Subsidiary, notify the
Administrative Agent thereof (which notice shall indicate the name of such
Subsidiary and the jurisdiction in which it is organized) and cause the
Collateral and Guarantee Requirement to be satisfied with respect to such
Subsidiary.








 



79

          SECTION 5.13. Further Assurances. (a) The Company will, and will cause
each other Loan Party to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings,
mortgages, deeds of trust and other documents), which are required under any
applicable law, or which the Administrative Agent or the Required Lenders may
reasonably request, to cause the Collateral and Guarantee Requirement to be and
remain satisfied, all at the expense of the Loan Parties. The Company also
agrees to provide to the Administrative Agent, from time to time upon
reasonable request, evidence reasonably satisfactory to the Administrative
Agent as to the perfection and priority of the Liens created or intended to be
created by the Security Documents.



          (b) If any asset or any group of related assets (including any real
property or improvements thereto or any interest therein) having a fair market
value in excess of $2,500,000 is acquired by any Domestic Loan Party after the
Effective Date (other than assets constituting Collateral under the Collateral
Agreement that become subject to the Lien of the Collateral Agreement upon
acquisition thereof or that are expressly excluded as Collateral thereunder),
the Company will notify the Administrative Agent thereof, and, if requested by
the Administrative Agent or the Required Lenders, the Company will cause such
assets to be subjected to a Lien securing the Obligations and will take, and
cause the other Domestic Loan Parties to take, such actions as shall be
necessary or reasonably requested by the Administrative Agent to grant and
perfect such Liens, including actions described in paragraph (a) of this
Section, all at the expense of the Domestic Loan Parties.



          (c) The Company shall, and shall cause its Subsidiaries to, use reasonable
best efforts to acquire 100% of the Equity Interests of Perbio, including
commencing and diligently pursuing a compulsory acquisition with respect to all
such Equity Interests not owned, directly or indirectly, by the Company in
accordance with applicable law as promptly as practicable after the Company
has, directly or indirectly, acquired 90% or more of the Equity Interests of
Perbio.



          (d) Notwithstanding the requirements of Section 5.12 above, the Company
shall cause the Perbio Reorganization to be consummated within 90 days after
100% of the Equity Interests in Perbio are acquired, directly or indirectly, by
the Company.



          (e) Unless and until the Perbio Reorganization is consummated and, in the
case of clauses (x) and (y) hereof, on or prior to the date that is ten
Business Days following the date upon which the Company shall have publicly
declared the tender offer with respect to the Equity Interests in Perbio to be
unconditional or shall otherwise have accepted such Equity Interests for
purchase, (x) 100% of the Equity Interests in any Foreign Subsidiary that
acquires direct ownership of Equity Interests in Perbio shall be pledged to the
Dutch Partnership as security for the repayment in full of the Swedish
Intercompany Loan pursuant to arrangements reasonably satisfactory to the
Collateral Agent, (y) the Dutch Partnership shall pledge (A) all promissory
notes representing the Swedish Intercompany Loan (and assign all its rights
pursuant to the pledge of all Equity Interests in the Foreign Subsidiaries that
acquire direct ownership of the Equity Interests in Perbio pledged to the Dutch
Partnership pursuant to clause (x) above) and (B) unless and until the Swedish
Reorganization has occurred, 100% of the Equity Interests in the Foreign
Subsidiary that is the direct parent of the Foreign Subsidiaries that acquire
direct








 



80

ownership of the Equity Interests in Perbio to the Collateral Agent
pursuant to arrangements reasonably satisfactory to the Collateral Agent
notwithstanding the fact that none of the Foreign Subsidiaries that acquire
direct ownership of the Equity Interests in Perbio and the Foreign Subsidiary
that is the direct parent of such Foreign Subsidiaries is a Domestic Subsidiary
and (z) notwithstanding anything to the contrary in this Agreement, the Company
shall not permit any of the Dutch Partnership, any Foreign Subsidiary that
pledges any Equity Interests to the Dutch Partnership pursuant to this
paragraph (e) or any Foreign Subsidiary that acquires direct ownership of
Equity Interests in Perbio:





		
	 	     (i) to create, incur, assume or permit to exist any
Indebtedness (other than (A) Indebtedness incurred in connection
with the Perbio Reorganization, (B) Indebtedness permitted
pursuant to Section 6.01(a)(xii) and (C) the Swedish Intercompany
Loan) or incur any other liabilities (other than liabilities under
the Loan Documents, liabilities imposed by law, including tax
liabilities, and other liabilities incidental to its existence and
permitted business and activities, including any business or
activity expressly permitted by this clause (z)),
	 
	 	     (ii) to create, incur, assume or permit to exist any Lien on
any property or asset owned or acquired by it or assign or sell
any income or revenues (including accounts receivable) or rights
in respect of any thereof other than (A) the Liens permitted
pursuant to (1) Section 6.02(o), (2) Section 6.02(p), or (3)
clauses (a), (b), (c), (d), (e) or (g) of the definition of
Permitted Encumbrances, (B) the Liens granted in favor of the
Collateral Agent pursuant to the Swedish pledge agreements
governing the pledge of the promissory notes representing the
Swedish Intercompany Loan (and the assignment of any security
granted as collateral therefor) and (C) Liens created, incurred,
assumed or permitted to exist as part of the Perbio
Reorganization,
	 
	 	     (iii) to merge, consolidate, liquidate or dissolve other than
as part of the Perbio Reorganization,
	 
	 	     (iv) to own, purchase or otherwise acquire any assets other
than as part of the Perbio Reorganization and other than (A) in
the case of the Dutch Partnership, the Swedish Intercompany Note
and the Equity Interests in the Foreign Subsidiary that is the
direct parent of the Foreign Subsidiaries that acquire direct
ownership of the Equity Interests in Perbio, (B) in the case of
the Foreign Subsidiary that is the direct parent of the Foreign
Subsidiaries that acquire direct ownership of the Equity Interests
in Perbio, the Equity Interests in any Foreign Subsidiary that
acquires direct ownership of Equity Interests in Perbio and any
Perbio Transaction Investments made or advanced by or on behalf of
the Dutch Partnership in or to such Foreign Subsidiary and (C) in
the case of any Foreign Subsidiary that acquires direct ownership
of Equity Interests in Perbio, Equity Interests in Perbio and any
Perbio Transaction Investments made or advanced by or on behalf of
the Foreign Subsidiary that is the direct parent of such Foreign
Subsidiaries in or to such Foreign Subsidiary,








 



81






		
	 	     (v) to sell, transfer, lease or otherwise dispose of any
asset, including any Equity Interests owned by it, other than as
part of the Perbio Reorganization and other than (A) in the case
of the Dutch Partnership, the Perbio Transaction Investments made
or advanced by or on behalf of the Dutch Partnership in or to the
Foreign Subsidiary that is the direct parent of the Foreign
Subsidiaries that acquire direct ownership of the Equity Interests
in Perbio and transfers pursuant to the Swedish pledge agreements
governing the pledge of the promissory notes representing the
Swedish Intercompany Loan (and the assignment of any security
granted as collateral therefor) and any Equity Interests pledged
by it to the Collateral Agent, (B) in the case of the Foreign
Subsidiary that is the direct parent of the Foreign Subsidiaries
that acquire direct ownership of the Equity Interests in Perbio,
the Perbio Transaction Investments made or advanced by or on
behalf of such Foreign Subsidiary in or to the any Foreign
Subsidiary that acquires direct ownership of Equity Interests in
Perbio and (C) in the case of any Foreign Subsidiary that acquires
direct ownership of Equity Interests in Perbio, assets exchanged
for Equity Interests in Perbio or otherwise invested as Perbio
Transaction Investments, or
	 
	 	     (vi) to engage in any business or activity other than any
business or activity expressly permitted by the preceding clauses
(i) through (v), including as part of the Perbio Reorganization or
in connection with the Swedish Intercompany Loan and other than
the ownership of Equity Interests in (A) in the case of the Dutch
Partnership, the Foreign Subsidiary that is the direct parent of
the Foreign Subsidiaries that acquire direct ownership of the
Equity Interests in Perbio (or, in the event any of the
transactions contemplated by the following proviso occur, the
Foreign Subsidiary surviving such transactions), (B) in the case
of the Foreign Subsidiary that is the direct parent of the Foreign
Subsidiaries that acquire direct ownership of the Equity Interests
in Perbio, any Foreign Subsidiary that acquires direct ownership
of Equity Interests in Perbio (or, in the event any of the
transactions contemplated by the following proviso occur, Equity
Interests in Perbio) and (C) in the case of any Foreign Subsidiary
that acquires direct ownership of Equity Interests in Perbio,
Equity Interests in Perbio and, in each case described in the
preceding clauses (A), (B) and (C), activities incidental thereto;




provided that, notwithstanding anything to the contrary set forth in this
clause (e), in the event that less than 90% of the Equity Interests in
Perbio are acquired pursuant to the Perbio Acquisition, (1) all (but not
less than all) of the Foreign Subsidiaries (the “Swedish Liquidating
Subsidiaries”) that acquire direct ownership of Equity Interests in
Perbio may either (A) merge, liquidate or dissolve into or consolidate
with, the Foreign Subsidiary that pledges the Equity Interests in such
Swedish Liquidating Subsidiaries to the Dutch Partnership pursuant to
clause (x) above or (B) merge into or consolidate with Perbio and (2) in
connection therewith the Dutch Partnership may release the Equity
Interests in the Swedish Liquidating Subsidiaries pledged to it as
security for the repayment in full of the Swedish Intercompany Loan (and,
to the extent of such release, the Collateral Agent shall release and
return to the Dutch Partnership any security interest and other rights in
such Equity Interests and the pledge of such Equity







 



82



Interests to the Dutch Partnership pursuant to clause (x) above pledged
or assigned to the Collateral Agent by the Dutch Partnership), in each
case, so long as concurrently with such liquidations, dissolutions,
consolidations or mergers, as the case may be, and releases (I) the
Foreign Subsidiary that directly holds Equity Interests in Perbio as a
result of such liquidations, dissolutions, consolidations or mergers
shall pledge all Equity Interests in Perbio acquired pursuant to the
Perbio Acquisition to the Dutch Partnership as security for the repayment
in full of the Swedish Intercompany Loan pursuant to arrangements
reasonably satisfactory to the Collateral Agent (provided that not more
than 65% of the outstanding voting Equity Interests of Perbio shall be
required to be pledged pursuant to this proviso) and (II) the Dutch
Partnership shall assign all its rights pursuant to the pledge of all
such Equity Interests in Perbio pledged to the Dutch Partnership pursuant
to the immediately preceding clause (I) to the Collateral Agent pursuant
to arrangements substantially similar to those governing the pledge of
Equity Interests pursuant to clauses (e)(x) and (e)(y) above or otherwise
reasonably satisfactory to the Collateral Agent notwithstanding the fact
that Perbio is not a Domestic Subsidiary.



          (f) Following the consummation of the Perbio Reorganization, all pledges
and Liens granted pursuant to the foregoing paragraph (e), including pursuant
to the Swedish pledge agreements governing the pledge of the promissory notes
representing the Swedish Intercompany Loan (and the assignment of any security
granted as collateral therefor) and the security for the repayment in full of
the Swedish Intercompany Loan, shall be released to the extent such release
under this paragraph would not be inconsistent with the requirements of the
Collateral and Guarantee Requirement.



          (g) Notwithstanding that the Perbio Reorganization has not occurred, all
pledges and Liens granted pursuant to clause (y)(B) of the foregoing paragraph
(e) (including pursuant to the Swedish pledge agreements governing the pledge
of the Equity Interests in the Foreign Subsidiary that prior to the Swedish
Reorganization was the direct parent of the Swedish Liquidating Subsidiaries)
shall be released upon the Swedish Reorganization or, if at the time of the
Swedish Reorganization the Company directly or indirectly owns less than 65% of
the outstanding voting Equity Interests in Perbio, at such time following the
Swedish Reorganization as the Company directly or indirectly owns 65% or more
of the outstanding voting Equity Interests in Perbio, provided, in each case,
that concurrently therewith (or prior thereto) the requirements of clauses (I)
and (II) of the proviso to paragraph (e) above shall have been satisfied in
full.



          SECTION 5.14. End of Fiscal Years; Fiscal Quarters. The Company will
cause (a) each of its, and (except as disclosed in Schedule 3.12) each of its
Subsidiaries’, fiscal years to end on December 31 of each year and (b) each of
its, and each of its Subsidiaries’, fiscal quarters to end on March 31, June
30, September 30 and December 31 of each year.



          SECTION 5.15. Foreign Subsidiaries’ Security. (a) If following a change
in the relevant sections of the Code or the regulations, rules, rulings,
notices or other official pronouncements issued or promulgated thereunder,
counsel for the Company reasonably acceptable to the Collateral Agent does not
within 60 days after a written request from the Administrative Agent or the
Required Lenders deliver evidence, in form and substance mutually satisfactory
to the Administrative Agent and the Company, with respect to any Material
Subsidiary that is a Foreign Subsidiary or Foreign Subsidiary








 



83

Holding Company which has not already had all of its Equity Interests
pledged pursuant to the Security Documents that (i) a pledge (A) of 66-2/3% or
more of the total combined voting power of all classes of Equity Interests of
such Foreign Subsidiary or Foreign Subsidiary Holding Company entitled to vote,
and (B) of any promissory note issued by such Foreign Subsidiary or Foreign
Subsidiary Holding Company to the Company or any Domestic Subsidiary, (ii) the
entering into by such Foreign Subsidiary or Foreign Subsidiary Holding Company
of a security agreement in substantially the form of the Collateral Agreement
and (iii) the entering into by such Foreign Subsidiary or Foreign Subsidiary
Holding Company of a Guarantee in substantially the form of the Collateral
Agreement, in any such case would cause all or any portion of the undistributed
earnings of such Foreign Subsidiary or Foreign Subsidiary Holding Company as
determined for Federal income tax purposes to be treated as a deemed dividend
to such Foreign Subsidiary’s United States parent for Federal income tax
purposes or otherwise would have any adverse effect on the Company with respect
to Taxes, then (A) in the case of a failure to deliver the evidence described
in clause (i) above, that portion of such Foreign Subsidiary’s or Foreign
Subsidiary Holding Company’s outstanding Equity Interests or any promissory
notes so issued by such Foreign Subsidiary or Foreign Subsidiary Holding
Company, in each case not theretofore pledged pursuant to the Security
Documents shall be pledged to the Collateral Agent for the benefit of the
Secured Parties pursuant to the Collateral Agreement (or another pledge
agreement in substantially similar form) (it being understood that any such
promissory note shall not be required to be delivered to the Collateral Agent
but shall not be delivered to any other Person to secure any obligation), (B)
in the case of a failure to deliver the evidence described in clause (ii)
above, such Foreign Subsidiary or Foreign Subsidiary Holding Company shall
execute and deliver the Collateral Agreement (or another security agreement in
substantially similar form), granting the Collateral Agent a security interest
in all of such Foreign Subsidiary’s or Foreign Subsidiary Holding Company’s
assets to secure the Obligations, and (C) in the case of a failure to deliver
the evidence described in clause (iii) above, such Foreign Subsidiary or
Foreign Subsidiary Holding Company shall execute and deliver the Collateral
Agreement (or another Guarantee in substantially similar form), Guaranteeing
the Obligations, in each case to the extent that the entering into such
Collateral Agreement or other Guarantee is permitted by the laws of the
respective foreign jurisdiction, including financial assistance rules, and with
all documents delivered pursuant to this Section 5.15 to be in form and
substance reasonably satisfactory to the Collateral Agent.



          (b) Any Revolving Loans borrowed by (or obligations in respect of Letters
of Credit issued for the account of) any Foreign Subsidiary will be secured (i)
by a pledge of such Foreign Subsidiary’s outstanding Equity Interests or any
promissory note issued by such Foreign Subsidiary (in each case that is owned
by the Company or Subsidiary and not theretofore pledged pursuant to the
Collateral Agreement) pursuant to a pledge agreement reasonably satisfactory in
form and substance to the Collateral Agent (it being understood that any such
promissory note shall not be required to be delivered to the Collateral Agent
but shall not be delivered to any other Person to secure any obligation) and
(ii) by executing and delivering a security agreement reasonably satisfactory
in form and substance to the Collateral Agent, granting a security interest in
all of such Foreign Subsidiary’s assets to secure the Obligations of such
Foreign Subsidiary under the Loan Documents with respect to such Revolving
Loans borrowed by it (or obligations in respect of such Letters of Credit
issued for its account); provided that the requirements set forth in this
paragraph shall not apply to the extent that compliance therewith would violate
applicable law (including financial assistance rules).








 



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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, the Company covenants and agrees with the Lenders that:



          SECTION 6.01. Indebtedness; Designated Senior Debt. (a) The Company will
not, and will not permit any Subsidiary to, create, incur, assume or permit to
exist any Indebtedness, except:





		
	 	     (i) Indebtedness created under the Loan Documents (including
Incremental Term Loans incurred in compliance with Section 2.20 and Local
Currency Loans incurred pursuant to Section 2.21);
	 
	 	     (ii) Indebtedness existing on the Effective Date and set forth in
Schedule 6.01 (other than the Existing Subordinated Debt) and extensions,
renewals, refinancings and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof (except that such
outstanding principal amount may be increased by the amount of accrued
and unpaid interest and premium, if any, thereon at the time of such
extension, renewal, refinancing or replacement, plus the amount of fees
and expenses reasonably incurred in connection with such extension,
renewal, refinancing or replacement) or result in an earlier maturity
date or decreased weighted average life thereof;
	 
	 	     (iii) Subordinated Debt (including the Existing Subordinated Debt);
provided that (A) in the case of any Subordinated Debt incurred after the
Effective Date, all the terms and conditions thereof and the related
Subordinated Debt Documents (including the issuer, amortization,
maturities, interest rates, covenants, defaults, remedies, sinking fund
and redemption provisions, subordination provisions and other terms),
taken as a whole, are not materially less favorable to the Company, and
the subordination provisions thereof are not less favorable to the
Lenders, than those of the Existing Subordinated Debt, (B) in the case of
any Subordinated Debt incurred after the Effective Date, such
Subordinated Debt shall mature later than, and there shall not be any
scheduled principal payments in respect thereof due prior to, the date
that is six months after the last scheduled maturity date of the Loans
(other than Incremental Term Loans) and scheduled termination date of the
Commitments hereunder outstanding or in effect when such Subordinated
Debt is incurred and (C) the Net Proceeds of all Subordinated Debt
incurred after the Effective Date shall be used to finance Permitted
Acquisitions or to refinance outstanding Indebtedness of the Company and
its Subsidiaries;
	 
	 	     (iv) Indebtedness of the Company to any Subsidiary (other than a
Receivables Subsidiary) and of any Subsidiary to the Company or any other
Subsidiary (other than a Receivables Subsidiary); provided that
Indebtedness of any Subsidiary that is not a Subsidiary Guarantor owing
to the Company or any Subsidiary Guarantor shall be subject to Section
6.04;








 



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	 	     (v) Guarantees by the Company of Indebtedness of any Subsidiary
(other than a Receivables Subsidiary) and by any Subsidiary of
Indebtedness of the Company or any other Subsidiary (other than a
Receivables Subsidiary); provided that Guarantees by the Company or any
Subsidiary Guarantor of Indebtedness of any Subsidiary that is not a
Subsidiary Guarantor shall be subject to Section 6.04;
	 
	 	     (vi) Indebtedness of the Company 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, refinancings and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof (except that such outstanding principal amount may be increased
by the amount of accrued and unpaid interest and premium, if any, thereon
at the time of such extension, renewal, refinancing or replacement, plus
the amount of fees and expenses reasonably incurred in connection with
such extension, renewal, refinancing or replacement); provided that (A)
such Indebtedness (unless incurred pursuant to any such extension,
renewal, refinancing or replacement) is incurred prior to or within 90
days after such acquisition or the completion of such construction or
improvement and (B) the aggregate principal amount of Indebtedness
permitted by this clause (vi) shall not exceed $100,000,000 at any time
outstanding;
	 
	 	     (vii) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition that was outstanding at the time of such Permitted
Acquisition (or Indebtedness assumed at the time of a Permitted
Acquisition of an asset securing such Indebtedness), and extensions,
renewals, refinancings and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof (except that such
outstanding principal amount may be increased by the amount of accrued
and unpaid interest and premium, if any, thereon at the time of such
extension, renewal, refinancing or replacement, plus the amount of fees
and expenses reasonably incurred in connection with such extension,
renewal, refinancing or replacement); provided that (A) such Indebtedness
was not incurred in connection with, or in anticipation or contemplation
of, such Permitted Acquisition and (B) the Company and its Subsidiaries
are in compliance, on a pro forma basis after giving effect to such
Permitted Acquisition, with the covenants contained in Sections 6.11,
6.12, 6.13 and 6.14;
	 
	 	     (viii) Indebtedness of any Receivables Subsidiary incurred pursuant
to any Permitted Receivables Financing;
	 
	 	     (ix) Indebtedness constituting local loans to Foreign Subsidiaries
by local lenders in jurisdictions outside the United States; provided
that the aggregate principal amount of all such loans incurred after the
Effective Date shall not exceed $200,000,000 at any time outstanding;
	 
	 	     (x) overdrafts in respect of any deposit accounts subject to a Cash
Pooling Arrangement (and Guarantees in respect of such overdrafts);
provided that the total amount of all deposits subject to such Cash
Pooling Arrangement equals or exceeds the total amount of overdrafts
subject to such Cash Pooling Arrangement;








 



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	 	     (xi) Senior Debt; provided that (A) the aggregate principal amount
of Senior Debt incurred after the Effective Date and outstanding at any
time in reliance on this clause (xi) shall not exceed either (1) if the
Senior Leverage Ratio is equal to or greater than 3.50 to 1.00 at the
time such Senior Debt is incurred (after giving pro forma effect to the
Senior Debt to be incurred), $400,000,000, plus, if at the time Senior
Debt is issued in excess of $400,000,000 there remains any unutilized
amount of the maximum principal amount of Incremental Term Loans allowed
to be incurred under Section 2.20, such unutilized amount, or in the
alternative (2) if the Senior Leverage Ratio is less than 3.50 to 1.00
but greater than or equal to 3.00 to 1.00 at the time such Senior Debt is
incurred (after giving pro forma effect to the Senior Debt to be
incurred), $525,000,000, plus, if at the time Senior Debt is issued in
excess of $525,000,000 there remains any unutilized amount of the maximum
principal amount of Incremental Term Loans allowed to be incurred under
Section 2.20, such unutilized amount, or in the alternative (3) if the
Senior Leverage Ratio is less than 3.00 to 1.00 at the time such Senior
Debt is incurred (after giving pro forma effect to the Senior Debt to be
incurred), $650,000,000, plus, if at the time Senior Debt is issued in
excess of $650,000,000 there remains any unutilized amount of the maximum
principal amount of Incremental Term Loans allowed to be incurred under
Section 2.20, such unutilized amount, and (B) the Net Proceeds of all
Senior Debt shall be used to finance Permitted Acquisitions or to
refinance Term Loans or outstanding Senior Debt;
	 
	 	     (xii) Indebtedness in respect of bank guarantees or letters of
credit issued as part of the Compulsory Acquisition Security; and
	 
	 	     (xiii) other Indebtedness in an aggregate principal amount not
exceeding $150,000,000 at any time outstanding.



          (b) The Company will not, and will not permit any Subsidiary to, designate
any Indebtedness (other than the Obligations) as “Designated Senior
Indebtedness” for purposes of, and as defined in, any of the Subordinated Debt
Documents.



          SECTION 6.02. Liens. The Company 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) Liens created under the Loan Documents;
	 
	 	     (b) Permitted Encumbrances;
	 
	 	     (c) any Lien on any property or asset of the Company or any
Subsidiary existing on the Effective Date and set forth in Schedule 6.02;
provided that (i) such Lien shall not apply to any other property or
asset of the Company or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the Effective Date and
extensions, renewals, refinancings and replacements thereof that do not
increase the outstanding principal amount thereof above the principal
amount outstanding immediately prior to such extension, renewal,
refinancing or replacement plus accrued interest thereon at the time and
premium,








 



87




		
	 	if any, payable in connection therewith and the amount of fees and
expenses reasonably incurred in connection with such extension, renewal
refinancing or replacement;
	 
	 	     (d) Liens existing on any property or asset prior to the acquisition
thereof by the Company or any Subsidiary or existing on any property or
asset of any Person that becomes a Subsidiary after the Effective Date
prior to the time such Person becomes a Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be,
(ii) such Lien shall not apply to any other property or assets of the
Company 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, as the case may be and extensions,
renewals, refinancings and replacements thereof that do not increase the
outstanding principal amount thereof above the principal amount
outstanding immediately prior to such extension, renewal, refinancing or
replacement plus accrued interest thereon at the time and premium, if
any, payable in connection therewith and the amount of fees and expenses
reasonably incurred in connection with such extension, renewal
refinancing or replacement;
	 
	 	     (e) Liens (including the interest of a lessor under a capital lease
transaction) on fixed or capital assets acquired, constructed or improved
by the Company or any Subsidiary; provided that (i) such Liens secure
Indebtedness permitted by clause (vi) of Section 6.01, (ii) such Liens
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 Liens shall not apply to any other property or assets of
the Company or any Subsidiary;
	 
	 	     (f) licenses, sublicenses, leases or subleases granted to third
Persons in the ordinary course of business of the Company or any of its
Subsidiaries;
	 
	 	     (g) precautionary UCC financing statements regarding operating
leases permitted by this Agreement;
	 
	 	     (h) any interest or title of a licensor, lessor, sublicensor or
sublessor under any license or lease permitted by this Agreement;
	 
	 	     (i) additional Liens incurred by the Company and its Subsidiaries on
property other than Collateral so long as the value of all property
subject to such Liens, and the Indebtedness and other obligations secured
thereby, do not exceed $100,000,000 in the aggregate at any time;
	 
	 	     (j) assignments and sales of Receivables and Related Security
pursuant to a Permitted Receivables Financing and Liens arising pursuant
to a Permitted Receivables Financing on Receivables and Related Security
sold or financed in connection with such Permitted Receivables Financing;
	 
	 	     (k) Liens arising under Environmental Laws which (i) are being
contested in good faith and by appropriate proceedings for which adequate
reserves have








 



88




		
	 	been established in accordance with GAAP or (ii) arise by operation
of law (and not as a result of any grant or consent by the Company or any
Subsidiary) to secure performance by the Company or a Subsidiary of
remediation activity, so long as the Company and its Subsidiaries are in
compliance with all requirements applicable to such remediation activity;
	 
	 	     (l) in the case of Equity Interests issued by a joint venture or a
non-wholly owned Subsidiary, any call or similar right in the nature of a
right of first offer or a first refusal right of a third party that is
also an investor in such joint venture or Subsidiary and, in the case of
Equity Interests issued by a joint venture or Subsidiary, any call or
similar right on any nominee, trust or directors’ qualifying shares or
similar arrangements designed to satisfy requirements of applicable local
laws;
	 
	 	     (m) Liens on cash deposits of the Company and Foreign Subsidiaries
subject to a Cash Pooling Arrangement or otherwise over bank accounts of
the Company and Foreign Subsidiaries maintained at the bank or financial
institution party to such Cash Pooling Arrangement, in each case securing
liabilities for overdrafts of the Company and Foreign Subsidiaries
participating in such Cash Pooling Agreement;
	 
	 	     (n) Liens on assets of Foreign Subsidiaries (including Equity
Interests of Foreign Subsidiaries that are owned by Foreign Subsidiaries)
securing local loans permitted by clause (ix) of Section 6.01(a);
	 
	 	     (o) Liens created as part of the Compulsory Acquisition Security;
and
	 
	 	     (p) Unless and until the Perbio Reorganization is consummated, Liens
incurred in favor of the Dutch Partnership as security for the repayment
in full of the Swedish Intercompany Loan pursuant to arrangements
reasonably satisfactory to the Collateral Agent.



          SECTION 6.03. Fundamental Changes. (a) The Company 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 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 (other than a Receivables Subsidiary) may merge into the Company in
a transaction in which the Company is the surviving corporation, (ii) any
Subsidiary (other than a Receivables Subsidiary) may merge into or consolidate
with any other Subsidiary (other than a Receivables Subsidiary) in a
transaction in which the surviving entity is a Subsidiary and (if any party to
such merger or consolidation is a Subsidiary Guarantor) is a Subsidiary
Guarantor, (iii) the Company may permit another Person to merge or consolidate
with the Company or a Subsidiary (other than a Receivables Subsidiary) in order
to effect a Permitted Acquisition (provided that the surviving Person is the
Company or a Subsidiary), (iv) any Subsidiary may liquidate or dissolve if the
Company determines in good faith that such liquidation or dissolution is in the
best interests of the Company and is not materially disadvantageous to the
Lenders (provided that a Subsidiary Guarantor may only liquidate or dissolve
into the Company or another Subsidiary Guarantor), (v) any Receivables
Subsidiary may merge with or into any other Receivables Subsidiary and (vi) the
Foreign Subsidiaries parties to the Swedish Reorganization may consummate the
Swedish








 



89

Reorganization so long as the requirements of the proviso to Section
5.13(e) are satisfied in full; provided that any such merger referred to in any
of the foregoing clauses involving a Person that is not a wholly owned
Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.04.



          (b) The Company will not, and will not permit any Subsidiary to, engage to
any extent material to the Company and its Subsidiaries (as a whole) in any
business other than businesses of the type conducted by the Company and its
Subsidiaries on the date of execution of this Agreement and businesses
reasonably related or similar or ancillary thereto.



          SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.
The Company will not, and will not permit any Subsidiary 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 Equity Interests in or 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 division or line of business, except:





		
	 	     (a) Permitted Acquisitions; provided that, at the time of and after
giving effect to each Perbio Transaction Investment and any Indebtedness
incurred in connection therewith, the sum of (i) the amount of cash and
Permitted Investments, in each case, that are owned by the Company or a
Domestic Subsidiary and that are not subject to any Lien, plus (ii) the
unused Revolving Commitments plus (iii) the cash proceeds available under
the Permitted Receivables Financing, shall not be less than $100,000,000;
	 
	 	     (b) Permitted Investments;
	 
	 	     (c) investments and Guarantees existing on the Effective Date and
set forth on Schedule 6.04;
	 
	 	     (d) investments made after the Effective Date by the Company or any
Subsidiary in Equity Interests in any Subsidiary (including investments
in Subsidiaries formed after the Effective Date); provided that (i) any
such Equity Interests shall be pledged to the extent required to satisfy
the Collateral and Guarantee Requirement, (ii) the Net Investment Amount
shall not at any time exceed $300,000,000 and (iii) investments in and
loans and advances to Excluded Subsidiaries shall be subject to the
limitations set forth in the definition of the term “Permitted
Acquisition” (it being understood that investments in Subsidiaries made
in reliance upon this clause (d) shall not be limited as to amount by
this clause other than to the extent clause (ii) or (iii) shall apply);
	 
	 	     (e) loans or advances made after the Effective Date by the Company
to any Subsidiary and made by any Subsidiary to the Company or any other
Subsidiary; provided that (i) any such loans and advances owing to any
Domestic Loan Party shall constitute Collateral under the Collateral
Agreement (it being understood that any promissory notes evidencing such
loans and advances are not








 



90




		
	 	required to be delivered to the Collateral Agent thereunder, but
shall not be delivered to any other Person to secure any obligation) and
(ii) the amount of such loans and advances made by the Company and the
Subsidiary Guarantors to Subsidiaries that are not Subsidiary Guarantors
shall be subject to the limitations set forth in clauses (d)(ii) and
(d)(iii) above;
	 
	 	     (f) Guarantees by the Company of obligations of any Subsidiary or by
any Subsidiary of obligations of the Company or any other Subsidiary;
provided that (i) in the case of any Guarantee of Indebtedness such
Indebtedness is permitted by Section 6.01, (ii) a Subsidiary shall not
Guarantee any Subordinated Debt or Senior Debt unless such Subsidiary is
a Subsidiary Guarantor and, in the case of a Guarantee of Subordinated
Debt, such Guarantee is subordinated to the Obligations on terms no less
favorable to the Lenders than the subordination provisions of such
Subordinated Debt and (iii) the amount of Indebtedness and other
obligations of Subsidiaries that are not Subsidiary Guarantors which is
Guaranteed by the Company or any Subsidiary Guarantor after the Effective
Date shall not exceed $100,000,000 at any time outstanding;
	 
	 	     (g) investments (i) received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business, or (ii) received as non-cash consideration in connection with
the sale or disposition by the Company or any Subsidiary of any property
as permitted by Section 6.05;
	 
	 	     (h) the Company and its Subsidiaries may acquire and hold accounts
receivable owing to them, if created or acquired in the ordinary course
of business and payable or dischargeable in accordance with customary
trade terms (including the dating of accounts receivable and extensions
of payment in the ordinary course of business consistent with past
practices) of the Company or such Subsidiary;
	 
	 	     (i) Swap Agreements entered into in compliance with Section 6.06;
	 
	 	     (j) the Company or any of its Subsidiaries may acquire and hold
obligations of one or more officers or other employees of the Company or
its Subsidiaries in connection with such officers’ or employees’
acquisition of shares of common stock in the Company so long as no cash
is paid by the Company or any of its Subsidiaries in connection with the
acquisition of any such obligations, and the Company or any Subsidiary
may make loans to officers or employees of the Company or any Subsidiary
to fund purchases by such officers or employees of common stock in the
Company or taxes payable by such officers or employees in respect of the
exercise of options to purchase capital stock in the Company, and the
Company or any Subsidiary may make loans to officers or employees of any
other entity that is the subject of a Permitted Acquisition and will
become a Subsidiary upon consummation of such Permitted Acquisition (or
has become a Subsidiary pursuant to a Permitted Acquisition and is not a
wholly-owned Subsidiary) to fund purchases by such officers or employees
of common stock in the Subsidiary resulting from such Permitted
Acquisition; provided that the aggregate principal amount of all
obligations and loans under this clause (j) shall not exceed $25,000,000
at any time outstanding;








 



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	 	     (k) loans and advances by the Company and its Subsidiaries to
employees of the Company and its Subsidiaries for moving and travel
expenses and other similar expenses, in each case incurred in the
ordinary course of business, in an aggregate principal amount not to
exceed $20,000,000 at any time outstanding (determined without regard to
any write-downs or write-offs of such loans and advances);
	 
	 	     (l) investments in, and loans and advances to, and Guarantees of
Indebtedness and other obligations of, Persons primarily engaged in
businesses which are the same, similar, related or ancillary to any of
the businesses in which the Company and its Subsidiaries are primarily
engaged on the Effective Date; provided that (i) the aggregate amount of
all such investments, loans and advances (including those referred to in
clause (C) of the proviso to Section 6.05) made after the Effective Date
plus the outstanding amount of Indebtedness and other obligations so
Guaranteed after the Effective Date (other than amounts outstanding
Guaranteed on the Effective Date) at any time shall not exceed the sum of
(A) $300,000,000 (determined for each such investment as of the date of
such investment), (B) any amount available for Restricted Payments
pursuant to Section 6.07(c) (provided that any amounts so invested in
reliance upon this clause (B) shall be treated as a Restricted Payment
for purposes of Section 6.07(c)) and (C) the Net Proceeds of any sale or
disposition (other than to the Company or any Subsidiary), and any
dividends or distributions, received after the Effective Date in respect
of any investments made after the Effective Date in reliance upon this
clause (l) plus the Net Proceeds received after the Effective Date from
repayment of the principal of any such loans and advances made after the
Effective Date in reliance upon this clause (l) and (ii) if any Person
would become a Subsidiary of the Company pursuant to any investment
proposed to be made under this clause but such investment would not
qualify as a Permitted Acquisition because such Subsidiary would not be
wholly owned by the Company as a result of such investment, then such
investment must satisfy all the conditions applicable to a Permitted
Acquisition other than the condition that all the Equity Interests in
such Subsidiary be acquired; provided further that any purchase by the
Company or any Subsidiary from the Company or any other Subsidiary of an
investment, loans and advances made pursuant to this clause (l) shall not
be construed to constitute an additional investment made in reliance on
this clause (l);
	 
	 	     (m) pledges or deposits with respect to leases or utilities provided
to third parties in the ordinary course of business;
	 
	 	     (n) capital stock of the Company acquired by the Company and capital
stock of a Subsidiary acquired by such Subsidiary, in each case in
compliance with Section 6.07 and held by the Company or such Subsidiary
as treasury stock or restored to unissued status or eliminated from
authorized shares, or options in respect thereof;
	 
	 	     (o) contributions to employee benefits plans of the Company;
	 
	 	     (p) deposits made by the Company and Foreign Subsidiaries in Cash
Pooling Arrangements;








 



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	 	     (q) extensions of trade credit in the ordinary course;
	 
	 	     (r) investments constituting Capital Expenditures permitted by
Section 6.11;
	 
	 	     (s) Special Notes; provided that such Special Notes shall constitute
Collateral under the Collateral Agreement (it being understood that such
Special Notes are not required to be delivered to the Collateral Agent
thereunder, but shall not be delivered to any other Person to secure any
obligation); and
	 
	 	     (t) investments that are pledged as part of the Compulsory
Acquisition Security.



          SECTION 6.05. Asset Sales. The Company will not, and will not permit any
Subsidiary to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest owned by it, nor will the Company permit any of
it Subsidiaries to issue any additional Equity Interest in such Subsidiary,
except:





		
	 	     (a) sales of inventory, used, surplus or obsolete equipment and
Permitted Investments in the ordinary course of business;
	 
	 	     (b) sales, transfers, leases and dispositions to the Company or a
Subsidiary; provided that any such sales, transfers, leases or
dispositions involving a Subsidiary that is not a Subsidiary Guarantor
shall be made in compliance with Section 6.08;
	 
	 	     (c) sales or transfers of Receivables and interests therein,
together with Related Security, pursuant to a Permitted Receivables
Financing;
	 
	 	     (d) dispositions of delinquent accounts receivable in connection
with the collection or compromise thereof in the ordinary course of
business;
	 
	 	     (e) sales or exchanges of any item of real property and/or
equipment, so long as the purpose of each such sale or exchange is to
acquire (and results within 360 days before or after such sale or
exchange in the acquisition of) replacement items of real property and/or
equipment which are at least the functional equivalent of the item of
real property and/or equipment so sold or exchanged;
	 
	 	     (f) the license in the ordinary course of business of patents,
trademarks, servicemarks, trade names, technology, know-how and formulas
or other rights to third Persons and to one another, so long as each such
license is permitted to be assigned by the Company or any of its
Subsidiaries pursuant to the Collateral Agreement (to the extent that a
security interest in such patents, trademarks, servicemarks, trade names,
technology, know-how and formulas or other rights is granted thereunder)
and does not otherwise prohibit the granting of a Lien by the Company or
any of its Subsidiaries pursuant to the Collateral Agreement in the
intellectual property covered by such license;
	 
	 	     (g) leases or subleases granted by the Company or any Subsidiary to
third Persons not interfering in any material respect with the business
of the Company or any of its Subsidiaries;








 



93






		
	 	     (h) sales of other assets; provided that either (A) the fair market
value of all assets sold pursuant to any single transaction (or series of
related transactions) in reliance upon this clause shall not exceed
$2,500,000 or (B) in the case of transactions that do not satisfy (A)
above, the aggregate fair market value of all assets sold in reliance
upon this clause shall not exceed $25,000,000 during any fiscal year;
	 
	 	     (i) sales, transfers and other dispositions of assets that are not
permitted by any other clause of this Section; provided that the
aggregate fair market value of all assets sold, transferred or otherwise
disposed of in reliance upon this clause during any fiscal year
(excluding warehouses, customer service facilities and other
administrative facilities, to the extent that the Net Proceeds from the
sale, transfer or disposition thereof are applied to prepay Term Loans
pursuant to Section 2.11(c), in which case, and to such extent, such
sales, transfers and dispositions shall not be subject to this
limitation) shall not exceed $100,000,000;
	 
	 	     (j) the issuance or sale by a Subsidiary of Equity Interests to the
Company or another Subsidiary in compliance with Section 6.04;
	 
	 	     (k) the granting of any Lien permitted by Section 6.02; and
	 
	 	     (l) sales, transfers and dispositions of assets of, or Equity
Interests in, Subsidiaries; provided that the fair market value of all
assets and Equity Interests sold in reliance upon this clause shall not
exceed $200,000,000;



provided that (A) all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clause (b) or (j) above) shall be made
for fair value, (B) all sales, transfers and dispositions permitted by clause
(h), (i) or (l) above (other than sales, transfers and dispositions of assets
to Persons in which an investment, loan or advance has been made in reliance on
clause (l) of Section 6.04, the fair market value of which do not exceed
$25,000,000 in the aggregate) shall be made for at least 80% Cash Consideration
(it being understood that consideration in the form of the assumption by the
purchaser of Indebtedness secured by assets sold, or, in the case of the sale
of a Subsidiary, Indebtedness of such Subsidiary, shall be ignored for purposes
of determining compliance with such 80% Cash Consideration requirement) and (C)
if the Company or any Subsidiary sells, transfers or otherwise disposes of
Equity Interests in a Subsidiary (other than (1) any Excluded Subsidiary,
except any Excluded Subsidiary resulting from the Perbio Acquisition, (2) any
Subsidiary the investments in which (including Guarantees) already constitute
investments made in reliance on clause (l) of Section 6.04 prior to such sale,
transfer or disposition, (3) any Subsidiary Guarantor that remains a Subsidiary
Guarantor under the Collateral Agreement after giving effect to such sale,
transfer or disposition, so long as it remains a Subsidiary Guarantor, and (4)
any Subsidiary that was not a Subsidiary Guarantor prior to giving effect to
such sale, transfer or disposition, if and so long as there is no agreement or
other arrangement that prohibits, restricts or imposes any condition upon the
ability of such Subsidiary, or former Subsidiary, to pay dividends or other
distributions with respect to any shares of its capital stock thereafter that
did not previously exist prior to such sale, transfer or disposition, other
than those imposed by law) to a Person other than the Company or another
Subsidiary and such sale, transfer or disposition does not include all Equity
Interests in such Subsidiary owned by the Company and its other Subsidiaries or
the Company or any other Subsidiary remain liable for any Guarantee of
Indebtedness or other obligations of







 



94



such Subsidiary, then, upon such sale, transfer or disposition (or, if not
required to do so by reason of an exception described in clause (3) or (4)
above, then upon any failure to continue to satisfy the requirements of such
exception), each of the Company and its Subsidiaries that holds any remaining
investments (whether in the form of Equity Interests, loans or advances) in
such Subsidiary (or former Subsidiary) or continues to Guarantee any
Indebtedness or other obligations of such Subsidiary (or former Subsidiary)
shall be deemed to have made such investments on the date of such sale,
transfer or disposition (or the date of the failure to continue to satisfy the
relevant exception, if applicable) (in an amount equal to the fair market value
of such investments on such date or the amount so Guaranteed on such date, as
applicable) in reliance upon clause (l) of Section 6.04 (it being understood
that such sale, transfer or disposition shall not be permitted if such
investments and Guarantees would not be permitted under clause (l) of Section
6.04).



          SECTION 6.06. Swap Agreements. The Company 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 Company or any
Subsidiary has actual exposure (other than those in respect of Equity Interests
or Subordinated Debt of the Company 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 Company or any Subsidiary; provided that Swap Agreements
providing for the payment by the Company and its Subsidiaries of floating rates
in exchange for fixed rate payments shall be subject to the conditions that (i)
the aggregate notional amount of Indebtedness subject to such Swap Agreements
shall not exceed 25% of Total Indebtedness and (ii) at the time of and after
giving effect to any such Swap Agreement, at least 50% of Total Indebtedness
will be comprised of Indebtedness effectively bearing interest at a fixed rate
(taking into account the effect of all Swap Agreements, whether fixed to
floating or floating to fixed).



          SECTION 6.07. Restricted Payments; Certain Payments of Indebtedness. (a)
The Company will not, and will not permit any Subsidiary to, declare or make,
or agree to pay or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except:





		
	 	     (i) the Company may declare and pay dividends, with respect to its
common stock, payable solely in additional shares of its common stock
and, with respect to its preferred stock, payable solely in additional
shares of such preferred stock or in shares of common stock of the
Company;
	 
	 	     (ii) any Subsidiary may make Restricted Payments to the Company or
any other Subsidiary of the Company;
	 
	 	     (iii) any Subsidiary that is not a wholly owned Subsidiary may
declare and pay dividends to its shareholders ratably with respect to
each such shareholder’s ownership interest in such Subsidiary;
	 
	 	     (iv) the Company may repurchase its common stock upon the exercise
of stock options if such common stock represents a portion of the
exercise price thereof;








 



95






		
	 	     (v) the Company may repurchase payment-in-kind preferred stock
issued by it on or prior to the Effective Date; provided that the
aggregate amount of such repurchases shall not exceed $30,000,000 during
the term of this Agreement;
	 
	 	     (vi) the Company and the Subsidiaries may make payments in respect
of any redemption, repurchase, acquisition, cancelation or other
retirement for value of shares of capital stock of the Company or
options, stock appreciation rights or similar securities, in each case
held by then current or former officers, directors or employees of the
Company or any of its Subsidiaries (or their estates or beneficiaries
under their estates) or by an employee benefit plan, in each case upon
the death, disability, retirement or termination of employment of such
officers, directors and employees, and the Company may redeem or
repurchase shares of its common stock or options in respect thereof in
connection with the repurchase provisions under employee stock option or
stock purchase agreements or other agreements to compensate management
employees and non-employee directors, and the Company and the
Subsidiaries may make payments in respect of any redemption, repurchase,
acquisition, cancelation or other retirement for value of capital stock
of any Subsidiary or options in respect thereof that are the subject of
any employee stock option or stock purchase plan of such Subsidiary if
such Subsidiary was acquired pursuant to a Permitted Acquisition;
provided that the aggregate amount of all such payments made after the
Effective Date shall not exceed $50,000,000;
	 
	 	     (vii) the Company and the Subsidiaries (including the Subsidiary
that is the issuer of the applicable Equity Interest) may acquire any
Equity Interest in a Subsidiary in which the Company or any other
Subsidiary already holds a majority interest, but, in the event such
Equity Interest is not acquired by the issuer thereof, only to the extent
such acquisition of Equity Interests is permitted by Section 6.04;
	 
	 	     (viii) the Company or any Subsidiary may acquire Equity Interests
issued by it in exchange for other Equity Interests issued by it pursuant
to transactions not involving other consideration;
	 
	 	     (ix) if after the Effective Date the Company completes a single
offering (on one occasion including the exercise of any over-allotment
option) of its common stock resulting in Net Proceeds not less than
$50,000,000, then the Company or any Subsidiary may make Restricted
Payments with the Net Proceeds therefrom; provided that (A) such Net
Proceeds are not relied upon for any other purpose of this Agreement that
allows any expenditure, investment or payment based on Net Proceeds of an
equity offering, and (B) the aggregate amount of all Restricted Payments
permitted by this clause (ix) shall not exceed $50,000,000;
	 
	 	     (x) the Company or any Subsidiary may make Restricted Payments with
up to 50% of the Net Proceeds of offerings of the Company’s common stock
completed after the Effective Date (other than any such Net Proceeds used
to make Restricted Payments pursuant to clause (ix) above); provided that
(A) such Net Proceeds are not relied upon for any other purpose of this
Agreement that allows any expenditure, investment or payment based on Net
Proceeds of an equity offering, (B) at the time of any such Restricted
Payment there is no Senior








 



96




		
	 	Bridge Debt outstanding, (C) the Total Leverage Ratio is less than
3.50 to 1.00 at the time of and after giving pro forma effect to any such
Restricted Payment, (D) the Senior Leverage Ratio is less than 3.00 to
1.00 at the time of and after giving pro forma effect to any such
Restricted Payment and (E) the aggregate amount of all Restricted
Payments permitted by this clause (x) shall not exceed $50,000,000; and
	 
	 	     (xi) the Company and its Subsidiaries may make Restricted Payments
to the extent permitted by paragraph (c) of this Section.



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





		
	 	     (i) any such payment of Indebtedness created under the Loan
Documents;
	 
	 	     (ii) the Redemption and any other refinancings of Indebtedness to
the extent permitted by Section 6.01;
	 
	 	     (iii) any such payment of secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
	 
	 	     (iv) any such payments of Indebtedness permitted by paragraph (c) of
this Section;
	 
	 	     (v) any such payments of the Company’s 7-1/8% senior notes due
December 15, 2005;
	 
	 	     (vi) any such payments of Indebtedness incurred in reliance on
clause (iv), (vii), (ix) or (xii) of Section 6.01(a);
	 
	 	     (vii) any such payments of Senior Debt or Subordinated Debt made
with the Net Proceeds of any common stock issued by the Company after the
Effective Date; provided that (A) such Net Proceeds are not relied upon
for any other purpose of this Agreement that allows any expenditure,
investment or payment based on Net Proceeds of an equity offering, (B)
such payments are made within twelve months after such Net Proceeds are
received and (C) the aggregate amount of all such payments permitted by
this clause (vii) shall not exceed $50,000,000;
	 
	 	     (viii) any such payments of Senior Debt or Subordinated Debt made
with up to 50% of the Net Proceeds of offerings of the Company’s common
stock completed after the Effective Date; provided that (A) such Net
Proceeds are not relied upon for any other purpose of this Agreement that
allows any expenditure, investment or payment based on Net Proceeds of an
equity offering, (B) at the time of any such payment there is no Senior
Bridge Debt outstanding, (C) the








 



97




		
	 	Total Leverage Ratio is less than 3.50 to 1.00 at the time of and
after giving pro forma effect to any such payment, (D) the Senior
Leverage Ratio is less than 3.00 to 1.00 at the time of and after giving
pro forma effect to any such payment, (E) the aggregate amount of all
payments permitted by this clause (viii) shall not exceed $50,000,000 and
(F) such payments are made within twelve months after such Net Proceeds
are received; and
	 
	 	     (ix) any such payment in respect of any Permitted Receivables
Financing in accordance with the terms of the documentation entered into
in connection with such Permitted Receivables Financing.



          (c) The Company may, and may permit any Subsidiary to, make Restricted
Payments and payments of Indebtedness not otherwise permitted by this Section;
provided that at the time of and after giving effect to each such Restricted
Payment and each such payment of Indebtedness (and any incurrence of
Indebtedness related thereto) (i) no Default shall have occurred and be
continuing, (ii) the Total Leverage Ratio shall not exceed 3.5 to 1.0 and (iii)
the aggregate amount of all Restricted Payments and payments of Indebtedness
made in reliance on this paragraph (c) after the Effective Date shall not
exceed the sum of (x) $75,000,000 and (y) an amount equal to 50% of
Consolidated Net Income (adjusted to exclude (1) cash fees and expenses paid or
incurred in connection with Perbio Transaction Investments, (2) charges and
expenses of up to $50,000,000 in the aggregate in respect of the Redemption and
the establishment of the Company’s current Permitted Receivables Financing and
the credit facilities established under this Agreement, (3) noncash expenses
attributable to grants of stock, restricted stock or stock options and other
noncash stock-based awards (including but not limited to performance units,
stock appreciation rights, restricted stock units or dividend equivalents
payable solely in shares of stock) and (4) the effects of any write-up in the
book value of any inventory owned by Perbio and its subsidiaries resulting from
the allocation of the purchase price for the Perbio Acquisition) for each
fiscal quarter of the Company ended after the Effective Date and prior to the
date of determination for which Consolidated Net Income is a positive amount.



          SECTION 6.08. Transactions with Affiliates. The Company will not, and
will not permit any Subsidiary 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) transactions that are at prices and on terms and
conditions not less favorable to the Company or such Subsidiary (or, in the
case of transactions between or among the Company or any Subsidiary Guarantor,
on the one hand, and any Subsidiary that is not a Subsidiary Guarantor, on the
other hand, not less favorable to the Company or such Subsidiary Guarantor, as
the case may be) than could be obtained on an arm’s-length basis from unrelated
third parties, (b) transactions between or among the Company and the
Subsidiary Guarantors not involving any other Affiliate, and transactions
between or among Subsidiaries that are not Subsidiary Guarantors not involving
any other Affiliate that either (i) are Perbio Transaction Investments or
entered into as part of the Perbio Acquisition or the Perbio Reorganization or
(ii) are entered into solely between or among wholly-owned Subsidiaries, (c)
any Restricted Payment permitted by Section 6.07 (other than a Restricted
Payment under clause (vii) of Section 6.07(a)), (d) any transactions expressly
contemplated by any agreement set forth on Schedule 6.08, as in effect on the
Effective Date, (e) any merger or consolidation of the Company or any wholly
owned Subsidiary with any other wholly owned Subsidiary, in each case if
permitted by








 



98

Section 6.03, and (f) any investment by the Company or any Subsidiary in a
Subsidiary (including by way of any issuance or sale of Equity Interests
pursuant to Section 6.05(j)), in each case if permitted by Section 6.04.



          SECTION 6.09. Restrictive Agreements. The Company will not, and will not
permit any Subsidiary 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 Company 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 Company or any other Subsidiary or to Guarantee Indebtedness of
the Company or any other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by any Loan Document or
Subordinated Debt Document, (ii) the foregoing shall not apply to restrictions
and conditions existing on the Effective Date identified on Schedule 6.09 (but
shall apply to any amendment or modification expanding the scope of any such
restriction or condition), (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 or any Permitted Receivables Financing if such restrictions or
conditions apply only to the property or assets securing such Indebtedness or
the Receivables and Related Security subject to such Permitted Receivables
Financing, as the case may be, (v) clause (a) of the foregoing shall not apply
to customary provisions in leases and licensing agreements restricting the
assignment thereof, (vi) clause (b) of the foregoing shall not apply to
restrictions or conditions imposed on a Receivables Subsidiary by a Permitted
Receivables Financing, and (vii) clause (b) of the foregoing shall not apply to
restrictions or conditions imposed on a Foreign Subsidiary by the terms of any
Indebtedness of such Foreign Subsidiary permitted by clause (ix) of Section
6.01(a).



          SECTION 6.10. Amendment of Material Documents. The Company will not, and
will not permit any Subsidiary to, amend, modify or waive any of its rights
under any Subordinated Debt Document in a manner that, in the opinion of the
Administrative Agent, in its sole discretion, adversely affects in any material
respect the rights or interests of the Lenders.



          SECTION 6.11. Capital Expenditures. (a) The Company will not permit the
aggregate amount of Capital Expenditures made by the Company and the
Subsidiaries in any fiscal year to exceed (i) $110,000,000, in the case of the
fiscal year ending December 31, 2003, (ii) $120,000,000, in the case of the
fiscal year ending December 31, 2004, (iii) $130,000,000, in the case of any
fiscal year ending on December 31, 2005, or (iv) $140,000,000, in the case of
any fiscal year ending thereafter. The amount of permitted Capital
Expenditures set forth in the immediately preceding sentence in respect of any
fiscal year ending on or after December 31, 2004, shall be increased (but not
by more than 50%) by the excess, if any, of (i) the amount of Capital
Expenditures permitted pursuant to the preceding sentence in the immediately
preceding fiscal year (disregarding any Capital Expenditures permitted by
reason of this sentence) less (ii) the aggregate amount of Capital Expenditures
made by the Company and the Subsidiaries in such preceding fiscal year.








 



99

          (b) Notwithstanding paragraph (a) above, the Company and its Subsidiaries
may make Capital Expenditures consisting of (i) the application of the Net
Proceeds of a casualty or other insured damage to, or any taking under power of
eminent domain or by condemnation or similar proceeding of, any property or
asset of the Company or any Subsidiary, in each case within 360 days after such
event, or (ii) the application of the Net Proceeds of a Prepayment Event
described in clause (a) of the definition of the term “Prepayment Event” to
make Capital Expenditures within 360 days after receipt of such Net Proceeds
based on an election by the Company to do so as contemplated by clause (i) of
the proviso to the first sentence of Section 2.11(c). Capital Expenditures
described in the preceding sentence shall be disregarded for purposes of
determining compliance with paragraph (a) of this Section.



          SECTION 6.12. Interest Expense Coverage Ratio. The Company will not
permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Cash Interest
Expense, in each case for any period of four consecutive fiscal quarters ending
on any date during any period set forth below, to be less than the ratio set
forth below opposite such period:




	 	 	 	 	 
	Period	 	Ratio
	
	 	

	June 30, 2003 to and
including December 31, 2003
	 	2.75 to 1.00
	January 1, 2004 to and
including December 31, 2004
	 	3.00 to 1.00
	thereafter
	 	3.25 to 1.00



          SECTION 6.13. Total Leverage Ratio. The Company will not permit the Total
Leverage Ratio as of the last day of any fiscal quarter ending during any
period set forth below to exceed the ratio set forth below opposite such
period:




	 	 	 	 	 
	Period	 	Ratio
	
	 	

	March 31, 2003 to and
including December 31, 2003
	 	4.75 to 1.00
	January 1, 2004 to and
including December 31, 2004
	 	4.50 to 1.00
	January 1, 2005 to and
including December 31, 2005
	 	4.00 to 1.00
	thereafter
	 	3.50 to 1.00



          SECTION 6.14. Senior Leverage Ratio. The Company will not permit the
Senior Leverage Ratio as of the last day of any fiscal quarter ending during
any period set forth below to exceed the ratio set forth below opposite such
period:








 



100




	 	 	 	 	 
	Period	 	Ratio
	
	 	

	March 31, 2003 to and
including December 31, 2003
	 	3.75 to 1.00
	January 1, 2004 to and
including December 31, 2004
	 	3.50 to 1.00
	thereafter
	 	3.00 to 1.00




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 or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five calendar days;
	 
	 	     (c) any representation or warranty made or deemed made by or on
behalf of the Company or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder,
or in any certificate, written statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
	 
	 	     (d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.04 (with respect to
the existence of any Borrower), 5.11 or 5.13(e)(z) or in Article VI;
	 
	 	     (e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in any Loan Document (other than those specified in
clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Company (which notice will be given promptly
at the request of any Lender);
	 
	 	     (f) the Company 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 (after giving effect to the period of grace, if any, applicable
to such payment by the terms of such Material Indebtedness);








 



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	 	     (g) any event or condition occurs that (i) results in any Material
Indebtedness becoming due prior to its scheduled maturity, (ii) enables
or permits 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, or
(iii) results in the termination of a Permitted Receivables Financing
prior to its scheduled termination (other than a voluntary termination by
the Company) or enables or permits the financing parties thereunder or
any trustee or agent on their behalf to terminate a Permitted Receivables
Financing; provided that this clause (g) shall not apply to (A) secured
Indebtedness that becomes due as a result of the voluntary sale or
transfer of, or casualty event affecting, the property or assets securing
such Indebtedness, (B) Indebtedness of a Subsidiary that is sold pursuant
to a transaction permitted by this Agreement and becomes due as a result
of such sale, (C) Indebtedness of any Person acquired pursuant to a
Permitted Acquisition if such Indebtedness was outstanding prior to such
Permitted Acquisition and becomes due as a result of such Permitted
Acquisition; provided that such Indebtedness is promptly repaid or (D)
any such event or condition that has the effect described in clause (ii)
above if (x) such event or condition relates to a change in the tax
treatment or anticipated tax treatment of, or a change in law affecting,
other investment characteristics of the relevant Material Indebtedness,
but is not in the nature of a default, breach or violation by the Company
or any Subsidiary and does not relate to the creditworthiness of the
Company or any Subsidiary or any act or failure to act by the Company or
any Subsidiary and (y) any Indebtedness that becomes due or is required
to be prepaid, repurchased or redeemed as a result of such event or
condition is promptly repaid, prepaid, repurchased or redeemed;
	 
	 	     (h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company, the Initial Borrower, any Subsidiary
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 Company, the Initial Borrower,
any Subsidiary Borrower 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) the Company, the Initial Borrower, any Subsidiary 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 the Company,
the Initial Borrower, any Subsidiary 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








 



102




		
	 	effecting any of the foregoing;
	 
	 	     (j) the Company, the Initial Borrower, any Subsidiary Borrower or
any Material Subsidiary shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
	 
	 	     (k) one or more judgments for the payment of money in an aggregate
amount (to the extent not fully covered by insurance as to which the
insurer has acknowledged liability) in excess of $20,000,000 shall be
rendered against the Company, 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 the Company or any Subsidiary to enforce any such
judgment;
	 
	 	     (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 a Material
Adverse Effect;
	 
	 	     (m) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any Collateral (other than Collateral having
an aggregate value not exceeding $10,000,000), with the priority required
by the applicable Security Document, except (i) as a result of the sale
or other disposition of the applicable Collateral in a transaction
permitted under the Loan Documents or (ii) as a result of the Collateral
Agent’s failure to maintain possession of any stock certificates,
promissory notes or other instruments delivered to it under any Security
Document, or to file any financing statement after receiving notice from
the Company that such filing is required and specifying all information
necessary to effect such filing; or
	 
	 	     (n) a Change in Control shall occur;



then, and in every such event (other than an event with respect to the Company,
the Initial Borrower or any Subsidiary 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 Company (on behalf of itself, the Initial Borrower and
the Subsidiary Borrowers), 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 the Borrowers 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 Company, the Initial Borrower and the
Subsidiary Borrowers; and in case of any event with respect to the Company, the
Initial Borrower or any Subsidiary Borrower 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 the Borrowers accrued hereunder, shall
automatically become due and







 



103



payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Company, the Initial Borrower and the
Subsidiary Borrowers.




ARTICLE VIII




The Administrative Agent



          Each of the Lenders and the Issuing Banks hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.



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



          The Administrative Agent shall not have any duties or obligations except
those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated by the Loan
Documents that the Administrative Agent is required to exercise in writing by
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 10.02), and
(c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Company or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it 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 10.02) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by any Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.








 



104

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



          The Administrative 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 the
Administrative Agent. The Administrative 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 Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Banks and the Company. Upon any
such resignation, the Required Lenders shall have the right, with the consent
of the Company (which consent shall not be unreasonably withheld or delayed),
to appoint a successor. If no successor shall have been so appointed by the
Required Lenders with the consent of the Company and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of
the Lenders and the Issuing Banks, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. The fees payable by the Initial
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Initial Borrower and
such successor. After the Administrative Agent’s resignation hereunder, the
provisions of this Article and Section 10.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.



          Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative 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 other Loan Document or
related agreement or any document furnished hereunder or thereunder.





105









 




105



          The provisions of this Article shall also apply to the Collateral Agent
with the same effect as if named as the Administrative Agent herein.




ARTICLE IX




Collection Allocation Mechanism



          SECTION 9.01. Implementation of CAM. (a) On the CAM Exchange Date, (i)
the Commitments shall terminate as provided in Article VII, (ii) all Local
Currency Loans shall be converted into, and all such amounts due thereunder
shall accrue and be payable in, Dollars at the applicable Exchange Rates on
such date, and on and after such date the interest rate applicable to all Local
Currency Loans shall be the rate applicable to overdue ABR Revolving Loans
hereunder and (iii) the Lenders shall automatically and without further act
(and without regard to the provisions of Section 10.04) be deemed to have
exchanged interests in the Credit Facilities and Local Currency Loans such that
in lieu of the interest of each Lender in each Credit Facility and Local
Currency Loan in which it shall participate as of such date (including such
Lender’s interest in the Specified Obligations of each Loan Party in respect of
each such Credit Facility and Local Currency Loan), such Lender shall hold an
interest in every one of the Credit Facilities and Local Currency Loans
(including the Specified Obligations of each Loan Party in respect of each such
Credit Facility and Local Currency Loan and each LC Reserve Account established
pursuant to Section 9.02 below), whether or not such Lender shall previously
have participated therein, equal to such Lender’s CAM Percentage thereof. Each
Lender, the Company, and each Borrower hereby consents and agrees to the CAM
Exchange, and each Lender agrees that the CAM Exchange shall be binding upon
its successors and assigns and any Person that acquires a participation in its
interests in any Credit Facility or Local Currency Loan. Each Borrower agrees
from time to time to execute and deliver to the Administrative Agent all
promissory notes and other instruments and documents as the Administrative
Agent shall reasonably request to evidence and confirm the respective interests
of the Lenders after giving effect to the CAM Exchange, and each Lender agrees
to surrender any promissory notes originally received by it in connection with
its Loans hereunder to the Administrative Agent against delivery of new
promissory notes evidencing its interests in the Credit Facilities and Local
Currency Loans; provided that the failure of any Borrower to execute or deliver
or of any Lender to accept any such promissory note, instrument or document
shall not affect the validity or effectiveness of the CAM Exchange.



          (b) As a result of the CAM Exchange, upon and after the CAM Exchange Date,
each payment received by the Administrative Agent or Collateral Agent pursuant
to any Loan Document in respect of the Specified Obligations, and each
distribution made by the Collateral Agent pursuant to any Security Documents in
respect of the Specified Obligations, shall be distributed to the Lenders pro
rata in accordance with their respective CAM Percentages. Any direct payment
received by a Lender upon or after the CAM Exchange Date, including by way of
set-off, in respect of a Specified Obligation shall be paid over to the
Administrative Agent for distribution to the Lenders in accordance herewith.



          SECTION 9.02. Letters of Credit. (a) In the event that on the CAM
Exchange Date any Letter of Credit shall be outstanding and undrawn in whole or
in part, or any amount drawn under a Letter of Credit shall not have been
reimbursed by the







 



106




applicable Borrower or with the proceeds of a Revolving Borrowing, each
Revolving Lender shall promptly pay over to the Administrative Agent, in
immediately available funds, an amount in Dollars equal to such Revolving
Lender’s Applicable Percentage (as notified to such Lender by the
Administrative Agent) of such Letter of Credit’s undrawn face amount or (to the
extent it has not already done so) such Letter of Credit’s unreimbursed drawing
(in each case, based on the Dollar Amount thereof, in the case of any Local
Letters of Credit), together with interest thereon from the CAM Exchange Date
to the date on which such amount shall be paid to the Administrative Agent at
the rate that would be applicable at the time to an ABR Revolving Loan in a
principal amount equal to such amount, as the case may be. The Administrative
Agent shall establish a separate account or accounts for each Lender (each, an
“LC Reserve Account”) for the amounts received with respect to each such Letter
of Credit pursuant to the preceding sentence. The Administrative Agent shall
deposit in each Lender’s LC Reserve Account such Lender’s CAM Percentage of the
amounts received from the Revolving Lenders as provided above. The
Administrative Agent shall have sole dominion and control over each LC Reserve
Account, and the amounts deposited in each LC Reserve Account shall be held in
such LC Reserve Account until withdrawn as provided in paragraph (b), (c), (d)
or (e) below. The Administrative Agent shall maintain records enabling it to
determine the amounts paid over to it and deposited in the LC Reserve Accounts
in respect of each Letter of Credit and the amounts on deposit in respect of
each Letter of Credit attributable to each Lender’s CAM Percentage. The
amounts held in each Lender’s LC Reserve Account shall be held as a reserve
against the LC Exposure, shall be the property of such Lender, shall not
constitute Loans to or give rise to any claim of or against any Loan Party and
shall not give rise to any obligation on the part of any Borrower to pay
interest to such Lender, it being agreed that the reimbursement obligations in
respect of Letters of Credit shall arise only at such times as drawings are
made thereunder, as provided in Section 2.05.



          (b) In the event that after the CAM Exchange Date any drawing shall be
made in respect of a Letter of Credit, the Administrative Agent shall, at the
request of the applicable Issuing Bank, withdraw from the LC Reserve Account of
each Lender any amounts, up to the amount of such Lender’s CAM Percentage of
such drawing, deposited in respect of such Letter of Credit and remaining on
deposit and deliver such amounts to such Issuing Bank in satisfaction of the
reimbursement obligations of the Revolving Lenders under Section 2.05(e) (but
not of the applicable Borrower under Section 2.05(e)). In the event any
Revolving Lender shall default on its obligation to pay over any amount to the
Administrative Agent in respect of any Letter of Credit as provided in this
Section 9.02, the applicable Issuing Bank shall, in the event of a drawing
thereunder, have a claim against such Revolving Lender to the same extent as if
such Lender had defaulted on its obligations under Section 2.05(e), but shall
have no claim against any other Lender in respect of such defaulted amount,
notwithstanding the exchange of interests in the reimbursement obligations
pursuant to Section 9.01. Each other Lender shall have a claim against such
defaulting Revolving Lender for any damages sustained by it as a result of such
default, including, in the event such Letter of Credit shall expire undrawn,
its CAM Percentage of the defaulted amount.



          (c) In the event that after the CAM Exchange Date any Letter of Credit
shall expire undrawn, the Administrative Agent shall withdraw from the LC
Reserve Account of each Lender the amount remaining on deposit therein in
respect of such Letter of Credit and distribute such amount to such Lender.







 



107




          (d) With the prior written approval of the Administrative Agent and each
Issuing Bank with an outstanding Letter of Credit, any Lender may withdraw the
amount held in its LC Reserve Account in respect of the undrawn amount of any
Letter of Credit. Any Lender making such a withdrawal shall be unconditionally
obligated, in the event there shall subsequently be a drawing under such Letter
of Credit, to pay over to the Administrative Agent in Dollars, for the account
of the applicable Issuing Bank on demand, its CAM Percentage of such drawing.



          (e) Pending the withdrawal by any Lender of any amounts from its LC
Reserve Account as contemplated by the above paragraphs, the Administrative
Agent will, at the direction of such Lender and subject to such rules as the
Administrative Agent may prescribe for the avoidance of inconvenience, invest
such amounts in Permitted Investments. Each Lender that has not withdrawn its
amounts in its LC Reserve Account as provided in paragraph (d) above shall have
the right, at intervals reasonably specified by the Administrative Agent, to
withdraw the earnings on investments so made by the Administrative Agent with
amounts in its LC Reserve Account and to retain such earnings for its own
account.




ARTICLE X




Miscellaneous



          SECTION 10.01. 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 facsimile, as
follows:





		
	 	     (i) if to the Company, the Initial Borrower or any Subsidiary
Borrower, to it in care of the Company at Fisher Scientific International
Inc., Liberty Lane, Hampton, New Hampshire 03842, Attention of Todd M.
DuChene, Esq., (Facsimile No. (603) 929-2703), with a copy (in the case
of any notice relating to a Default) to William B. Beekman, Esq.,
Debevoise & Plimpton, 919 Third Avenue, New York, NY 10022 (Facsimile No.
(212) 909-6836);
	 
	 	     (ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan
and Agency Services Group, 1111 Fannin Street, 10th Floor, Houston, Texas
77002, Attention of Shaw Chandrasekaren (Facsimile No. (713) 750-2782),
with a copy to JPMorgan Chase Bank, 270 Park Avenue, (4th Floor), New
York, New York 10017, Attention of James Ely (Facsimile No. (212)
270-5127);
	 
	 	     (iii) if to an Issuing Bank, to it at its address (or facsimile
number) set forth in its Administration Questionnaire (unless such
Issuing Bank has specified another address or facsimile number by notice
to the Company and the Administrative Agent);
	 
	 	     (iv) if to a Swingline Lender, to it at its address (or facsimile
number) set forth in its Administration Questionnaire (unless such
Swingline Lender has specified another address or facsimile number by
notice to the Company and the Administrative Agent); and









 



108





		
	 	     (v) if to any other Lender, to it at its address (or facsimile
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 Lender. The Administrative Agent or
the Company (on behalf of itself or any 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 facsimile 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 10.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document 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
Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of any Loan Document 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 the Administrative Agent, the Collateral Agent,
any Lender or any Issuing Bank may have had notice or knowledge of such Default
at the time.



          (b) Except as provided in Section 2.20 with respect to an Incremental Term
Loan Amendment, neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Company, the Borrowers and the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the Administrative Agent or Collateral Agent (as
applicable) and the Loan Party or Loan Parties that are parties thereto, in
each case 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 maturity of any Loan, or any scheduled date of payment of the
principal amount of any Term Loan under Section 2.10, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any
interest or fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date







 



109




of expiration of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.18(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 any of the provisions of this
Section or the percentage set forth in the definition of “Required Lenders” or
any other provision of any Loan Document specifying the number or percentage of
Lenders (or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be), (vi) release the Company or any Subsidiary Guarantor from its
Guarantee under the Collateral Agreement (except as expressly provided in the
Collateral Agreement), or limit its liability in respect of such Guarantee,
without the written consent of each Lender, (vii) release all or substantially
all of the Collateral from the Liens of the Security Documents, without the
written consent of each Lender, (viii) change any provisions of any Loan
Document in a manner that by its terms adversely affects the rights in respect
of payments due to Lenders holding Loans of any Class differently than those
holding Loans of any other Class, without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each affected Class, or (ix) amend, modify or waive any condition precedent
set forth in Section 4.02 with respect to the making of Revolving Loans,
without the written consent of Revolving Lenders holding a majority in interest
of the Revolving Commitments; provided further that (A) no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Collateral Agent, any Issuing Bank or any Swingline Lender without
the prior written consent of the Administrative Agent, the Collateral Agent,
such Issuing Bank or such Swingline Lender, as the case may be, and (B) any
waiver, amendment or modification of this Agreement that by its terms affects
the rights or duties under this Agreement of the Revolving Lenders (but not the
Original Term Loan Lenders and the Incremental Term Loan Lenders), the Original
Term Loan Lenders (but not the Revolving Lenders and the Incremental Term Loan
Lenders) or the Incremental Term Loan Lenders of any Class (but not the
Revolving Lenders, Original Term Loan Lenders and Incremental Term Loan Lenders
of any other Class) may be effected by an agreement or agreements in writing
entered into by the Company, the Borrowers and requisite percentage in interest
of the affected Class of Lenders that would be required to consent thereto
under this Section if such Class of Lenders were the only Class of Lenders
hereunder at the time. Notwithstanding the foregoing, any provision of this
Agreement may be amended by an agreement in writing entered into by the
Company, the Borrowers, the Required Lenders and the Administrative Agent (and,
if their rights or obligations are affected thereby, the Issuing Banks and the
Swingline Lenders) if (i) by the terms of such agreement the Commitment of each
Lender not consenting to the amendment provided for therein shall terminate
upon the effectiveness of such amendment and (ii) at the time such amendment
becomes effective, each Lender not consenting thereto receives payment in full
of the principal of and interest accrued on each Loan made by it and all other
amounts owing to it or accrued for its account under this Agreement. In
furtherance of clause (ix) of this Section 10.02(b), (i) any amendment or
modification to or waiver of Section 6.11, 6.12, 6.13 or 6.14 of this Agreement
or (ii) any amendment or modification to or waiver of any provision of this
Agreement or any other Loan Document at a time when any Default has occurred
and is continuing, and that would have the effect of eliminating any such
Default, shall not be deemed to be effective for purposes of determining
whether the conditions precedent set forth in Section 4.02 to the making of any
Revolving Loan have been satisfied unless the Revolving Lenders holding a
majority in interest of the Revolving Commitments shall have consented to such
amendment, modification or







 



110




waiver; provided that the foregoing shall not be construed to affect any
amendment or modification to any provision of this Agreement or any other Loan
Document (other than any amendment or modification to Section 6.11, 6.12, 6.13
or 6.14 of this Agreement) if no Default has occurred and is continuing at the
time of such amendment or modification.



          SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Initial
Borrower shall pay or cause to be paid (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the Collateral Agent and their
Affiliates, including the reasonable fees, charges and disbursements of a
single firm of counsel for the Administrative Agent and the Collateral Agent
(and any additional counsel retained in any local jurisdiction in connection
with matters relating to the laws of such jurisdiction), in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of the Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by any 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
Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender
after any Default, including the reasonable fees, charges and disbursements of
any counsel for the Administrative Agent, the Collateral Agent, any Issuing
Bank or any Lender, in connection with the enforcement or protection of its
rights in connection with the Loan Documents, 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 Initial Borrower shall indemnify or cause to be indemnified the
Administrative Agent, the Collateral Agent, each 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 (other than
in respect of Taxes, which shall be governed by Section 2.17), including the
reasonable 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 any actual or prospective claim, litigation,
investigation or proceeding (whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto) relating to
or arising out of (i) the execution or delivery of any Loan Document or any
other agreement or instrument contemplated hereby, the performance by the
parties to the Loan Documents of their respective obligations thereunder 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 an 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), or (iii) any
actual or alleged presence or release of Hazardous Materials on or from any
Mortgaged Property or any other property currently or formerly owned or
operated by the Company or any of its Subsidiaries, or any Environmental
Liability related in any way to the Company or any of its Subsidiaries;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
resulted from the gross negligence or wilful misconduct of such Indemnitee or
any of its Related Parties. The Initial Borrower shall indemnify each Lender
for all losses, costs and expenses suffered or incurred by such Lender as a
result







 



111




of the conversion of the currency of any Obligation pursuant to Section
9.01 or 9.02, including foreign exchange losses.



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



          (d) To the extent permitted by applicable law, no party to this Agreement
shall assert, and each party to this Agreement hereby waives, any claim against
any other party hereto or, in the case of the Company and each Borrower, 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, accompanied by an invoice or other summary of the
amount or amounts payable.



          SECTION 10.04. 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 an Issuing Bank that issues any Letter of Credit), except that (i)
neither the Company nor any Borrower may assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Company or a Borrower
without such consent shall be null and void), except as expressly provided in
Section 2.23 with respect to assignments by the Initial Borrower to the Company
and (ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section. Nothing in this Agreement,
express or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assignees permitted hereby
(including any Affiliate of an 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
Administrative Agent, the Collateral Agent, the Issuing Banks 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







 



112




time owing to it) with the prior written consent (such consent not to be
unreasonably withheld) of:




		
	 	     (A) the Company; provided that no consent of the Company shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund (as defined below) or, if an Event of Default under clause
(a), (b), (h) or (i) of Article VII has occurred and is continuing, any
other assignee; and
	 
	 	     (B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of (1) any
Revolving Commitment to an assignee that is a Lender with a Revolving
Commitment immediately prior to giving effect to such assignment or (2) a
Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund.




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




		
	 	     (A) except in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund 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 $5,000,000 (or, in the case of an Original Term
Loan Commitment, Tranche B-1 Term Loan Commitment or a Term Loan,
$1,000,000) unless each of the Company and the Administrative Agent
otherwise consents; provided that no such consent of the Company shall be
required if an Event of Default under clause (a), (b), (h) or (i) of
Article VII has occurred and is continuing;
	 
	 	     (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; provided that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender’s rights and obligations in respect of one Class of Commitments or
Loans;
	 
	 	     (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 $3,500; and
	 
	 	     (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.



          For purposes of this Section 10.04(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 that Lender or (c)
an entity or an Affiliate of an entity that administers or manages a Lender.








 



113




          (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 2.15, 2.16, 2.17 and 10.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this Section 10.04 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
Company and the Borrowers, 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 Commitments 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 Company, the Borrowers, the Administrative Agent,
the Collateral Agent, the Issuing Banks 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 Company, the
Borrowers, any 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, the assignee’s completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. 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 Company, any Borrower,
the Administrative Agent, the Collateral Agent, any Issuing Bank or any
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 Company, the Borrowers, the Administrative Agent, the Collateral
Agent, the Issuing Banks 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 and the other Loan Documents. Any agreement
or instrument pursuant to which a Lender sells such participation shall provide
that such Lender shall retain the sole right to enforce the Loan Documents and
to approve







 



114




any amendment, modification or waiver of any provision of the Loan
Documents; 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
10.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Company and each Borrower agree that each Participant shall be
entitled to the benefits of Sections 2.15, 2.16 and 2.17 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 10.08 as though
it were a Lender, provided such Participant agrees to be subject to Section
2.18(c) as though it were a Lender.



          (ii) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Company’s or
the applicable Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.17 unless the Company or the applicable Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the applicable Borrower, to comply with Section 2.17(e) and (f) as
though it were a Lender.



          (d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including 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.



          SECTION 10.05. Survival. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents 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 the Administrative Agent, the
Collateral Agent, any 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 2.15, 2.16, 2.17 and 10.03 and
Article VIII shall survive and remain in full force and effect regardless of
the consummation of the transactions contemplated hereby, the repayment or
assignment 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 10.06. 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, the
other Loan Documents







 



115




and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement.



          SECTION 10.07. 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 10.08. Right of Set-Off. 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
the Company or any Borrower against any of and all the obligations of the
Company or such 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.
The rights of each Lender under this Section are in addition to other rights
and remedies (including other rights of set-off) which such Lender may have.



          SECTION 10.09. 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 of the Company and the Borrowers 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 any Loan Document, 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 or any other Loan Document
shall affect any right that the Administrative Agent, the Collateral Agent, any
Issuing Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against any Borrower or
its properties in the courts of any jurisdiction.







 



116




          (c) Each of the Company and the Borrowers hereby 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 or
any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



          (d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement or any other Loan Document 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, ANY OTHER LOAN DOCUMENT 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. Each of the Administrative Agent, the
Collateral Agent, the Issuing Banks 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 any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to
an agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement or to
any direct or indirect contractual counterparty to a Swap Agreement entered
into by it or any of its Affiliates relating to Loans hereunder (or to any
professional advisor to such counterparty), (g) with the consent of the Company
or (h) to the extent such Information (i) becomes publicly available other than
as a result of







 



117




a breach of this Section or (ii) becomes available to the Administrative
Agent, the Collateral Agent, any Issuing Bank or any Lender on a
non-confidential basis from a source other than the Company. For the purposes
of this Section, “Information” means all information received from the Company
or any Borrower relating to the Company or any Borrower or its business, other
than any such information that is available to the Administrative Agent, the
Collateral Agent, any Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Company; provided that, in the case of information
received from the Company after the Effective Date, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Notwithstanding anything herein to the contrary, any party to this Agreement
(and any employee, representative or other agent of such party) may disclose to
any and all Persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided to it
relating to such tax treatment and tax structure, except that tax treatment and
tax structure shall not include the identity of any existing or future party
(or any affiliate of such party) to this Agreement.



          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. Intercreditor Agreements. (a) Each Lender and Issuing
Bank authorizes the Collateral Agent to enter into one or more Intercreditor
Agreements, and any amendments thereto or modifications thereof, and agrees
that each such Intercreditor Agreement, amendment or modification so entered
into by the Collateral Agent shall be binding upon such Lender or Issuing Bank
and their respective successors and assigns.



          (b) The Collateral Agent agrees to furnish to the Lenders and Issuing
Banks a draft of each Intercreditor Agreement, or amendment or modification
thereto, prior to entering into such Intercreditor Agreement, amendment or
modification.














 


118


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




	 	 	 	 	 	 	 
	 	 	FISHER SCIENTIFIC INTERNATIONAL INC.,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Kevin P. Clark

	 	 	 	 	 	 	

	 	 	 	 	Name:

Title:
	 	Kevin P. Clark

Vice President and Chief

Financial Officer
	 	 	 	 	 	 	 
	 	 	FISHER SCIENTIFIC COMPANY L.L.C.,
	 	 	 	 	 	 	 
	 	 	
by
	 	 	 	Fisher Scientific

International Inc., manager

and sole manager
	 	 	 	 	 	 	 
	 	 	
by
	 	 	 	/s/ Kevin P. Clark

	 	 	 	 	 	 	

	 	 	 	 	Name:

Title:
	 	Kevin P. Clark

Vice President and Chief

Financial Officer
	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, individually and as Administrative Agent,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Bruce Borden

	 	 	 	 	 	 	

	 	 	 	 	Name:

Title:
	 	Bruce Borden

Vice President

	 	 	 	 	 	 	 
	 	 	ALLIED IRISH BANKS PLC,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Margaret Brennan

	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Margaret Brennan
	 	 	 	 	Title:
	 	Vice President
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ John Timoney
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	John Timoney
	 	 	 	 	Title:
	 	Vice President









 



119



	 	 	 	 	 	 	 
	 	 	ABN AMRO BANK N.V.,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ James S. Kreitler
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	James S. Kreitler
	 	 	 	 	Title:
	 	Senior Vice President
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Nancy W. Lanzoni
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Nancy W. Lanzoni
	 	 	 	 	Title:
	 	Group Vice President
	 	 	 	 	 	 	 
	 	 	THE BANK OF NOVA SCOTIA.,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Carolyn A. Calloway
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Carolyn A. Calloway
	 	 	 	 	Title:
	 	Managing Director
	 	 	 	 	 	 	 
	 	 	CREDIT INDUSTRIEL ET COMMERCIAL,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Anthony Rock
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Anthony Rock
	 	 	 	 	Title:
	 	Vice President
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Sean Mounier
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Sean Mounier
	 	 	 	 	Title:
	 	First Vice President
	 	 	 	 	 	 	CREDIT SUISSE FIRST BOSTON,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Christopher Lally
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Christopher Lally
	 	 	 	 	Title:
	 	Vice President
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Jennifer A. Pieza
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Jennifer A. Pieza
	 	 	 	 	Title:
	 	Associate









 



120



	 	 	 	 	 	 	 
	 	 	DEUTCHE BANK TRUST COMPANY AMERICAS,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Albert Fischetti
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Albert Fischetti
	 	 	 	 	Title:
	 	Director
	 	 	 	 	 	 	 
	 	 	FLEET NATIONAL BANK,
	 	 	 	 	 	 	 
	 	 	
by
	 	 	 	/s/ Christopher J. Wickles
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Christopher J. Wickles
	 	 	 	 	Title:
	 	Vice President
	 	 	 	 	 	 	 
	 	 	GE CAPITAL CFE, INC.,
	 	 	 	 	 	 	 
	 	 	
by
	 	 	 	/s/ Timothy Morris
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Timothy Morris
	 	 	 	 	Title:
	 	Duly Authorized

Signatory
	 	 	 	 	 	 	 
	 	 	IKB CAPITAL CORPORATION,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ David Snyder
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	David Snyder
	 	 	 	 	Title:
	 	IKB Capital Corporation
	 	 	 	 	 	 	 
	 	 	KEY CORPORATE CAPITAL INC.,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Laura L. Conway
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Laura L. Conway
	 	 	 	 	Title:
	 	Vice President
	 	 	 	 	 	 	 
	 	 	KZH CNC LLC,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Joyce Fraser-Bryant
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Joyce Fraser-Bryant
	 	 	 	 	Title:
	 	Authorized Agent









 



121



	 	 	 	 	 	 	 
	 	 	KZH CRESCENT LLC,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Dorian Herrera
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Dorian Herrera
	 	 	 	 	Title:
	 	Authorized Agent
	 	 	KZH CRESCENT-2 LLC,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Dorian Herrera
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Dorian Herrera
	 	 	 	 	Title:
	 	Authorized Agent
	 	 	 	 	 	 	 
	 	 	KZH CRESCENT-3 LLC,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Dorian Herrera
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Dorian Herrera
	 	 	 	 	Title:
	 	Authorized Agent
	 	 	 	 	 	 	 
	 	 	KZH CYPRESSTREE-1 LLC,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Dorian Herrera
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Dorian Herrera
	 	 	 	 	Title:
	 	Authorized Agent
	 	 	 	 	 	 	 
	 	 	KZH ING-2 LLC,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Dorian Herrera
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Dorian Herrera
	 	 	 	 	Title:
	 	Authorized Agent
	 	 	KZH RIVERSIDE LLC,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Dorian Herrera
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Dorian Herrera
	 	 	 	 	Title:
	 	Authorized Agent









 



122



	 	 	 	 	 	 	 
	 	 	KZH
SOLEIL LLC,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	/s/ Dorian Herrera	 	 
	 	 	 	 	
	 	 
	 	 	 	 	Name: Dorian Herrera	 	 
	 	 	 	 	Title: Authorized Agent	 	 
	 	 	 	 	 	 	 
	 	 	KZH SOLEIL-2 LCC,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	/s/ Dorian Herrera	 	 
	 	 	 	 	
	 	 
	 	 	 	 	Name: Dorian Herrera	 	 
	 	 	 	 	Title: Authorized Agent	 	 
	 	 	 	 	 	 	 
	 	 	KZH STERLING LLC, NG LLC,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	/s/ Dorian Herrera	 	 
	 	 	 	 	
	 	 
	 	 	 	 	Name: Dorian Herrera	 	 
	 	 	 	 	Title: Authorized Agent	 	 
	 	 	 	 	 	 	 
	 	 	MERRILL LYNCH CAPITAL, a division of Merrill Lynch Business Financial Services Inc.,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	/s/ Julia E. Maslanka	 	 
	 	 	 	 	
	 	 
	 	 	 	 	Name: Julia E. Maslanka	 	 
	 	 	 	 	Title: Vice President	 	 
	 	 	 	 	 	 	 
	 	 	METROPOLITAN LIFE INSURANCE COMPANY, AN LIFE INSURANCE COMPANY,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	/s/ James R. Dingler	 	 
	 	 	 	 	
	 	 
	 	 	 	 	Name: James R. Dingler	 	 
	 	 	 	 	Title: Director	 	 
	 	 	 	 	 	 	 
	 	 	MONY LIFE INSURANCE COMPANY, INSURANCE COMPANY,
	 	 	 	 	 	 	 
	 	 	
by
	 	Mony Capital Management,

Inc., as Investment Manager	 	 
	 	 	 	 	 	 	 
	 	 	
by
	 	/s/ Suzanne E. Walton	 	 
	 	 	 	 	
	 	 
	 	 	 	 	Name: Suzanne E. Walton	 	 
	 	 	 	 	Title: Senior Managing Director	 	 









 



123



	 	 	 	 	 	 	 
	 	 	NATEXIS BANQUES POPULAIRES,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ William J. Burke
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	William J. Burke
	 	 	 	 	Title:
	 	Vice President
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Kristen Brainard
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Kristen Brainard
	 	 	 	 	Title:
	 	Associate
	 	 	 	 	 	 	 
	 	 	NATIONAL CITY BANK,
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Stephen Bassett
	 	 	 	 	Name:
	 	Stephen Bassett
	 	 	 	 	Title:
	 	AVP
	 	 	 	 	 	 	 
	 	 	PB CAPITAL CORPORATION,
	 	 	 	 	 	 	 
	 	 	
by
	 	 	 	/s/ Andrew L. Shipman
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Andrew L. Shipman
	 	 	 	 	Title:
	 	Assistant Vice President
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Christopher J. Ruzzi
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Christopher J. Ruzzi
	 	 	 	 	Title:
	 	Vice President
	 	 	 	 	 	 	 
	 	 	PROTECTIVE LIFE INSURANCE CO.,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Diane S. Griswold
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Diane S. Griswold
	 	 	 	 	Title:
	 	AVP
	 	 	 	 	 	 	 
	 	 	SUMITOMO MITSUI BANKING CORPORATION,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Suresh Tata
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Suresh Tata
	 	 	 	 	Title:
	 	Senior Vice President









 



124



	 	 	 	 	 	 	 
	 	 	TORONTO DOMINION (NEW YORK), INC.,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Stacey Malek
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Stacey Malek
	 	 	 	 	Title:
	 	Vice President
	 	 	 	 	 	 	 
	 	 	TRANSAMERICA BUSINESS CAPITAL CORPORATION,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Stephen K. Goetschius
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Stephen K. Goetschius
	 	 	 	 	Title:
	 	Senior Vice President
	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, N.A.,
	 	 	 	 	 	 	 
	 	 	
by	 	 	 	 
	 	 	 	 	 	 	/s/ Joseph C. Bossont, Jr.
	 	 	 	 	 	 	

	 	 	 	 	Name:
	 	Joseph C. Bossont, Jr.
	 	 	 	 	Title:
	 	Director





125