exv10w1



 





Exhibit 10.1




Execution version




U.S. $1,500,000,000




 






FIVE-YEAR CREDIT AGREEMENT




 






Dated as of December 20, 2006




among




BAXTER INTERNATIONAL INC.




as Borrower




THE FINANCIAL INSTITUTIONS NAMED HEREIN




as Banks




JPMORGAN CHASE BANK, N.A.




as Administrative Agent




BANK OF AMERICA, N.A.




as Syndication Agent




and




J.P. MORGAN SECURITIES INC.




and




BANC OF AMERICA SECURITIES LLC




as Co-Lead Arrangers and Joint Bookrunners




and




DEUTSCHE BANK SECURITIES INC.

GOLDMAN SACHS CREDIT PARTNERS L.P.

UBS AG

and

CITIBANK, N.A.




as Co-Documentation Agents





 









 





TABLE OF CONTENTS





	 	 	 	 	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Computation of Time Periods
	 	 	14	 
	SECTION 1.03. Accounting Terms and Principles
	 	 	14	 
	 
	 	 	 	 
	ARTICLE II THE SYNDICATED BORROWING FACILITY
	 	 	14	 
	 
	 	 	 	 
	SECTION 2.01. The Syndicated Borrowing Facility
	 	 	14	 
	SECTION 2.02. Making the Syndicated Advances
	 	 	15	 
	SECTION 2.03. Method of Electing Interest Rates
	 	 	15	 
	SECTION 2.04. Determination of Dollar Amounts; Required Payments; Termination
	 	 	17	 
	SECTION 2.05. Increase in Aggregate Commitment
	 	 	18	 
	 
	 	 	 	 
	ARTICLE III THE COMPETITIVE BID BORROWING FACILITY
	 	 	18	 
	 
	 	 	 	 
	SECTION 3.01. The Competitive Bid Facility
	 	 	18	 
	SECTION 3.02. Competitive Bid Quote Request
	 	 	19	 
	SECTION 3.03. Invitation for Competitive Bid Quotes
	 	 	19	 
	SECTION 3.04. Submission and Contents of Competitive Bid Quotes
	 	 	20	 
	SECTION 3.05. Notice to the Borrower
	 	 	21	 
	SECTION 3.06. Acceptance and Notice by the Borrower
	 	 	22	 
	SECTION 3.07. Allocation by Administrative Agent
	 	 	22	 
	SECTION 3.08. Notification of Acceptances to the Affected Banks
	 	 	22	 
	SECTION 3.09. Funding of Competitive Bid Advances
	 	 	23	 
	 
	 	 	 	 
	ARTICLE IV THE LETTER OF CREDIT FACILITY
	 	 	23	 
	 
	 	 	 	 
	SECTION 4.01. Obligation to Issue
	 	 	23	 
	SECTION 4.02. Types and Amounts
	 	 	24	 
	SECTION 4.03. Conditions
	 	 	24	 
	SECTION 4.04. Procedure for Issuance of Letters of Credit
	 	 	24	 
	SECTION 4.05. Letter of Credit Participation
	 	 	25	 
	SECTION 4.06. Reimbursement Obligation
	 	 	26	 
	SECTION 4.07. Issuing Bank Charges
	 	 	26	 
	SECTION 4.08. Issuing Bank Reporting Requirements
	 	 	26	 
	SECTION 4.09. Indemnification; Exoneration
	 	 	27	 
	 
	 	 	 	 
	ARTICLE V GENERAL TERMS
	 	 	28	 
	 
	 	 	 	 
	SECTION 5.01. Illegality; Interest Rate Inadequate or Unfair
	 	 	28	 
	SECTION 5.02. Effect of Notice of Borrowing; Maximum Number of Borrowings
	 	 	30	 
	SECTION 5.03. Effect of Failure to Borrow or Fund
	 	 	30	 
	SECTION 5.04. Fees and Certain Credit Rating Determinations
	 	 	31	 
	SECTION 5.05. Reduction of the Commitments
	 	 	33	 






i









 




TABLE OF CONTENTS






	 	 	 	 	 
	SECTION 5.06. Repayment
	 	 	34	 
	SECTION 5.07. Interest
	 	 	34	 
	SECTION 5.08. Additional Interest on Eurocurrency Advances and EURIBOR
Advances
	 	 	36	 
	SECTION 5.09. Interest on Overdue Principal
	 	 	37	 
	SECTION 5.10. Interest Rate Determinations
	 	 	37	 
	SECTION 5.11. Performance of Banks’ Obligations
	 	 	37	 
	SECTION 5.12. Optional Prepayments
	 	 	38	 
	SECTION 5.13. Increased Costs
	 	 	39	 
	SECTION 5.14. Payments and Computations
	 	 	39	 
	SECTION 5.15. Taxes
	 	 	41	 
	SECTION 5.16. Noteless Agreement; Evidence of Indebtedness
	 	 	43	 
	SECTION 5.17. Sharing of Payments, Etc
	 	 	43	 
	SECTION 5.18. Termination and Prepayment with Respect to any Bank
	 	 	44	 
	 
	 	 	 	 
	ARTICLE VI CONDITIONS PRECEDENT
	 	 	46	 
	 
	 	 	 	 
	SECTION 6.01. Conditions Precedent to Effectiveness of Agreement
	 	 	46	 
	SECTION 6.02. Conditions Precedent to Each Borrowing
	 	 	47	 
	SECTION 6.03. Termination of Existing Credit Agreements
	 	 	47	 
	 
	 	 	 	 
	ARTICLE VII REPRESENTATIONS AND WARRANTIES
	 	 	48	 
	 
	 	 	 	 
	SECTION 7.01. Representations and Warranties of the Borrower
	 	 	48	 
	 
	 	 	 	 
	ARTICLE VIII COVENANTS
	 	 	49	 
	 
	 	 	 	 
	SECTION 8.01. Affirmative Covenants of the Borrower
	 	 	49	 
	SECTION 8.02. Negative Covenants of the Borrower
	 	 	53	 
	 
	 	 	 	 
	ARTICLE IX EVENTS OF DEFAULT
	 	 	57	 
	 
	 	 	 	 
	SECTION 9.01. Events of Default
	 	 	57	 
	SECTION 9.02. Cash Collateral
	 	 	59	 
	 
	 	 	 	 
	ARTICLE X THE ADMINISTRATIVE AGENT
	 	 	60	 
	 
	 	 	 	 
	SECTION 10.01. Authorization and Action
	 	 	60	 
	SECTION 10.02. Duties and Obligations
	 	 	60	 
	SECTION 10.03. Administrative Agent and Affiliates
	 	 	61	 
	SECTION 10.04. Bank Credit Decision
	 	 	61	 
	SECTION 10.05. Indemnification
	 	 	61	 
	SECTION 10.06. Successor Administrative Agent
	 	 	62	 
	SECTION 10.07. Syndication Agent, Co-Lead Arrangers and Co-Documentation Agents
	 	 	62	 
	 
	 	 	 	 
	ARTICLE XI MISCELLANEOUS
	 	 	62	 






ii









 




TABLE OF CONTENTS






	 	 	 	 	 
	SECTION 11.01. Amendments, Etc
	 	 	62	 
	SECTION 11.02. Notices, Etc
	 	 	63	 
	SECTION 11.03. No Waiver; Cumulative Remedies
	 	 	63	 
	SECTION 11.04. Costs and Expenses; Indemnification
	 	 	64	 
	SECTION 11.05. Right of Set-Off
	 	 	65	 
	SECTION 11.06. Binding Effect; Assignment
	 	 	65	 
	SECTION 11.07. Confidentiality
	 	 	67	 
	SECTION 11.08. Governing Law
	 	 	68	 
	SECTION 11.09. Execution in Counterparts
	 	 	68	 
	SECTION 11.10. Severability
	 	 	68	 
	SECTION 11.11. Entire Agreement
	 	 	68	 
	SECTION 11.12. Market Disruption
	 	 	68	 
	SECTION 11.13. Judgment Currency
	 	 	69	 
	SECTION 11.14. USA PATRIOT ACT
	 	 	69	 






EXHIBITS AND SCHEDULES




	 	 	 	 	 
	Exhibit 2.02

	 	-
	 	Form of Notice of Syndicated Borrowing
	Exhibit 2.03

	 	-
	 	Form of Notice of Interest Rate Election
	Exhibit 3.02

	 	-
	 	Form of Competitive Bid Quote Request
	Exhibit 3.04

	 	-
	 	Form of Competitive Bid Quote
	Exhibit 3.06

	 	-
	 	Form of Notice of Competitive Bid Borrowing
	Exhibit 5.15(d)

	 	-
	 	Form of Section 5.15(d)(ii) Certificate
	Exhibit 6.01(d)

	 	-
	 	Form of Opinion of Borrower’s Counsel
	Exhibit 8.01(g)(ii)

	 	-
	 	Form of Certificate of Independent Accountants
	Exhibit 11.06

	 	-
	 	Form of Assignment and Acceptance
	 
	 	 	 	 
	Schedule 1.01

	 	-
	 	Commitments
	Schedule 1.02

	 	-
	 	Lending Office Addresses
	Schedule 1.03

	 	-
	 	Existing Letters of Credit







iii









 








FIVE-YEAR

CREDIT AGREEMENT




Dated as of December 20, 2006




          Baxter International Inc., a Delaware corporation (the “Borrower”), the financial
institutions listed on the signature pages of this Agreement under the heading “Banks” (such
financial institutions and any successor financial institution that becomes a party to this
Agreement pursuant to Section 2.05, 5.18 or 11.06 hereinafter referred to
as the “Banks”), JPMorgan Chase Bank, N.A. (“JPMorgan Chase”), as administrative
agent hereunder (such administrative agent and any successor administrative agent appointed
pursuant to Section 10.06 hereinafter referred to as the “Administrative Agent”),
Bank of America, N.A., as Syndication Agent (the “Syndication Agent”), each of J.P. Morgan
Securities Inc. and Banc of America Securities LLC, as co-lead arrangers hereunder (the
“Co-Lead Arrangers”) and each of Deutsche Bank Securities Inc., Goldman Sachs Credit
Partners L.P., UBS AG and Citibank, N.A., as co-documentation agents hereunder (the
“Co-Documentation Agents”), agree as follows:




ARTICLE I




DEFINITIONS




          SECTION 1.01. Defined Terms. As used in this Five-Year Credit Agreement (this
“Agreement”), the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):




          “Absolute Rate” means, with respect to an Absolute Rate Advance made by a given Bank
for the relevant Interest Period, the rate of interest per annum (rounded to the nearest 1/100 of
1%) offered by such Bank and accepted by the Borrower with respect to such Absolute Rate Advance.




          “Absolute Rate Advance” means an Advance made or to be made by a Bank pursuant to
Article III as an Absolute Rate Advance in accordance with the applicable Notice of
Competitive Bid Borrowing. Each Absolute Rate Advance shall bear interest at an Absolute Rate as
provided in Section 5.07(d).




          “Absolute Rate Auction” means a solicitation of Competitive Bid Quotes setting forth
Absolute Rates for Absolute Rate Advances to be extended pursuant to Article III.




          “Adjusted Debt” means, at any time, (a) all Debt, minus (b) an amount equal to
all cash and cash equivalent investments of the Borrower and its Consolidated Subsidiaries at such
time.




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




          “Advance” means a Syndicated Advance and/or a Competitive Bid Advance, as the context
requires.




 









 








          “Affiliate” means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person.




          “Aggregate Commitments” means, at any time, the aggregate amount of the Commitments of
all the Banks hereunder at such time.




          “Agreed Currencies” means (i) Dollars, (ii) so long as such currencies remain Eligible
Currencies, Swiss Francs, Japanese Yen and Euro, and (iii) any other Eligible Currency which the
Borrower requests the Administrative Agent to include as an Agreed Currency hereunder and which is
acceptable to all of the Banks. For the purposes of this definition, each of the specific
currencies referred to in clause (ii), above, shall mean and be deemed to refer to the lawful
currency of the jurisdiction referred to in connection with such currency, e.g., “Swiss Francs”
means the lawful currency of Switzerland.




          “Applicable Lending Office” means, with respect to each Bank, such Bank’s Domestic
Lending Office in the case of a Base Rate Advance, such Bank’s Eurocurrency Lending Office in the
case of a Eurocurrency Rate Advance, such Bank’s EURIBOR Lending Office in the case of a EURIBOR
Rate Advance, and such Bank’s Competitive Bid Lending Office in the case of a Competitive Bid
Advance.




          “Approved Fund” means any Fund that is administered or managed by (a) a Bank, (b) an
Affiliate of a Bank or (c) an entity or an Affiliate of an entity that administers or manages a
Bank.




          “Approximate Dollar Amount” of any currency with respect to any amount of Dollars
means the Dollar Amount of such currency with respect to such amount of Dollars on or as of such
date, rounded up to the nearest amount of such currency as determined by the Administrative Agent
from time to time.




          “Available Commitment” means, with respect to any Bank at any time, an amount equal to
(i) such Bank’s Commitment at such time minus (ii) an amount equal to such Bank’s ratable
share, determined on the basis that such Bank’s Commitment bears to all Commitments at such time,
of the aggregate Dollar Amount of all Competitive Bid Advances outstanding at such time
minus (iii) such Bank’s L/C Interest in the L/C Obligations outstanding at such time.




          “Base Rate” means a fluctuating interest rate per annum as shall be in effect from
time to time, which rate per annum shall at all times be equal to the higher of (i) the Prime Rate
and (ii) a rate per annum equal to the Federal Funds Rate plus 0.50%.




          “Base Rate Advance” means (i) an Advance made or to be made by a Bank pursuant to
Section 2.01, as a Base Rate Advance in accordance with the applicable Notice of Syndicated
Borrowing, or pursuant to Section 5.01, as a Base Rate Advance in substitution for a Fixed
Rate Advance, or pursuant to Section 4.06, as a Base Rate Advance by a Bank funding an
unreimbursed Reimbursement Obligation, and (ii) any Advance Converted into a Base Rate Advance in
accordance with Section 2.03 or 5.01. Each Base Rate Advance shall bear interest
as provided in Section 5.07(a).





2









 








          “Borrowing” means a Syndicated Borrowing and/or a Competitive Bid Borrowing, as the
context requires.




          “Borrowing Date” means a date on which an Advance is, or is proposed to be, made
hereunder, or a Letter of Credit is, or is proposed to be, issued hereunder.




          “Business Day” means (i) with respect to a Base Rate Advance or an Absolute Rate
Advance or for any other purpose not relating to any borrowing, payment or rate selection of
Eurocurrency Advances or EURIBOR Advances, a Domestic Business Day, (ii) with respect to a
Eurocurrency Advance, a Eurocurrency Business Day, and (iii) with respect to a EURIBOR Advance, a
EURIBOR Business Day.




          “Change of Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the
rules of the SEC thereunder as in effect on the date hereof) of 50% or more of the aggregate
ordinary voting power represented by the issued and outstanding Equity Interests of the Borrower or
(b) occupation of a majority of the seats (other than vacant seats) on the board of directors of
the Borrower by Persons who were neither (i) nominated by the board of directors of the Borrower
nor (ii) appointed by directors so nominated.




          “Closing Date” means December 20, 2006.




          “Co-Documentation Agents” means Deutsche Bank Securities Inc., Goldman Sachs Credit
Partners L.P., UBS AG and Citibank, N.A., in their capacities as Co-Documentation Agents.




          “Co-Lead Arrangers” means J.P. Morgan Securities Inc. and Banc of America Securities
LLC, in their capacities as Co-Lead Arrangers and Joint Bookrunners.




          “Commitment” means, with respect to any Bank at any time the amount indicated opposite
such Bank’s name on Schedule 1.01 hereto, as such amount may from time to time have been
increased pursuant to Section 2.05, reduced pursuant to Section 5.05 or modified in
accordance with Section 11.06.




          “Competitive Bid Advance” means an advance by a Bank to the Borrower pursuant to
Article III and refers to a Eurocurrency Bid Rate Advance, a EURIBOR Bid Rate Advance, an
Absolute Rate Advance or an advance in substitution therefor pursuant to Section 5.01.




          “Competitive Bid Borrowing” means a borrowing consisting of Competitive Bid Advances
(i) made on the same day by the Banks whose Competitive Bid Quotes in connection with a given type
of auction, whether a Eurocurrency Auction, EURIBOR Auction or an Absolute Rate Auction, shall have
been accepted by the Borrower in accordance with Section 3.06, (ii) having the same
Interest Period, and (iii) being in the same currency.




          “Competitive Bid Borrowing Facility” has the meaning assigned to that term in
Section 3.01.




3









 








          “Competitive Bid Lending Office” means, with respect to each Bank, the office of such
Bank specified as its “Competitive Bid Lending Office” opposite its name on Schedule 1.02
hereto (or, if no such office is specified, its Domestic Lending Office) or such other office of
such Bank as such Bank may from time to time specify to the Borrower and the Administrative
Agent. Any Bank may from time to time by notice to the Borrower and the Administrative Agent
designate separate Competitive Bid Lending Offices for its Absolute Rate Advances, its Eurocurrency
Bid Rate Advances and its EURIBOR Bid Rate Advances, in which case all references herein to the
“Competitive Bid Lending Office” of such Bank shall be deemed to refer to any one or all of such
offices, as the context may require.




          “Competitive Bid Margin” means (i) with respect to a Eurocurrency Bid Rate Advance, a
margin above or below the applicable Eurocurrency Rate which is offered for a Eurocurrency Bid Rate
Advance, expressed as a percentage (rounded to the nearest 1/10,000 of 1%) to be added to or
subtracted from such Eurocurrency Rate and (ii) with respect to a EURIBOR Bid Rate Advance, a
margin above or below the applicable EURIBOR which is offered for a EURIBOR Rate Advance, expressed
as a percentage (rounded to the nearest 1/10,000 of 1%) to be added to or subtracted from such
EURIBOR.




          “Competitive Bid Quote” means a Competitive Bid Quote substantially in the form of
Exhibit 3.04 hereto, completed by a Bank and delivered by such Bank to the Administrative
Agent in accordance with Section 3.04.




          “Competitive Bid Quote Request” means a Competitive Bid Quote Request substantially in
the form of Exhibit 3.02 hereto, completed by the Borrower and delivered by the Borrower to
the Administrative Agent in accordance with Section 3.02.




“Computation Date” has the meaning assigned to that term in Section 2.04.




          “Consolidated” refers to the full consolidation of the accounts of the Borrower and
its Subsidiaries in accordance with generally accepted accounting principles, including principles
of consolidation, consistent with those applied in the preparation of the financial statements
referred to in Section 7.01(f).




          “Consolidated Capitalization” means, at any time, the sum at such time of: (i) the
Consolidated stockholders’ equity of the Borrower and its Consolidated Subsidiaries, and (ii)
Adjusted Debt of the Borrower and its Consolidated Subsidiaries.




          “Consolidated Net Tangible Assets” means the total amount of assets which would be
included on a Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries (and
which shall reflect the deduction of applicable reserves) after deducting therefrom all current
liabilities of the Borrower and its Consolidated Subsidiaries and all Intangible Assets.




          “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.





4









 








          “Convert”, “Conversion”, “Converting” and “Converted” each
refers to a conversion of Advances of one Type into Advances of another Type or a continuation of
Advances as the same Type for an additional Interest Period, in each case pursuant to Section
2.03.




          “Credit Ratings” has the meaning assigned to that term in Section 5.04(a).




          “Debentures” means long-term debt securities (without third-party credit enhancement).




          “Debt” means the sum of: (i) indebtedness for borrowed money or for the deferred
purchase price of property or services carried as indebtedness on the Consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries (excluding accounts payable arising in the ordinary
course of such Person’s business payable on terms customary in the trade), (ii) obligations of the
Borrower and its Consolidated Subsidiaries as lessee under leases that, in accordance with
generally accepted accounting principles, are recorded as capital leases, and (iii) obligations of
the Borrower and its Consolidated Subsidiaries under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure
a creditor against loss in respect of, indebtedness or obligations of other parties of the kinds
referred to in clauses (i) and (ii) above (other than Debt of any Subsidiary, to the extent such
Debt is included in the calculation of Debt as a result of clause (i) or (ii) above) in excess of
$100,000,000 in the aggregate. The term “Debt” shall not include (x) any obligations of the
Borrower under or in connection with: (A) that certain Facility and Guaranty Agreement dated as of
April 14, 2004 among the Borrower, certain financial institutions parties thereto and JPMorgan
Chase (as successor to Bank One, NA), as agent, (B) that certain Facility and Guaranty Agreement
dated as of July 8, 2003 among the Borrower, certain financial institutions parties thereto and
JPMorgan Chase (as successor to Bank One, NA), as agent, or (C) any similar arrangement under which
the Borrower has agreed to guarantee the payment obligations of a current or former employee of the
Borrower arising in connection with financing provided to such employee and relating to the
Borrower’s “Baxter International Inc. 1999 Shared Investment Plan”, to the extent the aggregate
obligations of the Borrower under the foregoing clauses (A), (B) and (C) do not exceed an amount
equal to $200,000,000 and such obligations (whenever incurred) shall have arisen solely in
connection with purchases by such employees of the Borrower’s common stock in 1999, or (y) the
undrawn face amount of any letter of credit issued for the account of the Borrower or any of its
Consolidated Subsidiaries, but shall include the reimbursement obligation owing from time to time
by the Borrower or any of its Consolidated Subsidiaries in respect of drawings made under any
letter of credit in the event reimbursement is not made immediately following the applicable
drawing.




          “Dollar Amount” of any currency at any date means (i) the amount of such currency if
such currency is Dollars or (ii) the equivalent in Dollars of the amount of such currency if such
currency is any currency other than Dollars, calculated on the basis of the rate at which such
currency may be exchanged into Dollars at the time of determination on such day on the Reuters
Currency pages, if available, for such currency. In the event that such rate does not appear on
any Reuters Currency pages, 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 Borrower, or, in the absence of such an
agreement, such exchange 


5









 






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 currency are then
being conducted, at or about such time as the Administrative Agent shall elect after determining
that such rates shall be the basis for determining the exchange rate, 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 may use
any reasonable method it deems appropriate to determine such rate, and such determination shall be
prima facie evidence thereof.




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




          “Domestic Business Day” means a day (other than Saturday or Sunday) of the year on
which banks are not required or authorized to close in New York City or Chicago, Illinois and are
generally open for the conduct of substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire system.




          “Domestic Lending Office” means, with respect to each Bank, the office of such Bank
specified as its “Domestic Lending Office” opposite its name on Schedule 1.02 hereto or
such other office of such Bank as such Bank may from time to time specify to the Borrower and the
Administrative Agent.




          “Eligible Currency” means any currency other than Dollars (i) that is readily
available, (ii) that is freely traded, (iii) in which deposits are customarily offered to banks in
the Brussels euro-zone interbank market or London interbank market, as applicable, (iv) which is
convertible into Dollars in the international interbank market and (v) as to which a Dollar Amount
may be readily calculated. If, after the designation by the Banks of any currency as an Agreed
Currency, (x) currency control or other exchange regulations are imposed in the country in which
such currency is issued with the result that different types of such currency are introduced, (y)
such currency is, in the determination of the Administrative Agent, no longer readily available or
freely traded or (z) in the determination of the Administrative Agent, a Dollar Amount of such
currency is not readily calculable, the Administrative Agent shall promptly notify the Banks and
the Borrower, and such currency shall no longer be an Agreed Currency until such time as all of the
Banks agree to reinstate such currency as an Agreed Currency and promptly, but in any event within
five Business Days of receipt of such notice from the Administrative Agent, the Borrower shall
repay all Advances in such affected currency or convert such Advances into Advances in Dollars or
another Agreed Currency, subject to the other terms set forth in Article II and Article
III.




          “Environmental Laws” means federal, state, local and foreign laws, rules and
regulations relating to the release, emission, disposal, storage and related handling of waste
materials, pollutants and hazardous substances.




          “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity interests
in a Person, and any and all warrants, rights or options to purchase any of the foregoing.





6









 








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




          “EURIBOR” means, with respect to any EURIBOR Advance for the relevant Interest Period,
the interest rate per annum equal to the rate determined by the Administrative Agent to be the rate
at which deposits in Euro appear on the Reuters Screen EURIBOR01 as of 11:00 a.m., Brussels time,
on the date that is two (2) TARGET Settlement Days (or, if such date is not a EURIBOR Business Day,
the first day preceding such date that is a EURIBOR Business Day) preceding the first day of such
Interest Period, and having a maturity equal to such Interest Period; provided, that if
such rate does not appear on the Reuters Screen EURIBOR01, then EURIBOR shall be an interest rate
per annum equal to the arithmetic mean determined by the Administrative Agent (rounded to the
nearest .01%) of the rates per annum at which deposits in
Euro are offered by the London branches of JPMorgan Chase Bank, N.A., Bank of America, N.A.
and Citibank, N.A. at approximately 11:00 a.m., Brussels time, on the day that is two (2) TARGET
Settlement Days (or, if such date is not a EURIBOR Business Day, the first day preceding such date
that is a EURIBOR Business Day) preceding the first day of such Interest Period to other leading
banks in the euro-zone interbank market, and having a maturity equal to such Interest Period.




          “EURIBOR Advance” means any EURIBOR Rate Advance or EURIBOR Bid Rate Advance for any
Advance in Euro.




          “EURIBOR Auction” means a solicitation of Competitive Bid Quotes setting forth
Competitive Bid Margins in relation to the applicable EURIBOR for EURIBOR Bid Rate Advances to be
extended pursuant to Article III.




          “EURIBOR Bid Rate” means, with respect to a EURIBOR Bid Rate Advance made by a given
Bank for the relevant Interest Period, the sum of (a) the EURIBOR applicable thereto and (b) the
Competitive Bid Margin offered by such Bank and accepted by the Borrower with respect to such
EURIBOR Bid Rate Advance.




          “EURIBOR Bid Rate Advance” means an Advance made or to be made by a Bank pursuant to
Article III as a EURIBOR Bid Rate Advance in accordance with the applicable Notice of
Competitive Bid Borrowing. Each EURIBOR Bid Rate Advance shall bear interest at a EURIBOR Bid Rate
as provided in Section 5.07(d).




          “EURIBOR Business Day” means any Domestic Business Day on which dealings are carried
on in the Brussels euro-zone interbank market and the London interbank market and which is a TARGET
Settlement Day.




          “EURIBOR Lending Office” means, with respect to each Bank, the office of such Bank
specified as its “EURIBOR Lending Office” opposite its name on Schedule 1.02 hereto (or if
no such office is specified, its Domestic Lending Office) or such other office of such Bank as such
Bank may from time to time specify to the Borrower and the Administrative Agent.




          “EURIBOR Margin” has the meaning assigned to that term in Section 5.07(c).





7









 








          “EURIBOR Rate Advance” means (i) an Advance made or to be made by a Bank pursuant to
Section 2.01, as a EURIBOR Rate Advance in accordance with the applicable Notice of
Syndicated Borrowing and (ii) any Advance converted into a EURIBOR Rate Advance in accordance with
Section 2.03. Each EURIBOR Rate Advance shall bear interest as provided in Section
5.07(c).




          “Euro” and/or “EUR” means the euro referred to in Council Regulation (EC) No.
1103/97 dated June 17, 1997 passed by the Council of the European Union, or, if different, the then
lawful currency of the member states of the European Union that participate in the third stage of
Economic and Monetary Union.




          “Eurocurrency Advance” means any Eurocurrency Rate Advance or Eurocurrency Bid Rate
Advance for any Advance in any Agreed Currency other than Euro.




          “Eurocurrency Auction” means a solicitation of Competitive Bid Quotes setting forth
Competitive Bid Margins in relation to the applicable Eurocurrency Rate for Eurocurrency Bid Rate
Advances to be extended pursuant to Article III.




          “Eurocurrency Bid Rate” means, with respect to a Eurocurrency Bid Rate Advance made by
a given Bank for the relevant Interest Period, the sum of (a) the Eurocurrency Rate applicable
thereto and (b) the Competitive Bid Margin offered by such Bank and accepted by the Borrower with
respect to such Eurocurrency Bid Rate Advance.




          “Eurocurrency Bid Rate Advance” means an Advance made or to be made by a Bank pursuant
to Article III as a Eurocurrency Bid Rate Advance in accordance with the applicable Notice
of Competitive Bid Borrowing. Each Eurocurrency Bid Rate Advance shall bear interest at a
Eurocurrency Bid Rate as provided in Section 5.07(d).




          “Eurocurrency Business Day” means any Domestic Business Day on which dealings are
carried on in the London interbank market.




          “Eurocurrency Lending Office” means, with respect to each Bank, the office of such
Bank specified as its “Eurocurrency Lending Office” opposite its name on Schedule 1.02
hereto (or, if no such office is specified, its Domestic Lending Office) or such other office of
such Bank as such Bank may from time to time specify to the Borrower and the Administrative Agent.




          “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from time to time.




          “Eurocurrency Margin” has the meaning assigned to that term in Section
5.07(b).




          “Eurocurrency Rate” means, with respect to a Eurocurrency Advance in an Agreed
Currency (other than Euro) for the relevant Interest Period, the applicable British Bankers’
Association Interest Settlement Rate for deposits in the applicable Agreed Currency as reported by
any generally recognized financial information service as of 11:00 a.m. (London time) two
Eurocurrency Business Days prior to the first day of such Interest Period, and having a maturity
equal to such Interest Period; provided, that, if no such British Bankers’ Association




8









 







Interest Settlement Rate is available to the Administrative Agent, the applicable Eurocurrency Rate
for the relevant Interest Period shall instead be the rate determined by the Administrative Agent
to be the rate at which JPMorgan Chase or one of its Affiliate banks offers to place deposits in an
Agreed Currency (other than Euro) with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Eurocurrency Business Days prior to the first day of
such Interest Period, and having a maturity equal to such Interest Period.




          “Eurocurrency Rate Advance” means (i) an Advance made or to be made by a Bank pursuant
to Section 2.01, as a Eurocurrency Rate Advance in accordance with the applicable Notice of
Syndicated Borrowing, and (ii) any Advance Converted into a Eurocurrency Rate Advance in accordance
with Section 2.03. Each Eurocurrency Rate Advance shall bear interest as provided in
Section 5.07(b).




          “Eurocurrency Rate Reserve Percentage” of any Bank for the Interest Period for any
Eurocurrency Advance or EURIBOR Advance, as applicable, means the maximum reserve
percentage applicable during such Interest Period (or, if more than one such percentage shall
be so applicable, the daily average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) under regulations issued from time to time
by the Board of Governors of the Federal Reserve System for determining the reserve requirement
(including, without limitation, any emergency, supplemental or other marginal reserve requirement
and taking into account any transitional adjustments or other scheduled changes in reserve
requirements during such Interest Period) for such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.




          “Events of Default” has the meaning assigned to that term in Section 9.01.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended.




          “Existing Credit Agreements” means the Five-Year Credit Agreements dated as of October
3, 2002 and September 29, 2004, respectively, among the Borrower, the financial institutions
parties thereto and JPMorgan Chase, as administrative agent.




          “Existing Letters of Credit” means the Letters of Credit identified on Schedule
1.03 hereto.




          “Facility Usage” means, at any time, an amount equal to the sum of (i) the aggregate
principal amount of all Syndicated Advances denominated in Dollars and the Dollar Amount of all
Syndicated Advances denominated in Agreed Currencies other than Dollars outstanding at such time,
(ii) the aggregate principal amount of all Competitive Bid Advances denominated in Dollars and the
Dollar Amount of all Competitive Bid Advances denominated in Agreed Currencies other than Dollars
outstanding at such time and (iii) the aggregate amount of all L/C Obligations outstanding at such
time.




          “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to 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

9









 








Domestic Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Domestic Business Day, the average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the quotations of such rates on such day received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by it.




          “First Borrowing” means the earlier to occur of (i) the initial Borrowing made by the
Borrower hereunder or (ii) the initial Letter of Credit issued by an Issuing Bank hereunder,
including without limitation the deemed issuance of the Existing Letters of Credit as Letters of
Credit hereunder on the Closing Date.




          “Fitch” means Fitch, Inc., or its successor.




          “Fixed Rate Advances” means Eurocurrency Rate Advances, EURIBOR Rate Advances or
Competitive Bid Advances (excluding Competitive Bid Advances bearing interest at the Base Rate
pursuant to Section 5.01) or any combination of the foregoing.




          “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.




          “Governmental Acts” has the meaning assigned to that term in Section 4.09(a).




          “Governmental Authority” means any nation or government, any federal, state, local or
other political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.




          “Intangible Assets” means all assets of the Borrower and its Consolidated Subsidiaries
which are treated as intangibles in conformity with generally accepted accounting principles on the
Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries.




          “Interest Period” means, for each Advance comprising part of the same Borrowing, the
period commencing on the date of such Advance (or, in the case of any Syndicated Borrowing, on the
effective date of Conversion thereof pursuant to Section 2.03) and ending on the last day
of the period selected by the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be (a) in the case of a Base Rate Advance, 30, 60, 90 or 180 days, (b) in the
case of a Eurocurrency Rate Advance or a EURIBOR Rate Advance, one, two, three or six months, (c)
in the case of a Eurocurrency Bid Rate Advance or a EURIBOR Bid Rate Advance, one, two, three or
six months, and (d) in the case of an Absolute Rate Advance, a number of days not to exceed 180
days, in each case as the Borrower may select pursuant to Section 2.02, 2.03 or
3.02, as applicable; provided, that:





     (i) The duration of any Interest Period which would otherwise end after the Termination
Date shall end on the Termination Date;




     (ii) Interest Periods commencing on the same day for Advances comprising the same
Borrowing shall be of the same duration;



10









 






     (iii) Whenever the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall be extended to occur on the
next succeeding Business Day, unless, in the case of any Interest Period for a Eurocurrency
Advance or a EURIBOR Advance, such extension would cause the last day of such Interest
Period to occur in the next following calendar month, in which case the last day of such
Interest Period shall occur on the immediately preceding Business Day; and




     (iv) If an Interest Period for a Eurocurrency Advance or a EURIBOR Advance begins on
the last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period), such Interest
Period shall end on the last Business Day of a calendar month.



          “Issuing Banks” means JPMorgan Chase and any other Bank which, at the Borrower’s
request, agrees, in such Bank’s sole discretion, to become an Issuing Bank for the purpose of
issuing Letters of Credit under this Agreement, and their respective successors and assigns.




          “JPMorgan Chase” means JPMorgan Chase Bank, N.A., a national banking association
having its principal office in New York, New York, in its individual capacity, and its successors.




          “L/C Application” means a letter of credit application and reimbursement agreement in
such form as the applicable Issuing Bank may from time to time employ in the ordinary course of
business.




          “L/C Draft” means a draft drawn on an Issuing Bank pursuant to a Letter of Credit.




          “L/C Interest” has the meaning assigned to such term in Section 4.05.




          “L/C Obligations” means, without duplication, an amount equal to the sum of (i) the
aggregate of the amount then available for drawing under each of the Letters of Credit, (ii) the
face amount of all outstanding L/C Drafts corresponding to the Letters of Credit, which L/C Drafts
have been accepted by the applicable Issuing Bank, (iii) the aggregate outstanding amount of all
Reimbursement Obligations at such time and (iv) the aggregate face amount of all Letters of Credit
requested by the Borrower but not yet issued (unless the request for an unissued Letter of Credit
has been denied). The L/C Obligations of any Bank at any time shall be such Bank’s pro rata share
of the Aggregate Commitments multiplied by the aggregate L/C Obligations at such time.




          “Letter of Credit” means any letter of credit issued by an Issuing Bank pursuant to
Section 4.01.




          “Local Time” means Chicago time, in the case of notices or payments with respect to
Borrowings in Dollars, and London time, in the case of notices or payments with respect to
Borrowings in Agreed Currencies other than Dollars.





11









 








          “Majority Banks” means at any time Banks having at least 51% of the then aggregate
amount of the Commitments or, if the Commitments have been terminated, holding at least 51% of the
aggregate Dollar Amount of Advances and L/C Obligations then outstanding.




          “Margin Stock” has the meaning assigned to that term under Regulation U issued by the
Board of Governors of the Federal Reserve System.




          “Material Subsidiary” means any of (i) Baxter Healthcare Corporation, a Delaware
corporation, (ii) Baxter World Trade Corporation, a Delaware corporation, or (iii) any other
Subsidiary that would be a “significant subsidiary” of the Borrower within the meaning of Rule
1-02(w)(2) under Regulation S-X promulgated by the SEC (17 C.F.R. 210.1-02(w)(2)); provided
that the reference therein to “10 percent of the total assets of the registrant and its
subsidiaries” shall be deemed for purposes of this definition to read as “20 percent of the total
assets of the registrant and its subsidiaries”.




          “Moody’s” means Moody’s Investors Service, Inc., or its successor.




          “Note” has the meaning assigned to that term in Section 5.16(d).




          “Notice of Borrowing” means a Notice of Competitive Bid Borrowing and/or a Notice of
Syndicated Borrowing, as the context requires.




          “Notice of Competitive Bid Borrowing” has the meaning assigned to that term in
Section 3.06.




          “Notice of Interest Rate Election” has the meaning assigned to that term in
Section 2.03.




          “Notice of Syndicated Borrowing” has the meaning assigned to that term in Section
2.02.




          “Person” means an individual, a corporation, a partnership, an association, a trust or
any other entity or organization, including a government or political subdivision or an agency or
instrumentality thereof.




          “Prime Rate” means a rate per annum equal to the prime rate of interest announced from
time to time by JPMorgan Chase (which is not necessarily the lowest rate charged to any customer)
as its prime rate in effect at its principal office in New York City, changing when and as said
prime rate changes.




          “Receivable” has the meaning assigned to that term in Section 8.02(a)(12).




          “Reimbursement Obligation” has the meaning assigned to that term in Section
4.06.




          “S&P” means Standard & Poor’s Ratings Services, a division of the McGraw-Hill
Companies, Inc., or its successor.





12









 








          “SEC” means the United States Securities and Exchange Commission or any successor
thereto.




          “Secured Debt” means the amount of Debt or other obligation or liability of the
Borrower or any of its Material Subsidiaries the payment of which is secured by a Security
Interest.




          “Security Interest” means any lien, security interest, mortgage or other charge or
encumbrance of any kind, title retention device, pledge or any other type of preferential
arrangement, upon or with respect to any property of the Borrower or of any Material Subsidiary,
whether now owned or hereafter acquired.




          “Subsidiary” means any entity with respect to which the Borrower alone owns, the
Borrower and one or more Subsidiaries together own, or the Borrower and any Person controlling the
Borrower together own, in each such case directly or indirectly, capital stock (or the equivalent
equity interest) having ordinary voting power to elect a majority of the members of the Board of
Directors of such corporation (or, in the case of a partnership or joint venture, having the
majority interest in the capital or profits of such entity).




          “Syndicated Advance” means an advance by a Bank to the Borrower (i) pursuant to
Section 2.02, as the same may be converted or continued from time to time pursuant to
Section 2.03 or (ii) pursuant to Section 4.06. At any time, depending upon the
interest rate selected therefor or otherwise applicable thereto in accordance with Section
2.03 and 5.01, a Syndicated Advance shall be a Base Rate Advance, a Eurocurrency Rate
Advance or a EURIBOR Rate Advance.




          “Syndicated Borrowing” means a borrowing consisting of Syndicated Advances of the same
Type and in the same currency, made on the same day by the Banks, as the same may be converted or
continued from time to time pursuant to Section 2.03 and after giving effect to any
subsequent Conversion in connection with which a single Syndicated Borrowing may have been divided
into several Syndicated Borrowings or several Syndicated Borrowings may have been combined (in
whole or in part) into a single Syndicated Borrowing. An Advance substituted, pursuant to
Section 5.01, for a Syndicated Advance made in connection with any Syndicated Borrowing
shall continue to comprise a part of such Syndicated Borrowing with the same effect as if such
substituted Advance were an Advance of the Type requested in the applicable Notice of Syndicated
Borrowing or Notice of Interest Rate Election.




          “Syndicated Borrowing Facility” has the meaning assigned to that term in Section
2.01.




          “Syndicated Reduction” means, with respect to any Bank at any time, the temporary
reduction in such Bank’s Available Commitment existing at such time as a result of clause (ii) of
the definition of Available Commitment and, with respect to all Banks, the aggregate amount of such
reductions existing at such time.




          “Syndication Agent” means Bank of America, N.A. in its capacity as Syndication Agent.





13









 








          “TARGET Settlement Day” means any day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System (or any successor settlement system) is open.




          “Termination Date” means, the earlier of (i) December 20, 2011 and (ii) the date on
which the Commitments shall have been reduced to zero or terminated in whole pursuant to the terms
hereof.




          “Type” of Advance means (i) in the case of Syndicated Advances, Eurocurrency Rate
Advances, EURIBOR Rate Advances or Base Rate Advances and (ii) in the case of Competitive Bid
Advances, Eurocurrency Bid Rate Advances, EURIBOR Bid Rate Advances or Absolute Rate Advances or
any Type of Advance described in clause (i) which shall, pursuant to Section 5.01, be
substituted therefor.




          “Unfunded Liabilities” means, in the case of a single employer pension benefit plan
which is covered by Title IV of ERISA, the amount, if any, by which the present value of all vested
benefits accrued to the date of determination under such plan exceeds the fair market actuarial
value of all assets of such plan allocable to such benefits as of such date, calculated as of the
most recent valuation date for such plan by the plan’s enrolled actuary using the actuarial
assumptions used to calculate the plan’s minimum funding obligation under ERISA, and, in the
case of a multi-employer pension benefit plan, the withdrawal liability of the Borrower and
its Subsidiaries if a complete withdrawal from the plan were to occur as of the date of
calculation.




          SECTION 1.02. Computation of Time Periods. In this Agreement, when computing periods
of time from a specified date to a later specified date, the word “from” means “from and including”
and the words “to” and “until” each means “to but excluding.”




          SECTION 1.03. Accounting Terms and Principles. All accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time, applied on a basis consistent (except for
changes concurred in by the Borrower’s independent accountants or, in the case of the financial
statements required to be delivered pursuant to Section 8.01(g)(i), as determined by the
Borrower to be required in accordance with then existing generally accepted accounting principles)
with the December 31, 2005 audited Consolidated financial statements of the Borrower and its
Consolidated Subsidiaries.




ARTICLE II




THE SYNDICATED BORROWING FACILITY




          SECTION 2.01. The Syndicated Borrowing Facility. Each Bank severally agrees, on the
terms and conditions provided herein, to make Syndicated Advances denominated in Agreed Currencies
to the Borrower from time to time on any Business Day during the period from the date hereof to the
Termination Date in an aggregate Dollar Amount not to exceed at any time outstanding the amount of
such Bank’s Available Commitment (the “Syndicated Borrowing Facility”). Subject to
Section 5.01, each Syndicated Borrowing shall be in an aggregate amount




14









 







not less than
$25,000,000 (and in integral multiples of $5,000,000 in excess thereof) (or the Approximate Dollar
Amounts thereof if such Syndicated Advances are denominated in Agreed Currencies other than
Dollars), shall be made on the same day from the Banks ratably according to their respective
Commitments and shall consist of Syndicated Advances of the same Type. Within the limits of each
Bank’s Available Commitment, the Borrower may borrow Syndicated Advances under this Section
2.01, maintain Syndicated Advances outstanding by Converting such Syndicated Advances pursuant
to Section 2.03, or prepay Syndicated Advances pursuant to Section 5.12, and
reborrow Syndicated Advances under this Section 2.01. The Aggregate Commitments to lend
hereunder shall expire on the Termination Date.




          SECTION 2.02. Making the Syndicated Advances. Each Syndicated Borrowing shall be
requested by telephone (to be confirmed immediately in writing) or facsimile notice given by the
Borrower to the Administrative Agent not later than (i) 10:00 a.m. (Local Time) three Business Days
prior to the proposed Borrowing Date, in the case of a Borrowing comprised of Eurocurrency Rate
Advances or EURIBOR Rate Advances, and (ii) 9:00 a.m. (Chicago time) on the proposed Borrowing
Date, in the case of a Borrowing comprised of Base Rate Advances. Each notice of Syndicated
Borrowing pursuant to this Section 2.02 (a “Notice of Syndicated Borrowing”) shall
be in substantially the form of Exhibit 2.02 hereto, specifying the proposed Borrowing
Date, Type of Syndicated Advances, aggregate amount of the proposed Syndicated Borrowing and the
Interest Period and Agreed Currency applicable thereto for each such Syndicated Advance, and shall
include such information as shall be required by Section 
8.01(h). The Administrative Agent shall in turn promptly notify each Bank by
telephone (to be confirmed immediately in writing) or facsimile of the date, applicable interest
rate and aggregate amount of such Syndicated Borrowing and such Bank’s ratable portion of such
Syndicated Borrowing. Each Bank, for the account of its Applicable Lending Office, shall (i) with
respect to a Syndicated Borrowing denominated in Dollars, before 12:00 Noon (Chicago time) on the
Borrowing Date specified in the notice received from the Administrative Agent pursuant to the
preceding sentence, deposit such Bank’s ratable portion of such Syndicated Borrowing in same day
funds to the Administrative Agent’s LS2 Incoming Clearing Account No. 5927684 (ABA No. 071000013)
(unless another account is designated by the Administrative Agent for such purpose), Reference:
Baxter International Inc., maintained at 1 Chase Tower, Chicago, Illinois and (ii) with respect to
a Syndicated Borrowing denominated in an Agreed Currency other than Dollars, before 12:00 Noon
(local time) in the city of the Administrative Agent’s account as specified by the Administrative
Agent to the Banks, on the Borrowing Date specified in the notice received from the Administrative
Agent pursuant to the preceding sentence, deposit such Bank’s ratable portion of such Syndicated
Borrowing in such funds as may then be customary for the settlement of international transactions
in such Agreed Currency in such account of the Administrative Agent. After the Administrative
Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in
Article VI, the Administrative Agent shall make same day funds in the amount of such funds
available to the Borrower by 2:00 p.m. (Local Time) on the date of Borrowing, at the account
specified by the Borrower in the applicable Notice of Syndicated Borrowing.




          SECTION 2.03. Method of Electing Interest Rates. (a) The Advances included in each
Syndicated Borrowing shall bear interest initially at the type of rate specified by the Borrower in
the applicable Notice of Syndicated Borrowing. Thereafter, the Borrower may




15









 







from time to time
elect to change or continue the Interest Period for each Borrowing (subject in each case to the
provisions of Article V), as follows:





	 	(i)	 	if such Advances are Base Rate Advances, the
Borrower may elect to (A) convert such Advances to Eurocurrency Rate
Advances or (B) continue such Advances as Base Rate Advances, in each
case effective as of any Business Day;
	 
	 	(ii)	 	if such Advances are Eurocurrency Rate
Advances, the Borrower may elect to continue such Advances as
Eurocurrency Rate Advances for an additional Interest Period, effective
on the last day of the then current Interest Period applicable to such
Advances; and
	 
	 	(iii)	 	if such Advances are EURIBOR Rate Advances,
the Borrower may elect to continue such Advances as EURIBOR Rate
Advances for an additional Interest Period, effective as of the last
day of the then current Interest Period applicable to such Advances.




Each such election shall be made by delivering a notice (a “Notice of Interest Rate
Election”) to the Administrative Agent by not later than 10:00 a.m. (Local Time) at least three
Business Days before the conversion or continuation selected in such notice is to be effective. If
the Borrower shall fail to issue a Notice of Interest Rate Election within three Business Days
prior to the end of
any Interest Period (unless the Borrower shall have issued a notice of prepayment in respect of the
applicable Borrowing in accordance with Section 5.12), the Advances comprising such
Borrowing shall be, as applicable, converted into or continued as Base Rate Advances having an
Interest Period of 30 days (with respect to an Advance denominated in Dollars) or shall be, as
applicable, continued as a Eurocurrency Advance or EURIBOR Advance, as applicable, in the same
Agreed Currency with an Interest Period of one month (with respect to an Advance denominated in an
Agreed Currency other than Dollars). A Notice of Interest Rate Election may, if it so specifies,
apply to only a portion of the aggregate principal amount of the relevant Borrowing;
provided that (i) such portion is allocated ratably among the Advances comprising such
Borrowing and (ii) the portion to which such Notice of Interest Rate Election applies, and the
remaining portion to which it does not apply, are each $25,000,000 or any larger multiple of
$5,000,000 (or the Approximate Dollar Amounts thereof if such Syndicated Advances are denominated
in Agreed Currencies other than in Dollars). Notwithstanding any contrary provision herein, this
Section shall not be construed to permit the Borrower to change the currency of any Borrowing.




          (b) Each Notice of Interest Rate Election shall be substantially in the form of Exhibit
2.03 hereto and shall specify:





	 	(i)	 	the Borrowing (or portion thereof) to which
such notice applies;
	 
	 	(ii)	 	the date on which the conversion or
continuation selected in such notice is to be effective, which shall
comply with the applicable clause of subsection (a) above;




16









 












	 	(iii)	 	if the Advances comprising such Borrowing are
to be converted, the next Type of Advances; and
	 
	 	(iv)	 	the duration of the new Interest Period.




Each Interest Period specified in a Notice of Interest Rate Election shall comply with the
provisions of the definition of Interest Period. Each Notice of Interest Rate Election shall be
irrevocable when given by the Borrower.




          (c) Upon receipt of a Notice of Interest Rate Election from the Borrower pursuant to
subsection (a) above, the Administrative Agent shall promptly notify each Bank of the
contents thereof.




          (d) Upon the occurrence, and during the continuance, of an Event of Default, the
Administrative Agent may (and, at the direction of the Majority Banks, the Administrative Agent
shall) suspend the ability of the Borrower to obtain Conversions of Syndicated Borrowings into
Eurocurrency Rate Advances or EURIBOR Rate Advances, and each Conversion proposed to occur during
any such period of suspension shall, in the case of an Advance denominated in Dollars, be a
Conversion into Base Rate Advances or shall, in the case of an Advance denominated in an Agreed
Currency other than Dollars, be continued as a Eurocurrency Advance or EURIBOR Advance, as
applicable, in the same Agreed Currency with an Interest Period of one month. Such suspension
shall become effective upon notice thereof to the Borrower and each of the Banks, and shall remain
in effect until the Event of Default giving rise to such notice is cured or waived.




          SECTION 2.04. Determination of Dollar Amounts; Required Payments; Termination. (a)
The Administrative Agent will determine the Dollar Amount of:





	 	(i)	 	each Advance as of the date three Business Days
prior to the Borrowing Date or, if applicable, date of
conversion/continuation of such Advance, and
	 
	 	(ii)	 	all outstanding Advances on and as of the last
Domestic Business Day of each quarter and on any other Business Day
elected by the Administrative Agent in its discretion or upon
instruction by the Majority Banks.




Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the
preceding clauses (i) and (ii) is herein described as a “Computation Date” with respect to each
Advance for which a Dollar Amount is determined on or as of such day. If at any time the Dollar
Amount of the sum of the aggregate principal amount of all outstanding Advances (calculated, with
respect to those Advances denominated in an Agreed Currency other than Dollars, as of the most
recent Computation Date with respect to each such Advance) plus the aggregate amount of any L/C
Obligations (net of any Reimbursement Obligations that shall have been converted to Syndicated
Borrowings) exceeds 105% of the Aggregate Commitments, the Borrower shall immediately repay
Advances (and/or cash collateralize any outstanding Letters of Credit) in an aggregate principal
amount sufficient to cause the remaining outstanding Advances and L/C Obligations not to exceed the
Aggregate Commitments.





17









 








          (b) Any outstanding Advances and all other unpaid amounts due and payable hereunder shall be
paid in full by the Borrower on the Termination Date.




          SECTION 2.05. Increase in Aggregate Commitment. The Borrower may, at its option, on
one or more occasions, seek to increase the Aggregate Commitments by up to $500,000,000 up to a
maximum Aggregate Commitment of $2,000,000,000 upon at least fifteen (15) Domestic Business Days’
prior notice to the Administrative Agent, which notice shall specify the amount of any such
requested increase and shall be delivered at a time when no Event of Default (or event which would
constitute an Event of Default but for the requirement that notice be given or time elapse or both)
has occurred and is continuing. The Administrative Agent, in consultation with the Borrower, will
offer the increase in the Aggregate Commitments to banks or other financial institutions (which
increase may be declined by any Bank in its sole discretion). The Banks (new or existing) shall
accept an assignment from the existing Banks, and the existing Banks shall make an assignment to
the new or existing Bank accepting a new or increased Commitment, of a direct (in the case of
Advances) or participation (in the case of Letters of Credit) interest in each then outstanding
Advance and Letter of Credit such that, after giving effect thereto, all credit exposure hereunder
is held ratably by the Banks in proportion to their respective Commitments. Assignments pursuant
to the preceding sentence shall be made in exchange for the principal amount assigned plus accrued
and unpaid interest and facility, utilization and letter of credit fees. If such assignments are
made other than on the last day of the relevant Interest Period for the Advance being assigned, the
Borrower shall, upon demand by any assigning Bank (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Bank any amounts required to
compensate such Bank for any direct out-of-pocket losses, costs or expenses which it may reasonably
incur as a
result of such assignment, including, without limitation, any such loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such
Bank to fund or maintain the Advance being assigned. No increase in the Aggregate Commitments
shall become effective until (i) the existing Bank or new Bank extending such incremental
commitment amount and the Borrower shall have executed and delivered to the Administrative Agent an
agreement in writing in form and substance reasonably acceptable to the Administrative Agent
pursuant to which such Bank states its Commitment and agrees to assume and accept the obligations
and rights of a Bank hereunder and (ii) the Borrower has provided the Administrative Agent with
such related certificates, opinions and other documents as the Administrative Agent may reasonably
request.




ARTICLE III




THE COMPETITIVE BID BORROWING FACILITY




          SECTION 3.01. The Competitive Bid Facility. Each Bank severally agrees, on the terms
and conditions provided herein, to make available to the Borrower a competitive bid borrowing
facility (the “Competitive Bid Borrowing Facility”) pursuant to which the Borrower may,
from time to time on any Business Day during the period from the date hereof to the Termination
Date and as otherwise set forth in this Article III, request all of the Banks or certain
Banks specified by the Borrower to offer to make Competitive Bid Advances denominated in Agreed
Currencies to the Borrower. Each Bank of which any such request shall be made may, but shall have
no




18









 







obligation to, make such offers and the Borrower may, but shall have no obligation to, accept
any such offer in the manner set forth in this Article III. The Competitive Bid Borrowing
Facility is an entirely separate facility from the Syndicated Borrowing Facility; provided
that at no time shall the Facility Usage exceed the Aggregate Commitments at such time. Within the
limits and on the conditions set forth in this Article III, the Borrower may from time to
time borrow, repay and reborrow under this Article III.




          SECTION 3.02. Competitive Bid Quote Request. When the Borrower wishes to request
offers to make Competitive Bid Advances under this Article III, it shall deliver to the
Administrative Agent a Competitive Bid Quote Request by telephone (confirmed immediately in
writing), telecopier or telex so as to be received no later than (x) 10:00 a.m. (Local Time) at
least four Business Days prior to the Borrowing Date proposed therein, in the case of a
Eurocurrency Auction or EURIBOR Auction or (y) 9:00 a.m. (Chicago time) at least one Business Day
prior to the Borrowing Date proposed therein, in the case of an Absolute Rate Auction (or, in
either case upon reasonable prior notice to the Banks, such other time and date as the Borrower and
the Administrative Agent may agree), specifying:





     (a) the proposed Borrowing Date, which shall be a Business Day, for the proposed
Competitive Bid Advances;




     (b) the aggregate principal amount and currency of such Competitive Bid Advances;




     (c) whether the Competitive Bid Quotes requested are to set forth a Competitive Bid
Margin (and, if so, whether based on a Eurocurrency Rate or EURIBOR) or an Absolute Rate, or
both;




     (d) the Interest Period and Agreed Currency applicable thereto; and




     (e) if fewer than all Banks are to be solicited, the names of the Banks to be
solicited; provided that the Borrower shall not specify fewer than all of the Banks,
and the Administrative Agent shall reject any Competitive Bid Quote Request that specifies
fewer than all of the Banks, if the aggregate Dollar Amount of all Competitive Bid Advances
which will be outstanding after giving effect to the Competitive Bid Advances requested in
such Competitive Bid Quote Request and which shall have been made in response to one or more
Competitive Bid Quote Requests that specified fewer than all of the Banks exceeds
$150,000,000.



          The Borrower may request offers to make Competitive Bid Advances for more than one Interest
Period, but not more than eight Interest Periods, in a single Competitive Bid Quote Request. No
Competitive Bid Quote Request shall be given within five Business Days (or such other number of
days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote
Request. A Competitive Bid Quote Request that does not conform substantially to the format of
Exhibit 3.02 hereto shall be rejected, and the Administrative Agent shall promptly notify
the Borrower of such rejection by telephone, telex, or telecopy.




          SECTION 3.03. Invitation for Competitive Bid Quotes. The Administrative Agent shall
(a) promptly upon receipt of a Competitive Bid Quote Request that is not rejected pursuant to
Section 3.02, and in any event not later than (i) 11:00 a.m. (Local Time) on the date




19









 







of
receipt of a Competitive Bid Quote Request, in the case of a Eurocurrency Auction or a EURIBOR
Auction, and (ii) 10:00 a.m. (Chicago time) on the date of receipt of a Competitive Bid Quote
Request, in the case of an Absolute Rate Auction, provide notice by telephone to each of the Banks
(or, if fewer than all of the Banks shall have been specified therein, to each of the specified
Banks) of the request set forth therein, and (b) promptly thereafter provide to each such Bank by
telex or telecopy a copy of such Competitive Bid Quote Request or a summary of the contents
thereof. If, pursuant to Section 3.02, the Borrower and the Administrative Agent shall
agree as to times for the delivery of a Competitive Bid Quote Request other than those set forth in
Section 3.02, and shall notify the Banks thereof, such notice to the Banks shall set forth
in addition any changes in the times set forth in this Section 3.03. A Competitive Bid
Quote Request shall not be revocable at any time after the Administrative Agent’s notice to the
Banks by telephone of such Competitive Bid Quote Request.




          SECTION
3.04. Submission and Contents of Competitive Bid Quotes. (a) Each Bank
receiving notice of a Competitive Bid Quote Request from the Administrative Agent pursuant to
Section 3.03 may, in its sole discretion, submit a Competitive Bid Quote containing an
offer or offers to make Competitive Bid Advances in response to such Competitive Bid Quote Request.
Each Competitive Bid Quote must comply with the requirements of this Section 3.04 and must
be submitted to the Administrative Agent by telex or telecopy at its offices specified in or
pursuant to Section 11.02 not later than (x) 1:00 p.m. (Local Time) at least three Business
Days prior to the proposed Borrowing Date, in the case of a Eurocurrency Auction or a EURIBOR
Auction or (y) 9:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case of an Absolute
Rate Auction (or, in either case upon reasonable prior notice to the Banks, such other time and
date as the Borrower and the Administrative Agent may agree); provided that Competitive Bid
Quotes submitted by JPMorgan Chase may be submitted, and may only be submitted, if the
Administrative Agent or JPMorgan Chase notifies the Borrower of
the terms of the offer or offers contained therein not later than (x) one hour prior to the
time all other Banks are required hereunder to submit Competitive Bid Quotes to the Administrative
Agent, in the case of a Eurocurrency Auction or a EURIBOR Auction or (y) fifteen minutes prior to
the time all other Banks are required hereunder to submit Competitive Bid Quotes to the
Administrative Agent, in the case of an Absolute Rate Auction. Subject to Articles VI and
IX, any Competitive Bid Quote so made shall be irrevocable except with the written consent
of the Administrative Agent and the Borrower.




          (b) Each Competitive Bid Quote shall be in substantially the form of Exhibit 3.04
hereto and shall in any case specify:





	 	(i)	 	the proposed Borrowing Date, which shall be the
same as that set forth in the applicable Competitive Bid Quote Request;
	 
	 	(ii)	 	the principal amount of the Competitive Bid
Advance for which each such offer is being made, which principal amount
(1) may be greater than, less than or equal to the Commitment of the
quoting Bank, (2) must be at least $10,000,000 and an integral multiple
of $1,000,000 in excess thereof (or the Approximate Dollar Amount if
denominated in an Agreed Currency other than Dollars), (3) may not
exceed the aggregate principal amount of Competitive Bid





20









 











	 	 	 	Advances for
which offers were requested and (4) must be identified with an Interest
Period and the Agreed Currency specified in the applicable Competitive
Bid Quote Request;
	 
	 	(iii)	 	in the case of a Eurocurrency Auction or a
EURIBOR Auction, whether the basis of such offer is the Eurocurrency
Rate or EURIBOR and the Competitive Bid Margin offered for each such
Competitive Bid Advance;
	 
	 	(iv)	 	in the case of an Absolute Rate Auction, the
Absolute Rate offered for each such Competitive Bid Advance;
	 
	 	(v)	 	the identity of the quoting Bank; and
	 
	 	(vi)	 	if the quoting Bank shall therein make offers
with respect to more than one Type of Competitive Bid Advance, or at
several rates or for several Interest Periods, in each case as shall
have been requested by the Borrower in the applicable Competitive Bid
Quote Request, the maximum aggregate principal amount with respect to
all such Competitive Bid Advances that such Bank shall be willing to
extend to the Borrower on such proposed Borrowing Date.





          (c) The Administrative Agent shall reject any Competitive Bid Quote that:





	 	(i)	 	is not substantially in the form of Exhibit
3.04 hereto or does not specify all of the information required by
Section 3.04(b);
	 
	 	(ii)	 	contains qualifying, conditional or similar
language, other than any such language contained in Exhibit
3.04;
	 
	 	(iii)	 	proposes terms other than or in addition to
those set forth in the applicable Competitive Bid Quote Request; or
	 
	 	(iv)	 	arrives after the time set forth in Section
3.04(a).




If any Competitive Bid Quote shall be rejected pursuant to this Section 3.04(c), the
Administrative Agent shall notify the relevant Bank of such rejection as soon as practical.




          SECTION 3.05. Notice to the Borrower. The Administrative Agent shall promptly notify
the Borrower of the terms (i) of any Competitive Bid Quote submitted by a Bank that is in
accordance with Section 3.04 and (ii) of any Competitive Bid Quote submitted by a Bank
which amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted
by such Bank with respect to the same Competitive Bid Quote Request. Any such subsequent
Competitive Bid Quote shall be disregarded by the Administrative Agent unless such subsequent
Competitive Bid Quote specifically states that it is submitted solely to correct a manifest error
in such former Competitive Bid Quote. The Administrative Agent’s notice to the Borrower shall
specify the aggregate principal amount of Competitive Bid Advances for which




21









 







offers have been
received for each Interest Period specified in the related Competitive Bid Quote Request and the
respective principal amounts and Competitive Bid Margins or Absolute Rates, as the case may be, so
offered.




          SECTION 3.06. Acceptance and Notice by the Borrower. Not later than (x) 10:00 a.m.
(Local Time) at least two Business Days prior to the proposed Borrowing Date, in the case of a
Eurocurrency Auction or a EURIBOR Auction or (y) 10:00 a.m. (Chicago time) on the proposed
Borrowing Date, in the case of an Absolute Rate Auction (or, in either case upon reasonable prior
notice to the Banks, such other time and date as the Borrower and the Administrative Agent may
agree), the Borrower shall notify the Administrative Agent of its acceptance or non-acceptance of
any or all of the offers so notified to it pursuant to Section 3.05; provided,
however, that the failure by the Borrower to give such notice to the Administrative Agent
with respect to any such offer shall be deemed to be a rejection of such offer. In the case of
acceptance, such notice (a “Notice of Competitive Bid Borrowing”) shall be substantially in
the form of Exhibit 3.06 hereto and shall specify the aggregate principal amount of offers
for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in
whole or in part; provided that:




          (a) the aggregate principal amount of Competitive Bid Advances may not exceed the applicable
amount set forth in the related Competitive Bid Quote Request,




          (b) acceptance of offers may only be made on the basis of ascending Competitive Bid Margins or
Absolute Rates, as the case may be, starting with the lowest and continuing with the next lowest
until offers in the aggregate amount specified by the Borrower for acceptance shall have been
accepted, and




          (c) the Borrower may not accept any offer that is described in Section 3.04(c) or that
otherwise fails to comply with the requirements of this Agreement.




          SECTION 3.07. Allocation by Administrative Agent. If offers are made by two or more
Banks with the same Competitive Bid Margins or Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which offers remain to be accepted, as
specified by the Borrower, for the related Interest Period (after giving effect to the acceptance
of all offers made at lower rates), the principal amount of Competitive Bid Advances in respect of
which such offers are accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in such multiples, not greater than $5,000,000 (or the Approximate Dollar
Amount if denominated in an Agreed Currency other than in Dollars), as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amount of such offers. Allocations by
the Administrative Agent of the amounts of Competitive Bid Advances shall be conclusive in the
absence of manifest error.




          SECTION 3.08. Notification of Acceptances to the Affected Banks. The Administrative
Agent shall (a) promptly following its receipt of a Notice of Competitive Bid Borrowing and in any
event not later than 11:00 a.m. (Local Time) on the date of its receipt of such Notice of
Competitive Bid Borrowing, provide notice by telephone to each Bank that has made a Competitive Bid
Quote of the extent to which its offer or offers have been accepted, specifying in such notice the
principal amount of each Competitive Bid Advance in respect of




22









 







which such Competitive Bid Quote has
been accepted, the Interest Period therefor and the Competitive Bid Margin or Absolute Rate
therefor, as applicable and (b) promptly thereafter provide notice to such Banks by telex or
telecopy confirming the same. If, pursuant to Section 3.06, the Borrower and the
Administrative Agent shall agree as to times for the delivery of a Notice of Competitive Bid
Borrowing other than those set forth in Section 3.06, and shall notify the Banks thereof,
such notice to the Banks shall set forth in addition any changes in the times set forth in this
Section 3.08.




          SECTION 3.09. Funding of Competitive Bid Advances. Each Bank that is to make a
Competitive Bid Advance in connection with any Notice of Competitive Bid Borrowing shall, (i) with
respect to a Competitive Bid Advance denominated in Dollars, before 12:00 Noon (Chicago time) on
the first day of the Interest Period therefor specified in the notice from the Administrative Agent
delivered pursuant to Section 3.08, deposit the amount of each of such Bank’s Competitive
Bid Advances in same day funds to the Administrative Agent’s LS2 Incoming Clearing Account No.
5927684 (ABA No. 071000013), Reference: ASST (unless another account is designated by the
Administrative Agent for such purpose), Reference: Baxter International Inc., maintained at 1
Chase Tower, Chicago, Illinois and (ii) with respect to a Competitive Bid Advance denominated in an
Agreed Currency other than in Dollars, before 12:00 Noon (local time) in the city of the
Administrative Agent’s EURIBOR Lending Office, on the first day of the Interest Period therefor
specified in the notice from the Administrative Agent delivered pursuant to Section 3.08,
deposit the amount of each of such Bank’s Competitive Bid Advances in such funds as may then be
customary for the settlement of international transactions in such Agreed Currency in the city of
and at the address of the Administrative Agent’s EURIBOR Lending Office. After the Administrative
Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in
Article VI, the Administrative Agent shall make same day funds in the applicable currency
or currencies and in the aggregate amount of such Competitive Bid Advances available to the
Borrower by 2:00 p.m. (Local Time) on the date of Borrowing, at the account specified by the
Borrower in the applicable Notice of Competitive Bid Borrowing. Promptly following each
Competitive Bid Advance, the Administrative Agent
shall notify each Bank of the amount thereof, the consequent Syndicated Reduction and the
Interest Periods for such Competitive Bid Advances.




ARTICLE IV




THE LETTER OF CREDIT FACILITY




          SECTION 4.01. Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations, warranties and covenants of the Borrower herein
set forth, each Issuing Bank hereby agrees to issue for the account of the Borrower through such
Issuing Bank’s branches as it and the Borrower may jointly agree, one or more Letters of Credit in
accordance with this Article IV, from time to time during the period commencing on the date
hereof and ending no later than five (5) Business Days prior to the Termination Date. On the
Closing Date each Existing Letter of Credit shall be deemed to be a Letter of Credit issued under
and governed in all respects by the terms and conditions of this Agreement, and each Bank shall
participate in each Existing Letter of Credit in an amount equal to its pro rata share of the
Aggregate Commitments.





23









 








          SECTION 4.02. Types and Amounts. No Issuing Bank shall have any obligation to and no
Issuing Bank shall:





	 	(i)	 	issue any Letter of Credit if on the date of
issuance, before or after giving effect to the Letter of Credit
requested hereunder, (a) the Facility Usage at such time would exceed
the Aggregate Commitments at such time, or (b) the aggregate
outstanding amount of the L/C Obligations would exceed $300,000,000; or
	 
	 	(ii)	 	issue any Letter of Credit which has an
expiration date (or date for payment of any draft presented thereunder)
later than the date which is five (5) Business Days immediately
preceding the Termination Date.





          SECTION 4.03. Conditions. (a) In addition to being subject to the satisfaction of
the conditions contained in Sections 6.01 and 6.02, the obligation of an Issuing
Bank to issue any Letter of Credit is subject to the satisfaction in full of the following
conditions:





	 	(i)	 	the Borrower shall have delivered to the
applicable Issuing Bank an L/C Application in the manner prescribed in
Section 4.04, and the proposed Letter of Credit shall be
reasonably satisfactory to such Issuing Bank as to form and content;
and
	 
	 	(ii)	 	as of the date of issuance, no order, judgment
or decree of any court, arbitrator or Governmental Authority shall
purport by its terms to enjoin or restrain the applicable Issuing Bank
from issuing such Letter of Credit and no law, rule or regulation
applicable to such Issuing Bank and no request or directive (whether or
not having the force of law) from a Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit or request that such
Issuing Bank refrain from the issuance of Letters of Credit
generally or the issuance of that Letter of Credit or shall impose
upon the Issuing Bank with respect to any Letter of Credit any
restriction or reserve or capital requirement (for which the Issuing
Bank is not otherwise compensated) or any unreimbursed loss, cost or
expense which was not applicable, in effect and known to the Issuing
Bank as of the date of this Agreement and which the Issuing Bank in
good faith deems material to it.





          (b) No Issuing Bank shall extend, renew, or amend any Letter of Credit unless the requirements
of this Section 4.03 are met as though a new Letter of Credit were then being requested and
issued.




          SECTION 4.04. Procedure for Issuance of Letters of Credit. (a) Prior to the issuance
of each Letter of Credit, and as a condition of such issuance, the Borrower shall deliver to the
Issuing Bank (with a copy to the Administrative Agent) an L/C Application signed by the Borrower,
together with such other documents or items as may be required pursuant to the terms

24









 








thereof.
Unless the Issuing Bank shall otherwise agree, each Letter of Credit shall be issued no earlier
than two (2) Business Days after delivery of the foregoing documents, which delivery may be by the
Borrower to the Issuing Bank by facsimile transmission, telex or other electronic means followed by
delivery of executed originals within five (5) days thereafter. The documents so delivered shall
be in compliance with the requirements set forth in Sections 4.02 and 4.03, and
shall specify therein (i) the stated amount of the Letter of Credit requested, (ii) the effective
date of issuance of such requested Letter of Credit, which shall be a Business Day, (iii) the date
on which such requested Letter of Credit is to expire, which shall be a Business Day not later than
five (5) Business Days prior to the Termination Date and (iv) the aggregate amount of L/C
Obligations which are outstanding and which will be outstanding after giving effect to the
requested Letter of Credit issuance. Subject to the terms and conditions of Sections 4.02
and 4.03, and provided that the applicable conditions set forth in Sections 6.01
and 6.02 shall, to the knowledge of the Issuing Bank, have been satisfied, the Issuing Bank
shall, on the requested date, issue a Letter of Credit on behalf of the Borrower in accordance with
the Issuing Bank’s usual and customary business practices. In addition, any amendment of an
existing Letter of Credit that has the effect of increasing the face amount thereof or extending
the expiration date thereof shall be deemed to be an issuance of a new Letter of Credit and shall
be subject to the requirements of this Section 4.04.




          (b) The applicable Issuing Bank shall give the Administrative Agent written or telex notice,
or telephonic notice confirmed promptly thereafter in writing, of the issuance of a Letter of
Credit; provided, however, that the failure to provide such notice shall not result
in any liability on the part of such Issuing Bank.




          (c) Notwithstanding anything contained in any L/C Application or any document executed in
connection therewith to the contrary, in the event any term or provision of such L/C Application or
other document is inconsistent with any term or provision of this Agreement, the terms and
provisions of this Agreement shall control and prevail.




          SECTION 4.05. Letter of Credit Participation. Unless a Bank shall have notified the
Issuing Bank, prior to its issuance of a Letter of Credit, that any applicable condition precedent
set forth in Section 6.01 or 6.02 had not then been satisfied, immediately upon the
issuance of each other Letter of Credit hereunder, each Bank shall be deemed to have
automatically, irrevocably and unconditionally purchased and received from the applicable Issuing
Bank an undivided interest and participation in and to such Letter of Credit, the obligations of
the Borrower in respect thereof, and the liability of such Issuing Bank thereunder (collectively,
as to each Bank, an “L/C Interest”) in an amount equal to the amount available for drawing
under such Letter of Credit multiplied by such Bank’s pro rata share of the Aggregate Commitments.
Each Issuing Bank will notify each Bank that has a Commitment promptly upon presentation to it of
an L/C Draft or upon any other draw under a Letter of Credit. On or before the Business Day on
which an Issuing Bank makes payment of each such L/C Draft or, in the case of any other draw on a
Letter of Credit, on demand by the Administrative Agent, each Bank shall make payment to the
Administrative Agent, for the account of the applicable Issuing Bank, in immediately available
funds in an amount equal to the amount of the payment under the L/C Draft or other draw on the
Letter of Credit multiplied by such Bank’s pro rata share of the Aggregate Commitments. The
obligation of each Bank to reimburse the Issuing Banks under this Section 4.05 shall be
unconditional, continuing, irrevocable and absolute without

25









 








counterclaim or set-off;
provided, however, the obligation of each Bank shall not extend to payments made
under a Letter of Credit resulting from the Issuing Bank’s gross negligence or willful misconduct
in honoring any L/C Draft. In the event that any Bank fails to make payment to the Administrative
Agent of any amount due under this Section 4.05, the Administrative Agent shall be entitled
to receive, retain and apply against such obligation the principal and interest otherwise payable
to such Bank hereunder until the Administrative Agent receives such payment from such Bank or such
obligation is otherwise fully satisfied, and such Bank shall pay to the Administrative Agent, for
the account of the applicable Issuing Bank, interest on the amount of such Bank’s outstanding
obligation at the Federal Funds Rate; provided, however, that nothing contained in
this sentence shall relieve such Bank of its obligation to reimburse the applicable Issuing Bank
for such amount in accordance with this Section 4.05.




          SECTION 4.06. Reimbursement Obligation. The Borrower agrees unconditionally,
irrevocably and absolutely to pay immediately to the Administrative Agent, for the account of the
Banks which have Commitments, the amount of each drawing made under or pursuant to a Letter of
Credit (such obligation of the Borrower to reimburse the Administrative Agent for a drawing made
under a Letter of Credit being hereinafter referred to as a “Reimbursement Obligation” with
respect to such Letter of Credit) plus all other charges and expenses with respect thereto
specified in Section 4.07 or in the applicable L/C Application. If the Borrower at any
time fails to repay a Reimbursement Obligation pursuant to this Section 4.06, the Borrower
shall be deemed to have elected to borrow under a Syndicated Borrowing, as of the date of the
drawing giving rise to the Reimbursement Obligation and equal in amount to the amount of the unpaid
Reimbursement Obligation. Such Syndicated Borrowing shall be made automatically, without notice
and without any requirement to satisfy the conditions precedent otherwise applicable to a
Syndicated Borrowing. Such Syndicated Borrowing shall be comprised of Base Rate Advances made by
the Banks, each Advance being in the amount of the portion of the related drawing that shall have
been funded by the applicable Bank. The proceeds of such Syndicated Borrowing shall be used to
repay such Reimbursement Obligation.




          SECTION 4.07. Issuing Bank Charges. In addition to the fees described in Section
5.04(c), the Borrower agrees to pay to each Issuing Bank, (i) on the date of issuance of each
Letter of Credit (or on such other date as may be agreed between the Borrower and the applicable
Issuing Bank), a fronting fee in respect of such Letter of Credit in an amount as shall
have been agreed upon between the Borrower and the applicable Issuing Bank prior to such date
of issuance, and (ii) all reasonable and customary fees and other issuance, amendment, document
examination, negotiation and presentment expenses and related charges in connection with the
issuance, amendment, presentation of L/C Drafts, and the like customarily charged by the Issuing
Banks with respect to Letters of Credit, including, without limitation, standard commissions,
payable promptly following delivery to the Borrower of each invoice in respect of any such amount.
The Existing Letters of Credit shall not be subject to the charges described herein to the extent
such charges are duplicative of charges paid with respect thereto pursuant to the Existing Credit
Agreements.




          SECTION 4.08. Issuing Bank Reporting Requirements. In addition to the notices
required by Section 4.04(b), each Issuing Bank shall, no later than the tenth Business Day
following the last day of each month, provide to the Administrative Agent, upon the Administrative
Agent’s request, schedules, in form and substance reasonably satisfactory to the

26









 








Administrative
Agent, showing the date of issue, account party, amount, expiration date and the reference number
of each Letter of Credit issued by it outstanding at any time during such month and the aggregate
amount payable by the Borrower during such month. In addition, upon the request of the
Administrative Agent, each Issuing Bank shall furnish to the Administrative Agent copies of any
Letter of Credit to which the Issuing Bank is party and such other documentation as may reasonably
be requested by the Administrative Agent. Upon the request of any Bank, the Administrative Agent
will provide to such Bank information concerning such Letters of Credit.




          SECTION 4.09. Indemnification; Exoneration. (a) In addition to amounts payable as
elsewhere provided in this Article IV, the Borrower hereby agrees to protect, indemnify,
pay and save harmless the Administrative Agent, each Issuing Bank and each Bank from and against
any and all liabilities and costs which the Administrative Agent, such Issuing Bank or such Bank
may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter
of Credit other than as a result of the gross negligence or willful misconduct of the Issuing Bank,
or (ii) the failure of the applicable Issuing Bank to honor a drawing under a Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or future de
jure or de facto Governmental Authority (all such acts or omissions herein called
“Governmental Acts”).




          (b) As among the Borrower, the Banks, the Administrative Agent and the Issuing Banks, the
Borrower assumes all risks of the acts and omissions of, or misuse of each Letter of Credit by, the
beneficiary of such Letter of Credit. In furtherance and not in limitation of the foregoing,
neither the Administrative Agent, any Issuing Bank nor any Bank shall be responsible for (unless
caused by its gross negligence or willful misconduct): (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in connection with the
application for and issuance of the Letters of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of a
Letter of Credit to comply duly with conditions required in order to draw upon such Letter of
Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, or other similar form of teletransmission or otherwise;
(v) errors in interpretation of technical trade terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under any Letter
of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of a Letter of
Credit of the proceeds of any drawing under such Letter of Credit; and (viii) any consequences
arising from causes beyond the control of the Administrative Agent, the Issuing Banks and the
Banks, including, without limitation, any Governmental Acts. None of the above shall affect,
impair, or prevent the vesting of any Issuing Bank’s rights or powers under this Section
4.09.




          (c) In furtherance and extension and not in limitation of the specific provisions hereinabove
set forth, any action taken or omitted by any Issuing Bank under or in connection with the Letters
of Credit or any related certificates shall not, in the absence of gross negligence or willful
misconduct, put the applicable Issuing Bank, the Administrative Agent or any Bank under any
resulting liability to the Borrower or relieve the Borrower of any of its obligations hereunder to
any such Person.





27









 








          (d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in this Section 4.09 shall survive the
payment in full of the Advances and other obligations hereunder, the termination of the Letters of
Credit and the termination of this Agreement.




ARTICLE V




GENERAL TERMS




          SECTION 5.01. Illegality; Interest Rate Inadequate or Unfair. The obligation of each
Bank to extend an Advance on the date therefor is subject to the following:




          (a) If, after the date of this Agreement, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or administration thereof by
any Governmental Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Eurocurrency Lending Office or its
EURIBOR Lending Office) with any request or directive (whether or not having the force of law) of
any such authority, central bank or comparable agency shall make it unlawful or impossible for any
Bank (or its Eurocurrency Lending Office or its EURIBOR Lending Office) to make, maintain or fund
its Eurocurrency Advances or EURIBOR Advances, such Bank shall so notify the Administrative Agent.
The Administrative Agent and such Bank shall forthwith give notice thereof to the other Banks and
the Borrower, whereupon until such Bank notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of such Bank to make
(or to Convert other Advances into) Eurocurrency Advances and/or EURIBOR Advances, as applicable,
shall be suspended and each Eurocurrency Advance and/or EURIBOR Advance, as applicable, which such
Bank shall thereafter be required to make hereunder (or Convert into) shall be made as (or
Converted into) a Base Rate Advance, which Base Rate Advance shall be made (or Converted) on the
same day and have the same Interest Period as the Eurocurrency Advances or EURIBOR Advances made
(or Converted into) by the other Banks and comprising the balance of such Borrowing. If such Bank
(A) shall determine that it may not lawfully continue to maintain and fund any of its outstanding
Eurocurrency Advances and/or EURIBOR Advances to maturity, (B) shall so specify in a written notice
to the Borrower and the Administrative Agent and (C) if at such time fewer than three Banks shall
have reached a similar determination, shall deliver to the Borrower
and the Administrative Agent an opinion of counsel concurring in such determination, the
Borrower shall immediately Convert in full the then outstanding principal amount of each such
Eurocurrency Advance and/or EURIBOR Advance into a Base Rate Advance in an equal principal amount
(on which interest and principal shall be payable contemporaneously with the related Eurocurrency
Advances or EURIBOR Advances of the other Banks).




          (b) If, with respect to Borrowings to consist of Eurocurrency Advances or EURIBOR Advances,
(i) the Administrative Agent shall have determined (which determination shall be conclusive and
binding upon all parties hereto) that by reason of circumstances affecting generally either the
London interbank market or the Brussels euro-zone interbank market, as applicable, and after using
its best efforts to ascertain the interest rate applicable to either the Eurocurrency Advances or
EURIBOR Advances, as applicable, adequate and reasonable means do not exist for ascertaining such
applicable rate, or (ii) by the Eurocurrency Business Day or the




28









 







EURIBOR Business Day, as
applicable, before the first day of any Interest Period in respect of a Borrowing to consist of
Eurocurrency Advances or EURIBOR Advances, the Administrative Agent shall have received notice from
the Majority Banks (or, in the case of a Competitive Bid Borrowing comprised of Eurocurrency Bid
Rate Advances or EURIBOR Bid Rate Advances, Banks selected to make at least 51% of the aggregate
principal amount of such Advances) that after using their respective best efforts to obtain
deposits in the applicable Agreed Currency, such deposits are not available to such Banks (as such
best efforts and unavailability are conclusively certified in writing to the Administrative Agent
and the Borrower) in the ordinary course of business in the London interbank market or the Brussels
euro-zone interbank market, as applicable, in sufficient amounts to make its Eurocurrency Advances
or EURIBOR Advances, then, in each case, the Administrative Agent shall by 12:00 Noon (Chicago
time) on such Business Day notify the Borrower of such event, and the right of the Borrower to
select Eurocurrency Advances or EURIBOR Advances, as applicable, for such Borrowing or any
subsequent Borrowing (and the right of the Borrower to Convert Advances into Eurocurrency Rate
Advances or EURIBOR Rate Advances, as applicable) shall be suspended until the Administrative Agent
shall notify the Borrower and the Banks that the circumstances causing such suspension no longer
exist. The obligation of the Banks to make Eurocurrency Advances or EURIBOR Advances, as
applicable, in connection with such Notice of Borrowing shall thereupon terminate, and each Bank
obligated to participate in such Borrowing shall extend a Base Rate Advance to the Borrower in lieu
of the originally requested Type of Advance, which Base Rate Advance shall be made on the date
specified in the original Notice of Borrowing and shall have an Interest Period which is
co-extensive with the Interest Period originally requested. In the case of an outstanding Notice
of Interest Rate Election at the time any such suspension shall occur, such Notice shall be deemed
amended, without any further action on the part of the Borrower, to request that the Syndicated
Advances specified therein be Converted to Base Rate Advances.




          (c) If the Majority Banks (or, in the case of a Competitive Bid Borrowing comprised of
Eurocurrency Bid Rate Advances or EURIBOR Bid Rate Advances, Banks selected to make at least 51% of
the aggregate principal amount of such Advances) shall, by 11:00 a.m. (Chicago time) on the
Eurocurrency Business Day or the EURIBOR Business Day, as applicable, before the first day of any
Interest Period in respect of a Borrowing to consist of Eurocurrency Advances or EURIBOR Advances,
as applicable, notify the Administrative Agent and the Borrower (setting forth in writing the
reasons therefor) that the Eurocurrency Rate for Eurocurrency Advances and/or the EURIBOR for
EURIBOR Advances comprising such
Borrowing will not adequately reflect the cost to such Banks of making or funding their
respective Advances for such Borrowing or Conversion, the right of the Borrower to select
Eurocurrency Advances and/or EURIBOR Advances, as applicable, for such Borrowing or Conversion and
any subsequent Borrowing or Conversion shall be suspended until the Administrative Agent shall
notify the Borrower and the Banks that the circumstances causing such suspension no longer exist.
The obligation of the Banks to make Eurocurrency Advances and/or EURIBOR Advances, as applicable,
in connection with such Notice of Borrowing shall thereupon terminate and each Bank obligated to
participate in such Borrowing shall extend a Base Rate Advance to the Borrower in lieu of the
originally requested Type of Advance, which Base Rate Advance shall be made on the date specified
in the original Notice of Borrowing and shall have an Interest Period which is co-extensive with
the Interest Period originally requested. In the case of an outstanding Notice of Interest Rate
Election at the time any such suspension




29









 







shall occur, such Notice shall be deemed amended, without
any further action on the part of the Borrower, to request that the Syndicated Advances specified
therein be Converted to Base Rate Advances.




          SECTION 5.02. Effect of Notice of Borrowing; Maximum Number of Borrowings. (a)
Subject to Section 5.01, each Notice of Borrowing and Notice of Interest Rate Election
shall be irrevocable and binding on the Borrower. In the event that a Notice of Borrowing or
Notice of Interest Rate Election is made by telephone and the written confirmation thereof differs
in any respect from such telephone notice, the information contained in the telephone notice or the
written confirmation, as the case may be, upon which the Administrative Agent shall have relied, as
evidenced by its corresponding notice to the Banks, shall control for purposes of Advances to be
made or Converted under this Agreement.




          (b) A Notice of Borrowing shall be rejected by the Administrative Agent, and the Banks shall
have no obligation to extend any Advances that may be requested in such Notice of Borrowing, if
after giving effect to the Borrowing requested in such Notice of Borrowing there would then be more
than fifteen Borrowings outstanding (whether Syndicated Borrowings, Competitive Bid Borrowings, or
any combination of the foregoing).




          SECTION 5.03. Effect of Failure to Borrow or Fund. (a) In the case of any Borrowing
which the related Notice of Borrowing specifies is to be comprised of Fixed Rate Advances, the
Borrower shall indemnify each Bank against all direct out-of-pocket losses and reasonable expenses
incurred by such Bank as a result of any failure by the Borrower to fulfill on or before the date
specified for such Borrowing the applicable conditions set forth in Article VI to the
extent of all direct out-of-pocket losses and reasonable expenses incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Bank to fund the Advance to
be made by such Bank as part of such Borrowing when such Advance, as a result of such failure, is
not made on such date. The Borrower shall not be liable to any Bank under this Section
5.03(a) with respect to consequential damages arising or incurred by such Bank in connection
with the Borrower’s failure to fulfill timely the applicable conditions set forth in Article
VI.




          (b) Unless the Administrative Agent shall have received notice from a Bank prior to the date
of any Borrowing (or, in the case of any Borrowing comprised of Base Rate Advances, prior to 12:00
Noon (Chicago time) on the date of such Borrowing) that such Bank will not make available to the
Administrative Agent such Bank’s ratable portion of such
Borrowing, the Administrative Agent may assume that such Bank has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with the terms of
Section 2.02 or Section 3.09, as applicable, and the Administrative Agent may, in
reliance upon such assumption make available to the Borrower on such date a corresponding amount.
If and to the extent that such Bank shall not have so made such ratable portion available to the
Administrative Agent, such Bank and the Borrower severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such amount is repaid to
the Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Advances comprising such Borrowing and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Administrative Agent such


30









 






corresponding amount, such amount
so repaid shall constitute such Bank’s Advance as part of such Borrowing for purposes of this
Agreement.




          (c) The failure of any Bank to make the Advance to be made by it as part of any Borrowing
shall not relieve any other Bank of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Bank shall be responsible for the failure of any other Bank to make
the Advance to be made by such other Bank on the date of any Borrowing.




          SECTION 5.04. Fees and Certain Credit Rating Determinations. (a) Facility
Fees. The Borrower agrees to pay to the Administrative Agent for the account of each Bank a
facility fee at the respective rates per annum set forth below on the average daily amount of such
Bank’s Commitment. The applicable rate for any period shall be determined on the basis of the
publicly announced ratings (“Credit Ratings”) by Moody’s, S&P and Fitch on the Borrower’s
senior unsecured Debentures during such period, the applicable rate to change when and as such
Credit Ratings change.




	 	 	 	 	 	 	 
	 	 	Credit Ratings of	 	 	Facility	 
	Tier	 	Borrower’s Debentures	 	 	Fee	 
	1.

	 	Credit Ratings are better than or equal to at least
two of the following three: (i) A2 by Moody’s,
(ii) A by S&P and (iii) A by Fitch
	 	 	0.050	%
	 
	 	 	 	 	 	 
	2.

	 	Tier 1 shall not apply, and Credit Ratings are
better than or equal to at least two of the
following three: (i) A3 by Moody’s, (ii) A- by S&P
and (iii) A- by Fitch
	 	 	0.060	%
	 
	 	 	 	 	 	 
	3.

	 	Neither Tier 1 nor Tier 2 shall apply, and Credit
Ratings are better than or equal to at least two of
the following three: (i) Baa1 by Moody’s, (ii)
BBB+ by S&P and (iii) BBB+ by Fitch
	 	 	0.080	%
	 
	 	 	 	 	 	 
	4.

	 	Neither Tier 1, Tier 2 nor Tier 3 shall apply, and
Credit Ratings are better than or equal to at least
two of the following three: (i) Baa2 by Moody’s,
(ii) BBB by S&P and (iii) BBB by Fitch
	 	 	0.100	%
	 
	 	 	 	 	 	 
	5.

	 	Neither Tier 1, Tier 2, Tier 3 nor Tier 4 shall
apply
	 	 	0.125	%






31









 





The facility fee described in this Section 5.04(a) shall accrue from and including the date
hereof to but excluding the Termination Date or, in the case of any Bank, the earlier date of
reduction to zero of such Bank’s Commitment hereunder, and shall be payable quarterly during the
term of each Bank’s Commitment hereunder, in arrears, not later than the last day of each January,
April, July and October, and, in the case of each Bank, on the date such Bank’s Commitment shall be
reduced to zero.




          (b) Credit Rating Determinations. For purposes of determining the applicable facility
fee and letter of credit fees with respect to any period and the Eurocurrency Margin and EURIBOR
Margin at any time:





	 	(i)	 	Any change in a Credit Rating shall be deemed
to become effective on the date of public announcement thereof and
shall remain in effect until the date of public announcement that such
rating shall no longer be in effect.
	 
	 	(ii)	 	If, during any period, at least two of Moody’s,
S&P and Fitch shall not have publicly announced a Credit Rating with
respect to the Borrower’s senior unsecured Debentures, the Borrower
shall be at Tier 5; provided that the Borrower may, at any time
during such period, substitute another nationally recognized rating
agency acceptable to the Majority Banks for Moody’s, S&P or Fitch. Any
Credit Rating assigned by a substitute credit agency, prior to the
determination of the facility fee or letter of credit fee for the
period during which such Credit Rating shall be in effect or the
determination of the applicable Eurocurrency Margin or EURIBOR Margin
at any time, shall be converted to the nationally recognized equivalent
thereof under the rating system employed by Moody’s, S&P or Fitch, as
applicable.





          (c) Letter of Credit Fees. In addition to the fees described in Section 4.07,
the Borrower agrees to pay to the Administrative Agent for the account of each Bank a letter of
credit fee, in respect of any period, at the respective rates per annum set forth below, on the
average daily aggregate amount of such Bank’s L/C Interest in respect of all Letters of Credit
issued but undrawn during such period. The applicable rate for any period shall be determined on
the basis of the Credit Ratings on the Borrower’s senior unsecured Debentures during such period,
the applicable rate to change when and as such Credit Ratings change.




32









 






	 	 	 	 	 	 	 
	 	 	Credit Ratings of	 	Letter of
	Tier	 	Borrower’s Debentures	 	Credit Fee Rate
	1.

	 	Credit Ratings are better than or equal to at
least two of the following three: (i) A2 by
Moody’s, (ii) A by S&P and (iii) A by Fitch
	 	 	0.150	%
	 
	2.

	 	Tier 1 shall not apply, and Credit Ratings are
better than or equal to at least two of the
following three: (i) A3 by Moody’s, (ii) A- by
S&P and (iii) A- by Fitch
	 	 	0.190	%
	 
	 	 	 	 	 	 
	3.

	 	Neither Tier 1 nor Tier 2 shall apply, and
Credit Ratings are better than or equal to at
least two of the following three: (i) Baa1 by
Moody’s, (ii) BBB+ by S&P and
(iii) BBB+ by
Fitch
	 	 	0.270	%
	 
	 	 	 	 	 	 
	4.

	 	Neither Tier 1, Tier 2 nor Tier 3 shall apply,
and Credit Ratings are better than or equal to
at least two of the following three: (i) Baa2
by Moody’s, (ii) BBB by S&P and (iii) BBB by
Fitch
	 	 	0.350	%
	 
	 	 	 	 	 	 
	5.

	 	Neither Tier 1, Tier 2, Tier 3 nor Tier 4 shall
apply
	 	 	0.425	%





The letter of credit fee described in this Section 5.04(c) for letters of credit shall
accrue from and including the date of initial issuance to but excluding the Termination Date or, in
the case of any Bank, the earlier date of reduction to zero of such Bank’s Commitment hereunder,
and shall be payable quarterly during the term of each Bank’s Commitment hereunder, in arrears, not
later than the last day of each January, April, July and October, and, in the case of each Bank, on
the date such Bank’s Commitment shall be reduced to zero.




          (d) Utilization Fees. The Borrower agrees to pay to the Administrative Agent for the
account of each Bank a utilization fee at a rate per annum of 0.050% on the sum during the
applicable period of the average daily amount of such Bank’s outstanding Advances and the average
daily amount of such Bank’s L/C Interest. The utilization fee described in this Section
5.04(d) shall accrue during any period that (and only so long as) the aggregate Dollar Amount
of outstanding Advances and L/C Obligations shall exceed an amount equal to 50% of the Aggregate
Commitments. The utilization fee shall be payable quarterly during the term of each Bank’s
Commitment hereunder, in arrears, not later than the last day of each January, April, July
and October, and, in the case of each Bank, on the date such Bank’s Commitment shall be
reduced to zero.




          SECTION 5.05. Reduction of the Commitments. The Borrower may, upon at least three (3)
Business Days’ written notice to the Administrative Agent, terminate in whole or reduce ratably in
part the respective Commitments of the Banks; provided that (i) any such reduction shall
not cause the Aggregate Commitments to be less than the Facility Usage at such time, and (ii) in
the case of any partial reduction of the Commitments, such partial reduction




33









 







shall be in an
aggregate amount not less than the lesser of (A) $20,000,000 (or an integral multiple of $5,000,000
in excess thereof) (or the Approximate Dollar Amounts thereof if denominated in an Agreed Currency
other than Dollars) and (B) the amount by which the Aggregate Commitments exceeds the Facility
Usage at such time.




          SECTION 5.06. Repayment. Each Syndicated Advance shall mature, and the principal
amount thereof shall be due and payable, on the Termination Date. Each Competitive Bid Advance
shall mature, and the principal amount thereof shall be due and payable, on the last day of the
Interest Period therefor.




          SECTION 5.07. Interest. The Borrower shall pay interest on the unpaid principal
amount of each Advance made by each Bank from the date of such Advance until such principal amount
shall be paid in full at the following rates per annum:




          (a) Base Rate Advances. If such Advance is a Base Rate Advance, a rate per annum
equal at all times during each Interest Period for such Advance to the Base Rate in effect from
time to time, payable quarterly in arrears on the last day of January, April, July and October and
on the date such Base Rate Advance shall be Converted or paid in full.




          (b) Eurocurrency Rate Advances. If such Advance is a Eurocurrency Rate Advance, a
rate per annum equal at all times during the Interest Period for such Advance to the Eurocurrency
Rate for such Interest Period plus the Eurocurrency Margin (such rate to change when and as
the Eurocurrency Margin changes), payable on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on the date during such Interest Period
which occurs three months after the first day of such Interest Period.




     “Eurocurrency Margin” means, at any time with respect to each Eurocurrency Rate
Advance outstanding at such time (for any Advance in any Agreed Currency other than Euro), the
applicable rate per annum set forth in the table below, determined in accordance with Section
5.04(b) on the basis of the Credit Ratings on the Borrower’s senior unsecured Debentures at
such time:



	 	 	 	 	 	 	 
	 	 	Credit Ratings of	 	Eurocurrency
	Tier	 	Borrower’s Debentures	 	Margin
	1.

	 	Credit Ratings are better than or equal to at least
two of the following three: (i) A2 by Moody’s,
(ii) A by S&P and (iii) A by Fitch
	 	 	0.150	%
	 
	 	 	 	 	 	 
	2.

	 	Tier 1 shall not apply, and Credit Ratings are
better than or equal to at least two of the
following three: (i) A3 by Moody’s, (ii) A- by S&P
and (iii) A- by Fitch
	 	 	0.190	%






34









 






	 	 	 	 	 	 	 
	 	 	Credit Ratings of	 	Eurocurrency
	Tier	 	Borrower’s Debentures	 	Margin
	3.

	 	Neither Tier 1 nor Tier 2 shall apply, and Credit
Ratings are better than or equal to at least two of
the following three: (i) Baa1 by Moody’s, (ii)
BBB+ by S&P and (iii) BBB+ by Fitch
	 	 	0.270	%
	 
	 	 	 	 	 	 
	4.

	 	Neither Tier 1, Tier 2 nor Tier 3 shall apply, and
Credit Ratings are better than or equal to at least
two of the following three: (i) Baa2 by Moody’s,
(ii) BBB by S&P and (iii) BBB by Fitch
	 	 	0.350	%
	 
	 	 	 	 	 	 
	5.

	 	Neither Tier 1, Tier 2, Tier 3 nor Tier 4 shall
apply
	 	 	0.425	%






          (c) EURIBOR Rate Advances. If such Advance is a EURIBOR Rate Advance, a rate per
annum equal at all times during the Interest Period for such Advance to EURIBOR for such Interest
Period plus the EURIBOR Margin (such rate to change when and as the EURIBOR Margin
changes), payable on the last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on the date during such Interest Period which occurs three
months after the first day of such Interest Period.




          “EURIBOR Margin” means, at any time with respect to each EURIBOR Rate Advance
outstanding at such time (for any Advance in Euro), the applicable rate per annum set forth in the
table below, determined in accordance with Section 5.04(b) on the basis of the Credit
Ratings on the Borrower’s senior unsecured Debentures at such time:




	 	 	 	 	 	 	 
	 	 	Credit Ratings of	 	EURIBOR
	Tier	 	Borrower’s Debentures	 	Margin
	1.

	 	Credit Ratings are better than or equal to at least two
of the following three: (i) A2 by Moody’s, (ii) A by
S&P and (iii) A by Fitch
	 	 	0.150	%
	 
	 	 	 	 	 	 
	2.

	 	Tier 1 shall not apply, and Credit Ratings are better
than or equal to at least two of the following three: (i) A3 by Moody’s, (ii) A- by S&P and (iii) A- by Fitch
	 	 	0.190	%






35









 






	 	 	 	 	 	 	 
	 	 	Credit Ratings of	 	EURIBOR
	Tier	 	Borrower’s Debentures	 	Margin
	3.

	 	Neither Tier 1 nor Tier 2 shall apply, and Credit
Ratings are better than or equal to at least two of the
following three: (i) Baa1 by Moody’s, (ii) BBB+ by S&P
and (iii) BBB+ by Fitch
	 	 	0.270	%
	 
	 	 	 	 	 	 
	4.

	 	Neither Tier 1, Tier 2 nor Tier 3 shall apply, and
Credit Ratings are better than or equal to at least two
of the following three: (i) Baa2 by Moody’s, (ii) BBB
by S&P and (iii) BBB by Fitch
	 	 	0.350	%
	 
	 	 	 	 	 	 
	5.

	 	Neither Tier 1, Tier 2, Tier 3 nor Tier 4 shall apply
	 	 	0.425	%






          (d) Competitive Bid Advances. Subject to Section 5.01, if such Advance is a
Competitive Bid Advance, a rate per annum equal (i) in the case of an Absolute Rate Advance, to the
Absolute Rate that shall have been offered by such Bank pursuant to Section 3.04 in its
Competitive Bid Quote related thereto and accepted by the Borrower pursuant to Section 3.06
in its Notice of Competitive Bid Borrowing related thereto, (ii) in the case of a Eurocurrency Bid
Rate Advance, to the Eurocurrency Bid Rate calculated on the basis of the Competitive Bid Margin
that shall have been offered by such Bank pursuant to Section 3.04 in its Competitive Bid
Quote related thereto and accepted by the Borrower pursuant to Section 3.06 in its Notice
of Competitive Bid Borrowing related thereto, and (iii) in the case of a EURIBOR Bid Rate Advance,
to the EURIBOR Bid Rate calculated on the basis of the Competitive Bid Margin that shall have been
offered by such Bank pursuant to Section 3.04 in its Competitive Bid Quote related thereto
and accepted by the Borrower pursuant to Section 3.06 in its Notice of Competitive Bid
Borrowing related thereto, in each case payable on the last day of the applicable Interest Period
and, if such Interest Period has a duration of more than 90 days or three months, as the case may
be, on each day which occurs during such Interest Period every 90 days or three months, as the case
may be, from the first day of such Interest Period.




          SECTION 5.08. Additional Interest on Eurocurrency Advances and EURIBOR Advances.




          (a) The Borrower shall pay to each Bank, so long as such Bank shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each Eurocurrency Advance and/or
EURIBOR Advance, as applicable, of such Bank, from the date of such Advance until such principal
amount is paid in full, at an interest rate per annum equal at all times during the Interest Period
for such Advance to the remainder obtained by subtracting (i) the Eurocurrency Rate or




36









 







EURIBOR, as
applicable, for such Interest Period from (ii) the rate obtained by dividing the applicable rate
referred to in clause (i) above by that percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage of such Bank for such Interest Period, payable on each date on which interest is
payable on such Advance.




          (b) For so long as any Bank is required to make special deposits with or comply with reserve
assets, liquidity, cash margin or other requirements of any monetary or other authority (including
any such requirement imposed by the Bank of England, the Financial Services Authority, the European
Central Bank or the European System of Central Banks, but excluding requirements reflected in the
Eurocurrency Rate Reserve Percentage) in respect of any of such Bank’s Fixed Rate Advances, such
Bank shall be entitled to require the Borrower to pay, contemporaneously with each payment of
interest on each of such Bank’s Advances subject to such requirements, additional interest on such
Advance at a rate per annum specified by such Bank to be the cost to such Bank of complying with
such requirements in relation to such Advance.




          (c) Any additional interest owed pursuant to paragraph (a) or (b) above shall be determined by
such Bank and such Bank shall deliver written notice thereof to the Borrower through the
Administrative Agent; provided that in the case of any such required reserves, special
deposits or other requirements referred to in paragraph (a) or (b) above that are imposed after the
date of this Agreement, such Bank shall deliver such written notice no later than 120 days after
becoming aware of such required reserves, special deposits or other requirements, as applicable.
The Bank’s determination shall be prima facie evidence thereof; provided
that no challenge to such determination may be made by the Borrower after the sixtieth day
following delivery of such notification to the Borrower. Such additional interest shall be payable
to the Administrative Agent for the account of such Bank on each date on which interest is payable
for such Advance.




          SECTION 5.09. Interest on Overdue Principal. If any amount of principal is not paid
when due (whether at stated maturity, by acceleration or otherwise), that amount of principal shall
bear interest, from the date on which such amount is due until such amount is paid in full, payable
on demand, at a rate per annum equal at all times to 2% per annum above the interest rate in effect
from time to time with respect to the applicable Advance.




          SECTION 5.10. Interest Rate Determinations. The Administrative Agent shall give
prompt notice to (i) the Borrower and the Banks, of any applicable interest rate determined by the
Administrative Agent for purposes of Section 5.07 and the applicable interest rate under
Section 5.07(b) and Section 5.07(c) and (ii) the Borrower and each Bank that is to
make a Eurocurrency Bid Rate Advance or a EURIBOR Bid Rate Advance in connection with any Notice of
Competitive Bid Borrowing, of the applicable rate, if any, determined by the Administrative Agent
for determining the applicable Eurocurrency Bid Rate or EURIBOR Bid Rate with respect to such
Advance.




          SECTION 5.11. Performance of Banks’ Obligations. Each Bank shall use commercially
reasonable efforts to keep apprised of all events and circumstances (a) that would excuse or
prohibit such Bank from performing its obligation to make (or to Convert Advances into)
Eurocurrency Rate Advances or EURIBOR Rate Advances hereunder pursuant to Section

37









 








5.01(a),
(b) that would permit such Bank to demand additional interest or increased costs pursuant to
Section 5.08 or Section 5.13 or (c) that would permit the Administrative Agent or
the Majority Banks pursuant to Section 11.12 to denominate an Advance in Dollars rather
than the applicable Agreed Currency. Such Bank shall, as soon as practicable after becoming aware
of any such event or circumstance, use commercially reasonable efforts, to the extent permitted by
law, to perform its obligations to make Eurocurrency Rate Advances or EURIBOR Rate Advances through
another office or lending office, and with respect to increased costs or additional interest, to
reduce such increased costs or additional interest (if the use of such other office or lending
office or such reduction would not adversely affect the performance of such obligations or
repayment of the Advances or result in, in any material respect, any increased cost, loss,
liability or other material disadvantage to such Bank in such Bank’s reasonable judgment), in
either case if by taking the action contemplated by the foregoing, such event or circumstance would
cease to exist.




          SECTION 5.12. Optional Prepayments. (a) The Borrower may, upon notice to the
Administrative Agent, given not later than 9:00 a.m. (Chicago time) on the proposed date of
prepayment, in the case of prepayment of an Advance in Dollars, and 10:00 a.m. (London time) three
Business Days before the proposed date of prepayment, in the case of prepayment of an Advance in an
Agreed Currency other than Dollars, by telephone (to be confirmed immediately in writing) or
facsimile, stating in such notice the proposed date and aggregate principal amount of the
prepayment, and if such notice is given, the Borrower shall prepay the outstanding principal amount
of the Syndicated Advances made as part of the same Syndicated Borrowing in whole or, in the case
of a Syndicated Borrowing comprised solely of Base Rate Advances, ratably in part, by paying the
principal amount to be prepaid together with accrued interest thereon and other amounts then due
and owing, if any, hereunder to the date of prepayment; provided that each partial
prepayment shall be in an amount not less than $20,000,000 and in an integral multiple of
$5,000,000 in excess thereof (or the Approximate Dollar Amount if such Syndicated Advances to be so
prepaid are denominated in Agreed Currencies other than Dollars). Each such optional prepayment
shall be applied to prepay ratably the Syndicated Advances of the several Banks included in such
Syndicated Borrowing. If the Borrower prepays any Syndicated Borrowing consisting of Eurocurrency
Rate Advances or EURIBOR Rate Advances on any day other than the last day of an Interest Period
therefor, the Borrower shall reimburse each Bank for the losses, costs and expenses contemplated in
Section 11.04(b). The Borrower may not, unless otherwise required hereunder, prepay any
Competitive Bid Advance without the consent of the Bank which shall have extended such Competitive
Bid Advance.




          (b) Upon receipt of a notice of prepayment pursuant to this Section 5.12, the
Administrative Agent shall promptly notify each Bank of the contents thereof and of such Bank’s
ratable share, if any, of such prepayment. In the event the Borrower and a Bank agree to the
prepayment to such Bank of a Competitive Bid Advance, and such prepayment is made, the Borrower
thereupon shall notify the Administrative Agent and the Administrative Agent shall promptly notify
the other Banks thereof.




38









 








          SECTION 5.13. Increased Costs. Subject to Section 5.11, if:





     (a) due to either (i) the introduction of or any change (other than any change by way
of imposition or increase of reserve requirements included in the Eurocurrency Rate Reserve
Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other Governmental Authority (whether or
not having the force of law), there shall be any increase in the cost to any Bank of
agreeing or committing to make or making, funding or maintaining any Advances hereunder or
issuing or participating in any Letters of Credit (including, without limitation any
conversion of an Advance denominated in an Agreed Currency other than Euro into an Advance
denominated in Euro); or




     (b) either (i) the introduction of or any change in or in the interpretation of any
law, rule, regulation or guideline adopted after the date hereof and arising out of the July
1988 report of the Basel Committee on Banking Regulation and Supervisory Practices entitled
“International Convergence of Capital Measurement and Capital Standards” or (ii) compliance
by any Bank with any law or regulation, or with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law), affects or
would affect the amount of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank and such Bank determines that the amount of such capital
is increased by or based upon the existence of such Bank’s commitment to lend hereunder and
other commitments of this type, or upon the making or funding of its Advances hereunder or
upon the issuing or maintaining of its L/C Interest hereunder (including, without limitation
any conversion of an Advance denominated in an Agreed Currency other than Euro into an
Advance denominated in Euro),


then the Borrower shall from time to time, upon written demand by such Bank, which shall be
delivered to Borrower no later than 120 days after such Bank becomes aware of such increased cost
or effect on capital referred to in clause (a) or (b) above (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank,
within 120 days after such written demand, additional amounts sufficient to (i) in the case of any
of the events described in clause (a) above, reimburse such Bank for such increased cost,
such increased cost to be determined by such Bank using its customary methods therefor (and, if
such Bank uses from time to time more than one such method, the method chosen for application
hereunder shall be that method which most accurately determines such increased cost), and (ii) in
the case of any of the events described in clause (b) above, compensate such Bank in light
of such circumstances, to the extent such Bank reasonably determines such increase in capital to be
allocable to the existence of such Bank’s commitment to lend or maintain Advances or to issue or
maintain its L/C Interests hereunder. A certificate as to any such amount (demonstrating, in
reasonable detail, the calculations used by such Bank to determine such amount), submitted to the
Borrower and the Administrative Agent by such Bank, shall be prima facie evidence
thereof; provided that no challenge to such determination may be made by the Borrower after
the sixtieth day following delivery of such notification to the Borrower.




          SECTION 5.14. Payments and Computations. (a) The Borrower shall make each payment of
principal or interest in respect of any Advance or under any Notes not later than




39









 







12:00 noon (Local
Time) on the day when due and in the currency in which such Advance was
made to the Borrower, to the Administrative Agent in same day funds and without set-off,
counterclaim or other deduction; all other payments hereunder or under the Notes shall be made in
Dollars. All payments hereunder shall be made to the Administrative Agent at (except as set forth
in the next sentence) the Administrative Agent’s address specified in Section 11.02, or at
any other Applicable Lending Office of the Administrative Agent specified in writing by the
Administrative Agent to the Borrower, and, in the case of Syndicated Borrowings, shall be applied
ratably by the Administrative Agent among the Banks. All payments to be made by the Borrower
hereunder in any currency other than Dollars shall be made to the Administrative Agent at the
account for payments in such currency specified by the Administrative Agent in writing to the
Borrower. The Administrative Agent is hereby authorized to charge the Borrower’s account with the
Administrative Agent, after notice to the Borrower of the amount to be charged, for each payment of
principal, interest and fees as such payment becomes due. The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to such payment ratably (in accordance with
all like obligations then due and payable to which such payment relates) to the Banks for the
account of their respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Bank, to such Bank for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this Agreement.




          (b) Notwithstanding the foregoing provisions of this Section 5.14, if, after the
making of any Advance in any currency other than Dollars, currency control or exchange regulations
are imposed in the country which issues such currency with the result that the type of currency in
which the Advance was made (the “Original Currency”) no longer exists or the Borrower is
not able to make payment to the Administrative Agent for the account of the Banks in such Original
Currency, then all payments to be made by the Borrower hereunder in such currency shall instead be
made when due in Dollars in an amount equal to the Dollar Amount (as of the date of repayment) of
such payment due, it being the intention of the parties hereto that the Borrower take all risks of
the imposition of any such currency control or exchange regulations.




          (c) All computations of interest based on the Base Rate shall, to the extent such Base Rate is
determined by reference to the Prime Rate, be made on the basis of a year of 365 or 366 days, as
the case may be, and all other calculations of interest, facility fees, utilization fees and letter
of credit fees shall be made on the basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding for all purposes in the absence of manifest error. No
challenge to any determination by the Administrative Agent pursuant to this subsection may be made
by the Borrower after the sixtieth day following delivery to the Borrower of written notification
of such determination.




          (d) Whenever any payment hereunder or under any Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest,
facility fee or utilization fee, as the case may be. If such extension would cause such payment
with respect to a Eurocurrency Advance or EURIBOR Advance to be made in the next following calendar
month, such payment shall be made on the immediately preceding




40









 







applicable Business Day and the
period of time during which such payment would have been
outstanding but for compliance with this provision shall not be included in the computation of
payment of interest with respect thereto.




          (e) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Banks hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Borrower shall not have so made such payment
in full to the Administrative Agent, each Bank shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Bank together with interest thereon, for each day from the
date such amount is distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.




          SECTION 5.15. Taxes. (a) Any and all payments by the Borrower hereunder or under any
Notes shall be made, in accordance with Section 5.14, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, (i) in the case of each
Bank and the Administrative Agent, taxes imposed on any of its overall net income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Bank or the Administrative
Agent (as the case may be) is organized or any political subdivision thereof, and (ii) in the case
of each Bank, taxes imposed on its net income, and franchise taxes imposed on it, by the
jurisdiction of such Bank’s Applicable Lending Office or any political subdivision thereof (all
such taxes, levies, imposts, deductions, charges, withholdings and liabilities, less the exclusions
described in clauses (i) and (ii) above, being hereinafter referred to as “Taxes”).




          (b) In addition, the Borrower agrees to pay any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies which arise (i) from any payment
made hereunder or under the Notes to any Applicable Lending Office listed on Schedule 1.02
or to any lending or other office established pursuant to Section 5.11 or otherwise in
accordance with this Agreement with respect to Advances made or to be made under this Agreement or
(ii) from the execution or delivery of this Agreement or the Notes or any amendment hereto or
thereto (hereinafter referred to as “Other Taxes”).




          (c) The Borrower will indemnify each Bank and the Administrative Agent for the full amount of
Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 5.15) incurred by such Bank or the
Administrative Agent (as the case may be) or any liability incurred by such Bank or the
Administrative Agent (as the case may be) (including penalties and interest unless caused by the
gross negligence or willful misconduct of such Bank or the Administrative Agent, as the case may
be) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 120 days from the date
such Bank or the Administrative Agent (as the case may be) makes written demand therefor, which
demand shall be made within 120 days after such Bank or the Administrative Agent, as applicable,
becomes aware of the imposition on it of such Tax or Other Tax or the incurrence by




41









 







it of such
liability and which demand shall demonstrate, in reasonable detail, the circumstances concerning
the imposition of, and the calculations used to determine, such Taxes or Other Taxes.




          (d) Each Bank that is not a United States person (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”)) shall submit to
the Borrower, on or before the date it becomes a party to this Agreement, duly completed and signed
copies of (i) either Form W-8BEN or any successor thereto (relating to such Bank and entitling it
to a complete exemption from withholding on all amounts to be received by such Bank at any
Applicable Lending Office designated by such Bank, including fees, pursuant to this Agreement and
the Advances) or Form W-8ECI or any successor thereto (relating to all amounts to be received by
such Bank at any Applicable Lending Office designated by such Bank, including fees, pursuant to
this Agreement and the Advances) of the United States Internal Revenue Service and Form W-8 or W-9,
as the case may be (relating to the exemption from United States federal income tax backup
withholding) or (ii) if the Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the
Code and does not comply with the requirements of clause (i) above, (x) a certificate substantially
in the form of Exhibit 5.15(d) (any such certificate, a “Section 5.15(d)(ii)
Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN or any successor thereto. Thereafter and from time to time, each such Bank
shall submit to the Borrower such additional duly completed and signed copies of one or the other
of such forms (or such successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may be (i) requested by the Borrower from such Bank and (ii) required
under then current United States law or regulations to avoid United States withholding taxes on
payments in respect of all amounts to be received by such Bank at any Applicable Lending Office
designated by such Bank, including fees, pursuant to this Agreement or the Advances. Upon the
request of the Borrower, each Bank that is a United States person (as such term is defined in
Section 7701(a)(30) of the Code) shall submit to the Borrower promptly following the Borrower’s
request therefor a certificate to the effect that it is such a United States person and
certification of its taxpayer identification number on Form W-9. If any Bank determines, as a
result of any change in applicable law, regulation or treaty, or in any official application or
interpretation thereof, that it is unable to submit to the Borrower any form or certificate that
such Bank is obligated to submit pursuant to this subsection, or that such Bank is required to
withdraw or cancel any such form or certificate previously submitted, such Bank shall promptly
notify the Borrower of such fact; provided, however, that delivery of such notice
shall not preclude the exercise by such Bank of any of its rights under this Section 5.15.
No amount that shall be required to be paid by the Borrower pursuant to subsections (a),
(b) or (c) of this Section 5.15 shall be payable by the Borrower to any
Bank that (i) is not, on the date this Agreement is executed by such Bank, either (x) required to
submit Form W-8BEN or any successor thereto (relating to such Bank and entitling it to a complete
exemption from withholding on all amounts to be received by such Bank at any Applicable Lending
Office designated by such Bank, including fees, pursuant to this Agreement and the Advances) or
Form W-8ECI or any successor thereto (relating to all amounts to be received by such Bank at any
Applicable Lending Office designated by
such Bank, including fees, pursuant to this Agreement and
the Advances) and a Section 5.15(d)(ii) Certificate, as the case may be, or (y) a United States
person (as such term is defined in Section 7701(a)(30) of the Code), or (ii) shall have failed to
submit to the Borrower any form or certificate that such Bank shall have been required to file
pursuant to this subsection and shall have been entitled to file under applicable law.





42









 








          (e) Any Bank claiming additional amounts payable pursuant to this Section 5.15 shall
use reasonable efforts to change the jurisdiction of its office or Applicable Lending Office if the
making of such change would avoid the need for, or reduce the amount of, any
additional amounts that may thereafter accrue and would not, in the reasonable judgment of
such Bank, be otherwise materially disadvantageous to such Bank.




          SECTION 5.16. Noteless Agreement; Evidence of Indebtedness. (a) Each Bank shall
maintain in accordance with its usual practice an account or accounts evidencing the indebtedness
of the Borrower to such Bank resulting from each Advance made by such Bank from time to time,
including the amounts of principal and interest payable and paid to such Bank from time hereunder.




          (b) The Administrative Agent shall maintain accounts in which it will record (i) the amount of
each Advance made hereunder, the currency in which such Advance is denominated and Type thereof and
the Interest Period with respect thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Bank hereunder and (iii) the amount
of any sum received by the Administrative Agent hereunder from the Borrower and each Bank’s share
thereof.




          (c) The entries maintained in the accounts maintained pursuant to paragraphs (a) and (b) above
shall be prima facie evidence of the existence and amounts of the Advances therein
recorded; provided, however, that the failure of the Administrative Agent or any
Bank to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Borrowings in accordance with their terms.




          (d) Any Bank may request that its Advances be evidenced by a promissory note (each a
“Note”). In such event, the Borrower shall prepare, execute and deliver to such Bank a
Note or separate Notes evidencing such Syndicated Advances and Competitive Bid Advances, at such
Bank’s request, payable to the order of such Bank in a form or forms supplied by the Administrative
Agent. Thereafter, the Advances evidenced by such Note or Notes and interest thereon shall at all
times (including after any assignment pursuant to Section 11.06) be represented by one or
more Notes payable to the order of the payee named therein or any assignee pursuant to Section
11.06, except to the extent that any such Bank or assignee subsequently returns any such Note
for cancellation and requests that such Advances once again be evidenced as described in paragraphs
(a) and (b) above.




          SECTION 5.17. Sharing of Payments, Etc. Except for payments made pursuant to
Section 5.18, if any Bank shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of any Advance made by it or any L/C
Interest in excess of its ratable share of all payments obtained by Banks on account of, as
applicable, the Advances comprising the Borrowing (whether the Borrowing to which it shall be
applied is a Syndicated Borrowing or a Competitive Bid Borrowing) to which such Advance relates or
in respect of the Letter of Credit to which such L/C Interest relates, such Bank shall forthwith
purchase from the other Banks which shall then have Advances outstanding comprising a part of such
Borrowing participations in the Advances comprising a part of such Borrowing (or, as applicable,
purchase from the other Banks participations in the L/C Interests in the related Letter of Credit)
as shall be necessary to cause such purchasing Bank to share the




43









 







excess payment (net of any
expenses which may be incurred by such Bank in obtaining or preserving such excess payment) ratably
with respect to such Borrowing or Letter of Credit with each of such other Banks. If all or any
portion of such excess payment is thereafter recovered from such purchasing Bank, such purchase
from each selling Bank shall be rescinded and such
selling Bank shall repay to the purchasing Bank the purchase price to the extent of such
recovery together with an amount equal to such selling Bank’s ratable share (according to the
proportion of (i) the amount of such selling Bank’s required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower agrees that any Bank so
purchasing a participation from another Bank pursuant to this Section 5.17 may, to the
fullest extent permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Bank were the direct creditor of
the Borrower in the amount of such participation. Nothing contained herein shall require any Bank
to exercise any right it may have of set-off, bankers’ lien, counterclaim or similar right or shall
affect the right of any Bank to exercise, and retain the benefits of exercising, any such right
with respect to any other indebtedness or obligation of the Borrower not evidenced by this
Agreement or the Notes. If under any applicable bankruptcy, insolvency or other similar law, any
Bank obtains a secured claim in lieu of a set-off or other payment to which this Section
5.17 would apply, such Bank shall, to the extent practicable, exercise its rights in respect of
such secured claim in a manner consistent with the rights of the Banks entitled under this
Section 5.17 to share in the benefits of any recovery on such secured claim.




          SECTION 5.18. Termination and Prepayment with Respect to any Bank. (a) In addition
to the right of the Borrower to terminate in whole or reduce ratably the unused portion of the
Commitments as described in Section 5.05 and the right of the Borrower to ratably prepay
Advances as described in Section 5.12, the Borrower shall have the right to terminate the
unused portion of the Commitment of any Bank and to prepay all outstanding Advances made by such
Bank in the manner described in this Section 5.18 if the Borrower shall have received
notice (a “Special Notice”) that such Bank (i) cannot extend a Eurocurrency Rate Advance
and/or EURIBOR Rate Advance and shall exercise its rights pursuant to Section 5.01(a), (ii)
claims additional interest pursuant to Section 5.08, (iii) claims reimbursement for
increased costs or reduced returns pursuant to Section 5.13, (iv) claims reimbursement for
Taxes or Other Taxes pursuant to Section 5.15 or (v) elects not to make an Advance in the
applicable Agreed Currency pursuant to Section 11.12.




          (b) Upon receipt by the Borrower of a Special Notice from any Bank, the Borrower may elect to
terminate the unused portion of the Commitment of such Bank by giving notice thereof (a
“Termination Notice”) to such Bank and to the Administrative Agent on or before the
thirtieth day following the date of such Special Notice, specifying therein (i) the name of such
Bank (“Terminated Bank”), (ii) the proposed effective date of termination (“Bank
Termination Date”) of the unused portion of such Terminated Bank’s Commitment, which date shall
not in any event be less than five Business Days following the date of such Termination Notice,
(iii) one or more commercial banks (each, a “Successor Bank”), each such Successor Bank
having a combined capital, surplus (or its equivalent) and undivided profits in an amount not less
than U.S. $500,000,000 (or its equivalent in another currency), which Successor Bank or Successor
Banks shall have agreed, in the aggregate, to succeed to the entire Commitment of such Terminated
Bank on the Bank Termination Date.





44









 








          (c) Unless the Borrower shall have elected, as evidenced by its Termination Notice, to prepay
all the Advances made by a Terminated Bank outstanding as of the Bank Termination Date, any Advance
(each a “TB Advance”) made by such Terminated Bank having an Interest Period ending after
the Bank Termination Date shall remain outstanding until the last
day of such Interest Period (unless required to be paid earlier in accordance with the terms
of this Agreement). On the last day of the then current Interest Period in respect of each TB
Advance, the Successor Bank shall extend an Advance to the Borrower in a principal amount
corresponding to such TB Advance, and having an Interest Period of the type specified in the Notice
of Interest Rate Election that would otherwise have applied to such TB Advance, and the proceeds of
such Advance from the Successor Bank shall be used by the Borrower to repay such TB Advance to the
Terminated Bank. The Successor Bank or Successor Banks specified by the Borrower in a Termination
Notice shall have agreed, prior to the Bank Termination Date, to succeed, in the aggregate, to the
entire Commitment of such Terminated Bank on the Bank Termination Date which succession shall, with
respect to the unused portion of such Terminated Bank’s Commitment as of such Bank Termination
Date, become effective as of the Bank Termination Date and, with respect to the remaining portion
of such Terminated Bank’s Commitment, become effective as and when such Terminated Bank’s Advances
are repaid.




          (d) If the Borrower shall have elected, as evidenced by its Termination Notice, to prepay all
the Advances made by a Terminated Bank outstanding as of the Bank Termination Date, the Successor
Bank or Successor Banks shall in the aggregate extend to the Borrower, on the Bank Termination
Date, Advances (with interest at a rate to be agreed upon by the Borrower and each Successor Bank)
corresponding in respective amounts to each Advance being prepaid as of such date, each of which
Advances shall have an Interest Period beginning on the Bank Termination Date and ending on the
last day of the Interest Period of the Advance being prepaid to which it corresponds;
provided that, upon the mutual agreement of the Borrower and the Successor Bank (or
Successor Banks, as applicable) and notice thereof to the Administrative Agent, the Borrower may
elect not to require the Successor Bank (or Successor Banks, as applicable) to extend Competitive
Bid Advances in substitution for the Competitive Bid Advances extended by the Terminated Bank.




          (e) Each such termination pursuant to this Section 5.18 shall be effective on the Bank
Termination Date proposed by the Borrower in the related Termination Notice if (i) no Event of
Default shall have occurred prior to such date and be continuing on such date, (ii) in the event
the Borrower shall have elected to prepay all Advances made by such Terminated Bank outstanding as
of such date, (A) the Borrower shall have prepaid the outstanding aggregate amount of all Advances
made by the Terminated Bank, together with accrued interest to such date on the amount prepaid and
all other amounts payable to such Bank as of such date and (B) the Successor Bank or Successor
Banks shall have extended to the Borrower Advances equal in aggregate amount to the Advances of the
Terminated Bank being prepaid as required pursuant to Section 5.18(d), and (iii) the
Administrative Agent shall have received evidence reasonably satisfactory to the Administrative
Agent that the Successor Bank or Successor Banks shall have agreed in the aggregate to succeed to
the entire Commitment of the Terminated Bank in accordance with this Section 5.18. On a
Bank Termination Date, the applicable Successor Bank (or Successor Banks, as applicable) shall
succeed to the L/C Interests of the Terminated Bank, and the Terminated Bank shall thereafter cease
to have any L/C Interest or any participation in, or liability for any drawings made under, any
Letter of Credit.





45









 








          (f) Subject to subsection (e) above, on the Bank Termination Date, (i) each Successor
Bank shall become a party to this Agreement as if such Successor Bank shall have been named on the
signature pages hereof, and such Successor Bank shall have all the rights and obligations of a
“Bank” hereunder and (ii) the Terminated Bank shall have no further
Commitment under this Agreement (other than with respect to Advances, if any, made by such
Bank which remain outstanding after such date) and shall no longer be a “Bank” under this Agreement
for any purpose (other than with respect to Advances made by such Bank which remain outstanding
after such date) except insofar as it shall be entitled to any payment or indemnification, or be
obligated to make any indemnification, on account of any event which shall have occurred, or any
right or liability which shall have arisen, on or prior to the date of repayment of such
outstanding Advances. The termination of any Bank’s Commitment and the prepayment of such Bank’s
Advances pursuant to this Section 5.18 shall not relieve or satisfy the obligations of the
Borrower to make any such prepayments free and clear of all Taxes, to reimburse such Bank for all
Other Taxes and for all increased costs pursuant to Section 5.13, or to comply with all
other terms and conditions of this Agreement (including, without limitation, Section
11.04). A Successor Bank shall be subject to the Syndicated Reduction (or, in the case of more
than one Successor Bank, its ratable share of the Syndicated Reduction) of the Terminated Bank it
succeeds upon the Bank Termination Date applicable to such successor.




ARTICLE VI




CONDITIONS PRECEDENT




          SECTION 6.01. Conditions Precedent to Effectiveness of Agreement. The effectiveness
of this Agreement and the obligation of each Bank to make its initial Advance or for an Issuing
Bank to issue the initial Letter of Credit hereunder (whichever shall first be requested by the
Borrower) is subject to the condition precedent that the Administrative Agent shall have received
all of the following:




          (a) Certified copies of the resolutions of the Board of Directors of the Borrower approving
this Agreement and any Notes, and of all documents evidencing other necessary corporate action with
respect to this Agreement and any Notes.




          (b) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the
names and true signatures of the officers of the Borrower authorized to sign this Agreement and any
Notes and the other documents or certificates to be delivered pursuant to this Agreement.




          (c) A certificate, signed by the chief financial officer of the Borrower, stating that as of
the date hereof (i) all representations and warranties in this Agreement are correct, (ii) no Event
of Default or event which, with notice or the lapse of time or both, would constitute an Event of
Default has occurred and is continuing and (iii) there are no unreimbursed drawings under any
Existing Letter of Credit.




          (d) A favorable opinion of the General Counsel or Associate General Counsel of the Borrower,
substantially in the form set forth in Exhibit 6.01(d) hereto.





46









 








          SECTION 6.02. Conditions Precedent to Each Borrowing. The obligation of each Bank to
make an Advance on the occasion of each Borrowing (including the First Borrowing) or for any
Issuing Bank to issue any Letter of Credit shall be subject to the additional conditions precedent
that on the date of such Borrowing or issuance of such Letter of Credit (a) immediately before and
after giving effect to such Borrowing and to the application of proceeds therefrom, or (as
applicable) immediately before and after the issuance of such Letter of Credit,
the following statements shall be true (and each of the giving of the applicable Notice of
Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing, or (as applicable)
the submission of a request for issuance of a Letter of Credit, shall be deemed to constitute a
representation and warranty by the Borrower that on the date of such Borrowing or such issuance,
immediately before and after giving effect thereto and to the application of the proceeds therefrom
(in the case of a Borrowing), such statements are true):





	 	(i)	 	The representations and warranties contained in
Section 7.01 (other than subsections (e), (f) and (i) thereof)
are correct on and as of the date of such Borrowing as though made on
and as of such date,
	 
	 	(ii)	 	No event has occurred and is continuing, or
would result from such Borrowing (or from the application of the
proceeds therefrom) or from the issuance of such Letter of Credit,
which constitutes an Event of Default or which would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both, and
	 
	 	(iii)	 	The Facility Usage at such time does not
exceed the Aggregate Commitments at such time,




and (b) the Administrative Agent shall have received such other documents as any Bank through the
Administrative Agent may reasonably request related to clauses (a)(i) or (a)(ii) above.




          SECTION 6.03. Termination of Existing Credit Agreements. The Borrower hereby
terminates the commitments of all lenders under the Existing Credit Agreements and represents to
the Administrative Agent and the Banks that all outstanding obligations, if any, under the Existing
Credit Agreements have been repaid in full except for the obligations with respect to the Existing
Letters of Credit which shall be deemed Letters of Credit outstanding under this Agreement as of
the date hereof. Each of the Banks party to this Agreement which is also a lender or, with respect
to JPMorgan Chase Bank, N.A., the administrative agent and a lender, under the Existing Credit
Agreements hereby agrees that, for purposes of the Existing Credit Agreements, the termination set
forth in the preceding sentence is sufficient to terminate the obligations of the Borrower under
the Existing Credit Agreements and hereby waives receipt of any additional written notice and
satisfaction of any other condition required to terminate the Existing Credit Agreements in
accordance with their terms.




47









 








ARTICLE VII




REPRESENTATIONS AND WARRANTIES




          SECTION 7.01. Representations and Warranties of the Borrower. The Borrower represents
and warrants as follows:




          (a) Corporate Existence and Standing. The Borrower and each Material Subsidiary is a
corporation duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority to conduct its business in each
jurisdiction in which the failure so to qualify would have a material adverse effect on the
financial condition or operations of the Borrower.




          (b) Authorization; No Violation. The execution, delivery and performance by the
Borrower of this Agreement and the Notes are within the Borrower’s corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the Borrower’s charter or
by-laws or (ii) any law or any contractual restriction binding on or affecting the Borrower.




          (c) Governmental Consents. No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or regulatory body is required for the due
execution, delivery and performance by the Borrower of this Agreement or any Notes.




          (d) Validity. This Agreement is, and any Notes when delivered will be, the legal,
valid and binding obligations of the Borrower enforceable against the Borrower in accordance with
their respective terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors’ rights generally and to the effect
of general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).




          (e) Litigation. Except as disclosed by the Borrower in its SEC filings prior to the
date hereof, there is no pending or, to the knowledge of the Borrower, threatened action or
proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency
or arbitrator, which could reasonably be expected to have a material adverse effect on the
financial condition or operations of the Borrower or which purports to affect the legality,
validity or enforceability of this Agreement or any Note to be delivered by it.




          (f) Financial Statements; No Material Adverse Change. The Consolidated balance sheet
at December 31, 2005 and the related Consolidated statements of income, cash flows and
shareholder’s equity and comprehensive income for the period then ended of the Borrower and its
Consolidated Subsidiaries present fairly in all material respects the financial condition of the
Borrower and its Consolidated Subsidiaries at December 31, 2005 and the results of the operations
and cash flows of the Borrower and its Consolidated Subsidiaries for the year then ended, in
conformity with generally accepted accounting principles applied on a basis consistent with that of
the preceding year except as discussed in Note 1 to the Consolidated financial statements. Subject
to year-end audit adjustments, the Consolidated balance sheet at September 30, 2006 and the related
Consolidated statements of income and cash flows for the





48









 




three quarters then ended of the Borrower and its Consolidated Subsidiaries present
fairly in all material respects the financial condition of the Borrower and its Consolidated
Subsidiaries at September 30, 2006 and the results of the operations and cash flows of the Borrower
and its Consolidated Subsidiaries for the three quarters then ended, in conformity with generally
accepted accounting principles consistently applied except as discussed in Note 1 to the
Consolidated financial statements. Since December 31, 2005, except as disclosed in filings with
the SEC prior to the date of this Agreement, there has been no material adverse change in such
financial condition or operations.




          (g) Investment Company Act. The Borrower is not an “investment company” as defined
in, or subject to regulation under, the Investment Company Act of 1940, as amended.




          (h) Regulation U. Neither the Borrower nor any of its Subsidiaries is engaged in the
business of purchasing or carrying Margin Stock. The value of the Margin Stock owned directly or
indirectly by the Borrower or any Subsidiary which is subject to any arrangement (as such term is
used in Section 221.2(g) of Regulation U issued by the Board of Governors of the Federal Reserve
System) hereunder is less than an amount equal to 25% of the value of all assets of the Borrower
and/or such Subsidiary subject to such arrangement.




          (i) Environmental Matters. The operations of the Borrower and each Material
Subsidiary comply in all material respects with all Environmental Laws, the noncompliance with
which would materially adversely affect the financial condition or operations of the Borrower.




ARTICLE VIII




COVENANTS




          SECTION 8.01. Affirmative Covenants of the Borrower. So long as any Advance shall
remain unpaid, any L/C Obligations shall remain outstanding or any Bank shall have any Commitment,
the Borrower will:




          (a) Payment of Taxes, Etc. Pay and discharge, and cause each Material Subsidiary to
pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and
governmental charges or levies imposed upon it or upon its income, profit or property, and (ii) all
lawful claims which, if unpaid, might by law become a lien upon its property; provided,
however, that neither the Borrower nor any Material Subsidiary shall be required to pay or
discharge any such tax, assessment, charge or claim which is being contested in good faith and by
proper proceedings and with respect to which the Borrower shall have established appropriate
reserves in accordance with generally accepted accounting principles.




          (b) Maintenance of Insurance. Maintain, and cause each Material Subsidiary to
maintain, insurance with responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by (or, as applicable, self-insure in a
manner and to an extent not inconsistent with conventions observed by) companies engaged in similar
businesses and owning similar properties in the same general areas in which the Borrower or such
Material Subsidiary operates.




49









 








          (c) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause each
Material Subsidiary to preserve and maintain, its corporate existence, rights (charter and
statutory), and franchises, except as otherwise permitted by Section 8.02(c);
provided, however, that neither the Borrower nor any Material Subsidiary shall be
required to preserve any right or franchise if the Board of Directors of the Borrower shall
determine that the preservation thereof is no longer desirable in the conduct of business of the
Borrower or such Material Subsidiary, as the case may be, and that the loss thereof is not
materially adverse to the financial condition or operations of the Borrower.




          (d) Compliance with Laws, Etc. Comply, and cause each Material Subsidiary to comply,
with the requirements of all applicable laws, rules, regulations and orders of any Governmental
Authority (including, without limitation, all Environmental Laws), noncompliance with which would
materially adversely affect the financial condition or operations of the Borrower.




          (e) Keeping of Books. Keep, and cause each Material Subsidiary to keep, proper books
of record and account, in which full and correct entries shall be made of all financial
transactions and the assets and business of the Borrower and each Material Subsidiary in accordance
with generally accepted accounting principles in effect from time to time.




          (f) Inspection. Permit, and cause each Material Subsidiary to permit, the
Administrative Agent, and its representatives and agents, to inspect any of the properties,
corporate books and financial records of the Borrower and its Material Subsidiaries, to examine and
make copies of the books of account and other financial records of the Borrower and its Material
Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and its Material
Subsidiaries with, and to be advised as to the same by, their respective officers or directors, at
such reasonable times during normal business hours and intervals as the Administrative Agent may
reasonably designate.




          (g) Reporting Requirements. Furnish to the Administrative Agent in sufficient copies
for distribution to each Bank:





	 	(i)	 	As soon as available and in any event within
the earlier of (A) five (5) days after the time period specified by the
SEC under the Exchange Act for quarterly reporting or (B) 55 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and a
Consolidated statement of income and cash flows (or Consolidated
statement of changes in financial position, as the case may be) of the
Borrower and its Consolidated Subsidiaries for the period commencing at
the end of the previous fiscal year and ending with the end of such
quarter, certified by the chief financial officer of the Borrower (it
being understood that the certification provided by the chief financial
officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 is
acceptable for this purpose); provided, however, that
at any time the Borrower shall be subject to the





50









 











	 	 	 	reporting requirements of Section 13 or 15(d) of the Exchange Act,
delivery within the time period specified above of copies of the
quarterly balance sheets and statements on Form 10-Q of the Borrower
and its Consolidated Subsidiaries for such quarterly period as filed
with the SEC shall be deemed to satisfy the requirements of this
clause (i);
	 
	 	(ii)	 	As soon as available and in any event within
the earlier of (A) five (5) days after the time period specified by the
SEC under the Exchange Act for annual reporting or (B) 100 days after
the end of each fiscal year of the Borrower, a Consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end
of such year and a Consolidated statement of income, cash flows and
shareholder’s equity and comprehensive income of the Borrower and its
Consolidated Subsidiaries for such fiscal year and accompanied by (A) a
report of PricewaterhouseCoopers LLP, or other independent public
accountants of nationally recognized standing, on the results of their
examination of the Consolidated annual financial statements of the
Borrower and its Consolidated Subsidiaries, which report shall be
unqualified or shall be otherwise reasonably acceptable to the Majority
Banks; provided that such report may set forth qualifications
to the extent such qualifications pertain solely to changes in
generally accepted accounting principles from such principles applied
during earlier accounting periods, the implementation of which changes
(with the concurrence of such accountants) is reflected in the
financial statements accompanying such report, and (B) a certificate of
such accountants substantially in the form of Exhibit
8.01(g)(ii); and provided further, that at any time
the Borrower shall be subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, delivery within the time period
specified above of copies of the annual balance sheets and statements
on Form 10-K of the Borrower and its Consolidated Subsidiaries for such
annual period as filed with the SEC shall be deemed to satisfy the
requirements of this clause (ii);
	 
	 	(iii)	 	Promptly after the sending or filing thereof,
copies of all reports which the Borrower files with the SEC under the
Exchange Act;




provided, that such quarterly and annual financial statements and reports filed with the
SEC required pursuant to clauses (i), (ii) and (iii) above shall be deemed delivered to the
Administrative Agent on the earlier of the date such statements or reports are available at (i)
www.sec.gov and (ii) the Borrower’s website at
www.baxter.com;





	 	(iv)	 	Together with the financial statements required
pursuant to clauses (i) and (ii) above, a certificate signed by the
chief financial officer of the Borrower (A) stating that no Event of
Default or event





51









 











	 	 	 	which, with notice or the lapse of time or both, would constitute an
Event of Default exists or, if any does exist, stating the nature and
status thereof and describing the action the Borrower proposes to
take with respect thereto and (B) demonstrating, in reasonable
detail, the calculations used by such officer to determine compliance
with the financial covenants contained in Sections 8.02(a)
and 8.02(b);
	 
	 	(v)	 	With respect to each fiscal year for which the
Borrower shall have an aggregate Unfunded Liability of $100,000,000 or
more for all of its single employer pension benefit plans covered by
Title IV of ERISA (calculated as of the valuation date for each such
plan’s plan year commencing in such fiscal year) and all multi-employer
pension benefit plans covered by Title IV of ERISA to which the
Borrower has an obligation to contribute (calculated as if a complete
withdrawal occurred on the first day of such fiscal year), as soon as
available, and in any event within ten months after the end of such
fiscal year, a statement of Unfunded Liabilities of each such plan,
certified as correct by an actuary enrolled in accordance with
regulations under ERISA and a statement of estimated withdrawal
liability as of the most recent plan year end as customarily prepared
by the trustees under the multi-employer plans to which the Borrower
has an obligation to contribute;
	 
	 	(vi)	 	As soon as possible, and in any event within 30
days after the occurrence of each event the Borrower knows is or may be
a Reportable Event (as defined in Section 4043 of ERISA) with respect
to any Plan with an Unfunded Liability in excess of $100,000,000, other
than a Reportable Event with respect to which the Pension Benefit
Guaranty Corporation has waived reporting, a statement signed by the
chief financial officer of the Borrower describing such reportable
event and the action which the Borrower proposes to take with respect
thereto; and
	 
	 	(vii)	 	As soon as possible, and in any event within
five Business Days after the Borrower shall become aware of the
occurrence of each Event of Default or each event which, with notice or
lapse of time or both, would constitute an Event of Default, which
Event of Default or event is continuing on the date of such statement,
a statement of the chief financial officer of the Borrower setting
forth details of such Event of Default or event and the action which
the Borrower proposes to take with respect thereto.





          (h) Use of Proceeds. Use the proceeds of Borrowings made under or Letters of Credit
issued in accordance with this Agreement for general corporate purposes not in violation of any
applicable law or regulation (including, without limitation, Regulation U and X of the Board of
Governors of the Federal Reserve System (the “Margin Regulations”)). Without

52









 








limiting the generality of the foregoing, the Borrower may use the credit facilities provided
by this Agreement in support of its commercial paper program. With respect to any Borrowing the
proceeds of which shall be used to purchase or carry Margin Stock, the Borrower shall include in
the Notice of Borrowing for such Borrowing such information as shall enable the Banks and the
Borrower to comply with the Margin Regulations.




          SECTION 8.02. Negative Covenants of the Borrower. So long as any Advance shall remain
unpaid, any L/C Obligations shall remain outstanding or any Bank shall have any Commitment, the
Borrower will not:




          (a) Liens, Etc. Suffer to exist, create, assume or incur, or permit any of its
Material Subsidiaries to suffer to exist, create, assume or incur, any Security Interest, or
assign, or permit any of its Material Subsidiaries to assign, any right to receive income, in each
case to secure Debt or any other obligation or liability, other than:





	 	(i)	 	Any Security Interest to secure Debt or any
other obligation or liability of any Material Subsidiary to the
Borrower.
	 
	 	(ii)	 	Mechanics’, materialmen’s, carriers’ or other
like liens arising in the ordinary course of business (including
construction of facilities) in respect of obligations which are not due
or which are being contested in good faith and for which reasonable
reserves have been established.
	 
	 	(iii)	 	Any Security Interest arising by reason of
deposits with, or the giving of any form of security to, any
governmental agency or any body created or approved by law or
governmental regulation which is required by law or governmental
regulation as a condition to the transaction of any business, or the
exercise of any privilege, franchise or license.
	 
	 	(iv)	 	Security Interests for taxes, assessments or
governmental charges or levies not yet delinquent or Security Interests
for taxes, assessments or governmental charges or levies already
delinquent but the validity of which is being contested in good faith
and for which reasonable reserves have been established.
	 
	 	(v)	 	Security Interests (including judgment liens)
arising in connection with legal proceedings so long as such
proceedings are being contested in good faith and, in the case of
judgment liens, execution thereon is stayed.
	 
	 	(vi)	 	Landlords’ liens on fixtures located on
premises leased by the Borrower or one of its Material Subsidiaries in
the ordinary course of business.
	 
	 	(vii)	 	Security Interests arising in connection with
contracts and subcontracts with or made at the request of the United
States of





53









 











	 	 	 	America, any state thereof, or any department, agency or
instrumentality of the United States or any state thereof for
obligations not yet delinquent.
	 
	 	(viii)	 	Any Security Interest arising by reason of deposits to qualify the
Borrower or a Subsidiary to conduct business, to maintain
self-insurance, or to obtain the benefit of, or comply with, laws.
	 
	 	(ix)	 	Any purchase money Security Interest claimed by
sellers of goods on ordinary trade terms provided that no
financing statement has been filed to perfect such Security Interest.
	 
	 	(x)	 	The extension of any Security Interest existing
as of the date hereof to additions, extensions, or improvements to the
property subject to the Security Interest which does not arise as a
result of borrowing money or the securing of Debt or other obligation
or liability created, assumed or incurred after such date.
	 
	 	(xi)	 	Security Interests on (i) property of a
corporation or firm existing at the time such corporation is merged or
consolidated with the Borrower or any Subsidiary or at the time of a
sale, lease or other disposition of the properties of a corporation or
a firm as an entirety (or the properties of a corporation or firm
comprising a product line or line of business, as an entirety) or
substantially as an entirety to the Borrower or a Subsidiary; or (ii)
property comprising machinery, equipment or real property acquired by
the Borrower or any of its Subsidiaries, which Security Interests shall
have existed at the time of such acquisition and secure obligations
assumed by the Borrower or such Subsidiary in connection with such
acquisition; provided that the Security Interests of the type
described in this paragraph (xi) shall not attach to or affect
property owned by the Borrower or such Subsidiary prior to the event
referred to in this paragraph (xi).
	 
	 	(xii)	 	Security Interests arising in connection with
the sale, assignment or other transfer by the Borrower or any Material
Subsidiary of accounts receivable, lease receivables or other payment
obligations (any of the foregoing being a “Receivable”) owing
to the Borrower or any Subsidiary or any interest in any of the
foregoing (together in each case with any collections and other
proceeds thereof and any collateral, guaranties or other property or
claims in favor of the Borrower or such Subsidiary supporting or
securing payment by the obligor thereon of any such Receivables), in
each case whether such sale, assignment or other transfer constitutes a
“true sale” or a secured financing for accounting, tax or any other
purpose; provided that either (i) such sale, assignment or
other transfer shall have been made as part of a sale of the business
out of which the




54









 












	 	 	 	applicable Receivables arose, (ii) such sale, assignment or other
transfer is made in the ordinary course of business and is for the
purpose of collection only, (iii) such sale, assignment or other
transfer is made in connection with an agreement on the part of the
assignee thereof to render performance under the contract that has
given rise to such Receivable, or (iv) in all other cases, the
aggregate outstanding investment or claim held at any time by
purchasers, assignees or other transferees of (or of interests in)
such Receivables (as determined by the Borrower using any reasonable
methods) shall not exceed an amount equal to 10% of the Consolidated
total assets of the Borrower and its Consolidated Subsidiaries at
such time.
	 
	 	(xiii)	 	Security Interests securing non-recourse obligations in connection
with leveraged or single-investor lease transactions.
	 
	 	(xiv)	 	Security Interests securing the performance of
any contract or undertaking made in the ordinary course of business (as
such business is currently conducted) other than for the borrowing of
money.
	 
	 	(xv)	 	Any Security Interest granted by the Borrower
or any Material Subsidiary of the Borrower; provided, that (i)
the property which is subject to such Security Interest is a parcel of
real property, a manufacturing plant, manufacturing equipment, a
warehouse, or an office building hereafter acquired, constructed,
developed or improved by the Borrower or such Material Subsidiary, and
(ii) such Security Interest is created prior to or contemporaneously
with, or within 120 days after (x) in the case of acquisition of such
property, the completion of such acquisition and (y) in the case of the
construction, development or improvement of such property, the later to
occur of the completion of such construction, development or
improvement or the commencement of operations, use or commercial
production (exclusive of test and start-up periods) of such property,
and such Security Interest secures or provides for the payment of all
or any part of the acquisition cost of such property or the cost of
construction, development or improvement thereof, as the case may be.
	 
	 	(xvi)	 	Any conditional sales agreement or other title
retention agreement with respect to property acquired by the Borrower
or any Material Subsidiary.
	 
	 	(xvii)	 	Any Security Interest that secures an obligation owed to the United
States of America or any state, territory or possession of the United
States of America, any political subdivision of any of the foregoing or
the District of Columbia (each, a “Governmental Entity”) in





55









 











	 	 	 	connection with a bond or other obligation issued by a Government
Entity to finance the construction or acquisition by the Borrower or
any Material Subsidiary of any manufacturing plant, warehouse, office
building or parcel of real property (including fixtures).
	 
	 	(xviii)	 	Any Security Interest in deposits or cash equivalent investments
pledged with a financial institution for the sole purpose of
implementing a hedging or financing arrangement commonly known as a
“back-to-back” loan arrangement, provided in each case that
neither the assets subject to such Security Interest nor the Debt
incurred in connection therewith are reflected on the Consolidated
balance sheet of the Borrower.
	 
	 	(xix)	 	Any extension, renewal or refunding (or
successive extensions, renewals or refundings) in whole or in part of
any Debt or any other obligation or liability secured by any Security
Interest referred to in the foregoing paragraphs (i) through
(xviii), provided that the principal amount of Debt or
any other obligation or liability secured by such Security Interest
shall not exceed the principal amount outstanding immediately prior to
such extension, renewal or refunding, and that the Security Interest
securing such Debt or other obligation or liability shall be limited to
the property which, immediately prior to such extension, renewal or
refunding secured such Debt or other obligation or liability and
additions to such property.





          Notwithstanding the foregoing provisions of this Section 8.02(a), the Borrower and its
Material Subsidiaries may, at any time, suffer to exist, issue, incur, assume and guarantee Secured
Debt (in addition to Secured Debt permitted to be secured under the foregoing paragraphs
(i) through (xix)), provided that the aggregate amount of such Secured Debt,
together with the aggregate amount of all other Secured Debt (not including Secured Debt permitted
to be secured under the foregoing paragraphs (i) through (xix)) of the Borrower and
its Material Subsidiaries which is suffered to exist, issued, incurred, assumed or guaranteed after
the date hereof, does not at such time exceed 10% of Consolidated Net Tangible Assets.




          (b) Limitation on Debt. Permit (i) Consolidated Adjusted Debt of the Borrower and its
Consolidated Subsidiaries at any time to exceed (ii) an amount equal to 55% of Consolidated
Capitalization at such time.




          (c) Merger, Etc.





	 	(i)	 	Merge or consolidate with or into, or Transfer
Assets to, any Person, except that the Borrower may (A) merge or
consolidate with any corporation, including any Subsidiary, which is a
U.S. Corporation and (B) Transfer Assets to any Subsidiary which is a
U.S. Corporation; provided, in each case described in clause
(A) and (B) above, that (x) immediately after giving effect to such





56









 











	 	 	 	transaction, no event shall have occurred and be continuing which
constitutes an Event of Default or which with the giving of notice or
lapse of time or both would constitute an Event of Default and (y) in
the case of any merger or consolidation to which the Borrower shall
be a party, the survivor of such merger or consolidation shall be the
Borrower.
	 
	 	(ii)	 	Permit any Material Subsidiary to merge or
consolidate with or into, or Transfer Assets to, any Person unless,
immediately after giving effect to such transaction, no event shall
have occurred and be continuing which constitutes an Event of Default
or which with the giving of notice or lapse of time or both would
constitute an Event of Default.





          For purposes of this Section 8.02(c): “Transfer Assets” means, when referring
to the Borrower, the conveyance, transfer, lease or other disposition (whether in one transaction
or in a series of transactions) of all or substantially all of the assets of the Borrower or of the
Borrower and its Subsidiaries considered as a whole and means, when referring to a Subsidiary, the
conveyance, transfer, lease or other disposition (whether in one transaction or in a series of
transactions) of all or substantially all of the assets of such Subsidiary; and “U.S.
Corporation” means a corporation organized and existing under the laws of the United States,
any state thereof or the District of Columbia.




ARTICLE IX




EVENTS OF DEFAULT




          SECTION 9.01. Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:




          (a) The Borrower shall fail to (i) pay any installment of interest on any Advance or any
facility fee payable under Section 5.04(a), any utilization fee payable under Section
5.04(d) or any letter of credit fee payable under Section 4.07 or Section
5.04(c), in each case when due and such default continues for five days, or (ii) pay any amount
of principal of any Advance when due; or




          (b) Any representation or warranty made or deemed made by the Borrower (or any of its
officers) in connection with this Agreement, any Advance or Letter of Credit shall prove to have
been incorrect in any material respect when made or deemed made; or




          (c) The Borrower shall fail to perform or observe any term, covenant or agreement contained in
Section 8.02(a) or 8.02(b) of this Agreement on its part to be performed or
observed and such failure shall remain unremedied on the earlier to occur of (i) or (ii): (i) the
date 30 days after the Borrower shall have become aware of such failure or (ii) the date that
financial statements of the Borrower shall be available from which it may be ascertained that such
failure to perform or observe such term, covenant or agreement shall have occurred. For purposes
of clause (ii) above, the date that any financial statements shall be deemed available shall be the
date on which the Borrower shall file (or, if earlier, the date the
Borrower shall have


57









 






been required to file) such financial statements with the SEC as part of any report required
to be filed pursuant to the Exchange Act; or




          (d) The Borrower shall (i) fail to perform or observe, or shall breach, any other term,
covenant or agreement contained in this Agreement on its part to be performed or observed (other
than those failures or breaches referred to in subsections (a), (b), (c),
(d)(ii) or (d)(iii) of this Section 9.01) and any such failure or breach
shall remain unremedied for 30 days after written notice thereof has been given to the Borrower by
the Administrative Agent at the request of any Bank; (ii) fail to perform or observe Section
8.02(c); or (iii) fail to perform or observe Section 8.01(g)(vii) and such failure
shall remain unremedied for 15 days after the occurrence thereof; or




          (e) The Borrower or any Material Subsidiary shall fail to pay any amount of principal of,
interest on or premium with respect to, any Debt (other than that evidenced by this Agreement) of
the Borrower or such Subsidiary when due (whether at scheduled maturity or by required prepayment,
acceleration, demand or otherwise) which Debt is outstanding under one or more instruments or
agreements in an aggregate principal amount not less than $100,000,000 and such failure shall
continue after the applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist after the applicable
grace period specified in such agreement or instrument, if the effect of such event or condition is
to accelerate the maturity of such Debt; or any such Debt shall be declared to be due and payable,
or required to be prepaid (other than by a scheduled prepayment), prior to the stated maturity
thereof; or




          (f) The Borrower or any Material Subsidiary shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or such Material Subsidiary seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debt under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, or other similar official for it or for any substantial part of its property; or the
Borrower or any such Material Subsidiary shall take corporate action to authorize any of the
actions set forth above in this subsection (f); provided that, in the case of any
such proceeding filed or commenced against the Borrower or any Material Subsidiary, such event
shall not constitute an “Event of Default” hereunder unless either (i) the same shall have remained
undismissed or unstayed for a period of 60 days, (ii) an order for relief shall have been entered
against the Borrower or such Material Subsidiary under the federal bankruptcy laws as now or
hereafter in effect or (iii) the Borrower or such Material Subsidiary shall have taken corporate
action consenting to, approving or acquiescing in the commencement or maintenance of such
proceeding; or




          (g) Any judgment or order for the payment of money shall be rendered against the Borrower or
any Material Subsidiary and (i) either (A) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (B) there shall be any period of 10 consecutive days, in
the case of a judgment or order rendered or entered by a court located in the United States, its
territories and Puerto Rico, or 30 consecutive days, in the case of
any other


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court, during which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect, and (ii) the amount of such judgment or order, when
aggregated with the amount of all other such judgments and orders
described in this subsection
(g), shall exceed $75,000,000; or




          (h) Either (i) the Pension Benefit Guaranty Corporation shall institute proceedings under
Section 4042 of ERISA to terminate any single-employer plan (as defined in Section 4001(b)(2) of
ERISA) that provides benefits for employees of the Borrower or any Material Subsidiary and such
plan shall have an Unfunded Liability in an amount in excess of $75,000,000 at such time or (ii)
withdrawal liability shall be assessed against the Borrower or any Material Subsidiary in
connection with any multi-employer plan (whether under Section 4203 or Section 4205 of ERISA) and
such withdrawal liability shall be an amount in excess of $75,000,000; or




          (i) A Change of Control shall occur;



then, in any such event but subject to the next sentence, the Administrative Agent shall at the
request, or may with the consent, of the Majority Banks, by notice to the Borrower, (i) declare the
obligation of each Bank to make Advances and the obligation of each Issuing Bank to issue Letters
of Credit hereunder to be terminated, whereupon the same shall forthwith terminate, (ii) declare
the entire unpaid principal amount of the Advances, all interest accrued and unpaid thereon and all
other amounts payable under this Agreement (including Reimbursement Obligations) to be forthwith
due and payable, whereupon the Advances, all such accrued interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or further notice of
any kind, all of which are hereby expressly waived by the Borrower; provided, that in the
case of any Competitive Bid Advance, the unpaid principal amount thereof, and all interest accrued
and unpaid thereon, shall not be declared to be due and payable pursuant to the foregoing
clause (ii) without the consent of the Bank to which such Competitive Bid Advance is owing
and (iii) demand delivery of, and promptly following such demand the Borrower shall deliver and
pledge to the Administrative Agent (or another Bank selected by the Borrower) for the benefit of
the Banks, cash or other collateral of a type satisfactory to the Majority Banks and having a
value, as determined by the Administrative Agent, equal to the aggregate undrawn face amount of the
Letters of Credit then outstanding and all fees and other amounts then due. In the event of the
occurrence of an Event of Default under Section 9.01(f), (A) the obligation of each Bank to
make Advances and the obligation of each Issuing Bank to issue Letters of Credit hereunder shall
automatically be terminated and (B) the Advances, all such interest and all such amounts (including
Reimbursement Obligations) shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly waived by the
Borrower.




          SECTION 9.02. Cash Collateral. Any cash collateral delivered pursuant to Section
9.01 in respect of the outstanding Letters of Credit shall be held by the Administrative Agent
or the applicable Bank in a separate interest-bearing account appropriately designated as a cash
collateral account in relation to this Agreement and the Letters of Credit and retained by and
under the control of the Administrative Agent or the applicable Bank for the benefit of all of the
Banks and the Issuing Banks as collateral security for the Borrower’s obligations in respect of
this Agreement and each of the Letters of Credit. Amounts held in
such account shall be applied


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on the direction of the Administrative Agent to reimburse the Issuing Banks for drawings or
payments under or pursuant to Letters of Credit, or if no such reimbursement is required, to
payment of such of the other obligations due and owing hereunder as the Administrative Agent shall
determine. If no Event of Default shall be continuing, amounts remaining in any cash collateral
account established pursuant to this Section 9.02 which are not to be applied to reimburse
an Issuing Bank for amounts actually paid or to be paid by such Issuing Bank in respect of a Letter
of Credit or to payment of such of the other obligations due and owing hereunder, shall be promptly
returned to the Borrower upon the Borrower’s request therefor.




ARTICLE X

THE ADMINISTRATIVE AGENT




          SECTION 10.01. Authorization and Action. Each Bank hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly provided for by this
Agreement, the Administrative Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Banks and such instructions
shall be binding upon all Banks and all holders of Notes. The Administrative Agent shall not be
required to take any action which exposes it to personal liability or which is contrary to this
Agreement or applicable law. The Administrative Agent shall be permitted from time to time to
designate one of its Affiliates to perform the duties to be performed by the Administrative Agent
hereunder with respect to Advances and Borrowings denominated in Agreed Currencies other than
Dollars. The provisions of this Article X shall apply to any such Affiliate mutatis mutandis.




          SECTION 10.02. Duties and Obligations. Neither the Administrative Agent nor any of
its directors, officers, agents or employees shall be liable for any action taken or omitted to be
taken by it or them under or in connection with this Agreement except for its or their own gross
negligence or willful misconduct. Without limiting the generality of the foregoing, (i) the
Administrative Agent may treat the payee of any Note as the holder thereof unless and until the
Administrative Agent receives written notice of the assignment thereof signed by such payee and the
Administrative Agent receives the written agreement of the assignee that such assignee is bound
hereby as it would have been if it had been an original Bank party hereto, in each case in form
satisfactory to the Administrative Agent, (ii) the Administrative Agent may consult with legal
counsel (including counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts, and (iii) the
Administrative Agent shall incur no liability under or in respect of this Agreement by acting upon
any notice, consent, certificate or other instrument or writing (which may be by telegram, cable or
telex) believed by it to be genuine and signed or sent by the proper party or parties or by acting
upon any representation or warranty of the Borrower made or deemed to be made hereunder. Further,
the Administrative Agent (A) makes no warranty or representation to any Bank and shall not be
responsible to any Bank for the accuracy or completeness of any statements, warranties or
representations (whether written or oral) made in or in connection with this Agreement, (B) shall
not have any duty to ascertain or to


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inquire as to the performance or observance of any of the terms, covenants or conditions of
this Agreement on the part of the Borrower or to inspect the property (including the books and
records) of the Borrower, and (C) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto.




          SECTION 10.03. Administrative Agent and Affiliates. With respect to its Commitment,
the Advances made by it and the Notes issued to it, the Administrative Agent, in its separate
capacity as a Bank, shall have the same rights and powers under this Agreement as any other Bank
and may exercise the same as though it were not the Administrative Agent; and the term “Bank” or
“Banks” shall, unless otherwise expressly indicated, include the Administrative Agent in its
separate capacity as a Bank. The Administrative Agent, in its separate capacity as a Bank, and its
affiliates may accept deposits from, lend money to, act as trustee under indentures of, participate
in Letters of Credit issued to and generally engage in any kind of business with, the Borrower, any
Subsidiary and any Person which may do business with or own securities of the Borrower or any
Subsidiary, all as if it were not the Administrative Agent hereunder and without any duty to
account therefor to the Banks.




          SECTION 10.04. Bank Credit Decision. Each Bank agrees that it has itself been, and
will continue to be, solely responsible for making its own independent appraisal of and
investigations into the financial condition, creditworthiness, condition, affairs, status and
nature of the Borrower. Accordingly, each Bank confirms to the Administrative Agent that such Bank
has not relied, and will not hereafter rely, on the Administrative Agent, or any other Bank, (i) to
check or inquire on its behalf into the adequacy, accuracy or completeness of any information
provided by the Borrower under or in connection with this Agreement or the transactions herein
contemplated (whether or not such information has been or is hereafter distributed to such Bank by
the Administrative Agent), (ii) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of the Borrower or (iii) in
entering into this Agreement or in making its own credit decisions with respect to the taking or
not taking of any action under this Agreement.




          SECTION 10.05. Indemnification. The Banks agree to indemnify the Administrative Agent
(to the extent not reimbursed by the Borrower) ratably according to the respective principal
amounts of the Commitments then held by each of them (or if the Commitments have at the time been
terminated, ratably according to the respective Dollar Amounts of their Advances then outstanding),
from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Administrative Agent under this
Agreement, provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent’s gross negligence or willful misconduct.
Without limiting the generality of the foregoing, each Bank agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including
reasonable counsel fees) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, the administration, modification or amendment of this Agreement or
preservation of any rights of the Administrative


61









 






Agent or the Banks under, or the enforcement (whether through negotiations, legal proceedings
or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Administrative Agent is not reimbursed for such expenses by the Borrower.




          SECTION 10.06. Successor Administrative Agent. The Administrative Agent may resign at
any time by giving written notice thereof to the Banks and the Borrower. Upon any such resignation
or removal of the Administrative Agent, the Majority Banks shall have the right to appoint a
successor Administrative Agent to assume the position as Administrative Agent of the retiring
Administrative Agent. If no successor Administrative Agent shall have been so appointed by the
Majority Banks, and shall have accepted such appointment, within 30 days after the retiring
Administrative Agent’s giving of notice of resignation or the Majority Banks’ removal of the
retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Banks,
appoint a successor Administrative Agent, which shall be either a Bank hereunder or a commercial
bank organized or licensed under the laws of the United States or of any state thereof and having a
combined capital and surplus of at least $500,000,000. The Borrower shall have the right to
approve any successor Administrative Agent, which approval shall not be unreasonably withheld (in
all such cases the Borrower shall be entitled to take into account its past and then existing
commercial banking relationships, among other things); provided that, if an Event of
Default shall have occurred, such right of the Borrower to approve the successor Administrative
Agent shall be suspended during the continuance of such Event of Default. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon 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 under this Agreement. After any retiring
Administrative Agent’s resignation or removal hereunder as Agent, the provisions of this
Article X shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.




          SECTION 10.07. Syndication Agent, Co-Lead Arrangers and Co-Documentation Agents. None
of the Banks identified on the cover page or signature pages of this Agreement as the “Syndication
Agent” or “Co-Lead Arrangers” or “Co-Documentation Agents” shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those applicable to all Banks as
such. Each Bank acknowledges that it has not relied, and will not rely, on any of the Banks
identified as Syndication Agent, Co-Lead Arrangers or Co-Documentation Agents in deciding to enter
into this Agreement or in taking or refraining from taking any action hereunder or pursuant hereto.




ARTICLE XI

MISCELLANEOUS




          SECTION 11.01. Amendments, Etc. Subject to the next three sentences, no amendment or
waiver of any provision of this Agreement, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed by the Majority
Banks, and then such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. No amendment, waiver or consent shall, unless in writing and
signed by all the Banks, do any of the following: (a) waive




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any of the conditions specified in Article VI, (b) change the Commitments of the Banks
or subject the Banks to any additional obligations, (c) reduce the principal of, or interest on,
the Advances or any facility fees or other amount payable hereunder, (d) change any date fixed for
any payment in respect of principal of, or interest on, the Advances or any facility fees or other
amount payable hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances, or the number of Banks, which shall be required for the Banks or
any of them to take any action hereunder, or amend the definition herein of “Majority Banks,” or
(f) amend this Section 11.01; provided, no such amendment, waiver or consent shall,
without the consent of each Issuing Bank, amend, modify or waive any provision of Article
IV or alter any rights or obligations with respect to any Letter of Credit. No amendment,
waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to
the Banks required hereinabove to take such action, affect the rights or duties of the
Administrative Agent under this Agreement. Notwithstanding the foregoing, the actions contemplated
by Section 2.05 shall not be subject to the consent of the Banks, except as otherwise
expressly provided in such Section.




          SECTION 11.02. Notices, Etc. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including by telex, telegram or
telecopier) and mailed or sent or delivered, if to the Borrower, at the address set forth for the
Borrower on the signature pages hereof; if from the Borrower to the Administrative Agent or any
Bank, to the Administrative Agent at the address set forth for the Administrative Agent on the
signature pages hereof; if from the Administrative Agent to any Bank, at the address of such Bank’s
Domestic Lending Office or, in the case of a notice or communication relating to information
delivered under Section 8.01(g), by posting on an Internet website established by the
Administrative Agent with Intralinks, Inc. or other similarly available electronic media; or, in
any case, at such other address as shall be designated by such party in a written notice to the
other parties hereto (except in the case of the Borrower, as to which a change of address may be
made by notice to the Administrative Agent on behalf of the Banks and except in the case of any
Bank, as to which a change of address may be made by notice to the Administrative Agent). Subject
to the next sentence, all such notices and communications shall be effective, in the case of
written notice, when deposited in the mails, air mail, postage prepaid, and, in the case of notice
by telex, telecopy, telegram or cable, when sent addressed as set forth above. All notices and
communications pursuant to Articles II, III, IX and X shall not be
effective until they are received by the addressee. The Administrative Agent agrees to deliver
promptly to each Bank copies of each report, document, certificate, notice and request, or
summaries thereof, which the Borrower is required to, and does in fact, deliver to the
Administrative Agent in accordance with the terms of this Agreement, including, without limitation,
copies of any reports to be delivered by the Borrower pursuant to Section 8.01(g).




          SECTION 11.03. No Waiver; Cumulative Remedies. No failure on the part of the
Administrative Agent or any Bank to exercise, and no delay in exercising, any right hereunder or
under any Note shall operate as a waiver hereof, nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies provided by law.




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          SECTION 11.04. Costs and Expenses; Indemnification. (a) The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent, the
Syndication Agent and the Co-Lead Arrangers in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement, the Notes, if any, and the
other documents to be delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of one firm of attorneys retained as counsel for the Administrative Agent,
the Syndication Agent and the Co-Lead Arrangers with respect to advising the Administrative Agent,
the Syndication Agent and the Co-Lead Arrangers as to their rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all direct out-of-pocket losses, and
reasonable out-of-pocket costs and expenses, if any (including reasonable fees and out-of-pocket
expenses of outside counsel), of the Administrative Agent, any Issuing Bank and any Bank in
connection with the enforcement (whether by legal proceedings, negotiation or otherwise) of this
Agreement, the Notes, if any, and the other documents delivered hereunder.




          (b) If, due to payments made by the Borrower due to acceleration of the maturity of the
Advances pursuant to Section 9.01 or due to any other reason, any Bank receives payments of
principal of any Fixed Rate Advance, or any Fixed Rate Advance is Converted to a non-Fixed Rate
Advance, in each case other than on the last day of the Interest Period for such Advance, the
Borrower shall, upon demand by such Bank (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Bank any amounts required to compensate
such Bank for any additional direct out-of-pocket losses, costs or expenses which it may reasonably
incur as a result of such payment or Conversion, including, without limitation, any such loss
(excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Bank to fund or maintain such Advance.




          (c) Subject to the next sentence, the Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Issuing Bank and each Bank and each of their respective directors,
officers and employees from and against any and all claims, damages, liabilities and out-of-pocket
expenses (including, without limitation, reasonable fees and out-of-pocket expenses of outside
counsel) which may be incurred by or asserted against the Administrative Agent, such Issuing Bank
or such Bank or any such director, officer or employee in connection with or arising out of any
investigation, litigation, or proceeding (i) related to any transaction or proposed transaction
(whether or not consummated) in which any proceeds of any Borrowing are applied or proposed to be
applied, directly or indirectly, by the Borrower, whether or not the Administrative Agent, such
Issuing Bank or such Bank or any such director, officer or employee is a party to such transactions
or (ii) related to the Borrower’s entering into this Agreement, or to any actions or omissions of
the Borrower, any of its Subsidiaries or Affiliates or any of its or their respective officers,
directors or employees in connection therewith, and in each case regardless of whether the
indemnified Person is party thereto. The Borrower shall not be required to indemnify any such
indemnified Person from or against any portion of such claims, damages, liabilities or expenses (a)
arising out of the gross negligence or willful misconduct of such indemnified Person as determined
in a final judgment by a court of competent jurisdiction or (b) that result from the violation by
the Administrative Agent, such Issuing Bank or such Bank of any law or judicial order.




64









 








          SECTION 11.05. Right of Set-Off. Upon (i) the occurrence and during the continuance
of any Event of Default and (ii) the making of the request or the granting of the consent specified
by Section 9.01 to authorize the Administrative Agent to declare the Advances due and
payable pursuant to the provisions of Section 9.01, each Bank (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 indebtedness at any time owing by such Bank (or any of its Affiliates)
to or for the credit or the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement and any Notes held by such Bank,
irrespective of whether or not such Bank shall have made any demand under this Agreement and any
Notes and of whether or not such obligations may be matured. Each Bank agrees promptly to notify
the Borrower after any such set-off and application made by such Bank, but the failure to give such
notice shall not affect the validity of such set-off and application. The rights of each Bank
under this Section are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which such Bank may have.




          SECTION 11.06. Binding Effect; Assignment. (a) This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent and when the
Administrative Agent shall have been notified by each Bank that such Bank has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent
and each Bank and their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the prior written consent
of all of the Banks.




          (b) Any Bank may assign, participate or otherwise transfer all or any part of, or interest in,
such Bank’s rights and obligations hereunder and under the Notes issued to it hereunder to one or
more banks or other entities; provided that (i) in the case of any assignment,
participation or other transfer to a Person that is not a Bank, an Affiliate of a Bank or an
Approved Fund, the Borrower (except during the continuance of an Event of Default), the Issuing
Bank and the Administrative Agent, in each case whose consent shall not be unreasonably withheld or
delayed, shall have expressly agreed in writing, and (ii) in the case of any assignment, the amount
of the Commitment being assigned pursuant to such assignment shall in no event be less than
$5,000,000 (or a lesser amount approved by the Administrative Agent). Upon the effectiveness of
any such assignment (but not in the event of any such participation or other transfer) such
assignee shall be a Bank hereunder and shall have all the rights and benefits thereof. However,
(i) unless and until the conditions for the Administrative Agent’s treating such assignee as holder
pursuant to clause (c) below shall have been satisfied, such assignee shall not be entitled to
exercise the rights of a Bank under this Agreement and the Administrative Agent shall not be
obligated to make payment of any amount to which such assignee may become entitled hereunder other
than to the Bank which assigned its rights to such assignee and (ii) such assignee shall not be
included for purposes of determining the number of Banks whose consent shall be required to take
any action or refrain from taking any action hereunder or be entitled to exercise any voting rights
hereunder unless (A) such assignee shall have acquired the respective assignor’s entire interest
under this Agreement and in the Notes made to such assignor or (B) if such assignee shall have
acquired less than the respective assignor’s entire interest herein and under such Notes, the
Borrower shall have expressly agreed to such inclusion of such assignee and such exercise by such
assignee. Nothing contained herein

65









 








shall impair the ability of any Bank, in its discretion, to agree, solely as between itself
and its assignees, participants and other transferees, upon the manner in which such Bank shall
exercise its rights under this Agreement and the Notes made to such Bank. The assignee, if it
shall not already be a Bank, shall deliver to the Administrative Agent an Administrative
Questionnaire in which the assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public information about the Borrower
and its affiliates and their related parties or their respective securities) will be made available
and who may receive such information in accordance with the assignee’s compliance procedures and
applicable laws, including Federal and state securities laws.




          (c) In order to effect any assignment permitted hereunder by a Bank of all or any portion of
its Commitment hereunder, the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register (as defined below), an
agreement substantially in the form of Exhibit 11.06 hereto (an “Assignment and
Acceptance”), together with any Note or Notes subject to such assignment and a processing and
recordation fee of $3,500 payable by the assignor or assignee. Upon such execution, delivery,
acceptance and recording and delivery to the Administrative Agent of such assignee’s Administrative
Questionnaire, from and after the effective date specified in each Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning
Bank’s rights and obligations under this Agreement, such Bank shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 5.13, 5.15 and
11.04 for any events or circumstances occurring or existing before the effective date of
assignment).




          (d) By executing and delivering an Assignment and Acceptance, the Bank assignor thereunder and
the assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Bank makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower or the performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of the financial
statements referred to in Section 7.01(f) (and any later statements delivered pursuant to
Section 8.01(g)(ii)) and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Administrative Agent, such
assigning Bank or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee appoints and

66









 








authorizes the Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that
it will perform in accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Bank.




          (e) The Administrative Agent shall maintain at its address referred to in Section
11.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the Banks and the Commitment of, and principal
amount of the Advances owing to, each Bank from time to time (the “Register”). The entries
in the Register shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Banks may treat each Person whose name is recorded in
the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Bank at any reasonable time and from time to time
upon reasonable prior notice.




          (f) Notwithstanding anything contained herein to the contrary, each Bank may pledge its right,
title and interest under this Agreement and any Note made to it to the Board of Governors of the
Federal Reserve System, or any other Governmental Authority, as security for financial
accommodations or privileges being provided or extended to such Bank by such Governmental
Authority.




          SECTION 11.07. Confidentiality. The Administrative Agent, each Bank and each Issuing
Bank agree to hold any confidential information which it may receive from the Borrower pursuant to
this Agreement (including, without limitation, any such information obtained or gathered in
connection with any inspection of the type contemplated in Section 8.01(f)) in confidence,
except for disclosure (i) to its Affiliates, legal counsel, accountants, and other professional
advisors, and then solely on a need-to-know basis, (ii) in response to any request or order
therefor issued by any Governmental Authority, (iii) as required by law, regulation, or judicial
process, (iv) within any legal proceeding to enforce any of its rights or remedies hereunder;
provided that an Event of Default shall have occurred hereunder and the requisite Banks
shall have elected under Section 9.01 to enforce such rights or remedies against the
Borrower, (v) to any permitted assignee under Section 11.06, and (vi) of information which
has already become publicly available at the time of such disclosure. In the case of disclosure
pursuant to clause (ii) or (iii) above, the disclosing party agrees, to the extent
permitted by applicable law, regulation or judicial process, to promptly notify Borrower prior to
such disclosure and to request confidential treatment if Borrower so requests.




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




67









 








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




          SECTION 11.08. Governing Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the internal laws (as distinguished from the conflicts of laws rules)
of the State of New York.




          SECTION 11.09. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute but
one and the same agreement.




          SECTION 11.10. Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provisions or the remaining provisions of this Agreement.




          SECTION 11.11. Entire Agreement. This Agreement, taken together with all of the other
documents, instruments and certificates contemplated herein to be delivered by the Borrower,
including without limitation the fee letters dated as of November 14, 2006 among the Borrower,
JPMorgan Chase and J.P. Morgan Securities Inc. and among the Borrower, Bank of America, N.A. and
Banc of America Securities LLC, embodies the entire agreement and supersedes all prior agreements,
written and oral, relating to the subject matter hereof as among the Borrower, the Banks parties
hereto and the Administrative Agent.




          SECTION 11.12. Market Disruption. Notwithstanding the satisfaction of all conditions
referred to in Article II and Article VI with respect to any Advance denominated in
an Agreed Currency other than in Dollars, if there shall occur on or prior to the date of such
Advance any change in national or international financial, political or economic conditions or
currency exchange rates or exchange controls which, after the exercise of the Administrative
Agent’s best efforts, would in the reasonable opinion of the Administrative Agent or the Majority
Banks make it materially disadvantageous for such Advance to be denominated in the Agreed Currency
specified by the Borrower, then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Banks, and such Advance shall not be denominated in such Agreed Currency but shall
be made on such Borrowing Date in Dollars, in an aggregate principal amount equal to the Dollar
Amount of the aggregate principal amount specified in the related

68









 








Notice of Borrowing or Notice of Interest Rate Election, as the case may be, as Base Rate
Advances, unless the Borrower notifies the Administrative Agent at least one Domestic Business Day
before such date that it elects not to borrow on such date.




          SECTION 11.13. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to
be payable herein (the “specified currency”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative Agent’s main New
York office on the Domestic Business Day preceding that on which final, non-appealable judgment is
given. The obligations of the Borrower in respect of any sum due to any Bank or the Administrative
Agent hereunder shall, notwithstanding any judgment in a currency other than the specified
currency, be discharged only to the extent that on the Domestic Business Day following receipt by
such Bank or the Administrative Agent (as the case may be) of any sum adjudged to be so due in such
other currency such Bank or the Administrative Agent (as the case may be) may in accordance with
normal, reasonable banking procedures purchase the specified currency with such other currency. If
the amount of the specified currency so purchased is less than the sum originally due to such Bank
or the Administrative Agent, as the case may be, in the specified currency, the Borrower agrees, to
the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any
such judgment, to indemnify such Bank or the Administrative Agent, as the case may be, against such
loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally due
to any Bank or the Administrative Agent, as the case may be, in the specified currency and (b) any
amounts shared with other Banks as a result of allocations of such excess as a disproportionate
payment to such Bank under Section 5.17, such Bank or the Administrative Agent, as the case
may be, agrees to remit such excess to the Borrower.




          SECTION 11.14. USA PATRIOT ACT. Each Bank that is subject to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”) hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will allow such Bank to
identify the Borrower in accordance with the Act.




[Signature Pages Follow]




69









 





          The duly authorized parties hereto have caused this Agreement to be executed by their
respective officers or agents, as of the date of this Agreement.




	 	 	 	 	 	 	 
	 	 	BAXTER INTERNATIONAL INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert M. Davis	 	 
	 

	 	Title:
	 	Corporate Vice President, Chief Financial	 	 
	 

	 	 	 	Officer and Treasurer	 	 






	 	 	 
	 

	 	Address for Notice Purposes:
	 

	 	One Baxter Parkway
	 

	 	Deerfield, Illinois 60015
	 

	 	Attention: Assistant Treasurer
	 

	 	Telephone: 
	 

	 	Telecopy: 






Signature Page to Baxter

Five-Year Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.

as Administrative Agent and as a Bank	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 
	 

	 	Address for Notice Purposes:
	 
	 	 
	 

	 	Mail Suite IL1-0173

131 S. Dearborn

Chicago, Illinois 60603

Attention: William Oleferchik

Telephone: (312) 325-3093

Telecopy: (312) 325-3077
	 
	 	 
	 

	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
	 
	 	 
	 

	 	Attention: Nanette Wilson

Telephone: (312) 385-7084

Telecopy: (312) 385-7096
	 
	 	 
	 

	 	Regarding Syndicated Borrowings in foreign

currencies:
	 
	 	 
	 

	 	J.P. Morgan Europe Limited

9th Floor

125 London Wall

London

EC2Y 5AJ
	 
	 	 
	 

	 	Attention: The Manager, Loans Agency Section

Telephone: +44 20 7777 2940

Telecopy: +44 20 7777 2360 or 2085






Signature Page to Baxter

Five-Year Credit Agreement






 









 








	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,

as Syndication Agent and as a Bank	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 	 	 
	 	 	Address for Notice Purposes:	 	 
	 
	 	 	 	 	 	 
	 	 	[To be provided.]	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Telephone:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Telecopy:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 	 	 
	 	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Telephone:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Telecopy:	 	 	 	 
	 

	 	 	 	 	 	 





Signature Page to Baxter

Five-Year Credit Agreement







 









 







Exhibit 2.02 to

Five-Year Credit Agreement

dated as of December 20, 2006




FORM OF




NOTICE OF SYNDICATED BORROWING




JPMorgan Chase Bank, N.A.,

  as Administrative Agent for the

  Banks parties to the Credit

  Agreement referred to below

131 S. Dearborn

Chicago, Illinois 60603




Attention: Nanette Wilson




Dear Ms. Wilson:




          The undersigned, Baxter International Inc., refers to the Five-Year Credit Agreement, dated as
of December 20, 2006 (the “Credit Agreement,” the terms defined therein being used herein
as therein defined), among Baxter International Inc., the Banks parties thereto and JPMorgan Chase
Bank, N.A., as Administrative Agent, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a Syndicated
Borrowing under the Credit Agreement, and in that connection sets forth below the information
relating to such Syndicated Borrowing (the “Proposed Syndicated Borrowing”) as required by
Section 2.02 of the Credit Agreement:




          (i) The Business Day of the Proposed Syndicated Borrowing is                     , 20___.




          (ii) The Type of Syndicated Advances comprising the Proposed Syndicated Borrowing is [Base
Rate Advances] [Eurocurrency Rate Advances] [EURIBOR Rate Advances].




          (iii) The aggregate amount of the Proposed Syndicated Borrowing is [$] [Approximate Dollar
Amount of]                     .




          (iv) The Interest Period for each Syndicated Advance made as part of the Proposed Syndicated
Borrowing is [___ months] [___ days].




          (v) The Agreed Currency for each Syndicated Advance made as part of the Proposed Syndicated
Borrowing is [                                         ].




          (vi) The proceeds of the Proposed Syndicated Borrowing [will not be used, directly or
indirectly, to purchase or carry Margin Stock] [will be used to purchase or carry Margin Stock. A
duly completed Form FR U-l (OMB No. 7100-0115), executed by a duly




Exhibit 2.02

Page 1




 









 




authorized officer of the undersigned, accompanies this Notice of Syndicated Borrowing and
sets forth thereon the relevant information with respect to the use of the proceeds of the Proposed
Syndicated Borrowing].




	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	BAXTER INTERNATIONAL INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Exhibit 2.02

Page 2




 









 





Exhibit 2.03 to

Five-Year Credit Agreement

dated as of December 20, 2006




FORM OF




NOTICE OF INTEREST RATE ELECTION




JPMorgan Chase Bank, N.A.,

  as Administrative Agent for the

  Banks parties to the Credit

  Agreement referred to below

131 S. Dearborn

Chicago, Illinois 60603




Attention: Nanette Wilson




Dear Ms. Wilson:




          The undersigned, Baxter International Inc., refers to the Five-Year Credit Agreement, dated as
of December 20, 2006 (the “Credit Agreement,” the terms defined therein being used herein
as therein defined), among Baxter International Inc., the Banks parties thereto and JPMorgan Chase
Bank, N.A., as Administrative Agent, and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Credit Agreement of an interest rate election, and in that connection
sets forth below the information relating to the affected Syndicated Borrowing (the “Affected
Syndicated Borrowing”) as required by Section 2.03 of the Credit Agreement:




          (i) The Affected Syndicated Borrowing is the following:





	 	(a)	 	Type:        
                                                                        
                     
	 
	 	(b)	 	Last Day of Present Interest Period:                                         
	 
	 	(c)	 	Agreed Currency:        
                                                                      
   
	 
	 	(d)	 	Aggregate Amount: [$] [Approximate Dollar
Amount of]                                                                     
                                





          (ii) The portion of such Affected Syndicated Borrowing to be Converted is: [$] [[Approximate
Dollar Amount of]  
                                                                            
   .




          (iii) Business
Day of the Conversion in respect of the Affected Syndicated Borrowing is                                         , 20___.




          (iv) Upon giving effect to the Conversion,




Exhibit 2.03

Page 1




 









 





          (a) the portion of the Affected Syndicated Borrowing that is Converted shall be comprised of
[Base Rate Advances] [Eurocurrency Rate Advances] [EURIBOR Rate Advances], each having an Interest
Period of                                          [and being in the Agreed Currency of                   
                      ]; and




          (b) the portion of the balance of the Affected Syndicated Borrowing shall continue to have the
Type, the Agreed Currency and Interest Period specified in clause (i) above.




	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	BAXTER INTERNATIONAL INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Exhibit 2.03

Page 2




 









 




Exhibit 3.02 to

Five-Year Credit Agreement

dated as of December 20, 2006




FORM OF COMPETITIVE BID QUOTE REQUEST




JPMorgan Chase Bank, N.A.,

  as Administrative Agent for

  the Banks parties to the Credit

  Agreement referred to below

131 S. Dearborn

Chicago, Illinois 60603




Attention: Specialized Products Support Unit




Ladies and Gentlemen:




          The undersigned, Baxter International Inc., refers to the Five-Year Credit Agreement, dated as
of December 20, 2006 (the “Credit Agreement,” the terms defined therein being used herein
as therein defined), among Baxter International Inc., the Banks parties thereto and JPMorgan Chase
Bank, N.A., as Administrative Agent, and hereby gives you notice pursuant to Section 3.02
of the Credit Agreement that the undersigned requests Competitive Bid Quotes for the following
proposed Competitive Bid Borrowing(s) (the “Proposed Borrowings”):




          (i) The Business Day of the Proposed Borrowings is                     , 20___.




          (ii) The Type of Advances with respect to which Competitive Bid Quotes are hereby requested
are:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Aggregate Principal	 	Type of	 	 	Interest Period	 	 	Agreed	 
	Amount of Borrowing	 	Advances	 	 	for Advances	 	 	Currency	 
	[$][Approximate Dollar Amount]
	 	 	 	 	 	 	 	 	 	 	 	 






          (iii) Where the Type of Advance is specified to be a Eurocurrency Bid Rate Advance, each
quoting Bank is requested to quote a Competitive Bid Margin in relation to the Eurocurrency Rate to
be determined for the applicable Interest Period. Where the Type of Advance is specified to be a
EURIBOR Bid Rate Advance, each quoting Bank is requested to quote a Competitive Bid Margin in
relation to the EURIBOR to be determined for the applicable Interest Period. Where the Type of
Advance is specified to be an Absolute Rate Advance, each quoting Bank is requested to quote an
Absolute Rate.




          (iv) The Administrative Agent is hereby requested to advise [all of the Banks] [the Banks
specified below] of the request for Competitive Bid Quotes set forth herein.




Exhibit 3.02

Page 1




 









 





          (v) The proceeds of the Proposed Borrowing [will not be used, directly or indirectly, to
purchase or carry Margin Stock] [will be used to purchase or carry Margin Stock. A pro forma draft
of the Form FR U-1 (OMB No. 7100-0015) which will be executed and delivered by a duly authorized
officer of the undersigned in the event that the undersigned issues a Notice of Competitive Bid
Borrowing in connection with this Competitive Bid Quote Request accompanies this Competitive Bid
Quote Request and sets forth thereon the relevant information with respect to the use of the
proceeds of the Proposed Borrowing].




	 	 	 	 	 	 	 
	 	 	BAXTER INTERNATIONAL INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Exhibit 3.02

Page 2




 









 




Exhibit 3.04 to

Five-Year Credit Agreement

dated as of December 20, 2006




FORM OF COMPETITIVE BID QUOTE




JPMorgan Chase Bank, N.A.,

  as Administrative Agent for

  the Banks parties to the Credit

  Agreement referred to below

131 S. Dearborn

Chicago, Illinois 60603




Attention: Specialized Products Support Unit




Ladies and Gentlemen:




          The undersigned refers to the Five-Year Credit Agreement, dated as of December 20, 2006 (the
“Credit Agreement,” the terms defined therein being used herein as therein defined), among
Baxter International Inc., the Banks parties thereto and JPMorgan Chase Bank, N.A., as
Administrative Agent, and hereby notifies you of, and requests that you forward to Baxter
International Inc, on our behalf, pursuant to Section 3.04 of the Credit Agreement, the
following Competitive Bid Quotes on the following terms:




          (i) Quoting Bank:                                               
            
                      .



          (ii) Person to contact at the Quoting Bank:





Name:                                                            




Telephone:                                                            




Telecopy:                                                            




Telex:                                                            




          (iii) Proposed Borrowing Date:                     .




          (iv) We hereby offer to make Competitive Bid Advances in the following principal amounts, for
the following Interest Periods and at the following rates:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Principal	 	Interest	 	 	[Basis for Advance/	 	 	[Absolute	 	 	Agreed	 
	Amount	 	Period	 	 	Competitive Bid Margin*]	 	 	Rate]	 	 	Currency	 
	[$] [Approximate Dollar Amount]
	 	 	 	 	 	 	 	 	 	 	 	 








 




			
	*	 	Specify whether the Competitive Bid Margin is
to be added to or subtracted from either the applicable Eurocurrency Rate or
applicable EURIBOR for such Interest Period.





Exhibit 3.04

Page 1




 









 




provided that the aggregate principal amount with respect to which the Borrower may accept offers
in connection with this Competitive Bid Quote shall not exceed $                    .




          We understand and agree that the offer(s) set forth above, subject to the satisfaction of the
applicable conditions set forth in the Credit Agreement, irrevocably obligate(s) us to make the
Competitive Bid Advance(s) for which any such offer is accepted, in whole or in part.




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	[NAME OF BANK]	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

Authorized Officer
	 	 






Exhibit 3.04

Page 2




 









 




Exhibit 3.06 to

Five-Year Credit Agreement

dated as of December 20, 2006




FORM OF NOTICE OF COMPETITIVE BID BORROWING




JPMorgan Chase Bank, N.A.,

  as Administrative Agent for

  the Banks parties to the Credit

  Agreement referred to below

131 S. Dearborn

Chicago, Illinois 60603




Attention: Specialized Products Support Unit




Ladies and Gentlemen:




          The undersigned, Baxter International Inc., refers to the Five-Year Credit Agreement, dated as
of December 20, 2006 (the “Credit Agreement,” the terms defined therein being used herein
as therein defined), among Baxter International Inc., the Banks parties thereto and JPMorgan Chase
Bank, N.A., as Administrative Agent, and hereby gives you notice, irrevocably, pursuant to
Section 3.06 of the Credit Agreement that the undersigned requests a Competitive Bid
Borrowing under the Credit Agreement and in that connection sets forth below the information
relating to such Competitive Bid Borrowing (the “Proposed Borrowing”) as required by
Section 3.06 of the Credit Agreement:




          (i) The Business Day of the Proposed Borrowing is                                         , 20___.




          (ii) The aggregate principal amount of Competitive Bid Advances, the Types thereof and the
Interest Periods therefor that have been offered to the undersigned by Banks submitting Competitive
Bid Quotes and that by this notice are hereby accepted, subject to the terms and conditions of the
Credit Agreement, are set forth below:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Aggregate Principal	 	Type of	 	 	Interest	 	 	Agreed	 
	Amount of Borrowing	 	Advance	 	 	Period	 	 	Currency	 
	[$][Approximate Dollar Amount]
	 	 	 	 	 	 	 	 	 	 	 	 






          (iii) The undersigned acknowledges and agrees that, by this notice, it irrevocably accepts the
offers made by the Banks which shall have submitted Competitive Bid Quotes to the extent that the
principal amount offered by each such Bank, together with the principal amount offered by all other
such Banks in connection therewith, does not exceed the respective amounts set forth above. As
among such Banks, the offers made are accepted in the ascending order of Competitive Bid Margin or
Absolute Rate, as the case may be.




Exhibit 3.06

Page 1




 









 





          (iv) The proceeds of the Proposed Borrowing [will not be used, directly or indirectly, to
purchase or carry Margin Stock] [will be used to purchase or carry Margin Stock. A duly completed
Form FR U-1 (OMB No. 7100-0115), executed by a duly authorized officer of the undersigned,
accompanies this Notice of Competitive Bid Borrowing and sets forth thereon the relevant
information with respect to the use of the proceeds of the Proposed Borrowing].




	 	 	 	 	 	 	 
	 	 	BAXTER INTERNATIONAL INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Exhibit 3.06

Page 2




 









 




Exhibit 5.15(d) to

Five-Year Credit Agreement

dated as of December 20, 2006




FORM OF SECTION 5.15(d)(ii) CERTIFICATE




     Reference is made to that certain Five-Year Credit Agreement dated as of December 20, 2006 (as
the same may be amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among Baxter International Inc., the Banks thereto and JPMorgan Chase Bank,
N.A., as Administrative Agent. Capitalized terms used herein that are not defined herein shall
have the meanings ascribed to them in the Credit Agreement. [Name of applicable Bank] (the
“Bank”) is providing this certificate pursuant to subsection 5.15(d)(ii) of the Credit
Agreement. The Bank hereby represents and warrants that:



          1. The Bank is the sole record and beneficial owner of the Advance(s) in respect of which it
is providing this certificate.




          2. The Bank is not a “bank” for purposes of Section 881(c)(3)(A) of the Internal Revenue Code
of 1986, as amended (the “Code”).




          3. The Bank is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within
the meaning of Section 864(d)(4) of the Code).




          4. The Bank shall promptly notify the Borrower and the Administrative Agent if any of the
representations and warranties made herein are no longer true and correct.




     IN WITNESS WHEREOF, the undersigned has duly executed this certificate as of the                      day of
                    , 20___.



	 	 	 	 	 	 	 	 	 
	 	 	[Name of applicable Bank]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	Title:	 	 






Exhibit 5.15(d)(ii)

Page 1





 









 





	 	 	 
	 

	 	Exhibit 6.01(d) to
	 

	 	Five-Year Credit Agreement
	 

	 	dated as of December 20, 2006






FORM OF




OPINION OF COUNSEL FOR THE BORROWER




[Date]




To each of the Banks parties

  to the Credit Agreement

   described below, and to

   JPMorgan Chase Bank, N.A.,

   as Administrative Agent




Ladies and Gentlemen:




          This opinion is furnished to you pursuant to Section 6.01(d) of the Five-Year Credit
Agreement dated as of December 20, 2006 (the “Credit Agreement”) among Baxter International
Inc. (the “Borrower”), the Banks parties thereto and JPMorgan Chase Bank, N.A., as
Administrative Agent. Terms defined in the Credit Agreement are used herein as therein defined.




          I am Associate General Counsel of the Borrower. I have acted as counsel for the Borrower in
connection with the preparation, execution and delivery of the Credit Agreement.




          In that connection I have examined:




          (1) The Credit Agreement.




          (2) The Amended and Restated Certificate of Incorporation of the Borrower as in effect on the
date hereof (the “Charter”).




          (3) The Bylaws of the Borrower, as amended and in effect on the date hereof (the
“Bylaws”).




          (4) Certificates
of the Secretaries of State of Delaware, dated                     ,      , and
Illinois, dated                     ,           , each attesting to the continued corporate existence and good
standing of the Borrower in such State.




          (5) All of the other documents furnished by the Borrower pursuant to Section 6.01 of
the Credit Agreement.




          I, or attorneys under my supervision (with whom I have consulted), have also examined the
originals, or copies certified to my satisfaction, of the Borrower’s material agreements as
identified on the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2005
and any subsequent filings on Form 10-Q or Form 8-K with the


Exhibit 6.01(d)(ii)

Page 1













 





Securities and Exchange Commission (collectively, the “Material Agreements”). In
addition, I, or attorneys under my supervision (with whom I have consulted), have examined the
originals, or copies certified to my satisfaction, of such other corporate records of the Borrower,
certificates of public officials and of other officers of the Borrower, and agreements, instruments
and documents, as I have deemed necessary as a basis for the opinions hereinafter expressed. As to
questions of fact material to such opinions, I have, when relevant facts were not independently
established by me, relied upon certificates of other officers of the Borrower or of public
officials. I have assumed the due execution and delivery, pursuant to due authorization, of the
Credit Agreement by the Banks and the Administrative Agent. Based upon the foregoing, I am of the
opinion that:




          1. The Borrower is a corporation duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which the failure so to qualify would have a material adverse
effect on the business, properties, assets, operations or condition (financial or otherwise) of the
Borrower.




          2. The execution, delivery and performance by the Borrower of the Credit Agreement and the
Notes are within the Borrower’s corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Charter or the Bylaws or (ii) any law, rule or
regulation applicable to the Borrower or (iii) any contractual or legal restriction binding on or
affecting the Borrower contained in any Material Agreement. The Credit Agreement and the Notes
have been duly executed and delivered on behalf of the Borrower.




          3. No authorization, approval or other action by, and no notice to or filing with, any
Governmental Authority or regulatory body is required for the due execution, delivery and
performance by the Borrower of the Credit Agreement and the Notes.




          4. The Credit Agreement and the Notes are legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective terms.




          5. Except as disclosed in filings with the Securities and Exchange Commission, there is no
pending or, to my knowledge, threatened action or proceeding against the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator which is likely to have a
materially adverse effect upon the financial condition or operations of the Borrower or any of its
Subsidiaries or which purports to affect the legality, validity or enforceability of the Credit
Agreement or the Notes.




          6. The Borrower is not an “investment company” as defined in, or subject to regulation under,
the Investment Company Act of 1940, as amended.




          The opinions set forth above are subject to the following qualifications:




          (a) My opinion in paragraph 4 above is subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally.


Exhibit 6.01(d)

Page 2














 








          (b) The opinions expressed herein are limited to the laws of the State of Illinois and the
United States of America, except for the General Corporation Law of the State of Delaware with
respect to the opinions given in paragraphs 1 and 2. For purposes of the opinion given in
paragraph 4 it is assumed, with your permission, that the governing law is in all relevant respects
identical to the laws of the State of Illinois.




          (c) My opinion in paragraph 4 above is subject to the effect of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law).




          (d) I express no opinion as to (i) Sections 5.17 and 11.05 of the Credit
Agreement insofar as they provide that any Bank purchasing a participation from another Bank
pursuant thereto may exercise set-off or similar rights with respect to such participation or that
any Affiliate of a Bank may exercise set-off or similar rights with respect to such Bank’s claims
under the Credit Agreement or the Notes, (ii) Section 5.15(c) or 11.04(c) insofar
as those Sections may be construed as requiring that the Borrower indemnify any Bank or the
Administrative Agent with respect to any claim, damage, liability or expense incurred as a result
of any violation of law by such Bank or the Administrative Agent, and (iii) the effect of the law
of any jurisdiction other than the State of Illinois wherein any Bank may be located or wherein
enforcement of the Credit Agreement or the Notes may be sought which limits the rates of interest
legally chargeable or collectible.




          This opinion is limited to the matters expressly set forth herein, and no opinion is implied
or may be inferred beyond the matters expressly set forth herein. The opinions expressed herein
are being delivered to you as of the date hereof in connection with the transactions described
hereinabove and are solely for your benefit in connection with the transactions described
hereinabove and may not be relied on in any manner or for any purpose by any other person, nor any
copies published, communicated or otherwise made available in whole or in part to any other person
or entity without our specific prior written consent, except that you may furnish copies thereof
(i) to any of your permitted successors and assigns in respect of the Credit Agreement, (ii) to
your independent auditors and attorneys, (iii) upon the request of any state or federal authority
or official having regulatory jurisdiction over you, and (iv) pursuant to order or legal process of
any court or governmental agency.




Very truly yours,



 Exhibit 6.01(d)

Page 3













 





	 	 	 
	 

	 	Exhibit 8.01(g)(ii) to
	 

	 	Five-Year Credit Agreement
	 

	 	dated as of December 20, 2006






FORM OF




CERTIFICATE OF INDEPENDENT ACCOUNTANTS




[Date]




Baxter International Inc.

One Baxter Parkway

Deerfield, Illinois 60015




Ladies and Gentlemen:



We have examined the consolidated balance sheet of Baxter International Inc. and subsidiaries
as of December 31, 20___, and the related consolidated statements of income, cash flows,
shareholders’ equity and comprehensive income for the year then ended, and have issued our report
thereon dated                     , 20___. Our examination was made in accordance with generally accepted
auditing standards and, accordingly, included such tests of the accounting records and such other
auditing procedures as we considered necessary in the circumstances.



In connection with our examination, nothing came to our attention that caused us to believe
that Baxter International Inc. is not in compliance with the covenant of Section 8.02(b) of
the Five-Year Credit Agreement dated as of December 20, 2006 among Baxter International Inc., the
Banks parties thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. However, it should
be noted that our examination was not directed primarily toward obtaining knowledge of such
noncompliance.




Very truly yours,




[PricewaterhouseCoopers LLP]




 Exhibit 8.01(g)(ii)

Page 1













 








	 	 	 
	 

	 	Exhibit 11.06 to
	 

	 	Five-Year Credit Agreement
	 

	 	dated as of December 20, 2006






FORM OF




ASSIGNMENT AND ACCEPTANCE




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




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




	 	 	 	 	 	 	 
	1.

	 	Assignor:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee:	 	 	 	 
	 

	 	 	 	[and is an Affiliate/Approved Fund of [identify Bank]1]

	 	 
	 
	 	 	 	 	 	 
	3.

	 	Borrower:
	 	
Baxter International Inc.	 	 








 




			
	1	 	Select as applicable.














 











	4.	 	Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement
	 
	5.	 	Credit Agreement: Five-Year Credit Agreement dated as of December 20, 2006 among Baxter International
Inc., the Banks party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent
(the “Credit Agreement”)
	 
	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	Percentage of
	 	 	Commitment/Advances	 	Commitment/Advances	 	Commitment/Advances
	 	 	for all Banks	 	Assigned	 	Assigned2
	 
	 	$	 	 	 	$	 	 	 	 	 	%
	 
	 	$	 	 	 	$	 	 	 	 	  	%
	 
	 	$	 	 	 	$	 	 	 	 	 	%





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



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



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




ASSIGNOR




[NAME OF ASSIGNOR]




	 	 	 	 	 
	 	By:  	
 	 
	 	Title: 	 
	 	 	 	 


ASSIGNEE




[NAME OF ASSIGNEE]






 




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




2









 










	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	Title: 	 
	 	 	 	 
	 



[Consented to and Accepted:]3




JPMORGAN CHASE BANK, N.A., as




Administrative Agent




	 	 	 	 	 
	By
	 	 	 	 
	Title:

	 	 

	 	 






[Consented to:]4



BAXTER INTERNATIONAL INC., as Borrower




	 	 	 	 	 
	By
	 	 	 	 
	Title:

	 	 

	 	 






[Consented to:]5




JPMORGAN CHASE BANK, N.A., as

Issuing Bank




	 	 	 	 	 
	By
	 	 	 	 
	Title:

	 	 

	 	 








 




			
	3	 	If required by the terms of the Credit
Agreement.
	 
	4	 	If required by the terms of the Credit
Agreement and so long as no Event of Default has occurred and is continuing.
	 
	5	 	If required by the terms of the Credit
Agreement.




3









 










ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE




          1. Representations and Warranties.




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




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Acceptance and to consummate the transactions contemplated hereby and to become a Bank under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Bank, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Bank thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in Section 7.01(f) thereof and any later
financial statements delivered pursuant to Section 8.01(g)(ii) thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Bank, and (v) if it is a non-U.S. Bank, attached to the
Assignment and Acceptance is any documentation required to be delivered by it pursuant to the terms
of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it
will, independently and without reliance on the Administrative Agent, the Assignor or any other
Bank, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Credit Agreement
and (ii) it will perform in accordance with their terms all of the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Bank.




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



 Exhibit 11.06

Page 1














 







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




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



 Exhibit 11.06

Page 2















 








	 	 	 
	 

	 	Schedule 1.01 to
	 

	 	Five-Year Credit Agreement
	 

	 	dated as of December 20, 2006






COMMITMENTS




	 	 	 	 	 
	 	 	Amount of
	Bank	 	Commitment
	JPMorgan Chase Bank, N.A.
	 	$	172,500,000	 
	Bank of America, N.A.
	 	 	172,500,000	 
	Deutsche Bank AG New York Branch
	 	 	130,000,000	 
	William Street Commitment Corporation
	 	 	130,000,000	 
	UBS Loan Finance LLC
	 	 	130,000,000	 
	Citibank, N.A.
	 	 	130,000,000	 
	ABN AMRO Bank N.V.
	 	 	110,000,000	 
	Credit Suisse, Cayman Islands Branch
	 	 	110,000,000	 
	HSBC Bank USA, National Association
	 	 	110,000,000	 
	The Bank of Tokyo – Mitsubishi UFJ, Ltd., Chicago Branch
	 	 	55,000,000	 
	Barclays Bank Plc
	 	 	55,000,000	 
	Mizuho Corporate Bank, Ltd.
	 	 	55,000,000	 
	Bank of China, New York Branch
	 	 	40,000,000	 
	Toronto Dominion (Texas) LLC
	 	 	40,000,000	 
	The Bank of New York
	 	 	40,000,000	 
	State Street Bank and Trust Company
	 	 	20,000,000	 
	 
	 	 	 	 
	Total
	 	$	1,500,000,000	 





Schedule 1.01

Page 1















 








	 	 	 
	 

	 	Schedule 1.02 to
	 

	 	Five-Year Credit Agreement
	 

	 	dated as of December 20, 2006






LENDING OFFICE ADDRESSES




          Unless otherwise specified, the office set forth below opposite the name of any Bank is such
Bank’s “Domestic Lending Office”, “Eurocurrency Lending Office,” “EURIBOR Lending Office” and
“Competitive Bid Lending Office”:




	 	 	 	 	 	 	 	 	 
	
Bank
	 	Domestic

Lending Office
	 	Eurocurrency

Lending Office
	 	EURIBOR

Lending Office
	 	Competitive Bid

Lending Office
	 
	 	 
	 	 
	 	 
	 	 





[on file with the Administrative Agent]



Schedule 1.02

Page 1















 








	 	 	 
	 

	 	Schedule 1.03 to
	 

	 	Five-Year Credit Agreement
	 

	 	dated as of December 20, 2006






EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 	 	 
	 	 	Letter of Credit	 	 	 	 	 	 
	Issuing Bank	 	Number	 	Beneficiary	 	Expiration Date	 	Current Amount






Schedule 1.03

Page 1