WWW.EXFILE.COM, INC. -- 13524 -- BOSTON SCIENTIFIC CORP. -- EXHIBIT 10.2 TO FORM 8-K


 



 




FORM OF

 

$1,500,000,000

 

AMENDED AND RESTATED MULTI-YEAR REVOLVING CREDIT AGREEMENT

 

among

 

BOSTON SCIENTIFIC CORPORATION,

as Borrower,

 

The Several Lenders

from Time to Time Parties Hereto,

 

BANK OF AMERICA, N.A.

and

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Syndication Agents,

 

ABN AMRO BANK N.V., 

DEUTSCHE BANK SECURITIES INC.,

SUMITOMO MITSUI BANKING CORPORATION,

THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH and

UBS SECURITIES LLC,

as Documentation Agents,

 

BNP PARIBAS

and

MERRILL LYNCH BANK USA,

as Managing Agents

 

and

 

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

Dated as of May 13, 2005



 




J.P. MORGAN SECURITIES INC.,

BANC OF AMERICA SECURITIES LLC,

and

WACHOVIA CAPITAL MARKETS, LLC, 

as Joint Lead Arrangers and Joint Bookrunners

 

 







TABLE OF CONTENTS

 

 


	
       
	
       
	
      Page




 


	
      SECTION 1
	
      DEFINITIONS
	
        1







	
       
	
      1.1
	
      Defined Terms
	
        1





	
       
	
      1.2
	
      Other Definitional Provisions
	
      21





	
      SECTION 2
	
      AMOUNT AND TERMS OF COMMITMENTS
	
      21

	
       
	
      2.1
	
      Revolving Credit Commitments
	
      21

	
       
	
      2.2
	
      Procedure for Revolving Credit Borrowing
	
      22

	
       
	
      2.3
	
      Swingline Commitment
	
      22

	
       
	
      2.4
	
      Procedure for Swingline Borrowing; Refunding of Swingline
      Loans
	
      23

	
       
	
      2.5
	
      Facility Fee
	
      24

	
       
	
      2.6
	
      Termination or Reduction of Commitments
	
      24

	
       
	
      2.7
	
      Repayment of Revolving Credit Loans
	
      25

	
       
	
      2.8
	
      CAF Advances
	
      25

	
       
	
      2.9
	
      Procedure for CAF Advance Borrowing
	
      25

	
       
	
      2.10
	
      Repayment of CAF Advances
	
      28

	
       
	
      2.11
	
      Certain Restrictions with Respect to CAF Advances
	
      28

	
       
	
      2.12
	
      Multicurrency Commitments
	
      28

	
       
	
      2.13
	
      Repayment of Multicurrency Loans
	
      29

	
       
	
      2.14
	
      Procedure for Multicurrency Borrowing
	
      29

	
       
	
      2.15
	
      Termination or Reduction of Multicurrency Commitments
	
      29

	
       
	
      2.16
	
      Borrowings of Revolving Credit Loans and Refunding of
      Loans
	
      30

					



 

 


	
      SECTION 3
	
      CERTAIN PROVISIONS APPLICABLE TO THE LOANS
	
      32

	
       
	
      3.1
	
      Optional and Mandatory Prepayments
	
      32

	
       
	
      3.2
	
      Conversion and Continuation Options
	
      33

	
       
	
      3.3
	
      Minimum Amounts and Maximum Number of Tranches
	
      33

	
       
	
      3.4
	
      Interest Rates and Payment Dates
	
      34

	
       
	
      3.5
	
      Computation of Interest and Fees
	
      34

	
       
	
      3.6
	
      Inability to Determine Interest Rate
	
      35

	
       
	
      3.7
	
      Pro Rata Treatment and Payments
	
      35

	
       
	
      3.8
	
      Illegality
	
      37

	
       
	
      3.9
	
      Requirements of Law
	
      37

					





 

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(continued)

 

 


	
       
	
       
	
      Page




 


	
      3.10
	
      Taxes
	
      39

	
      3.11
	
      Indemnity
	
      40

	
      3.12
	
      Change of Lending Office; Removal of Lender
	
      41

	
      3.13
	
      Evidence of Debt
	
      41




 

 


	
      SECTION 4
	
      LOCAL CURRENCY FACILITIES
	
      42

	
       
	
      4.1
	
      Terms of Local Currency Facilities
	
      42

	
       
	
      4.2
	
      Reporting of Local Currency Outstandings
	
      43

					



 

 


	
      SECTION 5
	
      LETTERS OF CREDIT
	
      44

	
       
	
      5.1
	
      L/C Commitment
	
      44

	
       
	
      5.2
	
      Procedure for Issuance of Letter of Credit
	
      44

	
       
	
      5.3
	
      Fees and Other Charges
	
      45

	
       
	
      5.4
	
      L/C Participations
	
      45

	
       
	
      5.5
	
      Reimbursement Obligation of the Borrower
	
      46

	
       
	
      5.6
	
      Obligations Absolute
	
      46

	
       
	
      5.7
	
      Letter of Credit Payments
	
      47

	
       
	
      5.8
	
      Applications
	
      47





	
       
	
      5.9
	
      Reimbursement Obligations for Certain Letters of Credit Denominated
      in Currencies Other Than Dollars
	
      47





	
      SECTION 6
	
      REPRESENTATIONS AND WARRANTIES
	
      48

	
       
	
      6.1
	
      Financial Condition
	
      48

	
       
	
      6.2
	
      No Change
	
      48

	
       
	
      6.3
	
      Corporate Existence; Compliance with Law
	
      48

	
       
	
      6.4
	
      Corporate Power; Consents and Authorization; Enforceable
      Obligations
	
      49

	
       
	
      6.5
	
      No Legal Bar
	
      49

	
       
	
      6.6
	
      No Material Litigation
	
      49

	
       
	
      6.7
	
      No Default
	
      49

	
       
	
      6.8
	
      Taxes
	
      50

	
       
	
      6.9
	
      Federal Regulations
	
      50

	
       
	
      6.10
	
      ERISA
	
      50

	
       
	
      6.11
	
      Investment Company Act; Other Regulations
	
      51

					





 

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(continued)

 

 


	
       
	
       
	
      Page




 


	
      6.12
	
      Purpose of Loans
	
      51

	
      6.13
	
      Environmental Matters
	
      51

	
      6.14
	
      Disclosure
	
      52




 


	
      SECTION 7
	
      CONDITIONS PRECEDENT
	
      52

	
       
	
      7.1
	
      Conditions to Closing
	
      52

	
       
	
      7.2
	
      Conditions to Each Loan and Letter of Credit
	
      53

					



 


	
      SECTION 8
	
      AFFIRMATIVE COVENANTS
	
      54

	
       
	
      8.1
	
      Financial Statements
	
      54

	
       
	
      8.2
	
      Certificates; Other Information
	
      55

	
       
	
      8.3
	
      Payment of Obligations
	
      55

	
       
	
      8.4
	
      Conduct of Business and Maintenance of Existence
	
      55

	
       
	
      8.5
	
      Maintenance of Property; Insurance
	
      55

	
       
	
      8.6
	
      Inspection of Property; Books and Records;
Discussions
	
      55

	
       
	
      8.7
	
      Notices
	
      56

					



 


	
      SECTION 9
	
      NEGATIVE COVENANTS
	
      56

	
       
	
      9.1
	
      Financial Covenant
	
      56

	
       
	
      9.2
	
      Limitation on Liens
	
      56

	
       
	
      9.3
	
      Limitation on Indebtedness Pursuant to Receivables
      Transactions
	
      57

	
       
	
      9.4
	
      Limitation on Fundamental Changes
	
      58

					



 


	
      SECTION 10
	
      EVENTS OF DEFAULT
	
      58




 


	
      SECTION 11
	
      THE AGENTS
	
      61

	
       
	
      11.1
	
      Appointment
	
      61

	
       
	
      11.2
	
      Delegation of Duties
	
      61

	
       
	
      11.3
	
      Exculpatory Provisions
	
      62

	
       
	
      11.4
	
      Reliance by Administrative Agent
	
      62

	
       
	
      11.5
	
      Notice of Default
	
      62

	
       
	
      11.6
	
      Non-Reliance on Administrative Agent and Other
Lenders
	
      63

	
       
	
      11.7
	
      Indemnification
	
      63

	
       
	
      11.8
	
      Administrative Agent in Its Individual Capacity
	
      64

	
       
	
      11.9
	
      Successor Administrative Agent
	
      64

					





 

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(continued)

 

 


	
       
	
       
	
      Page




 


	
       
	
      11.10
	
      The Arrangers, the Bookrunners, the Syndication Agents, the
      Documentation Agents and the Managing Agents

       
	
      64





	
      SECTION 12
	
      GUARANTEE
	
      64

	
       
	
      12.1
	
      Guarantee
	
      64

	
       
	
      12.2
	
      No Subrogation
	
      65

	
       
	
      12.3
	
      Amendments, etc with respect to the Obligations; Waiver of
      Rights
	
      65

	
       
	
      12.4
	
      Guarantee Absolute and Unconditional
	
      66

	
       
	
      12.5
	
      Reinstatement
	
      67

	
       
	
      12.6
	
      Payments
	
      67

	
       
	
      12.7
	
      “Lenders”
	
      67

					



 


	
      SECTION 13
	
      MISCELLANEOUS
	
      68

	
       
	
      13.1
	
      Amendments and Waivers
	
      68

	
       
	
      13.2
	
      Notices
	
      69

	
       
	
      13.3
	
      No Waiver; Cumulative Remedies
	
      70

	
       
	
      13.4
	
      Survival of Representations and Warranties
	
      70

	
       
	
      13.5
	
      Payment of Expenses and Taxes
	
      70

	
       
	
      13.6
	
      Successors and Assigns; Participations and
Assignments
	
      71

	
       
	
      13.7
	
      Adjustments; Set-off
	
      73

	
       
	
      13.8
	
      Counterparts
	
      74

	
       
	
      13.9
	
      Severability
	
      74

	
       
	
      13.10
	
      Integration
	
      74

	
       
	
      13.11
	
      GOVERNING LAW
	
      74

	
       
	
      13.12
	
      Submission To Jurisdiction; Waivers
	
      74

	
       
	
      13.13
	
      Acknowledgements
	
      75

	
       
	
      13.14
	
      Confidentiality
	
      75

	
       
	
      13.15
	
      Loan Conversion/Participations
	
      76

	
       
	
      13.16
	
      Judgment
	
      77

	
       
	
      13.17
	
      WAIVERS OF JURY TRIAL
	
      77

	
       
	
      13.18
	
      USA Patriot Act Notice
	
      77

					



 

 

iv

 

 







 

 

SCHEDULES


	
      Schedule I
	
      Names, Addresses and Commitments of Lenders

	
      Schedule II
	
      Information Concerning Local Currency Loans
	
       

	
      Schedule 5.1
	
      Existing Letters of Credit
	
       

	
      Schedule 9.2
	
      Existing Liens
	
       

					



EXHIBITS


	
      Exhibit A
	
      Form of Revolving Credit Note
	
       

	
      Exhibit B
	
      Form of CAF Advance Note
	
       

	
      Exhibit C
	
      Form of CAF Advance Request
	
       

	
      Exhibit D
	
      Form of CAF Advance Offer
	
       

	
      Exhibit E
	
      Form of CAF Advance Confirmation
	
       

	
      Exhibit F
	
      Form of Closing Certificate
	
       

	
      Exhibit G
	
      Form of Opinion of Counsel to Borrower
	
       

	
      Exhibit H
	
      Form of Assignment and Acceptance
	
       

	
      Exhibit I
	
      Form of Local Currency Facility Addendum

	
      Exhibit J
	
      Form of Exemption Certificate
	
       

										



 

 

v

 

 







 

 

AMENDED AND RESTATED MULTI-YEAR REVOLVING CREDIT
AGREEMENT, dated as of May 13, 2005, among (i)
BOSTON SCIENTIFIC CORPORATION, a
Delaware corporation (the “Borrower”), (ii) the several banks and other financial institutions or entities
from time to time parties hereto (the “Lenders”), (iii) BANK OF
AMERICA, N.A., and WACHOVIA BANK,
NATIONAL ASSOCIATION, as Syndication Agents (each, in
such capacity, a “Syndication Agent”, and collectively, the “Syndication
Agents”), (iv) ABN AMRO BANK,
DEUTSCHE BANK SECURITIES INC., SUMITOMO MITSUI BANKING
CORPORATION, THE BANK OF
TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH, and UBS SECURITIES LLC,
as co-documentation agents (collectively, the
“Documentation Agents”), (v)
BNP PARIBAS and MERRILL LYNCH BANK USA, as Managing Agents (each,
in such capacity a “Managing Agent”, and collectively, the “Managing
Agents”), and (vi) JPMORGAN CHASE
BANK, N.A., as administrative agent for the Lenders hereunder (in such capacity,
the “Administrative Agent”).

W I T N E S S E T H:

WHEREAS, the Borrower, certain of the Lenders,
the Arrangers, the Administrative Agent and others are parties to the Credit
Agreement, dated as of May 14, 2004 (as amended, supplemented or otherwise
modified prior to the date hereof, the “Existing
Multi-Year Credit Agreement”);

WHEREAS, the Borrower has requested that the
Existing Multi-Year Credit Agreement be amended and restated as hereinafter
provided; and

WHEREAS, the Lenders have agreed to amend and
restate the Existing Multi-Year Credit Agreement upon the terms and subject to
the conditions set forth herein;

WHEREAS, it is the intent of the parties hereto
that this Agreement not constitute a novation of the obligations and liabilities
of the Borrower existing under the Existing Multi-Year Credit Agreement or
evidence repayment of all or any such obligations and liabilities and that this
Agreement amend and restate in its entirety the Existing Multi-Year Credit
Agreement and re-evidence such obligations and liabilities;

NOW, THEREFORE, in consideration of the premises,
and of the mutual covenants and agreements herein contained and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto hereby agree as follows:

SECTION 1

DEFINITIONS

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

“ABR”: for any day, a rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof:
“Prime Rate” shall mean the rate
of interest per annum publicly announced from time to time by JPMorgan Chase
Bank as its prime rate in effect at its principal 

 

 







 

office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by JPMorgan Chase Bank in connection with
extensions of credit to debtors); “Base CD
Rate” shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the C/D Reserve Percentage and (b) the
C/D Assessment Rate; “Three-Month Secondary CD
Rate” shall mean, for any day, the secondary market rate
for three-month certificates of deposit reported as being in effect on such day
(or, if such day shall not be a Business Day, the next preceding Business Day)
by the Board of Governors of the Federal Reserve System (the “Board”) through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of major
money center banks in New York City received at approximately 10:00 A.M., New
York City time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing selected
by it; and “Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for the day of
such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. Any change in the ABR due to a
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.

“ABR Loans”: Revolving
Credit Loans and Swingline Loans bearing interest based upon the ABR.

“Adjusted Aggregate Committed
Outstandings”: with respect to each Lender, the
Aggregate Committed Outstandings of such Lender, plus the amount of any participating interests
purchased by such Lender pursuant to subsection 13.15, minus the amount of any participating interests
sold by such Lender pursuant to subsection 13.15.

“Administrative Agent”: as
defined in the preamble hereto.

“Affiliate”: as to any
Person, any other Person (other than a Subsidiary) which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, “control” of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or (b)
direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.

“Agents”: the collective
reference to the Administrative Agent, the Syndication Agents, the Documentation
Agents, the Managing Agents, the Arrangers and the Bookrunners.

 

 

2

 







 

 

“Aggregate Available Multicurrency
Commitments”: as at any date of determination with
respect to all Multicurrency Lenders, an amount in Dollars equal to the sum of
the Available Multicurrency Commitments of all Multicurrency Lenders on such
date.

“Aggregate Available Revolving Credit
Commitments”: as at any date of determination with
respect to all Lenders, an amount in Dollars equal to the sum of the Available
Revolving Credit Commitments of all Lenders on such date.

“Aggregate Committed Outstandings”: as at any date of determination with respect to any Lender, an amount
in Dollars equal to the sum of (a) the Aggregate Revolving Credit Outstandings
of such Lender on such date, (b) the Dollar Equivalent of the Aggregate
Multicurrency Outstandings of such Lender on such date, and (c) the Dollar
Equivalent of the Aggregate Local Currency Outstandings of such Lender on such
date.

“Aggregate Local Currency
Outstandings”: as at any date of determination with
respect to any Lender, an amount in the applicable Local Currencies equal to the
aggregate unpaid principal amount of such Lender’s Local Currency
Loans.

“Aggregate Multicurrency
Outstandings”: as at any date of determination with
respect to any Lender, an amount in the applicable Available Foreign Currencies
equal to the aggregate unpaid principal amount of such Lender’s Multicurrency
Loans.

“Aggregate Revolving Credit
Commitments”: the aggregate amount of the Revolving
Credit Commitments of all of the Lenders.

“Aggregate Revolving Credit
Outstandings”: as at any date of determination with
respect to any Lender, an amount in Dollars equal to the sum of (a) the
aggregate unpaid principal amount of such Lender’s Revolving Credit Loans on
such date plus (b) such Lender’s
Revolving Credit Commitment Percentage of (i) the aggregate outstanding
principal of Swingline Loans and (ii) the L/C Obligations.

“Aggregate Total Outstandings”: as at any date of determination with respect to any Lender, an amount
in Dollars equal to the sum of (a) the Aggregate Revolving Credit Outstandings
of such Lender on such date, (b) the Dollar Equivalent of the aggregate unpaid
principal amount of such Lender’s CAF Advances on such date, (c) the Dollar
Equivalent of the Aggregate Multicurrency Outstandings of such Lender on such
date and (d) the Dollar Equivalent of the Aggregate Local Currency Outstandings
of such Lender on such date.

“Agreement”: the Existing
Multi-Year Credit Agreement, as amended and restated by this Agreement, as
further amended and restated, supplemented or otherwise modified from time to
time.

“Agreement Currency”: as
defined in subsection 13.16(b).

 

 

3

 







 

 

“Applicable Margin”: with
respect to each day for each Type of Loan, the rate per annum based on the
Ratings in effect on such day, as set forth under the relevant column heading
below:


	
      Any Date Other than an Excess Utilization
    Day
	
       
	
       

      Excess Utilization Day

	
      Rating
	
      Eurodollar Loans/
Multicurrency
      Loans
	
      ABR Loans
	
      Eurodollar Loans/
Multicurrency
      Loans
	
      ABR Loans

	
       
	
       
	
       
	
       
	
       

	
      Rating I
	
      .150%
	
      0%
	
      .250%
	
      0%

	
      Rating II
	
      .190%
	
      0%
	
      .290%
	
      0%

	
      Rating III
	
      .225%
	
      0%
	
      .325%
	
      0%

	
      Rating IV
	
      .400%
	
      0%
	
      .500%
	
      0%

	
      Rating V
	
      .500%
	
      0%
	
      .600%
	
      0%

	
      Rating VI
	
      .600%
	
      0%
	
      .700%
	
      0%




 

“Application”: an
application, in such form as the Issuing Lender may specify from time to time,
requesting the Issuing Lender to issue a Letter of Credit.

“Arrangers”: J.P. Morgan
Securities Inc., Banc of America Securities LLC and Wachovia Capital Markets,
LLC, as Joint Lead Arrangers for this Agreement.

“Assignee”: as defined in
subsection 13.6(c).

“Available Foreign Currencies”: euro, Japanese Yen, Australian Dollar, Canadian Dollar, Pound
Sterling, Singapore Dollar, Swiss Franc and any other available and freely
convertible non-Dollar currency selected by the Borrower and approved by the
Administrative Agent and the Multicurrency Lenders.

“Available Multicurrency
Commitment”: as at any date of determination with
respect to any Multicurrency Lender (after giving effect to the making and
payment of any Revolving Credit Loans required to be made on such date pursuant
to subsection 2.16), an amount in Dollars equal to the lesser of (a) the excess,
if any, of (i) the amount of such Multicurrency Lender’s Multicurrency
Commitment in effect on such date over (ii) the Dollar Equivalent of the
Aggregate Multicurrency Outstandings of such Multicurrency Lender on such date,
and (b) the excess, if any, of (i) the amount of such Lender’s Revolving Credit
Commitment in effect on such date over (ii) the Aggregate Committed Outstandings
of such Lender on such date.

“Available Revolving Credit
Commitment”: as at any date of determination with
respect to any Lender (after giving effect to the making and payment of any
Revolving Credit Loans required to be made on such date pursuant to subsection
2.16), an amount in Dollars equal to the excess, if any, of (a) the amount of
such Lender’s Revolving Credit Commitment in effect on such date over (b) the
Aggregate Committed Outstandings of such Lender on such date.

“Base CD Rate”: as defined
in the definition of ABR.

“benefited Lender”: as
defined in subsection 13.7.

 

 

4

 







 

 

“Board”: as defined in the
definition of ABR.

“Bookrunners”: J.P. Morgan
Securities Inc., Banc of America Securities LLC and Wachovia Capital Markets,
LLC, as Joint Bookrunners for this Agreement.

“Borrower”: as defined in
the preamble hereto.

“Borrowing Date”: any
Business Day specified in a notice pursuant to subsection 2.2, 2.9 or 2.14 as a
date on which the Borrower requests the Lenders to make Loans hereunder or, with
respect to Local Currency Loans, the date on which a Foreign Subsidiary Borrower
requests Local Currency Lenders to make Local Currency Loans to such Foreign
Subsidiary Borrower pursuant to the Local Currency Facility to which such
Foreign Subsidiary Borrower and Local Currency Lenders are parties.

“Business”: as defined in
subsection 6.14.

“Business Day”: a day
other than a Saturday, Sunday or other day on which commercial banks in New York
City are authorized or required by law to close; provided that when such term is used for the
purpose of determining the date on which the Eurocurrency Base Rate is
determined under this Agreement for any Loan denominated in euro for any
Interest Period therefor and for purposes of determining the first and last day
of any such Interest Period, references in this Agreement to Business Days shall
be deemed to be references to Target Operating Days.

“CAF Advance”: each
competitive advance facility advance made pursuant to subsection 2.8.

“CAF Advance Availability Period”: the period from and including the Closing Date to and including the
date which is seven days prior to the Termination Date.

“CAF Advance Confirmation”: each confirmation by the Borrower of its acceptance of CAF Advance
Offers, which confirmation shall be substantially in the form of Exhibit E and shall be delivered to the
Administrative Agent by facsimile transmission.

“CAF Advance Interest Payment Date”: as to each CAF Advance, each interest payment date specified by the
Borrower for such CAF Advance in the related CAF Advance Request.

“CAF Advance Maturity Date”: as to any CAF Advance, the date specified by the Borrower pursuant to
subsection 2.9(d)(ii) in its acceptance of the related CAF Advance
Offer.

“CAF Advance Note”: as
defined in subsection 3.13(e).

“CAF Advance Offer”: each
offer by a Lender to make CAF Advances pursuant to a CAF Advance Request, which
offer shall contain the information specified in Exhibit
D and shall be delivered to the Administrative Agent by
telephone, immediately confirmed by facsimile transmission.

 

 

5

 







 

 

“CAF Advance Request”:
each request by the Borrower for Lenders to submit bids to make CAF Advances,
which request shall contain the information in respect of such requested CAF
Advances specified in Exhibit C
and shall be delivered to the Administrative Agent in writing, by facsimile
transmission, or by telephone, immediately confirmed by facsimile
transmission.

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

“Capital Stock”: any and
all shares, interests, participations or other equivalents (however designated)
of capital stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants or options to
purchase any of the foregoing.

“C/D Assessment Rate”: for
any day as applied to any ABR Loan, the annual assessment rate in effect on such
day which is payable by a member of the Bank Insurance Fund maintained by the
Federal Deposit Insurance Corporation (the “FDIC”) classified as well-capitalized and within
supervisory subgroup “B” (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. § 327.4 (or any successor
provision) to the FDIC (or any successor) for the FDIC’s (or such successor’s)
insuring time deposits at offices of such institution in the United
States.

“C/D Reserve Percentage”:
for any day as applied to any ABR Loan, that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board, for determining the
maximum reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time deposits in
Dollars having a maturity of 30 days or more.

“Closing Date”: the date,
on or before May 13, 2005, on which conditions precedent set forth in subsection
7.1 shall be satisfied.

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

“Commitment Period”: the
period from and including the Closing Date to but excluding the Termination Date
or such earlier date on which the Commitments shall terminate as provided
herein.

“Commitments”: the
collective reference to the Revolving Credit Commitments, Multicurrency
Commitments, Swingline Commitments and L/C Commitments.

“Committed Outstandings Percentage”: on any date with respect to any Lender, the percentage which the
Adjusted Aggregate Committed Outstandings of such Lender constitutes of the
Adjusted Aggregate Committed Outstandings of all Lenders.

 

 

6

 







 

 

“Commonly Controlled Entity”: an entity, whether or not incorporated, which is under common control
with the Borrower within the meaning of Section 4001 of ERISA or is part of a
group which includes the Borrower and which is treated as a single employer
under Section 414 of the Code.

“Conduit Lender”: any
special purpose corporation organized and administered by any Lender for the
purpose of making Loans otherwise required to be made by such Lender and
designated by such Lender in a written instrument; provided, that the designation by any Lender of a
Conduit Lender shall not relieve the designating Lender of any of its
obligations to fund a Loan under this Agreement if, for any reason, its Conduit
Lender fails to fund any such Loan, and the designating Lender (and not the
Conduit Lender) shall have the sole right and responsibility to deliver all
consents and waivers required or requested under this Agreement with respect to
its Conduit Lender; and provided,
further, that no Conduit Lender
shall (a) be entitled to receive any greater amount pursuant to Section 3.9,
3.10, 3.11 or 13.5 than the designating Lender would have been entitled to
receive in respect of the extensions of credit made by such Conduit Lender or
(b) be deemed to have any Commitment.

“Consolidated EBITDA”: of
any Person for any period, Consolidated Net Income of such Person and its
Subsidiaries for such period plus, without duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period, the sum of (a) income
tax expense, (b) Consolidated Interest Expense of such Person and its
Subsidiaries, amortization or writeoff of debt discount and debt issuance costs
and commissions, discounts and other fees and charges associated with
Indebtedness, (c) depreciation expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs and (e) any
extraordinary, unusual or nonrecurring expenses or losses (to the extent any of
the foregoing are non-cash items) (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, losses on sales of assets outside of the ordinary course of
business and including special charges and purchased research and development
charges in connection with acquisitions), and minus, to the extent included in
the statement of such Consolidated Net Income for such period, the sum of (a)
interest income (except to the extent deducted in determining Consolidated
Interest Expense) and (b) any extraordinary, unusual or non-recurring income or
gains (to the extent any of the foregoing are non-cash items) (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside of
the ordinary course of business).

“Consolidated Interest Expense”: of any Person for any period, total interest expense of such Person
and its Subsidiaries for such period with respect to all outstanding
Indebtedness of such Person and its Subsidiaries determined in accordance with
GAAP (including, all net costs that are allocable to such period in accordance
with GAAP).

“Consolidated Leverage Ratio”: as at the last day of any period of four consecutive fiscal quarters
of the Borrower, the ratio of (a) Consolidated Total Debt on such day to (b)
Consolidated EBITDA of the Borrower and its Subsidiaries for such
period.

 

 

7

 







 

 

“Consolidated Net Income”:
of any Person for any period, the consolidated net income (or loss) of such
Person and its Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP.

“Consolidated Tangible Assets”: at any date, Consolidated Total Assets minus (without duplication) the
net book value of all assets which would be treated as intangible assets, as
determined on a consolidated basis in accordance with GAAP.

“Consolidated Total Assets”: at any date, the net book value of all assets of the Borrower and its
Subsidiaries as determined on a consolidated basis in accordance with
GAAP.

“Consolidated Total Debt”:
at any date, the aggregate principal amount of all Indebtedness of the Borrower
and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.

“Continuing Directors”: as
defined in Section 10(h).

“Contractual Obligation”:
as to any Person, any provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.

“Conversion Date”: any
date on which either (a) an Event of Default under subsection 10(e) has occurred
or (b) the Commitments shall have been terminated and/or the Loans shall have
been declared immediately due and payable pursuant to Section 10.

“Conversion Sharing Percentage”: on any date with respect to any Lender and any Loans of such Lender
outstanding in any currency other than Dollars, the percentage of such Loans
such that, after giving effect to the conversion of such Loans to Dollars and
the purchase and sale by such Lender of participating interests as contemplated
by subsection 13.15, the Committed Outstandings Percentage of such Lender will
equal such Lender’s Revolving Credit Commitment Percentage on such date
(calculated immediately prior to giving effect to any termination or expiration
of the Commitments on the Conversion Date).

“Converted Loans: as
defined in subsection 13.15(a).

“Default”: any of the
events specified in Section 10, whether or not any requirement for the giving of
notice, the lapse of time, or both, or any other condition, has been
satisfied.

“Documentation Agents”: as
defined in the preamble hereto.

“Dollar Equivalent”: with
respect to an amount denominated in any currency other than Dollars, the
equivalent in Dollars of such amount determined at the Exchange Rate on the date
of determination of such equivalent. In making any determination of the Dollar
Equivalent for purposes of calculating the amount of Loans to be borrowed from
the respective Lenders on any Borrowing Date, the Administrative Agent shall use
the relevant Exchange Rate in effect on the date on which the interest rate for
such Loans is determined pursuant to the provisions of this Agreement and the
other Loan Documents.

 

 

8

 







 

 

“Dollars” and
“$”: dollars in lawful currency
of the United States of America.

“Environmental Laws”: any
and all applicable foreign, Federal, state, local or municipal laws, rules,
regulations, statutes, ordinances, codes, decrees or other enforceable
requirements or orders of any Governmental Authority or other Requirements of
Law regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may at any
time hereafter be in effect.

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

“euro”: the single
currency of participating member states of the European Union.

“Eurocurrency Base Rate”:
(a) with respect to each day during each Interest Period pertaining to a
Eurodollar Loan, or a Multicurrency Loan or CAF Advance denominated in any
currency other than Pounds Sterling, the rate per annum determined by the
Administrative Agent to be the offered rate for deposits in the applicable
currency with a term comparable to such Interest Period that appears on the
applicable Telerate Page at approximately 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period; provided, however, that if at any time for any reason such
offered rate for any such currency does not appear on a Telerate Page,
“Eurocurrency Base Rate” shall
mean, with respect to each day during each Interest Period pertaining to a Loan
denominated in such currency, the rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the respective rates notified to the
Administrative Agent by each of the Reference Lenders as the rate at which such
Reference Lender is offered deposits in such currency at or about 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest Period in
the London interbank market for delivery on the first day of such Interest
Period for the number of days comprised therein; and (b) with respect to each
day during each Interest Period pertaining to a Multicurrency Loan or CAF
Advance denominated in Pounds Sterling, the rate per annum equal to the average
(rounded upward to the nearest 1/16th of 1%) of the respective rates notified to
the Administrative Agent by each of the Reference Lenders as the rate at which
such Reference Lender is offered deposits in Pounds Sterling at or about 11:00
A.M., London time, two Business Days prior to the beginning of such Interest
Period in the Paris interbank market for delivery on the first day of such
Interest Period for the number of days comprised therein.

“Eurocurrency Rate”: with
respect to each day during each Interest Period pertaining to a Loan, a rate per
annum determined for such day in accordance with the following formula (rounded
upward to the nearest 1/100th of 1%):


	
      Eurocurrency Base Rate

	
      1.00 - Eurocurrency Reserve
Requirements




 

“Eurocurrency Reserve Requirements”: for any day as applied to a Loan, the aggregate (without duplication)
of the rates (expressed as a decimal) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and emergency
reserves) under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto dealing with reserve requirements
prescribed for eurocurrency funding (currently 

 

9

 







 

referred to as “Eurocurrency Liabilities” in Regulation D of such Board)
maintained by a member bank of such System.

“Eurodollar Loans”:
Revolving Credit Loans, the rate of interest applicable to which is based upon
the Eurocurrency Rate for Dollars.

“Event of Default”: any of
the events specified in Section 10, provided that any requirement for the giving of
notice, the lapse of time, or both, or any other condition, has been
satisfied.

“Excess Utilization Day”:
any day on which the sum of the Aggregate Total Outstandings of all Lenders,
plus the Aggregate Total
Outstandings under (and as defined in) the Five-Year Credit Agreement, exceeds
50.0% of the aggregate amount of the Commitments hereunder and the Commitments
under (and as defined in) the Five-Year Credit Agreement (or, in each case, with
respect to any day after termination of such Commitments under this Agreement
and Commitments under the Five-Year Credit Agreement, 50.0% of the aggregate
amount of the Commitments hereunder and Commitments under (and as defined in)
the Five-Year Credit Agreement in effect on the date immediately prior to the
date on which such Commitments hereunder and Commitments under the Five-Year
Credit Agreement terminated). 

“Exchange Rate”: with
respect to any non-Dollar currency on any date, the rate at which such currency
may be exchanged into Dollars, as set forth on such date on the relevant Reuters
currency page at or about 11:00 A.M., London time, on such date. In the event
that such rate does not appear on any Reuters currency page, the “Exchange Rate”
with respect to such non-Dollar currency 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 agreement, such “Exchange Rate” shall instead be the Administrative Agent’s
spot rate of exchange in the interbank market where its foreign currency
exchange operations in respect of such non- Dollar currency are then being
conducted, at or about 10:00 A.M., local time, on such date for the purchase of
Dollars with such non-Dollar currency, for delivery two Business Days later;
provided, that if at the time of
any such determination, no such spot rate can reasonably be quoted, the
Administrative Agent may use any reasonable method as it deems applicable to
determine such rate, and such determination shall be conclusive absent manifest
error.

“Existing 364-Day Credit Facility”: the 364-Day Revolving Credit Agreement dated as of May 14, 2004, as
amended, among the Borrower, the lenders parties thereto, JPMorgan Chase Bank,
as administrative agent, and others, providing for a $541,250,000 revolving
credit and competitive advance facility.

“Existing Letters of Credit”: letters of credit issued under the Existing Multi-Year Credit
Agreement, as set forth in Schedule 5.1 attached hereto.

“Existing Multi-Year Credit
Agreement”: as defined in the recitals
hereto.

 

 

10

 







 

 

“Facility Fee Rate”: for
each day during each calculation period, the rate per annum based on the Ratings
in effect on such day, as set forth below:


	
       

      Rating
	
      Facility 
Fee Rate

	
      Rating I 
	
      .050%

	
      Rating II 
	
      .060%

	
      Rating III 
	
      .075%

	
      Rating IV 
	
      .100%

	
      Rating V 
	
      .125%

	
      Rating VI 
	
      .150%




 

“Fee Commencement Date”:
the Closing Date.

“Financing Lease”: any
lease of property, real or personal, the obligations of the lessee in respect of
which are required in accordance with GAAP to be capitalized on a balance sheet
of the lessee.

“Fitch”: Fitch
Ratings.

“Five-Year Credit Agreement”: the Five-Year Revolving Credit Agreement dated as of

May 13, 2005, among the Borrower, the lenders party thereto, JPMorgan
Chase Bank, as administrative agent, and others, providing for a $500,000,000
revolving credit facility, as the same may from time to time be amended, amended
and restated, supplemented or otherwise modified.

“Fixed Rate CAF Advance”:
any CAF Advance made pursuant to a Fixed Rate CAF Advance Request.

“Fixed Rate CAF Advance Request”: any CAF Advance Request requesting the Lenders to offer to make CAF
Advances at a fixed rate (as opposed to a rate composed of the Eurocurrency Rate
plus (or minus) a margin).

“Foreign Subsidiary Borrower”: each Subsidiary of the Borrower organized under the laws of a
jurisdiction outside the United States that the Borrower designates as a
“Foreign Subsidiary Borrower” in a Local Currency Facility Addendum.

“Funding Commitment Percentage”: as at any date of determination (after giving effect to the making and
payment of any Loans made on such date pursuant to subsection 2.16), with
respect to any Lender, that percentage which the Available Revolving Credit
Commitment of such Lender then constitutes of the Aggregate Available Revolving
Credit Commitments.

“GAAP”: generally accepted
accounting principles in the United States of America consistent with those
utilized in preparing the audited financial statements referred to in subsection
6.1.

 

 

11

 







 

 

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

“Guarantee Obligation”: as
to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to induce
the creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
“primary obligations”) of any
other unrelated third Person (the “primary
obligor”) in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided,
however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person’s reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.

“Hedge Agreements”: all
agreements with non-related third parties with respect to any swap, forward,
future or derivative transaction or option or similar agreements involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no employee benefit plan of the
Borrower or any of its Subsidiaries shall be a “Hedge Agreement”.

“Indebtedness”: of any
Person at any date, without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than current trade liabilities incurred in
the ordinary course of such Person’s business and payable in accordance with
customary practices and earn-outs and other similar obligations in respect of
acquisition and other similar agreements), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under or in
respect of acceptances, 

 

12

 







 

letters of credit, surety bonds or similar arrangements, (g) the
liquidation value of all redeemable preferred Capital Stock of such Person, (h)
all indebtedness of such Person, determined in accordance with GAAP, arising out
of a Receivables Transaction, (i) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through (h) above,
(j) all obligations of the kind referred to in clauses (a) through (i) above
secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including
accounts and contract rights) owned by such Person, whether or not such Person
has assumed or become liable for the payment of such obligation, and (k) for the
purposes of Section 10(d) only, all obligations of such Person in respect of
Hedge Agreements. The Indebtedness of any Person shall include the Indebtedness
of any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness expressly provide that such Person is
not liable therefor.

“Insolvency”: with respect
to any Multiemployer Plan, the condition that such Plan is insolvent within the
meaning of Section 4245 of ERISA.

“Insolvent”: pertaining to
a condition of Insolvency.

“Interest Payment Date”:
(a) as to any ABR Loan, the last day of each March, June, September and
December, (b) as to any Eurodollar Loan or Multicurrency Loan having an Interest
Period of three months or less, the last day of such Interest Period, and (c) as
to any Eurodollar Loan or Multicurrency Loan having an Interest Period longer
than three months, each day which is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period.

“Interest Period”: (a)
with respect to any Eurodollar Loan or Multicurrency Loan: 

(i)         initially, the
period commencing on the Borrowing Date or conversion date, as the case may be,
with respect to such Eurodollar Loan or Multicurrency Loan and ending one, two,
three, six or nine (or, if available to all the applicable Lenders, twelve)
months thereafter, as selected by the Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto;
and

(ii)         thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan or Multicurrency Loan and ending one, two,
three, six or nine (or, if available to all the applicable Lenders, twelve)
months thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; 

provided that, all of the foregoing provisions
relating to Interest Periods are subject to the following:

(1)        if any Interest Period
would otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding 

 

13

 







 

Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;

(2)        any Interest Period in
respect of any Loan made by any Lender that would otherwise extend beyond the
Termination Date applicable to such Lender shall end on such Termination Date;
and

(3)        any Interest Period
that 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) shall end on the last Business Day of a calendar month;
and

(b)        with respect to any
LIBO Rate CAF Advance, the period beginning on the Borrowing Date with respect
thereto and ending on the CAF Advance Maturity Date with respect
thereto.

“Issuing Lender”: JPMorgan
Chase Bank, in its capacity as issuer of any Letter of Credit.

“JPMorgan Chase Bank”:
JPMorgan Chase Bank, N.A., a national banking association.

“Judgment Currency”: as
defined in subsection 13.16(b).

“L/C Commitment”:
$600,000,000.

“L/C Fee Payment Date”:
the last day of each March, June, September and December and the last day of the
Commitment Period.

“L/C Obligations”: at any
time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired
amount of the then outstanding Letters of Credit and (b) the aggregate amount of
drawings under Letters of Credit that have not then been reimbursed pursuant to
subsection 5.5.

“L/C Participants”: the
collective reference to all the Lenders other than the Issuing
Lender.

“Lender Affiliate”: (a)
any Affiliate of any Lender, (b) any Person that is administered or managed by
any Lender and that is engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary
course of its business and (c) with respect to any Lender which is a fund that
invests in commercial loans and similar extensions of credit, any other fund
that invests in commercial loans and similar extensions of credit and is managed
or advised by the same investment advisor as such Lender or by an Affiliate of
such Lender or investment advisor.

“Lenders”: as defined in
the preamble hereto; provided,
that unless the context otherwise requires, each reference herein to the Lenders
shall be deemed to include any Conduit Lender.

“Letters of Credit”: as
defined in subsection 5.1(a).

 

 

14

 







 

 

“LIBO Rate CAF Advance”:
any CAF Advance made pursuant to a LIBO Rate CAF Advance Request.

“LIBO Rate CAF Advance Request”: any CAF Advance Request requesting the Lenders to offer to make CAF
Advances at an interest rate equal to the Eurocurrency Rate for the currency of
such CAF Advance plus (or minus) a margin.

“Lien”: any mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement and any Financing Lease having substantially the same
economic effect as any of the foregoing).

“Loan”: any Revolving
Credit Loan, CAF Advance, Multicurrency Loan, Swingline Loan or Local Currency
Loan, as the case may be.

“Loan Documents”: this
Agreement, any Notes, the Applications and any document or instrument evidencing
or governing any Local Currency Facility.

“Loans to be Converted”:
as defined in subsection 13.15(a).

“Local Currency”: any
available and freely convertible non-Dollar currency selected by a Foreign
Subsidiary Borrower and approved by the Administrative Agent.

“Local Currency Facility”:
any Qualified Credit Facility that the Borrower designates as a “Local Currency
Facility” pursuant to a Local Currency Facility Addendum.

“Local Currency Facility Addendum”: a Local Currency Facility Addendum received by the Administrative
Agent, substantially in the form of Exhibit
I, and conforming to the requirements of Section
4.

“Local Currency Facility Agent”: with respect to each Local Currency Facility, the Local Currency
Lender acting as agent for the Local Currency Lenders parties thereto (and, in
the case of any Local Currency Facility to which only one Lender is a party,
such Lender).

“Local Currency Facility Maximum Borrowing
Amount”: as defined in subsection 4.1(b).

“Local Currency Lender”:
any Lender (or, if applicable, any Affiliate, branch or agency thereof) party to
a Local Currency Facility.

“Local Currency Lender Maximum Borrowing
Amount”: as defined in subsection 4.1(b).

“Local Currency Loan”: any
loan made pursuant to a Local Currency Facility.

“London Banking Day”: any
day on which banks in London are open for general banking business, including
dealings in foreign currency and exchange.

 

 

15

 







 

 

“Majority Lenders”: (a) at
any time prior to the termination of the Revolving Credit Commitments, Lenders,
the Revolving Credit Commitment Percentages of which aggregate more than 50%;
and (b) at any time after the termination of the Revolving Credit Commitments,
Lenders whose Aggregate Total Outstandings aggregate more than 50% of the
Aggregate Total Outstandings of all Lenders; provided that for purposes of this definition,
the Aggregate Total Outstandings of each Lender shall be adjusted upward or
downward so as to give effect to any participations or assignments effected
pursuant to subsection 13.15.

“Majority Multicurrency Lenders”: at any time, Multicurrency Lenders the Multicurrency Commitment
Percentages of which aggregate more than 50%.

“Managing Agents”: as
defined in the preamble hereto.

“Material Adverse Effect”:
a material adverse effect on (a) the business, operations, property or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole
or (b) the validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.

“Materials of Environmental
Concern”: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products or any hazardous or toxic
substances, materials or wastes, defined or regulated as such in or under any
Environmental Law, including, without limitation, asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.

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

“Multicurrency Commitment”: as to any Multicurrency Lender at any time, its obligation to make
Multicurrency Loans to the Borrower in an aggregate amount in Available Foreign
Currencies the Dollar Equivalent of which does not exceed at any time
outstanding the amount set forth opposite such Multicurrency Lender’s name in
Schedule I under the heading
“Multicurrency Commitment”, as such amount may be reduced from time to time as
provided in subsection 2.15 and the other applicable provisions
hereof.

“Multicurrency Commitment
Percentage”: as to any Multicurrency Lender at any time,
the percentage which such Multicurrency Lender’s Multicurrency Commitment at
such time constitutes of the aggregate Multicurrency Commitments of all
Multicurrency Lenders at such time (or, if the Multicurrency Commitments have
terminated or expired, the percentage which (a) the Dollar Equivalent of the
Aggregate Multicurrency Outstandings of such Multicurrency Lender at such time
constitutes of (b) the Dollar Equivalent of the Aggregate Multicurrency
Outstandings of all Multicurrency Lenders at such time).

“Multicurrency Lender”:
each Lender having an amount greater than zero set forth opposite such Lender’s
name in Schedule I under the
heading “Multicurrency Commitment.”

“Multicurrency Loans”: as
defined in subsection 2.12.

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

 

 

16

 







 

 

“Non-Excluded Taxes”: as
defined in subsection 3.10.

“Non-Multicurrency Lender”: each Lender which is not a Multicurrency Lender.

“Notes”: the collective
reference to any Revolving Credit Notes and any CAF Advance Notes.

“Notice of Local Currency
Outstandings”: with respect to each Local Currency
Facility Agreement, a notice from the relevant Local Currency Facility Agent
containing the information, delivered to the Administrative Agent and any other
Person, in the manner and by the time, specified for a Notice of Local Currency
Outstandings in Schedule II.

“Notice of Multicurrency Loan
Borrowing”: with respect to a Multicurrency Loan, a
notice from the Borrower containing the information in respect of such Loan,
delivered to the Administrative Agent and any other Person, in the manner and by
the time, specified for a Notice of Multicurrency Loan Borrowing in respect of
the currency of such Loan in Schedule II.

“Notice of Multicurrency Loan
Continuation”: with respect to a Multicurrency Loan, a
notice from the Borrower containing the information in respect of such Loan,
delivered to the Person, in the manner and by the time, specified for a Notice
of Multicurrency Loan Continuation in respect of the currency of such Loan in
Schedule II.

“Obligations”:
collectively, the unpaid principal of and interest on the Loans and all other
obligations and liabilities of each Foreign Subsidiary Borrower under this
Agreement and any Local Currency Facility and other Loan Documents to which it
is a party (including, without limitation, interest accruing at the then
applicable rate provided in this Agreement or any other applicable Loan Document
after the maturity of the Loans and interest accruing at the then applicable
rate provided in this Agreement or any other applicable Loan Document after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to such Foreign Subsidiary Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, the Notes, the other Loan Documents,
Hedge Agreements entered into with Lenders or any other document made, delivered
or given in connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Lenders that are required to be paid by
any Foreign Subsidiary Borrower pursuant to the terms of this Agreement or any
other Loan Document).

“Participant”: as defined
in subsection 13.6(b).

“Patriot Act”: as defined
in subsection 13.18.

“PBGC”: the Pension
Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of
ERISA.

 

 

17

 







 

 

“Person”: an individual,
partnership, corporation, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.

“Plan”: at a particular
time, any employee benefit plan which is covered by ERISA and in respect of
which the Borrower or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an
“employer” as defined in Section 3(5) of ERISA.

“Properties”: as defined
in subsection 6.14.

“Qualified Credit Facility”: a credit facility (a) providing for one or more Local Currency Lenders
to make unsecured loans denominated in a Local Currency to a Foreign Subsidiary
Borrower, (b) providing for such loans to bear interest at a rate or rates
determined by the Borrower and such Local Currency Lender or Local Currency
Lenders and (c) otherwise conforming to the requirements of Section
4.

“Rating”: the respective
rating of each of the Rating Agencies applicable to the long-term senior
unsecured non-credit enhanced debt of the Borrower, as announced by the Rating
Agencies from time to time.

“Rating Agencies”:
collectively, Fitch, Moody’s and S&P.

“Rating Category”: each of
Rating I, Rating II, Rating III, Rating IV, Rating V and Rating VI.

“Rating I, Rating II, Rating III, Rating IV,
Rating V and Rating VI”: the respective Ratings set
forth below:


	
      Rating 
Category
	
      Fitch
	
      Moody’s
	
      S&P 

	
      Rating I
	
      greater than or equal to A+
	
      greater than or equal to A1
	
      greater than or equal to A+

	
      Rating II
	
      A
	
      A2
	
      A

	
      Rating III
	
      A-
	
      A3
	
      A-

	
      Rating IV
	
      BBB+
	
      Baa1
	
      BBB+

	
      Rating V
	
      BBB
	
      Baa2
	
      BBB

	
      Rating VI
	
      lower than or equal to BBB-
	
      lower than or equal to Baa3
	
      lower than or equal to BBB-




 

A Rating Category shall apply at any date if, at such date, the Ratings
are better than or equal to at least two of the three Ratings in any such
Ratings Category, and a higher rating category does not apply. 

 

 

18

 







 

 

“Receivables”: any
accounts receivable of any Person, including, without limitation, any thereof
constituting or evidenced by chattel paper, instruments or general intangibles
(as defined in the Uniform Commercial Code of the State of New York), and all
proceeds thereof and rights (contractual and other) and collateral related
thereto.

“Receivables Subsidiary”:
any special purpose, bankruptcy remote Subsidiary of the Borrower that
purchases, on a revolving basis, Receivables generated by the Borrower or any of
its Subsidiaries.

“Receivables Transaction”:
any transactions or series of related transactions providing for the financing
of Receivables of the Borrower or any of its Subsidiaries.

“Reference Lenders”: Bank
of America, N.A., JPMorgan Chase Bank, ABN Amro Bank N.V., Deutsche Bank AG New
York Branch, Bank of Tokyo-Mitsubishi, Ltd., Sumitomo Mitsui Banking
Corporation, UBS Loan Finance LLC and Wachovia Bank, National
Association.

“Refunded Swingline Loans”: as defined in subsection 2.4(b).

“Refunding Date”: as
defined in subsection 2.4(c).

“Register”: as defined in
subsection 13.6(d).

“Reimbursement Obligation”: the obligation of the Borrower to reimburse the Issuing Lender
pursuant to subsection 5.5(a) for amounts drawn under Letters of
Credit.

“Related Parties”: with
respect to any Person, such Person’s Affiliates and partners, officers,
employees, agents and advisors of such Person and such Person’s
Affiliates.

“Reorganization”: with
respect to any Multiemployer Plan, the condition that such plan is in
reorganization within the meaning of Section 4241 of ERISA.

“Reportable Event”: any of
the events set forth in Section 4043(c) of ERISA, other than those events as to
which the thirty day notice period is waived under subsections .27, .28, .29,
..30, .31, .32, .34 or .35 of PBGC Reg. § 4043.

“Requested Local Currency Loans”: as defined in subsection 2.16(b).

“Requested Multicurrency Loans”: as defined in subsection 2.16(a).

“Requirement of Law”: as
to any Person, the Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and any law, treaty, rule
or regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.

“Responsible Officer”:
with respect to the Borrower, the chief executive officer and the president of
the Borrower or, with respect to financial matters, the chief financial officer
of the Borrower.

 

 

19

 







 

 

“Revolving Credit Commitment”: as to any Lender, the obligation of such Lender to make Revolving
Credit Loans to the Borrower hereunder in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Lender’s
name on Schedule I under the
heading “Revolving Credit Commitment,” as such amount may be reduced or
increased from time to time in accordance with the provisions of this
Agreement.

“Revolving Credit Commitment
Percentage”: as to any Lender at any time, the
percentage which such Lender’s Revolving Credit Commitment at such time
constitutes of the Aggregate Revolving Credit Commitments at such time (or, if
the Revolving Credit Commitments have terminated or expired, the percentage
which (a) the Aggregate Revolving Credit Outstandings of such Lender at such
time then constitutes of (b) the Aggregate Revolving Credit Outstandings of all
Lenders at such time).

“Revolving Credit Loans”:
as defined in subsection 2.1.

“Revolving Credit Note”:
as defined in subsection 3.13(d).

“Revolving Lender”: each
Lender that has a Revolving Credit Commitment hereunder or that holds Revolving
Credit Loans.

“S&P”: Standard &
Poor’s Ratings Services.

“Single Employer Plan”:
any Plan that is covered by Title IV of ERISA, but that is not a Multiemployer
Plan.

“Subsidiary”: as to any
Person, a corporation, limited liability company, partnership or other entity of
which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a “Subsidiary” or to
“Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower.

“Swingline Commitment”:
the obligation of the Swingline Lender to make Swingline Loans pursuant to
subsection 2.3 in an aggregate principal amount at any one time outstanding not
to exceed $100,000,000.

“Swingline Lender”:
JPMorgan Chase Bank, in its capacity as the lender of Swingline
Loans.

“Swingline Loans”: as
defined in subsection 2.3. Swingline Loans will only be made available in
Dollars.

“Swingline Participation Amount”: as defined in subsection 2.4(c).

“Syndication Agents”: as
defined in the preamble hereto.

 

 

20

 







 

 

“Target Operating Day”:
any day that is not (a) a Saturday or Sunday, (b) Christmas Day or New Year’s
Day or (c) any other day on which the Trans-European Real-time Gross Settlement
Operating System (or any successor settlement system) is not operating (as
determined by the Administrative Agent).

“Termination Date”: May
13, 2009.

“Tranche”: the collective
reference to Eurodollar Loans or Multicurrency Loans the then current Interest
Periods with respect to all of which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made on the
same day); Tranches may be identified as “Eurodollar Tranches” or “Multicurrency
Tranches”.

“Transferee”: as defined
in subsection 13.6(f).

“Type”: as to any
Revolving Credit Loan, its nature as an ABR Loan or a Eurodollar
Loan.

1.2        Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in any Notes or any certificate or other document
made or delivered pursuant hereto.

(b)        As used herein and in
any Notes, and any certificate or other document made or delivered pursuant
hereto, accounting terms relating to the Borrower and its Subsidiaries not
defined in subsection 1.1 and accounting terms partly defined in subsection 1.1,
to the extent not defined, shall have the respective meanings given to them
under GAAP.

(c)        The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, subsection, Schedule and Exhibit references are to
this Agreement unless otherwise specified.

(d)        The meanings given to
terms defined herein shall be equally applicable to both the singular and plural
forms of such terms.

SECTION 2

AMOUNT AND TERMS OF COMMITMENTS

2.1        Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each Lender severally agrees to make revolving
credit loans (“Revolving Credit Loans”) in Dollars to the Borrower from time to time during the Commitment
Period so long as after giving effect thereto (i) the Available Revolving Credit
Commitment of each Lender is greater than or equal to zero and (ii) the
Aggregate Total Outstandings of all Lenders do not exceed the Aggregate
Revolving Credit Commitments. During the Commitment Period, the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. 

(b)        The Revolving Credit
Loans may from time to time be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a
combination thereof, as determined by the Borrower and notified to the


 

21

 







 

Administrative Agent in accordance with subsections 2.2 and 3.2,
provided that no Revolving Credit
Loan shall be made as a Eurodollar Loan after the day that is one month prior to
the Termination Date.

2.2        Procedure for Revolving Credit Borrowing. The
Borrower may borrow under the Revolving Credit Commitments during the Commitment
Period on any Business Day, provided that the Borrower shall give the Administrative Agent irrevocable notice
(which notice must be received by the Administrative Agent prior to 10:00 A.M.,
New York City time, (a) three Business Days prior to the requested Borrowing
Date, if all or any part of the requested Revolving Credit Loans are to be
initially Eurodollar Loans or (b) on the requested Borrowing Date, otherwise),
in each case specifying (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR
Loans or a combination thereof and (iv) if the borrowing is to be entirely or
partly of Eurodollar Loans, the amount of such Type of Loan and the length of
the initial Interest Period therefor. Each borrowing under the Revolving Credit
Commitments (other than a borrowing under subsections 2.4, 2.16 and 5.5) shall
be in an amount equal to (x) in the case of ABR Loans, $5,000,000 or a whole
multiple of $1,000,000 in excess thereof (or, if the Aggregate Available
Revolving Credit Commitments are less than $1,000,000, such lesser amount) and
(y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from the Borrower,
the Administrative Agent shall promptly notify each Lender thereof. Prior to
11:00 A.M., New York City time, on the Borrowing Date requested by the Borrower,
each Lender will make an amount equal to its Funding Commitment Percentage of
the principal amount of the Revolving Credit Loans requested to be made on such
Borrowing Date available to the Administrative Agent for the account of the
Borrower at the New York office of the Administrative Agent specified in
subsection 13.2 in funds immediately available to the Administrative Agent.
Except as otherwise provided in subsection 2.16, such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the account
of the Borrower on the books of such office with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.

2.3        Swingline Commitment. (a) Subject to the terms
and conditions hereof, the Swingline Lender agrees to make a portion of the
credit otherwise available to the Borrower under the Revolving Credit
Commitments from time to time during the Commitment Period by making swing line
loans (“Swingline Loans”) to the
Borrower; provided that (i) the
aggregate principal amount of Swingline Loans outstanding at any time shall not
exceed the Swingline Commitment then in effect (notwithstanding that the
Swingline Loans outstanding at any time, when aggregated with the Swingline
Lender’s other outstanding Revolving Credit Loans, may exceed the Swingline
Commitment then in effect) and (ii) the Borrower shall not request, and the
Swingline Lender shall not make, any Swingline Loan if, after giving effect to
the making of such Swingline Loan, the aggregate amount of the Available
Revolving Credit Commitments of the Swingline Lender would be less than zero.
During the Commitment Period, the Borrower may use the Swingline Commitment by
borrowing, repaying and reborrowing, all in accordance with the terms and
conditions hereof. Swingline Loans shall be ABR Loans only.

(b)        The Borrower shall
repay all outstanding Swingline Loans on the Termination Date.

 

 

22

 







 

 

2.4        Procedure for Swingline Borrowing; Refunding of Swingline
Loans. (a) Whenever the Borrower desires that the
Swingline Lender make Swingline Loans it shall give the Swingline Lender
irrevocable telephonic notice confirmed promptly in writing (which telephonic
notice must be received by the Swingline Lender not later than 1:00 P.M., New
York City time, on the proposed Borrowing Date), specifying (i) the amount to be
borrowed and (ii) the requested Borrowing Date (which shall be a Business Day
during the Revolving Commitment Period). Each borrowing under the Swingline
Commitment shall be in an amount equal to $500,000 or a whole multiple of
$100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on the
Borrowing Date specified in a notice in respect of Swingline Loans, the
Swingline Lender shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds equal to the amount of the
Swingline Loan to be made by the Swingline Lender. The Administrative Agent
shall make the proceeds of such Swingline Loan available to the Borrower on such
Borrowing Date by depositing such proceeds in the account of the Borrower with
the Administrative Agent on such Borrowing Date in immediately available
funds.

(b)        The Swingline Lender,
at any time and from time to time in its sole and absolute discretion may, on
behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to
act on its behalf), on one Business Day’s notice given by the Swingline Lender
no later than 12:00 Noon, New York City time, request each Lender (including the
Swingline Lender in its capacity as a Lender having a Revolving Credit
Commitment) to make, and each Lender hereby agrees to make, a Revolving Credit
Loan that is an ABR Loan, in an amount equal to such Lender’s Revolving Credit
Commitment Percentage of the aggregate amount of the Swingline Loans (the
“Refunded Swingline Loans”)
outstanding on the date of such notice, to repay the Swingline Lender. Each
Lender shall make the amount of such Revolving Credit Loan available to the
Administrative Agent at the New York office of the Administrative Agent
specified in subsection 13.2 in immediately available funds, not later than
10:00 A.M., New York City time, one Business Day after the date of such notice.
The proceeds of such Revolving Credit Loans shall be immediately made available
by the Administrative Agent to the Swingline Lender for application by the
Swingline Lender to the repayment of the Refunded Swingline Loans. The Borrower
irrevocably authorizes the Swingline Lender to charge the Borrower’s accounts
with the Administrative Agent (up to the amount available in each such account)
in order to immediately pay the amount of such Refunded Swingline Loans to the
extent amounts received from the Lenders are not sufficient to repay in full
such Refunded Swingline Loans if such deficiency is not otherwise reimbursed by
the Borrower on the Business Day following a written request for such
reimbursement to the Borrower by the Swingline Lender.

(c)        If prior to the time a
Revolving Credit Loan would have otherwise been made pursuant to subsection
2.4(b), one of the events described in subsection 10(e) shall have occurred and
be continuing with respect to the Borrower or if for any other reason, as
determined by the Swingline Lender in its sole discretion, Revolving Credit
Loans may not be made as contemplated by subsection 2.4(b), each Lender shall,
on the date such Revolving Credit Loan was to have been made pursuant to the
notice referred to in subsection 2.4(b) (the “Refunding
Date”), purchase for cash an undivided participating
interest in the then outstanding Swingline Loans by paying to the Swingline
Lender an amount (the “Swingline Participation
Amount”) equal to (i) such Lender’s Revolving Credit
Commitment Percentage times (ii) the sum of the 

 

23

 







 

aggregate principal amount of Swingline Loans then outstanding that were
to have been repaid with such Revolving Loans.

(d)        Whenever, at any time
after the Swingline Lender has received from any Lender such Lender’s Swingline
Participation Amount, the Swingline Lender receives any payment on account of
the Swingline Loans, the Swingline Lender will distribute to such Lender its
Swingline Participation Amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender’s participating
interest was outstanding and funded and, in the case of principal and interest
payments, to reflect such Lender’s pro rata portion of such
payment if such payment is not sufficient to pay the principal of and interest
on all Swingline Loans then due); provided, however, that in the event that such payment
received by the Swingline Lender is required to be returned, such Lender will
return to the Swingline Lender any portion thereof previously distributed to it
by the Swingline Lender.

(e)        Each Lender’s
obligation to make the Loans referred to in subsection 2.4(b) and to purchase
participating interests pursuant to subsection 2.4(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
setoff, counterclaim, recoupment, defense or other right that such Lender or the
Borrower may have against the Swingline Lender, the Borrower or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default or the failure to satisfy any of the other conditions specified
in Section 7; (iii) any adverse change in the condition (financial or otherwise)
of the Borrower; (iv) any breach of this Agreement or any other Loan Document by
the Borrower or any other Lender; or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.

2.5        Facility Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee for the
period from and including the Fee Commencement Date to the Termination Date
computed at the Facility Fee Rate on the average daily amount of the Revolving
Credit Commitment of such Lender (regardless of usage) during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Termination Date or such earlier
date on which the Revolving Credit Commitments shall terminate as provided
herein, commencing on the first of such dates to occur after the date
hereof.

2.6        Termination or Reduction of Commitments. The
Borrower shall have the right, upon not less than five Business Days’ notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the amount of the Revolving Credit Commitments;
provided that no such termination
or reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, either (a) the
Aggregate Available Revolving Credit Commitments would not be greater than or
equal to zero or (b) the Available Revolving Credit Commitments of any Lender
would not be greater than or equal to zero. Any such reduction shall be in an
amount equal to $5,000,000 or a whole multiple thereof and shall reduce
permanently the Revolving Credit Commitments then in effect. The Administrative
Agent shall give each Lender prompt notice of any notice received from the
Borrower pursuant to this subsection 2.6.

 

 

24

 







 

 

2.7        Repayment of Revolving Credit Loans. The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Credit
Loan of such Lender on the Termination Date (or such earlier date on which the
Revolving Credit Loans become due and payable pursuant to Section 10). The
Borrower hereby further agrees to pay interest on the unpaid principal amount of
the Revolving Credit Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the dates, set
forth in subsection 3.4.

2.8        CAF Advances. Subject to the terms and conditions
of this Agreement, the Borrower may borrow CAF Advances from time to time on any
Business Day during the CAF Advance Availability Period. LIBO Rate CAF Advances
may be denominated in Dollars or any other available and freely-convertible
eurocurrency acceptable to the bidding Lender, and Fixed Rate CAF Advances shall
be denominated in Dollars. CAF Advances may be borrowed in amounts such that the
amount of Aggregate Total Outstandings of all Lenders at any time shall not
exceed the Aggregate Revolving Credit Commitments at such time. Within the
limits and on the conditions hereinafter set forth with respect to CAF Advances,
the Borrower from time to time may borrow, repay and reborrow CAF
Advances.

2.9        Procedure for CAF Advance Borrowing. (a) The
Borrower shall request CAF Advances by delivering a CAF Advance Request to the
Administrative Agent, not later than 12:00 Noon (New York City time) four
Business Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
CAF Advance Request), and not later than 10:00 A.M. (New York City time) one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing Date
may solicit bids for CAF Advances on such Borrowing Date in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (or, in the case of CAF Advances to be denominated in a currency other
than Dollars, and amount in such currency the Dollar Equivalent of which is
equal to $5,000,000 or $1,000,000, as the case may be) and having not more than
three alternative CAF Advance Maturity Dates. The CAF Advance Maturity Date for
each CAF Advance shall be the date set forth therefor in the relevant CAF
Advance Request, which date shall be (i) not less than 7 days nor more than 360
days after the Borrowing Date therefor, in the case of a Fixed Rate CAF Advance,
(ii) not less than 30 days nor more than 360 days after the Borrowing Date
therefor, in the case of a LIBO Rate CAF Advance and (iii) not later than the
Termination Date, in the case of any CAF Advance. The Administrative Agent shall
notify each Lender promptly by facsimile transmission of the contents of each
CAF Advance Request received by the Administrative Agent.

(b)        In the case of a LIBO
Rate CAF Advance Request, upon receipt of notice from the Administrative Agent
of the contents of such CAF Advance Request, each Lender may elect, in its sole
discretion, to offer irrevocably to make one or more CAF Advances at the
applicable Eurocurrency Rate plus (or minus) a margin determined by such Lender
in its sole discretion for each such CAF Advance. Any such irrevocable offer
shall be made by delivering a CAF Advance Offer to the Administrative Agent,
before 10:30 A.M. (New York City time) on the day that is three Business Days
before the proposed Borrowing Date, setting forth:

(i)         the maximum
amount of CAF Advances for each CAF Advance Maturity Date and the aggregate
maximum amount of CAF Advances for all CAF Advance 

 

25

 







 

Maturity Dates which such Lender would be willing to make (which amounts
may, subject to subsection 2.8, exceed such Lender’s Revolving Credit
Commitment); and

(ii)         the margin
above or below the applicable Eurocurrency Rate at which such Lender is willing
to make each such CAF Advance. 

The Administrative Agent shall advise the Borrower before 11:00 A.M. (New
York City time) on the date which is three Business Days before the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the Borrower of
the contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on
the date which is three Business Days before the proposed Borrowing
Date.

(c)        In the case of a Fixed
Rate CAF Advance Request, upon receipt of notice from the Administrative Agent
of the contents of such CAF Advance Request, each Lender may elect, in its sole
discretion, to offer irrevocably to make one or more CAF Advances at a rate of
interest determined by such Lender in its sole discretion for each such CAF
Advance. Any such irrevocable offer shall be made by delivering a CAF Advance
Offer to the Administrative Agent before 9:30 A.M. (New York City time) on the
Borrowing Date, setting forth:

(i)         the maximum
amount of CAF Advances for each CAF Advance Maturity Date, and the aggregate
maximum amount for all CAF Advance Maturity Dates, which such Lender would be
willing to make (which amounts may, subject to subsection 2.8, exceed such
Lender’s Revolving Credit Commitment); and

(ii)         the rate of
interest at which such Lender is willing to make each such CAF
Advance.

The Administrative Agent shall advise the Borrower before 10:00 A.M. (New
York City time) on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise the Borrower of the contents of its CAF Advance Offer before
9:15 A.M. (New York City time) on the proposed Borrowing Date.

(d)        Before 11:30 A.M. (New
York City time) three Business Days before the proposed Borrowing Date (in the
case of CAF Advances requested by a LIBO Rate CAF Advance Request) and before
10:30 A.M. (New York City time) on the proposed Borrowing Date (in the case of
CAF Advances requested by a Fixed Rate CAF Advance Request), the Borrower, in
its absolute discretion, shall:

(i)         cancel such CAF
Advance Request by giving the Administrative Agent telephone notice to that
effect, or

(ii)         by giving
telephone notice to the Administrative Agent (immediately confirmed by delivery
to the Administrative Agent of a CAF Advance Confirmation by facsimile
transmission) (A) subject to the provisions of subsection 2.9(e), accept one or
more of the offers made by any Lender or Lenders pursuant to subsection 2.9(b)
or 

 

26

 







 

subsection 2.9(c), as the case may be, and (B) reject any remaining
offers made by Lenders pursuant to subsection 2.9(b) or subsection 2.9(c), as
the case may be.

(e)        The Borrower’s
acceptance of CAF Advances in response to any CAF Advance Offers shall be
subject to the following limitations:

(i)         the amount of
CAF Advances accepted for each CAF Advance Maturity Date specified by any Lender
in its CAF Advance Offer shall not exceed the maximum amount for such CAF
Advance Maturity Date specified in such CAF Advance Offer;

(ii)         the aggregate
amount of CAF Advances accepted for all CAF Advance Maturity Dates specified by
any Lender in its CAF Advance Offer shall not exceed the aggregate maximum
amount specified in such CAF Advance Offer for all such CAF Advance Maturity
Dates;

(iii)        the Borrower may not
accept offers for CAF Advances for any CAF Advance Maturity Date in an aggregate
principal amount in excess of the maximum principal amount requested in the
related CAF Advance Request; and

(iv)        if the Borrower
accepts any of such offers, it must accept offers based solely upon pricing for
each relevant CAF Advance Maturity Date and upon no other criteria whatsoever,
and if two or more Lenders submit offers for any CAF Advance Maturity Date at
identical pricing and the Borrower accepts any of such offers but does not wish
to (or, by reason of the limitations set forth in subsection 2.8, cannot) borrow
the total amount offered by such Lenders with such identical pricing, the
Borrower shall accept offers from all of such Lenders in amounts allocated among
them pro rata according to the amounts offered by such
Lenders (with appropriate rounding, in the sole discretion of the Borrower, to
assure that each accepted CAF Advance is an integral multiple of $1,000,000 or,
in the case of CAF Advances to be denominated in a currency other than Dollars,
an amount in such currency the Dollar Equivalent of which is approximately equal
to $1,000,000); provided that if
the number of Lenders that submit offers for any CAF Advance Maturity Date at
identical pricing is such that, after the Borrower accepts such offers
pro rata in accordance with the foregoing provisions
of this paragraph, the CAF Advance to be made by any such Lender would be less
than $5,000,000 (or, in the case of CAF Advances to be denominated in a currency
other than Dollars, an amount in such currency the Dollar Equivalent of which is
approximately equal to $5,000,000) principal amount, the number of such Lenders
shall be reduced by the Administrative Agent by lot until the CAF Advances to be
made by each such remaining Lender would be in a principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof (or, in the case of CAF
Advances to be denominated in a currency other than Dollars, an amount in such
currency the Dollar Equivalent of which is approximately equal to $5,000,000 or
an integral multiple of $1,000,000 in excess thereof).

(f)         If the Borrower
notifies the Administrative Agent that a CAF Advance Request is cancelled
pursuant to subsection 2.9(d)(i), the Administrative Agent shall give prompt
telephone notice thereof to the Lenders.

 

 

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(g)        If the Borrower
accepts pursuant to subsection 2.9(d)(ii) one or more of the offers made by any
Lender or Lenders, the Administrative Agent promptly shall notify each Lender
which has made such an offer of (i) the aggregate amount of such CAF Advances to
be made on such Borrowing Date for each CAF Advance Maturity Date and (ii) the
acceptance or rejection of any offers to make such CAF Advances made by such
Lender. Before 12:00 Noon (New York City time) on the Borrowing Date specified
in the applicable CAF Advance Request (in the case of CAF Advances denominated
in Dollars) and before the funding time for the relevant currency from time to
time specified by the Administrative Agent by notice to the Lenders (in the case
of CAF Advances denominated in any currency other than Dollars), each Lender
whose CAF Advance Offer has been accepted shall make available to the
Administrative Agent the amount of CAF Advances to be made by such Lender, in
immediately available funds, at the funding office for the relevant currency
specified from time to time by the Administrative Agent by notice to the
Lenders. The Administrative Agent will make such funds available to the Borrower
as soon as practicable on such date at such office of the Administrative Agent.
As soon as practicable after each Borrowing Date, the Administrative Agent shall
notify each Lender of the aggregate amount of CAF Advances advanced on such
Borrowing Date and the respective CAF Advance Maturity Dates thereof.

2.10      Repayment of
CAF Advances. The Borrower hereby unconditionally
promises to pay to the Administrative Agent, for the account of each Lender
which has made a CAF Advance, on the applicable CAF Advance Maturity Date the
then unpaid principal amount of such CAF Advance. The Borrower shall have the
right to prepay any principal amount of any CAF Advance only with the consent of
the Lender to which such CAF Advance is owed. The Borrower hereby further agrees
to pay interest on the unpaid principal amount of each CAF Advance from the
Borrowing Date to the applicable CAF Advance Maturity Date at the rate of
interest specified in the CAF Advance Offer accepted by the Borrower in
connection with such CAF Advance (calculated on the basis of a 360-day year for
actual days elapsed), payable on each applicable CAF Advance Interest Payment
Date.

2.11      Certain
Restrictions with Respect to CAF Advances. A CAF Advance
Request may request offers for CAF Advances to be made on not more than one
Borrowing Date and to mature on not more than three CAF Advance Maturity Dates.
No CAF Advance Request may be submitted earlier than five Business Days after
submission of any other CAF Advance Request.

2.12      Multicurrency
Commitments. Subject to the terms and conditions hereof,
each Multicurrency Lender severally agrees to make revolving credit loans (each,
a “Multicurrency Loan”) in any
Available Foreign Currency to the Borrower from time to time during the
Commitment Period so long as after giving effect thereto (a) the Available
Multicurrency Commitment of each Multicurrency Lender is greater than or equal
to zero, (b) the aggregate outstanding principal amount of Multicurrency Loans,
plus (i) the aggregate
outstanding principal amount of Local Currency Loans and (ii) the aggregate
outstanding amount of L/C Obligations attributable to Letters of Credit
denominated in any currency other than Dollars, does not exceed an amount the
Dollar Equivalent of which is $600,000,000 and (c) the Aggregate Total
Outstandings of all Lenders do not exceed the Aggregate Revolving Credit
Commitments. During the Commitment Period, the Borrower may use the
Multicurrency Commitments by borrowing, repaying the Multicurrency Loans in
whole or in part, and 

 

28

 







 

reborrowing, all in accordance with the terms and conditions hereof. Any
Multicurrency Lender may cause its Multicurrency Loans to be made by any branch,
affiliate or international banking facility of such Multicurrency Lender,
provided, that such Multicurrency
Lender shall remain responsible for all of its obligations hereunder and no
additional taxes, costs or other burdens shall be imposed upon the Borrower or
the Administrative Agent as a result thereof.

2.13      Repayment of
Multicurrency Loans. The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each
Multicurrency Lender the then unpaid principal amount of each Multicurrency Loan
of such Multicurrency Lender on the Termination Date and on such other date(s)
and in such other amounts as may be required from time to time pursuant to this
Agreement. The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Multicurrency Loans advanced to it and from time to time
outstanding until payment thereof in full at the rates per annum, and on the
dates, set forth in subsection 3.4.

2.14      Procedure for
Multicurrency Borrowing. The Borrower may request the
Multicurrency Lenders to make Multicurrency Loans during the Commitment Period
on any Business Day by delivering a Notice of Multicurrency Loan Borrowing. Each
borrowing under the Multicurrency Commitments shall be in an amount in an
Available Foreign Currency the Dollar Equivalent of which is equal to at least
$1,000,000 (or, if the then Aggregate Available Multicurrency Commitments are
less than $1,000,000, such lesser amount). Upon receipt of any such Notice of
Multicurrency Borrowing from the Borrower, the Administrative Agent shall
promptly notify each Multicurrency Lender thereof. Not later than the funding
time for the relevant Available Foreign Currency specified from time to time by
the Administrative Agent by notice to the Borrower and the Multicurrency Lenders
each Multicurrency Lender shall make an amount equal to its Multicurrency
Commitment Percentage of the principal amount of Multicurrency Loans requested
to be made on such Borrowing Date available to the Administrative Agent at the
funding office for the relevant Available Foreign Currency specified from time
to time by the Administrative Agent by notice to the Borrower and the
Multicurrency Lenders in the relevant Available Foreign Currency and in
immediately available funds. The amounts made available by each Multicurrency
Lender will then be made available to the Borrower at such funding office and in
like funds as received by the Administrative Agent.

2.15      Termination or
Reduction of Multicurrency Commitments. The Borrower
shall have the right, upon not less than three Business Days’ notice to the
Administrative Agent (which shall give prompt notice thereof to each
Multicurrency Lender), to terminate the Multicurrency Commitments or, from time
to time, to reduce the amount of the Multicurrency Commitments; provided that no such termination or reduction
shall be permitted if, after giving effect thereto and to any prepayments of the
Loans made on the effective date thereof, the Available Multicurrency Commitment
of any Multicurrency Lender would be less than zero. Any such reduction shall be
in an amount equal to U.S. $1,000,000 or a whole multiple of U.S. $100,000 in
excess thereof and shall reduce permanently the Multicurrency Commitments then
in effect.

2.16      Borrowings of
Revolving Credit Loans and Refunding of Loans. (a) If on
any Borrowing Date on which the Borrower has requested the Multicurrency Lenders
to make Multicurrency Loans (the “Requested Multicurrency
Loans”),

 

 

29

 







 

 

(i)         the aggregate
principal amount of the Requested Multicurrency Loans exceeds the Aggregate
Available Multicurrency Commitments on such Borrowing Date (before giving effect
to the making and payment of any Loans required to be made pursuant to this
subsection 2.16 on such Borrowing Date) and,

(ii)         the Dollar
Equivalent of the amount of such excess is less than or equal to the aggregate
Available Revolving Credit Commitments of all Non-Multicurrency Lenders (before
giving effect to the making and payment of any Loans pursuant to this subsection
2.16 on such Borrowing Date),

each Non-Multicurrency Lender shall make a Revolving Credit Loan to the
Borrower on such Borrowing Date, and the proceeds of such Revolving Credit Loans
shall be simultaneously applied to repay outstanding Revolving Credit Loans,
Local Currency Loans and/or Multicurrency Loans of the Multicurrency Lenders (as
directed by the Borrower) in each case in amounts such that, after giving effect
to (1) such borrowings and repayments and (2) the borrowing from the
Multicurrency Lenders of the Requested Multicurrency Loans, the Committed
Outstanding Percentage of each Lender will equal (as nearly as possible) its
Revolving Credit Commitment Percentage. To effect such borrowings and
repayments, (x) not later than 12:00 Noon, New York City time, on such Borrowing
Date, the proceeds of such Revolving Credit Loans shall be made available by
each Non-Multicurrency Lender to the Administrative Agent at its New York office
specified in subsection 13.2 in Dollars and in immediately available funds and
the Administrative Agent shall apply the proceeds of such Revolving Credit Loans
toward repayment of outstanding Revolving Credit Loans and/or Local Currency
Loans of the Multicurrency Lenders (as directed by the Borrower) and (y)
concurrently with the repayment of such Loans on such Borrowing Date, (I) the
Multicurrency Lenders shall, in accordance with the applicable provisions
hereof, make the Requested Multicurrency Loans in an aggregate amount equal to
the amount so requested by the Borrower (but not in any event greater than the
Aggregate Available Multicurrency Commitments after giving effect to the making
of such repayment of any Loans on such Borrowing Date) and (II) the Borrower
shall pay to the Administrative Agent for the account of the Lenders whose Loans
to the Borrower are repaid on such Borrowing Date pursuant to this subsection
2.16 all interest accrued on the amounts repaid to the date of repayment,
together with any amounts payable pursuant to subsection 3.11 in connection with
such repayment.

(b)        Subject to the
limitations on borrowings contained in a given Local Currency Facility, if on
any Borrowing Date on which a Foreign Subsidiary Borrower has requested Local
Currency Lenders to make Local Currency Loans (the “Requested Local Currency Loans”) under a Local
Currency Facility to which such Foreign Subsidiary Borrower and Local Currency
Lenders are parties, (i) the aggregate principal amount of the Requested Local
Currency Loans (A) exceeds the aggregate available amount of the commitments of
such Local Currency Lenders under such Local Currency Facility on such Borrowing
Date (before giving effect to the making and payment of any Revolving Credit
Loans required to be made pursuant to this subsection 2.16 on such Borrowing
Date) or (B) together with the aggregate then outstanding principal amount of
Multicurrency Loans and the aggregate outstanding amount of L/C Obligations
attributable to Letters of Credit denominated in any currency other than
Dollars, would exceed an amount of which the Dollar Equivalent is $600,000,000,
(ii) after giving effect to the Requested Local Currency Loans, the Dollar
Equivalent of the aggregate outstanding principal amount of Local 

 

30

 







 

Currency Loans of such Foreign Subsidiary Borrower will be less than or
equal to the aggregate commitments of such Local Currency Lenders under such
Local Currency Facility and (iii) the Dollar Equivalent of the amount of the
excess described in clause (i) above is less than or equal to the Aggregate
Available Revolving Credit Commitments of all Lenders other than such Local
Currency Lenders (before giving effect to the making and payment of any
Revolving Credit Loans pursuant to this subsection 2.16 on such Borrowing Date),
each such other Lender shall make a Revolving Credit Loan to the Borrower, on
such Borrowing Date, and the proceeds of such Revolving Credit Loans shall be
simultaneously applied to repay outstanding Revolving Credit Loans,
Multicurrency Loans and/or Local Currency Loans of such Local Currency Lenders
(as directed by the Borrower) in each case in amounts such that, after giving
effect to (1) such borrowings and repayments and (2) the borrowing from such
Local Currency Lenders of the Requested Local Currency Loans, the Committed
Outstandings Percentage of each Lender will equal (as nearly as possible) its
Revolving Credit Commitment Percentage and the Dollar Equivalent of the
aggregate outstanding principal amount of Multicurrency Loans and Local Currency
Loans will not exceed $600,000,000. To effect such borrowings and repayments,
(x) not later than 12:00 Noon, New York City time, on such Borrowing Date, the
proceeds of such Revolving Credit Loans shall be made available by each such
other Lender to the Administrative Agent at its New York office specified in
subsection 13.2 in Dollars and in immediately available funds and the
Administrative Agent shall apply the proceeds of such Revolving Credit Loans
toward the repayment of outstanding Revolving Credit Loans, Multicurrency Loans
and/or Local Currency Loans of such Local Currency Lenders (as directed by the
Borrower) and (y) concurrently with the repayment of such Revolving Credit Loans
on such Borrowing Date, (I) such Local Currency Lenders shall, in accordance
with the applicable provisions hereof, make the Requested Local Currency Loans
in an aggregate amount equal to the amount so requested by such Foreign
Subsidiary Borrower and (II) the relevant Foreign Subsidiary Borrower shall pay
to the Administrative Agent for the account of the Lenders whose Loans to such
Borrower are repaid on such Borrowing Date pursuant to this subsection 2.16 all
interest accrued on the amounts repaid to the date of repayment, together with
any amounts payable pursuant to subsection 3.11 in connection with such
repayment. 

(c)        If any borrowing of
Revolving Credit Loans is required pursuant to this subsection 2.16, the
Borrower shall notify the Administrative Agent in the manner provided for
Revolving Credit Loans in subsection 2.2, except that the minimum borrowing
amounts set forth in subsection 2.2 shall not be applicable to the extent that
such minimum borrowing amounts exceed the amounts of Revolving Credit Loans
required to be made pursuant to this subsection 2.16.

 

 

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SECTION 3

CERTAIN PROVISIONS

APPLICABLE TO THE LOANS

3.1        Optional and Mandatory Prepayments. (a) The
Borrower may at any time and from time to time prepay the Loans, in whole or in
part, without premium or penalty (other than any amounts payable pursuant to
subsection 3.11 if such prepayment is of Eurodollar Loans and is made on a day
other than the last day of the Interest Period with respect thereto), upon at
least four Business Days’ irrevocable notice to the Administrative Agent,
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein. Partial prepayments of Loans shall be in an
aggregate principal amount of at least $1,000,000 or an integral multiple of
$100,000 in excess thereof.

(b)        The Borrower may at
any time and from time to time prepay, without premium or penalty (other than
any amounts payable pursuant to subsection 3.11 if such prepayment is of
Multicurrency Loans and is made on a day other than the last day of the Interest
Period with respect thereto), the Multicurrency Loans, in whole or in part, upon
at least three Business Days’ irrevocable notice to the Administrative Agent
specifying the date and amount of prepayment. Upon the receipt of any such
notice, the Administrative Agent shall promptly notify each Multicurrency Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein. Partial prepayments of
Multicurrency Loans shall be in an aggregate principal amount the Dollar
Equivalent of which is at least $1,000,000 or an integral multiple of $100,000
in excess thereof.

(c)        (i)         If,
at any time during the Commitment Period, for any reason the Aggregate Total
Outstandings of all Lenders exceed the Aggregate Revolving Credit Commitments
then in effect, the Borrower shall, without notice or demand, immediately prepay
the Revolving Credit Loans and/or the Multicurrency Loans in amounts such that
the sum of (A) the aggregate principal amount of the Revolving Credit Loans so
prepaid and (B) the Dollar Equivalent of the aggregate principal amount of the
Multicurrency Loans so prepaid, equals or exceeds the amount of such
excess.

(ii)         If, at any time
during the Commitment Period, for any reason either (1) the Aggregate Total
Outstandings of all Multicurrency Lenders exceed the Aggregate Revolving Credit
Commitments of the Multicurrency Lenders, (2) the Aggregate Multicurrency
Outstandings exceed the aggregate Multicurrency Commitments, (3) the sum of the
Aggregate Multicurrency Outstandings plus the Dollar Equivalent of (x) the aggregate outstanding principal amount
of Local Currency Loans and (y) the aggregate outstanding amount of L/C
Obligations attributable to Letters of Credit denominated in currencies other
than Dollars, exceeds the aggregate Multicurrency Commitments or (4) the Dollar
Equivalent of all L/C Obligations attributable to Letters of Credit denominated
in currencies other than Dollars exceeds, in the aggregate, $600,000,000, the
Borrower shall, without notice or demand, immediately prepay the Revolving
Credit Loans and/or 

 

32

 







 

the Multicurrency Loans and/or Local Currency Loans and/or cash
collateralize the L/C Obligations in amounts such that any such excess is
eliminated.

(iii)        Each prepayment of
Loans pursuant to this subsection 3.1(c) shall be accompanied by any amounts
payable under subsection 3.11 in connection with such prepayment.

(iv)        Notwithstanding the
foregoing, mandatory prepayments of Revolving Credit Loans or Multicurrency
Loans that would otherwise be required pursuant to this subsection 3.1(c) solely
as a result of fluctuations in Exchange Rates from time to time shall only be
required to be made pursuant to this subsection 3.1(c) on the last Business Day
of each month on the basis of the Exchange Rate in effect on such Business
Day.

3.2        Conversion and Continuation Options. (a) The
Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by
giving the Administrative Agent at least two Business Days’ prior irrevocable
notice of such election. The Borrower may elect from time to time to convert ABR
Loans to Eurodollar Loans by giving the Administrative Agent at least three
Business Days’ prior irrevocable notice of such election. Any such notice of
conversion to Eurodollar Loans shall specify the length of the initial Interest
Period therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding Eurodollar
Loans and ABR Loans may be converted as provided herein, provided that (i) no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Majority Lenders have determined that such a
conversion is not appropriate and (ii) no Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Termination
Date.

(b)        Any Eurodollar Loans
may be continued as such upon the expiration of the then current Interest Period
with respect thereto by the Borrower giving notice to the Administrative Agent,
in accordance with the applicable provisions of the term “Interest Period” set
forth in subsection 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Majority Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the Termination Date, and
provided, further, that if the Borrower shall fail to give
such notice or if such continuation is not permitted, such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.

(c)        Any Multicurrency
Loans may be continued as such upon the expiration of the then current Interest
Period with respect thereto by the Borrower giving a Notice of Multicurrency
Loan Continuation, provided, that
if the Borrower shall fail to give such Notice of Multicurrency Loan
Continuation by the deadline specified therefor in Schedule II, such Multicurrency Loans shall
automatically be continued for an Interest Period of one month.



 

33

 







 

 

3.3        Minimum Amounts and Maximum Number of Tranches.
All borrowings, conversions and continuations of Revolving Credit Loans and
Multicurrency Loans hereunder and all selections of Interest Periods hereunder
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, (i) the aggregate principal amount of the Eurodollar
Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and (ii) the aggregate principal amount
of the Multicurrency Loans comprising each Multicurrency Tranche shall be in an
amount the Dollar Equivalent of which is at least $5,000,000. In no event shall
there be more than seven Tranches outstanding at any time.

3.4        Interest Rates and Payment Dates. (a) Each
Eurodollar Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurocurrency Rate
determined for such Interest Period plus the Applicable Margin in effect for such day.

(b)        Each ABR Loan shall
bear interest at a rate per annum equal to the ABR plus the Applicable Margin.

(c)        Each Multicurrency
Loan shall bear interest for each day that it is outstanding at a rate per annum
equal to the Eurocurrency Rate plus the Applicable Margin in effect for such day.

(d)        Each CAF Advance shall
bear interest at the rate determined in accordance with subsection
2.9.

(e)        If all or a portion of
(i) any principal of any Loan, (ii) any interest payable thereon, (iii) any
facility fee or (iv) any other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), the
principal of the Loans and/or any such overdue interest, commitment fee or other
amount shall bear interest at a rate per annum which is (x) in the case of
principal, the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection plus 2% or (y) in the case of any such overdue
interest, facility fee or other amount, the rate described in paragraph (b) of
this subsection plus 2%, in each
case from the date of such non-payment until such overdue principal, interest,
facility fee or other amount is paid in full (as well after as before
judgment).

(f)         Interest
pursuant to this subsection shall be payable in arrears on each Interest Payment
Date or CAF Advance Interest Payment Date, as the case may be, provided that interest accruing pursuant to
paragraph (e) of this subsection shall be payable from time to time on
demand.

3.5        Computation of Interest and Fees. (a) All
interest and fees hereunder shall be computed on the basis of a year of 360
days, except that (i) interest computed by reference to the ABR at times when
the ABR is based on the Prime Rate shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and (ii) interest computed with respect to
Loans denominated in English Pounds Sterling shall be computed on the basis of a
year of 365 days (or 366 days in a leap year), and in each case shall be payable
for the actual 

 

34

 







 

number of days elapsed (including the first day but excluding the last
day). The applicable ABR or Eurocurrency Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error. The Administrative Agent shall as soon as practicable notify the Borrower
and the Lenders of each determination of a Eurocurrency Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR, the Eurocurrency
Reserve Requirements, the C/D Assessment Rate or the C/D Reserve Percentage
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the Lenders of the effective date and the amount of each
such change in interest rate.

(b)        Each determination of
an interest rate by the Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsections
3.4(a), (b) or (d).

(c)        If any Reference
Lender shall for any reason no longer have a Commitment or any Loans, such
Reference Lender shall thereupon cease to be a Reference Lender, and if, as a
result, there shall only be one Reference Lender remaining, the Administrative
Agent (after consultation with the Lenders and with the consent of the Borrower
(which consent shall not be unreasonably withheld)) shall, by notice to the
Borrower and the Lenders, designate another Lender as a Reference Lender so that
there shall at all times be at least two Reference Lenders.

(d)        Each Reference Lender
shall use its best efforts to furnish quotations of rates to the Administrative
Agent as contemplated hereby. If any of the Reference Lenders shall be unable or
shall otherwise fail to supply such rates to the Administrative Agent upon its
request, the rate of interest shall, subject to the provisions of subsection
3.6, be determined on the basis of the quotations of the remaining Reference
Lenders or Reference Lender.

3.6        Inability to Determine Interest Rate. If prior to
the first day of any Interest Period:

(a)        the Administrative
Agent shall have determined (which determination shall be conclusive and binding
upon the Borrower) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurocurrency Rate for such Interest Period, or

(b)        the Administrative
Agent shall have received notice from the Majority Lenders or the Majority
Multicurrency Lenders, as the case may be, that the Eurocurrency Rate determined
or to be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such Lenders) of
making or maintaining their affected Loans during such Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (w) any Eurodollar Loans or Multicurrency Loans, as the case may be,
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, provided, that,
notwithstanding the provisions of subsection 2.2 or 2.14, the Borrower may
cancel the request for such Eurodollar Loan or Multicurrency Loan, as the case
may be, by written notice to the 

 

35

 







 

Administrative Agent one Business Day prior to the first day of such
Interest Period and the Borrower shall not be subject to any liability pursuant
to subsection 3.11 with respect to such cancelled request, (x) any Loans that
were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be continued as ABR Loans, (y) any outstanding Eurodollar
Loans shall be converted, on the first day of such Interest Period, to ABR Loans
and (z) any Multicurrency Loans to which such Interest Period relates shall be
repaid on the first day of such Interest Period. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans or
Multicurrency Loans shall be made or continued as such, nor shall the Borrower
have the right to convert ABR Loans to Eurodollar Loans.

3.7        Pro Rata Treatment and Payments. (a) Except as
provided in subsection 2.16 and in the immediately succeeding sentence of this
paragraph, each payment of principal or interest in respect of the Loans shall
be made pro rata according to the amounts then due and owing
to the respective Lenders. Each payment of principal and interest in respect of
any optional prepayment of Revolving Credit Loans or Multicurrency Loans shall
be made pro rata according to the amounts then due and owing
to the respective Revolving Lender or Multicurrency Lender, as the case may
be.

(b)        Except as provided in
subsection 2.16, each borrowing by the Borrower of Revolving Credit Loans from
the Lenders hereunder shall be made pro rata according to the
Funding Commitment Percentages of the Lenders in effect on the date of such
borrowing. Each payment by the Borrower on account of any facility fee hereunder
and any reduction of the Revolving Credit Commitments of the Lenders shall be
allocated by the Administrative Agent among the Lenders pro rata according to the Revolving Credit Commitment Percentages of the Lenders.
Except as provided in subsection 2.16, each payment (including each prepayment)
by the Borrower on account of principal of and interest on the Revolving Credit
Loans shall be made pro
rata according to the respective
outstanding principal amounts of the Revolving Credit Loans then due and owing
to the Lenders. All payments (including prepayments) to be made by the Borrower
hereunder in respect of amounts denominated in Dollars, whether on account of
principal, interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent’s office specified in subsection 13.2, in Dollars and
in immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans or Multicurrency
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day, and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension. If any payment on a Eurodollar Loan or a
Multicurrency Loan becomes due and payable on a day other than a Business Day,
the maturity of such payment shall be extended to the next succeeding Business
Day (and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension) unless the result of
such extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding Business
Day.

(c)        Each borrowing of
Multicurrency Loans by the Borrower shall be made, and any reduction of the
Multicurrency Commitments shall be allocated by the Administrative Agent,
pro 

 

36

 







 

rata according to the Multicurrency Commitment
Percentages of the Multicurrency Lenders. Each payment (including each
prepayment) by the Borrower on account of principal of and interest on
Multicurrency Loans shall be allocated by the Administrative Agent
pro rata according to the
respective principal amounts of the Multicurrency Loans then due and owing by
the Borrower to each Multicurrency Lender. All payments (including prepayments)
to be made by the Borrower on account of Multicurrency Loans hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without
set-off or counterclaim and shall be made at or before the payment time for the
currency of such Multicurrency Loan from time to time specified by the
Administrative Agent by notice to the Multicurrency Lenders and the Borrower, on
the due date thereof to the Administrative Agent, for the account of the
Multicurrency Lenders, at the payment office for the currency of such
Multicurrency Loan from time to time specified by the Administrative Agent by
notice to the Multicurrency Lenders and the Borrower, in the currency of such
Multicurrency Loan and in immediately available funds. The Administrative Agent
shall distribute such payments to the Multicurrency Lenders entitled to receive
the same promptly upon receipt in like funds as received.

(d)        Unless the
Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its
share of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount available
to the Administrative Agent, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to (i) the daily
average Federal Funds Effective Rate (in the case of a borrowing of Revolving
Credit Loans or CAF Advances denominated in Dollars) and (ii) the Administrative
Agent’s reasonable estimate of its average daily cost of funds (in the case of a
borrowing of Multicurrency Loans or CAF Advances denominated in a currency other
than Dollars), in each case for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender’s share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon equal to (i) the rate per annum applicable to ABR Loans
hereunder (in the case of a borrowing of Revolving Credit Loans or CAF Advances
or CAF Advances denominated in Dollars) and (ii) the Administrative Agent’s
reasonable estimate of its average daily cost of funds plus the Applicable Margin applicable to
Multicurrency Loans (in the case of a borrowing of Multicurrency Loans or CAF
Advances denominated in a currency other than Dollars), on demand, from the
Borrower.

3.8        Illegality. Notwithstanding any other provision
herein, if after the date hereof the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain Eurodollar Loans or Multicurrency
Loans as contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurodollar Loans or Multicurrency Loans, continue Eurodollar
Loans or Multicurrency Loans as such and convert ABR Loans to Eurodollar Loans
shall forthwith be cancelled, (b) such Lender’s Loans then outstanding as
Eurodollar Loans, if any, shall be 

 

37

 







 

converted automatically to ABR Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law and (c) such Lender’s Multicurrency Loans shall be
prepaid on the last day of the then current Interest Period with respect
thereto. If any such conversion of a Eurodollar Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 3.11.

3.9        Requirements of Law. (a) If the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof (or, in the case of LIBO Rate CAF
Advances, made subsequent to acceptance by the Borrower of such LIBO Rate CAF
Advance):

(i)         shall subject
any Lender to any tax of any kind whatsoever with respect to this Agreement, any
Note, any Letter of Credit, any Application, any Eurodollar Loan, Multicurrency
Loan or LIBO Rate CAF Advance made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded Taxes
covered by subsection 3.10 and changes in the rate of tax on the overall net
income of such Lender);

(ii)         shall impose,
modify or hold applicable any reserve, special deposit, compulsory loan or
similar requirement against assets held by, deposits or other liabilities in or
for the account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not otherwise
included in the determination of the Eurocurrency Rate; or


	
      (iii)
	
      shall impose on such Lender any other
condition;




and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans, Multicurrency
Loans, LIBO Rate CAF Advances or issuing or participating in Letters of Credit
or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, the Borrower shall promptly pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduced amount
receivable; provided, that the
Borrower shall not be required to pay to any Lender any amounts under this
paragraph for any period prior to the date on which such Lender gives notice to
the Borrower that such amounts are payable unless such Lender gives such notice
within 180 days after it became aware or should have become aware of the event
giving rise to such payment obligation.

(b)        If any Lender shall
have determined that after the date hereof the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof shall have the effect of reducing the rate of return on such
Lender’s or such corporation’s capital as a consequence of its obligations
hereunder or under any Letter of Credit to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into 

 

38

 







 

consideration such Lender’s or such corporation’s policies with respect
to capital adequacy) by an amount deemed by such Lender to be material, then
from time to time, the Borrower shall promptly pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction;
provided, that the Borrower shall
not be required to pay to any Lender any amounts under this paragraph for any
period prior to the date on which such Lender gives notice to the Borrower that
such amounts are payable unless such Lender gives such notice within 180 days
after it became aware or should have become aware of the event giving rise to
such payment obligation.

(c)        If any Lender becomes
entitled to claim any additional amounts pursuant to this subsection, it shall
promptly notify the Borrower (with a copy to the Administrative Agent) of the
event by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to this subsection submitted by such Lender
to the Borrower (with a copy to the Administrative Agent) shall be conclusive in
the absence of manifest error. The agreements in this subsection shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.

3.10      Taxes. (a) All payments made by the Borrower
under any Loan Document shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, any Loan Document). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
(“Non-Excluded Taxes”) are
required to be withheld from any amounts payable to the Administrative Agent or
any Lender hereunder or under any Loan Document, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in such Loan Document; provided, however, that the Borrower shall not be required
to increase any such amounts payable to any Lender that is not organized under
the laws of the United States of America or a state thereof if such Lender fails
to comply with the requirements of paragraph (b) of this subsection. Whenever
any Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and each other Loan Document and the
payment of the Loans and all other amounts payable hereunder and
thereunder.

 

 

39

 







 

 

(b)        Each Lender (or
Transferee) that is not a citizen or resident of the United States of America, a
corporation, partnership or other entity created or organized in or under the
laws of the United States of America (or any jurisdiction thereof), or any
estate or trust that is subject to federal income taxation regardless of the
source of its income (a “Non-U. S. Lender”) shall deliver to the Borrower and the Administrative Agent (or, in the
case of a Participant, to the Lender from which the related participation shall
have been purchased) two copies of either U.S. Internal Revenue Service Form
W-8BEN or Form W-8ECI, or, in the case of a Non-U. S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of “portfolio interest” a statement substantially in
the form of Exhibit J and a Form
W-8BEN, or any subsequent versions thereof or successors thereto properly
completed and duly executed by such Non-U. S. Lender claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U. S. Lender on or before the date it becomes a party to
any Loan Document (or, in the case of any Participant, on or before the date
such Participant purchases the related participation). In addition, each Non-U.
S. Lender shall deliver such forms promptly upon the obsolescence or invalidity
of any form previously delivered by such Non-U. S. Lender. Each Non-U. S. Lender
shall promptly notify the Borrower at any time it determines that it is no
longer in a position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Non-U. S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U. S. Lender is not legally able to
deliver.

(c)        A Lender that is
entitled to an exemption from or reduction of non-U. S. withholding tax under
the law of the jurisdiction in which the Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally entitled to
complete, execute and deliver such documentation and in such Lender’s reasonable
judgment such completion, execution or submission would not materially prejudice
the legal position of such Lender.

3.11      Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans,
Local Currency Loans, Multicurrency Loans or CAF Advances after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower or any Foreign Subsidiary Borrower in
making any prepayment after the Borrower or such Foreign Subsidiary Borrower has
given a notice thereof in accordance with the provisions of this Agreement or
any other Loan Document or (c) the making of a prepayment of Eurodollar Loans,
Local Currency Loans, Multicurrency Loans or CAF Advances or the conversion of
Eurodollar Loans to ABR Loans on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of 

 

40

 







 

such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) or, in the case of CAF Advances, the applicable CAF Advance
Maturity Date (or proposed CAF Advance Maturity Date), in each case at the
applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin or any positive margin applicable to CAF Advances
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank eurodollar market. This covenant shall survive the
termination of this Agreement and each other Loan Document and the payment of
the Loans and all other amounts payable hereunder and thereunder.

3.12      Change of
Lending Office; Removal of Lender. Each Lender agrees
that if it makes any demand for payment under subsection 3.9 or 3.10(a), or if
any adoption or change of the type described in subsection 3.8 shall occur with
respect to it, (i) it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to designate
a different lending office if the making of such a designation would reduce or
obviate the need for the Borrower to make payments under subsection 3.9 or
3.10(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 3.8 or (ii) it will, upon at least five Business Days’
notice from the Borrower to such Lender and the Administrative Agent, assign,
pursuant to and in accordance with the provisions of subsection 13.6(c), to one
or more Assignees designated by the Borrower all, but not less than all, of such
Lender’s rights and obligations hereunder (other than rights in respect of such
Lender’s outstanding CAF Advance), without recourse to or warranty by, or
expense to, such Lender, for a purchase price equal to the outstanding principal
amount of each Revolving Credit Loan then owing to such Lender plus any accrued but unpaid interest thereon and
any accrued but unpaid facility fees and utilization fees owing thereto and, in
addition, all additional costs and reimbursements, expense reimbursements and
indemnities, if any, owing in respect of such Lender’s Commitment hereunder at
such time (including any amount that would be payable under subsection 3.11 if
such assignment were, instead, a prepayment in full of all amounts owing to such
Lender) shall be paid to such Lender.

3.13      Evidence of
Debt. (a) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing indebtedness of the
Borrower to such Lender resulting from each Loan of such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.

(b)        The Administrative
Agent shall maintain the Register pursuant to subsection 13.6(d), and a
subaccount therein for each Lender, in which shall be recorded (i) in the case
of Revolving Credit Loans and Swingline Loans, the amount of each Revolving
Credit Loan or Swingline Loan made hereunder, the Type thereof and each Interest
Period applicable thereto, (ii) in the case of Multicurrency Loans, the amount
and currency of each Multicurrency Loans and each Interest Period applicable
thereto, (iii) in the case of CAF Advances, the amount and currency of each CAF
Advance made hereunder, the CAF Advance Maturity Date thereof, the interest rate
applicable thereto and each CAF Advance Interest Payment Date applicable
thereto, (iv) the amount of any principal or interest due and payable or to
become due and payable from 

 

41

 







 

the Borrower to each Lender hereunder and (v) both the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender’s share thereof.

(c)        The entries made in
the Register and the accounts of each Lender maintained pursuant to subsection
3.13(a) shall, to the extent permitted by applicable law, be prima facie
evidence of the existence and amounts of the obligations of the Borrower therein
recorded; provided,
however, that the failure of any
Lender or the Administrative Agent to maintain the Register or any such account,
or any error therein, shall not in any manner affect the obligation of the
Borrower to repay (with applicable interest) the Loans made to such Borrower by
such Lender in accordance with the terms of this Agreement.

(d)        The Borrower agrees
that, upon the request to the Administrative Agent by any Lender, the Borrower
will execute and deliver to such Lender a promissory note of the Borrower
evidencing the Revolving Credit Loans of such Lender, substantially in the form
of Exhibit A with appropriate insertions as to date and principal amount (a
“Revolving Credit Note”).

(e)        The Borrower agrees
that, upon the request to the Administrative Agent by any Lender, the Borrower
will execute and deliver to such Lender a promissory note of the Borrower
evidencing the CAF Advances of such Lender, substantially in the form of Exhibit
B with appropriate insertions (a “CAF Advance
Note”).

SECTION 4

LOCAL CURRENCY FACILITIES

4.1        Terms of Local Currency Facilities. (a) Subject
to the provisions of this Section 4, the Borrower may in its discretion from
time to time designate any Subsidiary of the Borrower organized under the laws
of any jurisdiction outside the United States as a “Foreign Subsidiary Borrower” and any Qualified
Credit Facility to which such Foreign Subsidiary Borrower and any one or more
Lenders (or its Affiliates, agencies or branches) is a party as a
“Local Currency Facility”, with
the consent of each such Lender in its sole discretion, by delivering a Local
Currency Facility Addendum to the Administrative Agent and the Lenders (through
the Administrative Agent) executed by the Borrower, each such Foreign Subsidiary
Borrower and each such Lender, provided, that on the effective date of such designation no Default or Event of
Default shall have occurred and be continuing. Concurrently with the delivery of
a Local Currency Facility Addendum, the Borrower or the relevant Foreign
Subsidiary Borrower shall furnish to the Administrative Agent copies of all
documentation executed and delivered by such Foreign Subsidiary Borrower in
connection therewith, together with, if applicable, an English translation
thereof. Except as otherwise provided in this Section 4 or in the definition of
“Qualified Credit Facility” in
subsection 1.1, the terms and conditions of each Local Currency Facility shall
be determined by mutual agreement of the relevant Foreign Subsidiary Borrower(s)
and Local Currency Lender(s). The documentation governing each Local Currency
Facility shall (i) contain an express acknowledgement that such Local Currency
Facility shall be subject to the provisions of this Section 4, (ii) if more than
one Lender is a party thereto, designate a Local Currency Facility Agent for
such Local Currency Facility and (iii) include an opinion of counsel reasonably
satisfactory to the Administrative Agent from the jurisdiction in which such
Local Currency Facility is established that the documentation governing such
Local Currency Facility is enforceable in accordance with its terms. Each of the


 

42

 







 

Borrower and, by agreeing to any Local Currency Facility designation as
contemplated hereby, each relevant Local Currency Lender (if any) party thereto
which is an Affiliate, branch or agency of a Lender, acknowledges and agrees
that each reference in this Agreement to any Lender shall, to the extent
applicable, be deemed to be a reference to such Local Currency Lender. In the
event of any inconsistency between the terms of this Agreement and the terms of
any Local Currency Facility, the terms of this Agreement shall
prevail.

(b)        The documentation
governing each Local Currency Facility shall set forth (i) the maximum amount
(expressed in Dollars) available to be borrowed from all Local Currency Lenders
under such Local Currency Facility (as the same may be reduced from time to
time, a “Local Currency Facility Maximum Borrowing
Amount”) and (ii) with respect to each Local Currency
Lender party to such Local Currency Facility, the maximum amount (expressed in
Dollars) available to be borrowed from such Local Currency Lender thereunder (as
the same may be reduced from time to time, a “Local
Currency Lender Maximum Borrowing Amount”).

(c)        Except as otherwise
required by applicable law, in no event shall the Local Currency Lenders party
to a Local Currency Facility have the right to accelerate the Local Currency
Loans outstanding thereunder, or to terminate their commitments (if any) to make
such Local Currency Loans prior to the earlier of the stated termination date in
respect thereof or the Termination Date, except, in each case, in connection
with an acceleration of the Loans or a termination of the Commitments pursuant
to Section 10 hereof, provided,
that nothing in this paragraph (c) shall be deemed to require any Local Currency
Lender to make a Local Currency Loan if the applicable conditions precedent to
the making of such Local Currency Loan set forth in the documentation governing
the relevant Local Currency Facility have not been satisfied. No Local Currency
Loan may be made under a Local Currency Facility if (i) after giving effect
thereto, the conditions precedent in subsection 7.2 hereof would not be
satisfied or (ii) after giving effect to the making of such Local Currency Loan
and the simultaneous application of the proceeds thereof, (A) the Aggregate
Total Outstandings of all Lenders at any time exceeds the Aggregate Revolving
Credit Commitments or (B) the Dollar Equivalent of the aggregate outstanding
principal amount of Multicurrency Loans, Local Currency Loans and L/C
Obligations attributable to Letters of Credit denominated in any currency other
than Dollars would exceed $600,000,000.

(d)        The relevant Foreign
Subsidiary Borrower shall furnish to the Administrative Agent copies of any
amendment, supplement or other modification (including any change in commitment
amounts or in the Local Currency Lenders participating in any Local Currency
Facility) to the terms of any Local Currency Facility promptly after the
effectiveness thereof (together with, if applicable, an English translation
thereof). If any such amendment, supplement or other modification to a Local
Currency Facility shall (i) add a Local Currency Lender as a Local Currency
Lender thereunder or (ii) change the Local Currency Facility Maximum Borrowing
Amount or any Local Currency Lender Maximum Borrowing Amount with respect
thereto, the Borrower shall promptly furnish an appropriately revised Local
Currency Facility Addendum, executed by the Borrower, the relevant Foreign
Subsidiary Borrower and the affected Local Currency Lenders (or any agent acting
on their behalf), to the Administrative Agent and the Lenders (through the
Administrative Agent).

 

 

43

 







 

 

(e)        The Borrower may
terminate its designation of a facility as a Local Currency Facility, with the
consent of each Local Currency Lender party thereto in its sole discretion, by
written notice to the Administrative Agent, which notice shall be executed by
the Borrower, the relevant Foreign Subsidiary Borrower and each Local Currency
Lender party to such Local Currency Facility (or any agent acting on their
behalf). Once notice of such termination is received by the Administrative
Agent, such Local Currency Facility and the loans and other obligations
outstanding thereunder shall immediately cease to be subject to the terms of
this Agreement.

4.2        Reporting of Local Currency Outstandings. (a) On
the date of the making of any Local Currency Loan having a maturity of 30 or
more days to a Foreign Subsidiary Borrower and on the last Business Day of each
month on which a Foreign Subsidiary Borrower has any outstanding Local Currency
Loans, the Local Currency Facility Agent for such Foreign Subsidiary Borrower,
shall deliver to the Administrative Agent a Notice of Local Currency
Outstandings and the Administrative Agent shall deliver a copy of such Notice of
Local Currency Outstandings to the Lenders. The Administrative Agent will, at
the request of any Local Currency Facility Agent, advise such Local Currency
Facility Agent of the Exchange Rate used by the Administrative Agent in
calculating the Dollar Equivalent of Local Currency Loans under the related
Local Currency Facility on any date.

(b)        For purposes of any
calculation under this Agreement in which the amount of the Aggregate Local
Currency Outstandings of any Lender is a component, the Administrative Agent
shall make such calculation on the basis of the Notices of Local Currency
Outstanding received by it at least two Business Days prior to the date of such
calculation.

SECTION 5

LETTERS OF CREDIT

5.1        L/C Commitment. (a) Subject to the terms and
conditions hereof, the Issuing Lender, in reliance on the agreements of the
other Lenders set forth in subsection 5.4(a), agrees to issue letters of credit
(“Letters of Credit”) for the
account of the Borrower on any Business Day during the Commitment Period in such
form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment, (ii) the
aggregate amount of the Available Revolving Credit Commitments would be less
than zero or (iii) the Dollar Equivalent of the aggregate outstanding principal
amount of Multicurrency Loans, Local Currency Loans and L/C Obligations
attributable to Letters of Credit denominated in any currency other than Dollars
would exceed $600,000,000. Each Letter of Credit shall (i) be denominated in
Dollars or any Available Foreign Currency or any other currency acceptable to the Issuing Lender (provided, that the Dollar Equivalent of all L/C
Obligations attributable to Letters of Credit denominated in currencies other
than Dollars shall not exceed, in the aggregate, $600,000,000), (ii) have a face
amount of at least $1,000,000 (unless otherwise agreed by the Issuing Lender)
and (iii) expire no later than the date that is five Business Days prior to the
Termination Date. 

 

 

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(b)        The Issuing Lender
shall not at any time be obligated to issue any Letter of Credit if such
issuance would conflict with, or cause the Issuing Lender or any L/C Participant
to exceed any limits imposed by, any applicable Requirement of Law.

(c)        Existing Letters of
Credit shall be deemed to be issued under this Agreement on the Closing
Date.

5.2        Procedure for Issuance of Letter of Credit. The
Borrower may from time to time request that the Issuing Lender issue a Letter of
Credit by delivering to the Issuing Lender at its address for notices specified
herein an Application therefor, completed to the satisfaction of the Issuing
Lender, and such other certificates, documents and other papers and information
as the Issuing Lender may request. Upon receipt of any Application, the Issuing
Lender will process such Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to issue
any Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).

5.3        Fees and Other Charges. (a) The Borrower will pay
a fee on the average daily undrawn and unexpired amount of all outstanding
Letters of Credit at a per annum rate equal to the Applicable Margin then in
effect with respect to Eurodollar Loans, shared ratably among the Revolving
Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the
issuance date; such fee with respect to each Letter of Credit denominated in any
currency other than Dollars shall be payable in Dollars, and for purposes of
calculating the amount of such fee applicable to each Letter of Credit
denominated in any currency other than Dollars, the average daily undrawn and
unexpired amount of such Letter of Credit shall be the Dollar Equivalent of such
amount calculated at the Exchange Rate as of the relevant L/C Fee Payment Date.
In addition, the Borrower shall pay to the Issuing Lender for its own account a
fronting fee of 0.125% per annum on the average daily undrawn and unexpired
amount of each Letter of Credit, payable quarterly in arrears on each L/C Fee
Payment Date after the issuance date; such fee with respect to each Letter of
Credit denominated in any currency other than Dollars shall be payable in
Dollars, and for purposes of calculating the amount of such fee applicable to
each Letter of Credit denominated in any currency other than Dollars, the
average daily undrawn and unexpired amount of such Letter of Credit shall be the
Dollar Equivalent of such amount calculated at the Exchange Rate as of the
relevant L/C Fee Payment Date.

(b)        In addition to the
foregoing fees, the Borrower shall pay or reimburse the Issuing Lender for such
normal and customary costs and expenses as are incurred or charged by the
Issuing Lender in issuing, negotiating, effecting payment under, amending or
otherwise administering any Letter of Credit.

 

 

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5.4        L/C Participations. (a) The Issuing Lender
irrevocably agrees to grant and hereby grants to each L/C Participant, and, to
induce the Issuing Lender to issue Letters of Credit, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions set forth below, for such L/C
Participant’s own account and risk an undivided interest equal to such L/C
Participant’s Revolving Credit Commitment Percentage in the Issuing Lender’s
obligations and rights under and in respect of each Letter of Credit and the
amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender’s address for notices specified herein an amount equal to
such L/C Participant’s Revolving Credit Commitment Percentage of the amount of
such draft, or any part thereof, that is not so reimbursed.

(b)        If any amount required
to be paid by any L/C Participant to the Issuing Lender pursuant to subsection
5.4(a) in respect of any unreimbursed portion of any payment made by the Issuing
Lender under any Letter of Credit is paid to the Issuing Lender within three
Business Days after the date such payment is due, such L/C Participant shall pay
to the Issuing Lender on demand an amount equal to the product of (i) such
amount, times (ii) the daily average Federal Funds Effective Rate during the
period from and including the date such payment is required to the date on which
such payment is immediately available to the Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. If any such amount required to be
paid by any L/C Participant pursuant to subsection 5.4(a) is not made available
to the Issuing Lender by such L/C Participant within three Business Days after
the date such payment is due, the Issuing Lender shall be entitled to recover
from such L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to ABR Loans. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this Section shall be conclusive in the absence of
manifest error.

(c)        Whenever, at any time
after the Issuing Lender has made payment under any Letter of Credit and has
received from any L/C Participant its pro
rata share of such payment in accordance with subsection
5.4(a), the Issuing Lender receives any payment related to such Letter of Credit
(whether directly from the Borrower or otherwise, including proceeds of
collateral applied thereto by the Issuing Lender), or any payment of interest on
account thereof, the Issuing Lender will distribute to such L/C Participant its
pro rata share thereof;
provided, however, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.

 

 

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5.5        Reimbursement Obligation of
the Borrower. The Borrower agrees to reimburse the
Issuing Lender on the Business Day next succeeding the Business Day on which the
Issuing Lender notifies the Borrower of the date and amount of a draft presented
under any Letter of Credit and paid by the Issuing Lender for the amount of (a)
such draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment. Each such
payment shall be made to the Issuing Lender in Dollars and in immediately
available funds. Interest shall be payable on any such amounts from the date on
which the relevant draft is paid until payment in full at the rate set forth in
(i) until the Business Day next succeeding the date of the relevant notice,
subsection 3.4(b) and (ii) thereafter, subsection 3.4(e). Each drawing under any
Letter of Credit shall (unless an event of the type described in clause (i) or
(ii) of Section 10(e) shall have occurred and be continuing with respect to the
Borrower, in which case the procedures specified in subsection 5.4 for funding
by L/C Participants shall apply) constitute a request by the Borrower to the
Administrative Agent for a borrowing pursuant to subsection 2.2 of ABR Loans in
the amount of such drawing (and the minimum borrowing amount in such subsection
shall not apply to such borrowing). The Borrowing Date with respect to such
borrowing shall be the first date on which a borrowing of Revolving Credit Loans
could be made, pursuant to subsection 2.2, if the Administrative Agent had
received a notice of such borrowing at the time the Administrative Agent
receives notice from the relevant Issuing Lender of such drawing under such
Letter of Credit.

5.6        Obligations Absolute. The Borrower’s obligations
under this Section 5 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower may have or have had against the Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees
with the Issuing Lender that the Issuing Lender shall not be responsible for,
and the Borrower’s Reimbursement Obligations under subsection 5.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender to the
Borrower.

5.7        Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the Issuing Lender shall
promptly notify the Borrower of the date and amount thereof. The responsibility
of the Issuing Lender to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the 

 

47

 







 

documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.

5.8        Applications. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent with the
provisions of this Section 5, the provisions of this Section 5 shall
apply.

5.9        Reimbursement Obligations for Certain Letters of Credit Denominated in
Currencies Other Than Dollars. Notwithstanding any other
provision of this Section 5, in the event that any Letter of Credit is
denominated in any currency other than Dollars, the amount of the Reimbursement
Obligation of the Borrower pursuant to Section 5.5 in respect of such Letter of
Credit shall bear interest as provided in Section 5.5 with respect to amounts
owing in Dollars; provided, that
(i) the interest rate on such amounts shall be the rate reasonably determined by
the Issuing Lender to be the equivalent rate, in respect of the relevant
non-Dollar currency, to the applicable rate provided in Section 5.5 with respect
to amounts denominated in Dollars and (ii) if the Borrower fails to pay any such
Reimbursement Obligation required by Section 5.5 on or prior to the third
Business Day following the date of the drawing to which such Reimbursement
Obligation relates, then, on the fourth Business Day following such date of
drawing, the relevant Issuing Lender, in cooperation with the Administrative
Agent, shall determine the Dollar Equivalent of the amount of such Reimbursement
Obligation, and the Borrower’s obligation in respect of such Reimbursement
Obligation shall be converted to such Dollar Equivalent, with interest thereon
as provided in Section 5.5 (provided, that if the Application in respect of such Letter of Credit provides
for conversion of such amount into Dollars on any earlier date or at any other
conversion rate, the provisions of such Application shall control with respect
to such conversion).

SECTION 6

REPRESENTATIONS AND WARRANTIES

To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to the Administrative Agent
and each Lender that:

6.1        Financial Condition. The consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at December 31, 2004
and December 31, 2003 and the related consolidated statements of operations and
of cash flows for the fiscal years ended on such dates, reported on by Ernst
& Young LLP, copies of which have heretofore been furnished to each Lender,
are complete and correct and present fairly the consolidated financial condition
of the Borrower and its consolidated Subsidiaries as at such dates, and the
consolidated results of their operations and their consolidated cash flows for
the fiscal years then ended. The unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at March 31, 2005 or, if later and
prior to the Closing Date, the date of the Borrower’s most recent publicly
available Form 10-Q and the related unaudited consolidated statements of
operations and of cash flows for the fiscal period ended on such date, certified
by a Responsible Officer, copies of which have heretofore been furnished to each
Lender, are complete and materially correct and present fairly (subject to
normal year-end audit adjustments) the consolidated financial condition of the
Borrower and its consolidated Subsidiaries as at such date, and the consolidated
results of 

 

48

 







 

their operations and their consolidated cash flows for the fiscal period
then ended. All such annual financial statements, including the related
schedules and notes thereto, were, as of the date prepared, prepared in
accordance with GAAP applied consistently throughout the periods involved
(except as approved by such accountants or Responsible Officer, as the case may
be, and as disclosed therein). The quarterly financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X under the Securities Act of 1933. Accordingly, such quarterly
statements do not include all of the information and footnotes required by GAAP
for complete financial statements. In the opinion of the Borrower, all
adjustments (consisting only of normal recurring accruals) considered necessary
for a fair presentation have been included. Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, material contingent
liability or material liability for taxes, or any material long-term lease or
material unusual forward or long-term commitment, including, without limitation,
any interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto.

6.2        No
Change. Since December 31, 2004, there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.

6.3        Corporate Existence; Compliance with Law. Each of
the Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, except to the extent that the failure of the foregoing clauses (a) (only
with respect to Subsidiaries of the Borrower), (c) and (d) to be true and
correct could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.

6.4        Corporate Power; Consents and Authorization; Enforceable
Obligations. The Borrower has the corporate power and
authority, and the legal right, to make, deliver and perform the Loan Documents
to which it is a party and to borrow hereunder and has taken all necessary
corporate action to authorize the borrowings on the terms and conditions of this
Agreement, any Notes and any Applications and to authorize the execution,
delivery and performance of the Loan Documents to which it is a party. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority (including, without limitation, exchange
control) or any other Person is required with respect to the Borrower or any of
its Subsidiaries in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of the Loan
Documents to which the Borrower is a party. This Agreement and each other Loan
Document to which the Borrower is, or is to become, a party has been or will be,
duly executed and delivered on behalf of the Borrower. This Agreement and each
other Loan Document to which the Borrower is, or is to become, a party
constitutes or will constitute, a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to 

 

49

 







 

or affecting creditors’ rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing.

6.5        No
Legal Bar. The execution, delivery and performance of
the Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or Contractual Obligation of the
Borrower or of any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation which
could reasonably be expected to have a Material Adverse Effect.

6.6        No
Material Litigation. Except as disclosed in the
Borrower’s Form 10-K dated December 31, 2004 or the Borrower’s Form 10-Q dated
March 31, 2005 or, if later and prior to the Closing Date, the date of the
Borrower’s most recent publicly available Form 10-Q, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Borrower, threatened by or
against the Borrower or any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to any of the Loan Documents
or any of the transactions contemplated hereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.

6.7        No
Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is
continuing.

6.8        Taxes. Each of the Borrower and its Subsidiaries
has filed or caused to be filed all tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it (other than any
the amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Borrower or its Subsidiaries, as the
case may be), except to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.

6.9        Federal Regulations. No part of the proceeds of
any Loans will be used in any manner that would violate Regulation U of the
Board as now and from time to time hereafter in effect.

6.10      ERISA. Neither a Reportable Event nor an
“accumulated funding deficiency” (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan other than a Multiemployer Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code, where the
liability could be reasonably expected to result could have a Material Adverse
Effect; provided, however, that with respect to any Multiemployer
Plan, such representation is made only to the knowledge of the Borrower. No
termination of a Single Employer Plan pursuant to Section 4041(c) or 4042 of
ERISA has occurred, and no Lien in favor of the PBGC or a Plan has 

 

50

 







 

arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by a material amount.
Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan and to the knowledge of the
Borrower, neither the Borrower nor any Commonly Controlled Entity would become
subject to any liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date on which this representation
is made or deemed made which liability could be reasonably expected to result
could have a Material Adverse Effect. No such Multiemployer Plan is in
Reorganization or Insolvent.

6.11      Investment
Company Act; Other Regulations. The Borrower is not an
“investment company”, or a company “controlled” by an “investment company”,
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board) which limits its ability to
incur Indebtedness.

6.12      Purpose of
Loans. The proceeds of the Loans shall be used to
finance the working capital and general corporate needs of the Borrower and its
Subsidiaries, including but not limited to acquisitions.

6.13      Environmental
Matters. Except to the extent that the failure of the
following statements to be true and correct could not reasonably be expected to
have a Material Adverse Effect:

(a)        The facilities and
properties owned, leased or operated by the Borrower or any of its Subsidiaries
(the “Properties”) do not
contain, and have not previously contained, any Materials of Environmental
Concern in amounts or concentrations which (i) constitute or constituted a
violation of, or (ii) could reasonably be expected to give rise to liability
under, any Environmental Law.

(b)        The Properties and all
operations at the Properties are in compliance, and have in the last five years
been in compliance, in all material respects with all applicable Environmental
Laws, and there is no contamination at, under or about the Properties or
violation of any Environmental Law with respect to the Properties or the
business operated by the Borrower or any of its Subsidiaries (the
“Business”) which could
reasonably be expected to materially interfere with the continued operation of
the Properties or materially impair the fair saleable value thereof.

(c)        Neither the Borrower
nor any of its Subsidiaries has received any notice of violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Properties or the Business, nor does the Borrower have knowledge or
reason to believe that any such notice will be received or is being
threatened.

 

 

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(d)        Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of the Properties in violation of, or in a
manner that could reasonably be expected to give rise to liability under, any
applicable Environmental Law.

(e)        No judicial proceeding
or governmental or administrative action is pending or, to the knowledge of the
Borrower, threatened, under any Environmental Law to which the Borrower or any
Subsidiary is or will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Properties or the Business.

(f)         There has been
no release or threat of release of Materials of Environmental Concern at or from
the Properties, or arising from or related to the operations of the Borrower or
any Subsidiary in connection with the Properties or otherwise in connection with
the Business, in violation of or in amounts or in a manner that could reasonably
be expected to give rise to liability under Environmental Laws.

6.14      Disclosure. The statements and information
contained herein and in any of the information provided to the Administrative
Agent or the Lenders in writing in connection with this Agreement, taken as a
whole, do not contain any untrue statement of any material fact, or omit to
state a fact necessary in order to make such statements or information not
misleading in any material respect, in each case in light of the circumstances
under which such statements were made or information provided as of the date so
provided.

SECTION 7

CONDITIONS PRECEDENT

7.1        Conditions to Closing. The effectiveness of this
Agreement is subject to the satisfaction on the Closing Date of the following
conditions precedent:

(a)        Credit Agreement. The Administrative Agent shall
have received this Agreement, executed and delivered by a duly authorized
officer of each Lender and the Borrower, with a counterpart for each Lender and
original Notes executed by the Borrower in favor of each Lender requesting a
Note.

(b)        Closing Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit F, with appropriate insertions and
attachments, satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or any
Assistant Secretary of the Borrower.

(c)        Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to Section 6
shall be true and correct in all material respects on and as of the Closing Date
as if made on and as of the Closing Date.

 

 

52

 







 

 

(d)        Legal Opinion. The Administrative Agent shall
have received, with a counterpart for each Lender, the executed legal opinion of
counsel to the Borrower (which opinion may be delivered in part by in-house
counsel to the Borrower), covering the matters set forth in Exhibit G. Such legal opinion shall cover such
other matters incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.

(e)        Fees. The Lenders and the Administrative Agent
shall have received all fees required to be paid and all expenses required to be
paid by the Borrower pursuant to the terms hereof and for which invoices have
been presented at least five (5) Business Days in advance, on or before the
Closing Date.

(f)         Interest; Facility Fee. The Borrower shall have
paid all interest and facility fees accrued through the Closing Date under the
Existing Multi-Year Credit Agreement and all other amounts (other than
principal) accrued under the Existing Multi-Year Credit Agreement and for which
invoices have been presented at least five (5) Business Days in advance, on or
before the Closing Date. 

7.2        Conditions to Each Loan and Letter of Credit. The
agreement of each Lender to make any Loan requested to be made by it on any
date, or to issue any Letter of Credit, (including, without limitation, its
initial Loan) is subject to the satisfaction of the following conditions
precedent:

(a)        Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of such
date as if made on and as of such date (other than, in the case of any Loan made
after the Closing Date, the representations and warranties in subsections 6.2
and 6.6 which shall be true and correct in all material respects on and as of
the Closing Date).

(b)        No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving effect to the Loans
requested to be made, or Letters of Credit requested to be issued.

(c)        Each borrowing by the
Borrower hereunder, and each request by the Borrower for the issuance of a
Letter of Credit shall constitute a representation and warranty by the Borrower
as of the date thereof that the conditions contained in this subsection have
been satisfied.

SECTION 8

AFFIRMATIVE COVENANTS

The Borrower hereby agrees that, so long as the Commitments (or any of
them) remain in effect, any Letter of Credit is outstanding or any amount is
owing to any Lender or the Administrative Agent hereunder or under any other
Loan Documents, the Borrower shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its Subsidiaries
to:

 

 

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      8.1
	
      Financial Statements. Furnish to each
      Lender:




(a)        as soon as available,
but in any event not later than 20 days after required to be filed with the
Securities and Exchange Commission at the end of each fiscal year of the
Borrower, a copy of the consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related
consolidated statements of operations and stockholders’ equity and of cash flows
for such year, setting forth in each case in comparative form the figures for
the previous year, reported on without a “going concern” or like qualification
or exception, or qualification arising out of the scope of the audit, by Ernst
& Young LLP or other independent certified public accountants of nationally
recognized standing;

(b)        as soon as available,
but in any event not later than 15 days after required to be filed with the
Securities and Exchange Commission at the end of each of the first three
quarterly periods of each fiscal year of the Borrower, the unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at the end of such quarter and the related unaudited consolidated statements of
operations for such quarter and the portion of the fiscal year through the end
of such quarter and of cash flows of the Borrower and its consolidated
Subsidiaries for the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments); and

(c)        all such financial
statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and disclosed
therein); provided, that it is
hereby acknowledged that the quarterly financial statements delivered pursuant
to paragraph (b) above may not include all of the information and footnotes
required by GAAP for complete annual financial statements.

Any financial statement required to be furnished pursuant to this
subsection 8.1 shall be deemed to have been furnished on the date on which the
Lenders receive notice that the Borrower has posted such financial statement on
the Intralinks website on the Internet at www.intralinks.com; provided that the Borrower shall give notice of
any such posting to the Administrative Agent (who shall then give notice of any
such posting to the Lenders). Notwithstanding the foregoing, the Borrower shall
deliver paper copies of any financial statement referred to in this subsection
8.1 to the Administrative Agent if the Administrative Agent or any Lender
requests the Borrower to furnish such paper copies until written notice to cease
delivering such paper copies is given by the Administrative Agent.

8.2        Certificates; Other Information. Furnish to the
Administrative Agent with sufficient copies for the Lenders:

(a)        concurrently with the
delivery of the financial statements referred to in subsections 8.1(a) and
8.1(b), a certificate of a Responsible Officer stating that such Officer has
obtained no knowledge of any Default or Event of Default that has occurred and
is continuing except as specified in such certificate, and including
calculations demonstrating compliance with subsection 9.1;

 

 

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(b)        within ten days after
the same are sent, copies of all financial statements and reports which the
Borrower sends to its stockholders, and within five days after the same are
filed, copies of all financial statements and reports which the Borrower may
make to, or file with, the Securities and Exchange Commission or any successor
or analogous Governmental Authority, and promptly after the same are issued,
copies of all press releases issued by the Borrower; and

(c)        promptly, such
additional financial and other information as any Lender may from time to time
reasonably request.

8.3        Payment of Obligations. Pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all its material obligations of whatever nature, except where the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of the Borrower or its Subsidiaries, as
the case may be.

8.4        Conduct of Business and Maintenance of Existence.
(a) Continue to engage in business of the same general type as conducted by it
on the Closing Date; (b) preserve, renew and keep in full force and effect its
corporate existence (except as could not in the aggregate be reasonably expected
to have a Material Adverse Effect); (c) take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business except as otherwise permitted pursuant to subsection
9.4; and (d) comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.

8.5        Maintenance of Property; Insurance. Keep all
property necessary in its business in good working order and condition except to
the extent that failure to do so could not, in the aggregate, be reasonably
expected to have a Material Adverse Effect; maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks as are adequate for conducting its
business; and furnish to each Lender, upon written request, full information as
to the insurance carried.

8.6        Inspection of Property; Books and Records; Discussions. Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of any Lender (upon reasonable advance
notice coordinated through the Administrative Agent) to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
at any reasonable time and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public
accountants.

8.7        Notices. Promptly give notice (unless available
in the public filings or releases of the Borrower or its Subsidiaries) to the
Administrative Agent and each Lender of:


	
      (a)
	
      the occurrence of any Default or Event of
Default;




 

 

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(b)        any (i) default or
event of default under any Contractual Obligation of the Borrower or any of its
Subsidiaries or (ii) litigation, investigation or proceeding which may exist at
any time involving the Borrower or any of its Subsidiaries, which in either
case, could reasonably be expected to have a Material Adverse Effect;
and

(c)        the following events,
as soon as possible and in any event within 30 days after the Borrower knows or
has reason to know thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan, other than the termination of any
Single Employer Plan pursuant to Section 4041(b) of ERISA where, in connection
with any of the foregoing, the amount of liability the Borrower or any Commonly
Controlled Entity could reasonably be expected to incur would be
material.

Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.

SECTION 9

NEGATIVE COVENANTS

The Borrower hereby agrees that, so long as the Commitments (or any of
them) remain in effect, any Letter of Credit remains outstanding, or any amount
is owing to any Lender or the Administrative Agent hereunder or under any other
Loan Documents, the Borrower shall not, and (except with respect to subsection
9.1) shall not permit any of its Subsidiaries to, directly or
indirectly:

9.1        Financial Covenant. Consolidated Leverage Ratio. Permit the
Consolidated Leverage Ratio as at the last day of any period of four consecutive
fiscal quarters of the Borrower to exceed 3.5 to 1.0.

9.2        Limitation on Liens. Create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, except for:

(a)        Liens for taxes not
yet due or which are being contested in good faith by appropriate proceedings,
provided that adequate reserves
with respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;

(b)        carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of
more than 60 days or which are being contested in good faith by appropriate
proceedings;

(c)        pledges or deposits in
connection with workers’ compensation, unemployment insurance and other social
security legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;

 

 

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

(e)        easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of
the business of the Borrower or such Subsidiary;

(f)         Liens in
existence on the date hereof listed on Schedule
9.2, provided that no such Lien is spread to cover any additional property after the
Closing Date and that the amount of Indebtedness secured thereby is not
increased;

(g)        Liens securing
Indebtedness of the Borrower and its Subsidiaries incurred to finance the
acquisition of fixed or capital assets, provided that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (iii) the amount of Indebtedness
secured thereby is not increased;

(h)        Liens on the property
or assets of a corporation which becomes a Subsidiary after the date hereof,
provided that (i) such Liens
existed at the time such corporation became a Subsidiary and were not created in
anticipation thereof, (ii) any such Lien is not spread to cover any property or
assets of such corporation after the time such corporation becomes a Subsidiary,
and (iii) the amount of Indebtedness secured thereby is not
increased;

(i)         Liens created
pursuant to any Receivables Transaction permitted pursuant to subsection 9.3;
and

(j)         Liens (not
otherwise permitted hereunder) which secure obligations not exceeding (as to the
Borrower and all Subsidiaries) $100,000,000 in aggregate amount at any
time.

9.3        Limitation on Indebtedness pursuant to Receivables
Transactions. Create, issue, incur, assume, become
liable in respect of or suffer to exist any Indebtedness pursuant to any
Receivables Transaction, except for Indebtedness pursuant to all Receivables
Transactions in an aggregate principal amount not exceeding 20% of Consolidated
Tangible Assets.

9.4        Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, except:

(a)        any Subsidiary of the
Borrower may be merged or consolidated with or into the Borrower
(provided that the Borrower shall
be the continuing or surviving corporation) or with or into any one or more
wholly owned Subsidiaries of the Borrower (provided that the wholly owned Subsidiary or
Subsidiaries shall be the continuing or surviving corporation);

(b)        the Borrower or any
wholly owned Subsidiary of the Borrower may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise)


 

57

 







 

to the Borrower or any other wholly owned Subsidiary, and, so long as no
Default or Event of Default shall have occurred and be continuing or would occur
as a result thereof, the Borrower or any Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to any non-wholly owned Subsidiary of the Borrower for
fair market value;

(c)        any non-wholly owned
Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any
or all of its assets (upon voluntary liquidation or otherwise) to the Borrower
or any wholly owned Subsidiary of the Borrower for fair market value or may
sell, lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to any other non-wholly owned Subsidiary of
the Borrower; and

(d)        the Borrower or any
Subsidiary of the Borrower may be merged or consolidated with or into another
Person; provided that the
Borrower or such Subsidiary shall be the continuing or surviving corporation and
no Default or Event of Default shall have occurred and be continuing or would
occur as a result thereof (and, in the case of any such transaction involving a
Subsidiary, such Subsidiary shall continue to be a Subsidiary or the Borrower
shall have received fair market value therefor as determined by the Board of
Directors of the Borrower); and provided further that the Borrower
may not be merged or consolidated with or into any Subsidiary.

SECTION 10

EVENTS OF DEFAULT

If any of the following events shall occur and be continuing:

(a)        The Borrower shall
fail to pay any principal of any Loan or any Reimbursement Obligation when due
in accordance with the terms thereof or hereof; or the Borrower shall fail to
pay any interest on any Loan, or any fee or other amount payable hereunder,
within five days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or

(b)        Any representation or
warranty made or deemed made by the Borrower herein or in any other Loan
Document or which is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection with this
Agreement shall prove to have been incorrect in any material respect on or as of
the date made or deemed made; or

(c)        (i) The Borrower shall
default in the observance or performance of any covenant contained in
subsections 8.4(b), 8.7(a) or in Section 9; 

(ii)         the Borrower
shall default in the observance or performance of any agreement contained in
Section 12; or 

(iii)        the Borrower shall
default in the observance or performance of any other agreement contained in
this Agreement (other than as provided above in this Section), and such default
described in this clause (iii) shall continue unremedied for a period of 30
days; or

 

 

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(d)        The Borrower or any of
its Subsidiaries shall: (i) default in any payment of principal of or interest
of any Indebtedness (other than the Loans) or in the payment of any Guarantee
Obligation, beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was created; or
(ii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; provided, however, that no Default
or Event of Default shall exist under this paragraph unless the aggregate amount
of Indebtedness and/or Guarantee Obligations in respect of which any default or
other event or condition referred to in this paragraph shall have occurred shall
be equal to at least $100,000,000; or

(e)        (i) The Borrower or
any of its Subsidiaries shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Borrower or
any of its Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the Borrower or any of its Subsidiaries
shall generally not or shall admit in writing its inability to, pay its debts as
they become due; or

(f)         (i) Any Person
shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA
or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding
deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall
exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall
arise on the assets of the Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is likely to result in the termination
of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall incur 

 

59

 







 

any liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events
or conditions, if any, could reasonably be expected to have a Material Adverse
Effect; or

(g)        Any one judgment or
decree shall be entered against the Borrower or any of its Subsidiaries
involving in the aggregate a liability (not paid or in excess of the amount
recoverable by insurance) of $75,000,000 (net of any related tax benefit) or
more, and such judgment or decree shall not have been vacated, discharged,
stayed or bonded pending appeal within 60 days from the entry thereof;
or

(h)        (i) Any Person or
“group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended) (A) shall have acquired beneficial ownership of 30% or
more of any outstanding class of Capital Stock having ordinary voting power in
the election of directors of the Borrower (other than Peter M. Nicholas and John
E. Abele or any of their affiliated trust holdings) or (B) shall obtain the
power (whether or not exercised) to elect a majority of the Borrower’s
directors; or (ii) the Board of Directors of the Borrower shall not consist of a
majority of Continuing Directors; “Continuing
Directors” shall mean the directors of the Borrower on
the Closing Date and each other director, if such other director’s nomination
for election to the Board of Directors of the Borrower is recommended by a
majority of the then Continuing Directors;

then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (e) above with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Majority Lenders, the Administrative Agent
may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. In the case of each Letter of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in cash collateral accounts opened by the Administrative Agent
an amount (in the currency in which such Letter of Credit is denominated) equal
to the then undrawn and unexpired amount of such Letter of Credit. Amounts held
in such cash collateral account shall be applied by the Administrative Agent to
the payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall 

 

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have expired or been fully drawn upon, if any, shall be applied to repay
other obligations of the Borrower hereunder and under the other Loan Documents.
After all such Letters of Credit shall have expired or been fully drawn upon,
all Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrower hereunder and under the other Loan Documents shall
have been paid in full (or in the event that the acceleration that required the
funding of such cash collateral account is rescinded by the Lenders), the
balance, if any, in such cash collateral account shall be returned to the
Borrower (or such other Person as may be lawfully entitled thereto).

SECTION 11

THE AGENTS

11.1      Appointment. Each Lender hereby irrevocably
designates and appoints the Administrative Agent as the agent of such Lender
under this Agreement and the other Loan Documents, and each Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.

11.2      Delegation of
Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys in-fact
selected by it with reasonable care.

11.3      Exculpatory
Provisions. Neither any Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Loan Document (except
for its or such Person’s own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by such Agent under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of the Borrower to perform its obligations hereunder or thereunder. No Agent
shall be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower.

 

 

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11.4      Reliance by
Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Majority Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.

11.5      Notice of
Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”. In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Majority Lenders; provided that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interests of the Lenders.

11.6      Non-Reliance
on Administrative Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and 

 

62

 







 

creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.

11.7      Indemnification. The Lenders agree to indemnify
the Administrative Agent (or sub-agent), in its capacity, any Issuing Lender, in
its capacity, and any Related Party acting for the Administrative Agent (or any
sub-agent) or any Issuing Lender in connection with such capacity (to the extent
not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Revolving Credit
Commitment Percentages in effect on the date on which indemnification is sought
(or, if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with such percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent (or any sub-agent), any Issuing Lender or such
Related Party in any way relating to or arising out of, the Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent (or any sub-agent),
any Issuing Lender or such Related Party under or in connection with any of the
foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements which are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Administrative Agent (or sub-agent), any Issuing
Lender or any Related Party acting for the Administrative Agent (or any
sub-agent) or any Issuing Lender in connection with such capacity. The
agreements in this subsection shall survive the payment of the Loans and all
other amounts payable hereunder.

11.8      Administrative
Agent in Its Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Administrative
Agent were not the Administrative Agent hereunder and under the other Loan
Documents. With respect to the Loans made by it and with respect to any Letter
of Credit issued or participated in by it, the Administrative Agent shall have
the same rights and powers under this Agreement and the other Loan Documents as
any Lender and may exercise the same as though it were not the Administrative
Agent, and the terms “Lender” and “Lenders” shall include the Administrative
Agent in its individual capacity.

11.9      Successor
Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days’ notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent
(provided that it shall have been
approved by the Borrower), shall succeed to the rights, powers and duties of the
Administrative Agent hereunder. Effective upon such 

 

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appointment and approval, the term “Administrative Agent” shall mean such
successor agent, and the former Administrative Agent’s rights, powers and duties
as Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent’s resignation as Administrative Agent, the provisions of this Section 11
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 and the other Loan
Documents.

11.10    The Arrangers, the Bookrunners, the Syndication Agents, the Documentation
Agents and the Managing Agents. None of the Arrangers,
the Bookrunners, the Syndication Agents, the Documentation Agents or the
Managing Agents shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Arrangers, the
Bookrunners, the Syndication Agents, the Documentation Agents or the Managing
Agents shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
the Arrangers, the Bookrunners, the Syndication Agents, the Documentation Agents
or the Managing Agents in deciding to enter into this Agreement or in taking or
not taking any action hereunder.

SECTION 12

GUARANTEE

12.1      Guarantee. (a)The Borrower hereby unconditionally
and irrevocably guarantees to the Administrative Agent, for the ratable benefit
of the Administrative Agent and the Lenders and their respective successors,
endorsees, transferees and assigns, the prompt and complete payment and
performance by the Foreign Subsidiary Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.

(b)        No payment or payments
made by the Borrower or any other Person or received or collected by the
Administrative Agent or any Lender from the Borrower or any other Person by
virtue of any action or proceeding or any set-off or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of the Borrower hereunder which shall, notwithstanding any such
payment or payments, remain liable hereunder for the Obligations until the
Obligations are paid in full and the Commitments are terminated.

(c)        The Borrower agrees
that whenever, at any time, or from time to time, it shall make any payment to
the Administrative Agent or any Lender on account of its liability hereunder, it
will notify the Administrative Agent and such Lender in writing that such
payment is made under this Section for such purpose.

12.2      No
Subrogation. Notwithstanding any payment or payments
made by the Borrower hereunder, or any set-off or application of funds of the
Borrower by the Administrative Agent or any Lender, the Borrower shall not be
entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Foreign Subsidiary Borrowers or against any collateral
security or guarantee or right of offset held by the Administrative Agent or any
Lender for the payment of the Obligations, nor shall the Borrower seek or be
entitled to seek any 

 

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contribution or reimbursement from the Foreign Subsidiary Borrowers in
respect of payments made by the Borrower hereunder, until all amounts owing to
the Administrative Agent and the Local Currency Lenders by the Foreign
Subsidiary Borrowers on account of the Obligations are paid in full and the
Commitments are terminated. If any amount shall be paid to the Borrower on
account of such subrogation rights at any time when all of the Obligations shall
not have been paid in full, such amount shall be held by the Borrower in trust
for the Administrative Agent and the Lenders, segregated from other funds of the
Borrower, and shall, forthwith upon receipt by the Borrower, be turned over to
the Administrative Agent in the exact form received by the Borrower (duly
indorsed by the Borrower to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
Administrative Agent may determine. The provisions of this paragraph shall
continue to be effective after the termination of this Agreement, the payment in
full of the Obligations and the termination of the Commitments.

12.3      Amendments,
etc with respect to the Obligations; Waiver of Rights.
The Borrower shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Borrower, and without notice to or further
assent by the Borrower, any demand for payment of any of the Obligations made by
the Administrative Agent or any Lender may be rescinded by the Administrative
Agent or such Lender, and any of the Obligations continued, and the Obligations,
or the liability of any other party upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Administrative Agent or any Lender, and any Loan Documents and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, in accordance with
the provisions thereof as the Administrative Agent (or the requisite Lenders, as
the case may be) may deem advisable from time to time, and any collateral
security, guarantee or right of offset at any time held by the Administrative
Agent or any Lender for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. None of the Administrative Agent or any Lender
shall have any obligation to protect, secure, perfect or insure any Lien at any
time held by it as security for the Obligations or for this Agreement or any
property subject thereto. When making any demand hereunder against the Borrower,
the Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on the Foreign Subsidiary Borrowers or any other
guarantor, and any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from a Foreign Subsidiary Borrower or any
such other guarantor or any release of a Foreign Subsidiary Borrower or such
other guarantor shall not relieve the Borrower of its obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express or
implied, or as a matter of law, of the Administrative Agent or any Lender
against the Borrower. For the purposes hereof “demand” shall include the
commencement and continuance of any legal proceedings.

12.4      Guarantee
Absolute and Unconditional. The Borrower waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Agreement or acceptance of this Agreement; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Agreement; and all dealings between the Foreign Subsidiary Borrowers and the
Borrower, on the 

 

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one hand, and the Administrative Agent and the Lenders, on the other,
shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Agreement. The Borrower waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Foreign Subsidiary Borrowers and the Borrower with respect to the Obligations.
This Section 12 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of this Agreement, any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Foreign Subsidiary Borrowers against the
Administrative Agent or any Lender, (c) any law, regulation, decree or order of
any jurisdiction, or any other event, affecting the Obligations or any Lender’s
rights with respect thereto, including, without limitation: (i) the application
of any such law, regulation, decree or order, including any prior approval, that
would prevent the exchange of a non-Dollar currency for Dollars or the
remittance of funds outside of such jurisdiction or the unavailability of
Dollars in any legal exchange market in such jurisdiction in accordance with
normal commercial practice; or (ii) a declaration of banking moratorium or any
suspension of payments by banks in such jurisdiction or the imposition by such
jurisdiction or any governmental authority thereof of any moratorium on the
required rescheduling or restructuring of, or required approval of payments on,
any indebtedness in such jurisdiction; or (iii) any expropriation, confiscation,
nationalization or requisition by such country or any governmental authority
that directly or indirectly deprives the companies in such jurisdiction of any
payment obligation under the Obligations; or (iv) any war (whether or not
declared), insurrection, revolution, hostile act, civil strife or similar events
occurring in such jurisdiction that has the same effect as the events described
in clause (i), (ii) or (iii) above (in each of the cases contemplated in clauses
(i) through (iv) above, to the extent occurring or existing on or at any time
after the date of this Agreement), or (d) any other circumstance whatsoever
(with or without notice to or knowledge of the Foreign Subsidiary Borrowers or
the Borrower) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Foreign Subsidiary Borrowers for the
Obligations, or of the Borrower under this Section 12, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Borrower, the Administrative Agent and any Lender may, but shall be under no
obligation to, pursue such rights and remedies as it may have against the
Foreign Subsidiary Borrowers or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to pursue such other rights or remedies or to
collect any payments from the Borrower or any such other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of the Foreign Subsidiary Borrowers or any such other
Person or of any such collateral security, guarantee or right of offset, shall
not relieve the Borrower of any liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent or any Lender against the Borrower.
This Section 12 shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon the Borrower and its
successors and assigns, and shall inure to the benefit of the Administrative
Agent and the Lenders, and their respective successors, endorsees, transferees
and assigns, until all the Obligations and the obligations of the Borrower under
this Agreement shall have been satisfied by payment in full and the Commitments
shall be 

 

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terminated, notwithstanding that from time to time during the term of
this Agreement the Foreign Subsidiary Borrowers may be free from any
Obligations.

12.5      Reinstatement. This Section 12 shall continue to
be effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower or any
substantial part of its property, or otherwise, all as though such payments had
not been made.

12.6      Payments. The Borrower hereby agrees that all
payments required to be made by it hereunder will be made to the Administrative
Agent without set-off or counterclaim in accordance with the terms of the
Obligations, including, without limitation, in the currency in which payment is
due, provided that if a payment
is due in a currency other than Dollars and/or at a place other than the United
States, and such payment is not made as and when agreed, the Borrower will, upon
the Administrative Agent’s request, either (i) make payment in such non- Dollar
currency and at the place where such payment is payable or (ii) pay the
Administrative Agent in Dollars at 270 Park Avenue, New York, New York. In the
event of a payment pursuant to clause (ii) above, the Borrower will pay the
Administrative Agent the Dollar Equivalent of the amount of such payment on the
date the Borrower makes such payment.

12.7      “Lenders”. For all purposes of this Section 12,
the term “Lenders” shall be deemed to include Local Currency Lenders.

SECTION 13

MISCELLANEOUS

13.1      Amendments and
Waivers. (a) Except as provided in paragraphs (b) and
(c) of this subsection 13.1, neither this Agreement nor any other Loan Document,
nor any terms hereof or thereof may be amended, supplemented or modified except
in accordance with the provisions of this subsection. The Majority Lenders may,
or, with the written consent of the Majority Lenders, the Administrative Agent
may, from time to time, (a) enter into with the Borrower written amendments,
supplements or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan Documents
or changing in any manner the rights of the Lenders or of the Borrower hereunder
or thereunder or (b) waive, on such terms and conditions as the Majority Lenders
or the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) reduce the amount or extend the
scheduled date of maturity of any Loan, or reduce the stated rate or amount of
any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of any
Lender’s Multicurrency Commitment, Revolving Credit Commitment, Swingline
Commitment or L/C Commitment or modify the pro rata distribution of payments,
proceeds or fees payable to the Lenders, in each case without the consent of
each Lender affected thereby, or (ii) amend, modify or waive any provision of
this subsection or reduce the percentages specified 

 

67

 







 

in the definitions, of Majority Lenders or Majority Multicurrency
Lenders, or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents or
release, subordinate or otherwise materially limit the Borrower’s liability with
respect to the guarantee set forth in Section 12, in each case without the
written consent of all the Lenders, or (iii) amend, modify or waive any
provision of Section 11 without the written consent of the then Administrative
Agent. Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Borrower, the Lenders and the Administrative Agent shall
be restored to their former positions and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.

(b)        In addition to
amendments effected pursuant to the foregoing paragraph (a), (i) Schedule II may be amended to change
administrative information contained therein with the approval of the Majority
Multicurrency Lenders, upon execution and delivery by the Borrower and the
Administrative Agent of a written amendment providing for such amendment and
(ii) additional freely-convertible euro currencies may be added as Available
Foreign Currencies, upon execution and delivery by the Borrower, the
Administrative Agent and the Majority Multicurrency Lenders of an amendment
providing for such addition. 

(c)        The Administrative
Agent shall give prompt written notice to each Lender of any amendment effected
pursuant to subsection 13.1(b). 

(d)        Notwithstanding the
provisions of this subsection 13.1, any Local Currency Facility may be amended,
supplemented or otherwise modified in accordance with its terms so long as after
giving effect thereto either (x) such Local Currency Facility ceases to be an
“Local Currency Facility” and the Borrower so notifies the Administrative Agent
or (y) the Local Currency Facility continues to meet the requirements of a Local
Currency Facility set forth herein.       

 

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13.2       Notices.
All notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by facsimile transmission) and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made (a) in the case of delivery by hand, when delivered, (b) in the case of
delivery by mail, three days after being deposited in the mails, postage
prepaid, or (c) in the case of delivery by facsimile transmission, when sent and
receipt has been confirmed, addressed as follows in the case of the Borrower and
the Administrative Agent, and as set forth in Schedule
I in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties
hereto:

If to the Borrower:

Boston Scientific Corporation

One Boston Scientific Place

Natick, Massachusetts 01760

Attention: Lawrence C. Best

Executive Vice President, Finance & Administration

and Chief Financial Officer

Fax: 508-650-8951

with a copy to:

Paul Sandman

Executive Vice President, General Counsel

Fax: 508-650-8960

If to the Administrative Agent:

 

JPMorgan Chase Bank, N.A.

Loan & Agency Services Group

1111 Fannin, Floor 10

Houston, Texas 77002


	
      Attention: Jennifer Anyigbo




Fax: (713) 750-2782

 

with a copy to:

 

JPMorgan Chase Bank, N.A.

270 Park Avenue

New York, New York 10017

Attention: Lyette Proctor

Fax: 212-270-5135


	
      For Multicurrency Loans, if to the European Adminstrative
      Agent:




 

 

69

 







 

 


	
       
	
      J.P. Morgan Europe Limited

	
       
	
      125 London Wall
	
       

	
       
	
      London, EC2Y 5AJ 
	
       

	
       
	
      Attention: Belinda Lucas
	
       

	
       
	
      Fax.: 44-207-777-2360
	
       

	
      with a copy to:
	
       

							



JPMorgan Chase Bank, N.A.

270 Park Avenue

New York, New York 10017

Attention: Dawn Lee Lum

Fax: 212-270-3279


	
      For Letters of Credit, if to the Issuing Lender:
	
       

	
       
	
      JPMorgan Chase Bank, N.A.
	
       

	
       
	
      JPMorgan Treasury Services
	
       

	
       
	
      10420 Highland Manor Drive
	
       

	
       
	
      Tampa, Florida 33610
	
       

	
       
	
      Attention: Stephen Carew, Operations Manager

	
       
	
      Fax: 813-432-5161
	
       

	
       
	
      with a copy to:
	
       

										



JPMorgan Chase Bank, N.A.

270 Park Avenue

New York, New York 10017

Attention: Dawn Lee Lum

Fax: 212-270-3279

provided that any notice, request or demand to or
upon the Administrative Agent or the Lenders pursuant to subsection 2.2, 2.6,
2.9, 2.14, 2.15, or 3.2 shall not be effective until received.

13.3      No Waiver;
Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by
law.

13.4      Survival of
Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.

 

 

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13.5      Payment of
Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable and documented
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable and documented fees and disbursements of counsel to the
Administrative Agent, (b) to pay or reimburse each Lender and the Administrative
Agent for all its costs and expenses incurred in connection with the enforcement
or preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the documented fees and
disbursements of counsel (including the allocated fees and expenses of in-house
counsel) to each Lender and of counsel to the Administrative Agent,
provided, that in connection with
any workout or restructuring, the Borrower shall pay the fees and disbursements
of (i) one counsel for the Administrative Agent and the Lenders pursuant to this
clause (b) and (ii) one counsel to the Administrative Agent and the Lenders in
the jurisdiction of each Foreign Subsidiary Borrower pursuant to this clause
(b), (c) to pay, indemnify, and hold each Lender and the Administrative Agent
and each of their affiliates and their respective officer, directors, employees,
agents and advisors (each, an “indemnified
party”) harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each indemnified party harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the “indemnified
liabilities”), provided that the Borrower shall have no
obligation hereunder to any indemnified party with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of such
indemnified party determined in a court of competent jurisdiction in a final
non-appealable judgment. The agreements in this subsection shall survive
repayment of the Loans and all other amounts payable hereunder. 


	
      13.6
	
      Successors and Assigns; Participations and
      Assignments.




(a)        This Agreement shall
be binding upon and inure to the benefit of the Borrower, the Lenders, the
Administrative Agent and their respective successors and assigns, except that no
Borrower may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender.

(b)        Any Lender, other than
a Conduit Lender, may, in the ordinary course of its commercial banking business
and in accordance with applicable law, at any time sell to one or more banks or
other entities (“Participants”)
participating interests in any Loan owing to such 

 

71

 







 

Lender, any Commitment of such Lender or any other interest of such
Lender hereunder and under the other Loan Documents. In the event of any such
sale by a Lender of a participating interest to a Participant, such Lender’s
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement and the other Loan Documents. No Lender shall be entitled to create in
favor of any Participant, in the participation agreement pursuant to which such
Participant’s participating interest shall be created or otherwise, any right to
vote on, consent to or approve any matter relating to this Agreement or any
other Loan Document except for those specified in clauses (i) and (ii) of the
proviso to subsection 13.1(a). The Borrower agrees that if amounts outstanding
under this Agreement are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in subsection
13.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of subsections 3.9, 3.10 and
3.11 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the case of subsection 3.10,
such Participant shall have complied with the requirements of said subsection
and provided, further, that no Participant shall be entitled to
receive any greater amount pursuant to any such subsection than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.

(c)        Any Lender, other than
a Conduit Lender, may, in the ordinary course of its commercial banking business
and in accordance with applicable law, at any time and from time to time, assign
to any Lender or any Lender Affiliate with the consent (in each case, not to be
unreasonably withheld) of the Administrative Agent, the Issuing Lender and,
except for assignments to any Lender or Lender Affiliate of comparable credit
worthiness, the Borrower, or with the consent of the Borrower (unless a Default
or an Event of Default shall have occurred and be continuing), the
Administrative Agent and Issuing Lender (which consent in each case shall not be
unreasonably withheld), to an additional bank, financial institution, or other
entity (an “Assignee”) all or any
part of its rights and obligations under this Agreement and the other Loan
Documents pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit H, executed by such
Assignee, such assigning Lender (and, in the case of an Assignee that is not
then a Lender or a Lender Affiliate of comparable credit worthiness, by the
Borrower, the Administrative Agent and the Issuing Lender, and, in the case of
an Assignee that is a Lender or a Lender Affiliate, by the Administrative Agent
and the Issuing Lender) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the case of any such assignment
to an additional bank, financial institution or other entity, the sum of the
aggregate principal amount of the Loans and the aggregate amount of the unused
Revolving Credit Commitment being assigned shall be not less than $5,000,000
and, if such assignment is of less than all of the rights and obligations of the
assigning Lender, the sum of the aggregate 

 

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principal amount of the Revolving Credit Loans and the aggregate amount
of the unused Revolving Credit Commitment remaining with the assigning Lender
shall be not less than $10,000,000 (or such lesser amount as may be agreed to by
the Borrower and the Administrative Agent). Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with Commitments as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, 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 Lender’s rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto). Each
assignment by a Lender of any portion of its Revolving Credit Commitment shall
be accompanied by assignment by such Lender to the same Assignee of the same
percentage of such Lender’s Multicurrency Commitment. Notwithstanding the
foregoing, any Conduit Lender may assign at any time to its designating Lender
hereunder without the consent of the Borrower or the Administrative Agent any or
all of the Loans it may have funded hereunder and pursuant to its designation
agreement and without regard to the limitations set forth in the first sentence
of this subsection 13.6(c).

(d)        The Administrative
Agent, on behalf of the Borrower, shall maintain at the address of the
Administrative Agent referred to in subsection 13.2 a copy of each Assignment
and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment of
any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.

(e)        Upon its receipt of an
Assignment and Acceptance executed by an assigning Lender and an Assignee (and,
in the case of an Assignee that is not then a Lender or a Lender Affiliate, by
the Borrower (if required) and the Administrative Agent) together with payment
to the Administrative Agent of a registration and processing fee of $4,000, the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower.

(f)         The Borrower
authorizes each Lender to disclose to any Participant or Assignee (each, a
“Transferee”) and any prospective
Transferee, subject to the provisions of subsection 13.14, any and all financial
information in such Lender’s possession concerning the Borrower and its
Affiliates which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of the 

 

73

 







 

Borrower in connection with such Lender’s credit evaluation of such
Borrower and its Affiliates prior to becoming a party to this
Agreement.

(g)        For avoidance of
doubt, the parties to this Agreement acknowledge that the provisions of this
subsection concerning assignments of Loans and Notes relate only to absolute
assignments and that such provisions do not prohibit assignments creating
security interests, including, without limitation, any pledge or assignment by a
Lender of any Loan or Note to any Federal Reserve Bank in accordance with
applicable law.

13.7      Adjustments;
Set-off. (a) If any Lender (a “benefited Lender”) shall at any time receive any
payment of all or part of its Loans or the Reimbursement Obligations owing to it
(or any participation therein arising pursuant to subsection 13.15) then due and
owing, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in subsection 10(e), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender (other than to the extent expressly provided herein), if any, in respect
of such other Lender’s Loans or the Reimbursement Obligations owing to it (or
any participation therein arising pursuant to subsection 13.15) then due and
owing, or interest thereon, such benefited Lender shall purchase for cash from
the other Lenders a participating interest in such portion of each such other
Lender’s Loan or the Reimbursement Obligations owing to it, or shall provide
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefited Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided,
however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest.

(b)        In addition to any
rights and remedies of the Lenders provided by law, each Lender shall have the
right, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, upon any
amount becoming due and payable by the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any Affiliate, branch or agency thereof to or for the credit or the account of
the Borrower. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender,
provided that the failure to give
such notice shall not affect the validity of such set-off and
application.

13.8      Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts (including by facsimile transmission), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged with
the Borrower and the Administrative Agent.

 

 

74

 







 

 

13.9      Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. 

13.10    Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.

13.11    GOVERNING LAW. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.

13.12    Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:

(a)        submits for itself and
its property in any legal action or proceeding relating to this Agreement and
the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof;

(b)        consents that any such
action or proceeding may be brought in such courts and waives any objection that
it may now or hereafter have to the venue of any such action or proceeding in
any such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;

(c)        agrees that service of
process in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to the Borrower at its address set forth in subsection
13.2 or at such other address of which the Administrative Agent shall have been
notified pursuant thereto;

(d)        agrees that nothing
herein shall affect the right to effect service of process in any other manner
permitted by law or shall limit the right to sue in any other jurisdiction;
and

(e)        waives, to the maximum
extent not prohibited by law, any right it may have to claim or recover in any
legal action or proceeding referred to in this subsection any special,
exemplary, punitive or consequential damages.


	
      13.13
	
      Acknowledgements. The Borrower hereby
      acknowledges that:




(a)        it has been advised by
counsel in the negotiation, execution and delivery of this Agreement and the
other Loan Documents;

 

 

75

 







 

 

(b)        neither the
Administrative Agent nor any Lender has any fiduciary relationship with or duty
to the Borrower arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between the Administrative Agent
and Lenders, on the one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and

(c)        no joint venture is
created hereby or by the other Loan Documents or otherwise exists by virtue of
the transactions contemplated hereby among the Lenders or among the Borrower and
the Lenders.

13.14    Confidentiality. Each Lender agrees to keep
confidential any written or oral information (a) provided to it by or on behalf
of the Borrower or any of its Subsidiaries pursuant to or in connection with
this Agreement or (b) obtained by such Lender based on a review of the books and
records of the Borrower or any of its Subsidiaries; provided that nothing herein shall prevent any
Lender from disclosing any such information (i) to the Administrative Agent, the
Issuing Lender or any other Lender, (ii) to any Transferee or prospective
Transferee which receives such information having been made aware of the
confidential nature thereof and having agreed to abide by the provisions of this
subsection 13.14, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, and to employees and officers of
its Affiliates who agree to be bound by the provisions of this subsection 13.14
and who have a need for such information in connection with this Agreement or
other transactions or proposed transactions with the Borrower, (iv) upon the
request or demand of any Governmental Authority having jurisdiction over such
Lender, (v) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law,
(vi) subject to an agreement to comply with the provisions of this subsection,
to any actual or prospective counter-party (or its advisors) to any Hedge
Agreement, (vii) which has been publicly disclosed other than in breach of this
Agreement, or (viii) in connection with the exercise of any remedy
hereunder.

13.15    Loan Conversion/Participations. (a) (i) On any
Conversion Date, to the extent not otherwise prohibited by a Requirement of Law
or otherwise, all Loans (other than CAF Advances) outstanding in any currency
other than Dollars (“Loans to be
Converted”) shall be converted into Revolving Credit
Loans denominated in Dollars (calculated on the basis of the relevant Exchange
Rates as of the Business Day immediately preceding the Conversion Date)
(“Converted Loans”) and (ii) on
the Conversion Date (with respect to Loans described in the foregoing clause
(i)) (A) each Lender severally, unconditionally and irrevocably agrees that it
shall purchase in Dollars a participating interest in such Converted Loans in an
amount equal to its Conversion Sharing Percentage of the outstanding principal
amount of the Converted Loans and (B) to the extent necessary to cause the
Committed Outstandings Percentage of each Lender to equal its Revolving Credit
Commitment Percentage (calculated immediately prior to the termination or
expiration of the Revolving Credit Commitments), each Lender severally,
unconditionally and irrevocably agrees that it shall purchase or sell a
participating interest in Revolving Credit Loans then outstanding. Each Lender
will immediately transfer to the Administrative Agent, in immediately available
funds, the amounts of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each Lender
from which a participating interest is being purchased in the amount(s) provided
for in the 

 

76

 







 

preceding sentence. All Converted Loans shall bear interest at the rate
which would otherwise be applicable to ABR Loans.

(b)        If, for any reason,
the Loans to be Converted may not be converted into Dollars in the manner
contemplated by paragraph (a) of this subsection 13.15, (i) effective on such
Conversion Date, each Lender severally, unconditionally and irrevocably agrees
that it shall purchase a participating interest in such Loans to be Converted,
as the case may be, in an amount equal to its Conversion Sharing Percentage of
such Loans to be Converted, and (ii) each Lender shall purchase or sell
participating interests as provided in paragraph (a)(ii)(B) of this subsection
13.15. Each Lender will immediately transfer to the appropriate Administrative
Agent, in immediately available funds, the amount(s) of its participation(s),
and the proceeds of such participation(s) shall be distributed by the
Administrative Agent to each relevant Lender in the amount(s) provided for in
the preceding sentence.

(c)        To the extent any
Non-Excluded Taxes are required to be withheld from any amounts payable by a
Lender to another Lender in connection with its participating interest in any
Converted Loan, the Borrower shall be required to pay increased amounts to the
Lender receiving such payments to the same extent they would be required under
subsection 3.10 if the Borrower were making payments directly to such
Lender.

(d)        Any time after the
actions contemplated by paragraph (a) or (b) of this subsection 13.15 have been
taken, upon the notice of any Lender to the Borrower the following shall occur:
(i) the Borrower (through the guarantee contained in Section 12) shall
automatically be deemed to have assumed the Local Currency Loans which are
Converted Loans in which such Lender holds a participation, and (ii) such Local
Currency Loans shall be assigned by the relevant Lender holding such Local
Currency Loans or obligations to the Lender who gave the notice requesting such
assumption by the Borrower.

13.16    Judgment. (a) If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due hereunder in one
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 first currency with such other currency in the city in which
it normally conducts its foreign exchange operation for the first currency on
the Business Day preceding the day on which final judgment is given.

(b)        The obligation of the
Borrower in respect of any sum due from it to any Lender hereunder shall,
notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
“Agreement Currency”), be
discharged only to the extent that on the Business Day following receipt by such
Lender of any sum adjudged to be so due in the Judgment Currency such Lender may
in accordance with normal banking procedures purchase the Agreement Currency
with the Judgment Currency; if the amount of Agreement Currency so purchased is
less than the sum originally due to such Lender in the Agreement Currency, the
Borrower agrees notwithstanding any such judgment to indemnify such Lender
against such loss, and if the amount of the Agreement Currency so purchased
exceeds the sum originally due to any Lender, such Lender agrees to remit to the
Borrower such excess.

 

 

77

 







 

 

13.17    WAIVERS OF JURY TRIAL. THE
BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.

13.18    USA Patriot Act Notice. Each Lender and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Patriot 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 Lender or the Administrative Agent, as applicable, to
identify the Borrower in accordance with the Patriot Act.

 

 

78

 







 

 

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

BOSTON SCIENTIFIC CORPORATION

By: _________________________________

Name:

Title:

JPMORGAN CHASE BANK, N.A.

as Administrative Agent and as a Lender

By: _________________________________

Name:

Title:

BANK OF AMERICA, N.A.,

as Syndication Agent and as a Lender

By: _________________________________

Name:

Title:

WACHOVIA BANK, NATIONAL ASSOCIATION, as
Syndication Agent and as a Lender

By: _________________________________

Name:

Title:

ABN AMRO BANK N.V.,

as Documentation Agent and as a Lender

By: _________________________________

Name:

Title:

 

 

 







 

 

DEUTSCHE BANK SECURITIES INC.,

as Documentation Agent

By: _________________________________

Name:

Title:

DEUTSCHE BANK AG NEW YORK BRANCH,

as a Lender

By: _________________________________

Name:

Title:

SUMITOMO MITSUI BANKING CORPORATION,

as Documentation Agent and as a Lender

By: _________________________________

Name:

Title:

THE BANK OF TOKYO-MITSUBISHI, LTD.,

NEW YORK BRANCH, 

as Documentation Agent and as a Lender

 

By: _________________________________

Name:

Title:

UBS SECURITIES LLC,

as Documentation Agent 

 

By: _________________________________

Name:

Title:

By: _________________________________

Name:

Title:

 

 

 







 

 

UBS LOAN FINANCE LLC,

as a Lender

By: _________________________________

Name:

Title:

By: _________________________________

Name:

Title:

MERRILL LYNCH BANK USA,

as Managing Agent and a Lender

By: _________________________________

Name:

Title:

BNP PARIBAS,

as Managing Agent and a Lender

By: _________________________________

Name:

Title:

By: _________________________________

Name:

Title:

CITIZENS BANK OF MASSACHUSETTS,

as a Lender

By: _________________________________

Name:

Title:

STANDARD CHARTERED BANK,

as a Lender

By: _________________________________

Name:

Title:

 

 

 







 

 

BANCO BILBAO VIZCAYA ARGENTARIA S.A., New York Branch,

as a Lender

By: _________________________________

Name:

Title:

KEYBANK NATIONAL ASSOCIATION,

as a Lender

By: _________________________________

Name:

Title:

 

 

MIZUHO CORPORATE BANK, LTD.,

as a Lender

By: _________________________________

Name:

Title:

ALLIED IRISH BANKS Plc,

as a Lender

By: _________________________________

Name:

Title:

MELLON BANK, N.A.,

as a Lender

By: _________________________________

Name:

Title:

BANCA INTESA, NEW YORK BRANCH,

as a Lender

By: _________________________________

Name:

 

 

 







 

 

Title:

THE BANK OF NEW YORK,

as a Lender

By: _________________________________

Name:

Title:

U.S. BANK, NATIONAL ASSOCIATION,

as a Lender

By: _________________________________

Name:

Title:

SVENSKA HANDELSBANKEN AB,

as a Lender

By: _________________________________

Name:

Title:

By: _________________________________

Name:

Title:

 

 

 







 

 

SCHEDULE I

 

NAMES, ADDRESSES AND COMMITMENTS OF LENDERS

 


	
      Name and Address
	
      Revolving Credit Commitment
	
      Multicurrency Commitment

	
      JPMorgan Chase Bank, N.A.
270 Park
      Avenue
New York, NY 10017
Attn: Dawn Lee Lum
Fax: (212)
      270-3279
	
      $127,500,000
	
      $51,000,000

	
       
	
       
	
       

	
      Bank of America, N.A.
100 N. Tryon
      Street
NC-1-007-017-1 I
Charlotte, NC 28202-1111
Attn: James W.
      Ford
Fax: (704) 409-0181
	
      $127,500,000
	
      $51,000,000

	
       
	
       
	
       

	
      Wachovia Bank, N.A.
1339 Chestnut
      Street
Widener Building, 12th Floor,
      PA4152
Philadelphia, PA 19107
Attn: Jeanette Griffin
Fax: (267)
      321-6702
	
      $123,750,000
	
      $49,500,000

	
       
	
       
	
       

	
      ABN AMRO Bank N.V.
350 Park Avenue, 3rd
      Floor
New York, NY 10022
Attn: Todd Miller
Fax: (212)
      409-1641
	
      $123,750,000
	
      $49,500,000

	
       
	
       
	
       

	
      Deutsche Bank AG New York Branch
60 Wall
      Street
New York, NY 10005
Attn: Eugene Shim
Fax: (212)
      797-4344
	
      $123,750,000
	
      $49,500,000

	
       
	
       
	
       

	
      Sumitomo Mitsui Banking Corporation
277
      Park Avenue
New York, NY 10172
Attn: Ed McColly
Fax: (212)
      224-5197
	
      $123,750,000
	
      $49,500,000

	
       
	
       
	
       




 

 

 

 







 

 

 


	
      The Bank of Tokyo-Mitsubishi, Ltd.
New
      York Branch
1251 Avenue of the Americas, 12th
      Floor
New York, NY 10020
Attn: Lillian Kim
Fax: (212)
      782-6440
	
      $123,750,000
	
      $49,500,000

	
       
	
       
	
       

	
      UBS Loan Finance LLC
677 Washington
      Boulevard
Stamford, CT 06901
Attn: Christopher Aitkin
Fax: (203) 719
      3888
	
      $123,750,000
	
      $49,500,000

	
       
	
       
	
       

	
      BNP Paribas
787 Seventh
      Avenue
New York, NY 10019
Attn: Simone Vinocour
Fax: (212)
      841-3049
	
      $75,000,000
	
      $30,000,000

	
       
	
       
	
       

	
      Merrill Lynch Bank USA
15 W. South
      Temple, Suite 300
Salt Lake City, UT
      84101
Attn: Derek Befus
Fax:
      (801) 531-7470
	
      $75,000,000
	
      $30,000,000

	
       
	
       
	
       

	
      Citizens Bank of Massachusetts
28 State
      Street, 15th
      Floor
Boston, MA 02109
Attn:
      Stephen Foley
Fax: (617) 263-0439
	
      $37,500,000
	
      $15,000,000

	
       
	
       
	
       

	
      Banco Bilbao Vizcaya Argentaria, S.A.,
New York Branch
1340 Avenue of the Americas, 45th Floor
New York,
      NY 10106
Attn: Francesco Alvarez
Fax: (212) 333-2904
	
      $37,500,000
	
      $15,000,000

	
       
	
       
	
       

	
      KeyBank National Association
127 Public
      Square, 6th Floor
Cleveland, OH 44114
Attn: J. T. Taylor
Fax: (216)
      689-8329
	
      $37,500,000
	
      $15,000,000

	
       
	
       
	
       

	
      Mizuho Corporate Bank, Ltd.
1251 Avenue
      of the Americas
New York, NY 10020
Attn: Vadim Mulodzhanov
Fax: (212)
      282-4488
	
      $37,500,000
	
      $15,000,000




 

 

 

 







 

 

 


	
       
	
       
	
       

	
      Standard Chartered Bank
One Madison
      Avenue
New York, NY 10010
Attn: Victoria Faltine
Fax: (212)
      -667-0287
	
      $37,500,000
	
      $15,000,000

	
       
	
       
	
       

	
      Allied Irish Banks, p.l.c.
AIB Corporate
      Banking,
Bankcentre Ballsbridge,
Dublin 4, Ireland
Attn: Diarmuid
      O'Neill
Fax: 00-353-668-2508
	
      $37,500,000
	
      $15,000,000

	
       
	
       
	
       

	
      Mellon Bank, N.A.
One Mellon Center
      
500 Grant Street, Room 4535
Pittsburgh, PA 15258-0001 
Attn: 
      William M. Feathers 
Fax:  (412)
      236-6112
	
      $33,750,000
	
      $13,500,000

	
       
	
       
	
       

	
      Banca Intesa, S.p.A.
New York
      Branch
1 William Street
New
      York, NY 10004
Attn: Frank Maffei
Fax: (212) 809-2124
	
      $26,250,000
	
      $10,500,000

	
       
	
       
	
       

	
      The Bank of New York
One Wall
      Street
New York, NY 10286
Attn: Christopher Kordes
Fax: (212)
      635-1481
	
      $26,250,000
	
      $10,500,000

	
       
	
       
	
       

	
      U.S. Bank, National Association
US Bank
      Tower
425 Walnut Street, 8th Floor
ML CN-W-8
Attn: Michael P.
      Dickman
Fax: (513) 632-2068
	
      $26,250,000
	
      $10,500,000

	
       
	
       
	
       

	
      Svenska Handelsbanken AB
153 East
      53rd Street,
      37th
      Floor
New York, NY 10022-4678
Attn: Sophia Ng
Fax: (212)
      326-5110
	
      $15,000,000
	
      $6,000,000

	
      Total
	
      $1,500,000,000
	
      $600,000,000




 

 







 

 

SCHEDULE II

INFORMATION CONCERNING LOCAL CURRENCY LOANS


	
      I.
	
      MULTICURRENCY LOANS
	
       

	
       
	
      A.
	
      Notice of Multicurrency Loan Borrowing
	
       

	
       
	
      1. Deliver to:
	
      J.P. Morgan Europe Limited

						



125 London Wall

London, EC2Y 5AJ

Attention: Belinda Lucas

Fax No: 44-207-777-2360

with a copy to:

Loan & Agency Services Group

JPMorgan Chase Bank

1111 Fannin, Floor 10

Houston, TX 77002

Attention: Jennifer Anyigbo

Fax: 713-750-2782

2. Time: 

Not later than 11:00 a.m., London time, four Business Days prior to such
Borrowing Date.

3. Information Required:

Currency, Amount to be borrowed, and Interest Periods.


	
      B.
	
      Notice of Multicurrency Loan Continuation; Notice of
      Prepayment

	
       
	
      1. Deliver to:
	
      J.P. Morgan Europe Limited
	
       




125 London Wall

London, EC2Y 5AJ

Attention: Belinda Lucas

Fax No: 44-207-777-2360

 

with a copy to:

Loan & Agency Services Group

JPMorgan Chase Bank

1111 Fannin, Floor 10

Houston, TX 77002

Attention: Jennifer Anyigbo

Fax: 713-750-2782

2. Time:

Not later than 11:00 a.m., London time, four Business Days prior to the
date of such continuation or prepayment.

 

 

 







 

 

3. Information Required:

Amount to be continued or prepaid, as the case may be, and Interest
Periods.


	
      II.
	
      NOTICE OF LOCAL CURRENCY OUTSTANDINGS
	
       

	
       
	
      1. Deliver to:
	
      Loan & Agency Services Group

					



JPMorgan Chase Bank

1111 Fannin, Floor 10

Houston, TX 77002

Attention: Jennifer Anyigbo

Fax: 713-750-2782

2. Delivery time:

By close of business in New York on the date of making of each Local
Currency Loan and on the last Business Day of each month on which the applicable
Foreign Subsidiary Borrower has outstanding any Local Currency Loans.

3. Information Required:

Name of Foreign Subsidiary Borrower, amount and currency of outstanding
Local Currency Loans.