exv10w1






EXHIBIT 10.1




EXECUTION COPY




 

 






$50,000,000

Revolving Credit and Swingline Facility

and

$10,000,000

Letter of Credit Facility




CREDIT AGREEMENT

dated as of October 2, 2008




by and among




TEKELEC, and

TEKELEC INTERNATIONAL, SPRL

as Borrowers,

the Lenders referred to herein,




and




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Swingline Lender and Issuing Lender




 

 







 









 








Table of Contents




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	ARTICLE I DEFINITIONS	 	 	1	 
	 

	 	SECTION 1.1
	 	Definitions
	 	 	1	 
	 

	 	SECTION 1.2
	 	Other Definitions and Provisions
	 	 	22	 
	 

	 	SECTION 1.3
	 	Accounting Terms
	 	 	22	 
	 

	 	SECTION 1.4
	 	UCC Terms
	 	 	22	 
	 

	 	SECTION 1.5
	 	Rounding
	 	 	22	 
	 

	 	SECTION 1.6
	 	References to Agreement and Laws
	 	 	23	 
	 

	 	SECTION 1.7
	 	Times of Day
	 	 	23	 
	 

	 	SECTION 1.8
	 	Letter of Credit Amounts
	 	 	23	 
	 

	 	SECTION 1.9
	 	Amount of Obligations
	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II REVOLVING CREDIT FACILITY	 	 	23	 
	 

	 	SECTION 2.1
	 	Revolving Credit Loans
	 	 	23	 
	 

	 	SECTION 2.2
	 	Swingline Loans
	 	 	24	 
	 

	 	SECTION 2.3
	 	Procedure for Advances of Revolving Credit Loans and
Swingline Loans
	 	 	25	 
	 

	 	SECTION 2.4
	 	Repayment and Prepayment of Revolving Credit Loans and
Swingline Loans
	 	 	26	 
	 

	 	SECTION 2.5
	 	Permanent Reduction of the Revolving Credit Commitment
	 	 	28	 
	 

	 	SECTION 2.6
	 	Termination of Revolving Credit Facility
	 	 	29	 
	 

	 	SECTION 2.7
	 	Nature of Obligations; Bankruptcy Limitations; Agreement for
Contribution
	 	 	29	 
	 

	 	SECTION 2.8
	 	Repayment on the Revolving Credit Maturity Date
	 	 	30	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III LETTER OF CREDIT FACILITY	 	 	30	 
	 

	 	SECTION 3.1
	 	L/C Commitment
	 	 	30	 
	 

	 	SECTION 3.2
	 	Procedure for Issuance of Letters of Credit
	 	 	31	 
	 

	 	SECTION 3.3
	 	Commissions and Other Charges
	 	 	31	 
	 

	 	SECTION 3.4
	 	Reimbursement Obligation of the U.S. Borrower
	 	 	31	 
	 

	 	SECTION 3.5
	 	Obligations Absolute
	 	 	32	 
	 

	 	SECTION 3.6
	 	Effect of Letter of Credit Application
	 	 	32	 
	 

	 	SECTION 3.7
	 	Collateral
	 	 	32	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV UNCONDITIONAL U.S. BORROWER GUARANTY	 	 	33	 
	 

	 	SECTION 4.1
	 	Guaranty of Obligations
	 	 	33	 
	 

	 	SECTION 4.2
	 	Nature of Guaranty
	 	 	33	 
	 

	 	SECTION 4.3
	 	Waivers
	 	 	34	 
	 

	 	SECTION 4.4
	 	Modification of Loan Documents, Etc.
	 	 	35	 
	 

	 	SECTION 4.5
	 	Demand by the Administrative Agent
	 	 	36	 
	 

	 	SECTION 4.6
	 	Termination; Reinstatement
	 	 	36	 
	 

	 	SECTION 4.7
	 	No Subrogation
	 	 	37	 






i 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 4.8
	 	Payments
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V GENERAL LOAN PROVISIONS	 	 	37	 
	 

	 	SECTION 5.1
	 	Interest
	 	 	37	 
	 

	 	SECTION 5.2
	 	Notice and Manner of Conversion or Continuation of Loans
	 	 	39	 
	 

	 	SECTION 5.3
	 	Fees
	 	 	40	 
	 

	 	SECTION 5.4
	 	Manner of Payment
	 	 	40	 
	 

	 	SECTION 5.5
	 	Evidence of Indebtedness
	 	 	41	 
	 

	 	SECTION 5.6
	 	Adjustments
	 	 	42	 
	 

	 	SECTION 5.7
	 	Obligations of Lenders
	 	 	42	 
	 

	 	SECTION 5.8
	 	Changed Circumstances
	 	 	43	 
	 

	 	SECTION 5.9
	 	Indemnity
	 	 	45	 
	 

	 	SECTION 5.10
	 	Increased Costs
	 	 	45	 
	 

	 	SECTION 5.11
	 	Taxes
	 	 	47	 
	 

	 	SECTION 5.12
	 	Mitigation Obligations; Replacement of Lenders
	 	 	48	 
	 

	 	SECTION 5.13
	 	Security
	 	 	49	 
	 

	 	SECTION 5.14
	 	Regulatory Limitation
	 	 	50	 
	 

	 	SECTION 5.15
	 	Appointment of Borrower Agent
	 	 	50	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI CLOSING; CONDITIONS OF CLOSING AND BORROWING	 	 	50	 
	 

	 	SECTION 6.1
	 	Closing
	 	 	50	 
	 

	 	SECTION 6.2
	 	Conditions to Closing and Initial Extensions of Credit
	 	 	50	 
	 

	 	SECTION 6.3
	 	Conditions to All Extensions of Credit
	 	 	53	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII REPRESENTATIONS AND WARRANTIES	 	 	54	 
	 

	 	SECTION 7.1
	 	Representations and Warranties
	 	 	54	 
	 

	 	SECTION 7.2
	 	Survival of Representations and Warranties, Etc.
	 	 	62	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII FINANCIAL INFORMATION AND NOTICES	 	 	62	 
	 

	 	SECTION 8.1
	 	Financial Statements and Projections
	 	 	62	 
	 

	 	SECTION 8.2
	 	Officer’s Compliance Certificate
	 	 	63	 
	 

	 	SECTION 8.3
	 	Accountants’ Certificate
	 	 	63	 
	 

	 	SECTION 8.4
	 	Other Reports
	 	 	63	 
	 

	 	SECTION 8.5
	 	Notice of Litigation and Other Matters
	 	 	63	 
	 

	 	SECTION 8.6
	 	Accuracy of Information
	 	 	65	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX AFFIRMATIVE COVENANTS	 	 	65	 
	 

	 	SECTION 9.1
	 	Preservation of Corporate Existence and Related Matters
	 	 	65	 
	 

	 	SECTION 9.2
	 	Maintenance of Property
	 	 	65	 
	 

	 	SECTION 9.3
	 	Insurance
	 	 	66	 
	 

	 	SECTION 9.4
	 	Accounting Methods and Financial Records
	 	 	66	 
	 

	 	SECTION 9.5
	 	Payment and Performance of Obligations
	 	 	66	 
	 

	 	SECTION 9.6
	 	Compliance With Laws and Approvals
	 	 	66	 
	 

	 	SECTION 9.7
	 	Environmental Laws
	 	 	66	 
	 

	 	SECTION 9.8
	 	Compliance with ERISA
	 	 	67	 






ii 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 9.9
	 	Compliance With Agreements
	 	 	67	 
	 

	 	SECTION 9.10
	 	Visits and Inspections
	 	 	67	 
	 

	 	SECTION 9.11
	 	Deposit Account/Bank Fees
	 	 	67	 
	 

	 	SECTION 9.12
	 	Use of Proceeds
	 	 	68	 
	 

	 	SECTION 9.13
	 	Further Assurances
	 	 	68	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X FINANCIAL COVENANTS	 	 	68	 
	 

	 	SECTION 10.1
	 	Consolidated Senior Leverage Ratio
	 	 	68	 
	 

	 	SECTION 10.2
	 	Consolidated Total Leverage Ratio
	 	 	68	 
	 

	 	SECTION 10.3
	 	Minimum Asset Coverage Ratio
	 	 	68	 
	 

	 	SECTION 10.4
	 	Continued Profitability
	 	 	68	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XI NEGATIVE COVENANTS	 	 	68	 
	 

	 	SECTION 11.1
	 	Limitations on Indebtedness
	 	 	69	 
	 

	 	SECTION 11.2
	 	Limitations on Liens
	 	 	70	 
	 

	 	SECTION 11.3
	 	Limitations on Loans, Advances, Investments and Acquisitions
	 	 	71	 
	 

	 	SECTION 11.4
	 	Limitations on Mergers and Liquidation
	 	 	71	 
	 

	 	SECTION 11.5
	 	Limitations on Asset Dispositions
	 	 	72	 
	 

	 	SECTION 11.6
	 	Limitations on Dividends and Distributions
	 	 	73	 
	 

	 	SECTION 11.7
	 	Limitations on Exchange and Issuance of Capital Stock
	 	 	73	 
	 

	 	SECTION 11.8
	 	Transactions with Affiliates
	 	 	73	 
	 

	 	SECTION 11.9
	 	Certain Accounting Changes; Organizational Documents
	 	 	74	 
	 

	 	SECTION 11.10
	 	Amendments; Payments and Prepayments of Subordinated
Indebtedness
	 	 	74	 
	 

	 	SECTION 11.11
	 	Restrictive Agreements
	 	 	74	 
	 

	 	SECTION 11.12
	 	Nature of Business
	 	 	74	 
	 

	 	SECTION 11.13
	 	Impairment of Security Interests
	 	 	74	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XII DEFAULT AND REMEDIES	 	 	75	 
	 

	 	SECTION 12.1
	 	Events of Default
	 	 	75	 
	 

	 	SECTION 12.2
	 	Remedies
	 	 	77	 
	 

	 	SECTION 12.3
	 	Rights and Remedies Cumulative; Non-Waiver; etc.
	 	 	78	 
	 

	 	SECTION 12.4
	 	Crediting of Payments and Proceeds
	 	 	78	 
	 

	 	SECTION 12.5
	 	Administrative Agent May File Proofs of Claim
	 	 	79	 
	 

	 	SECTION 12.6
	 	Judgment Currency
	 	 	80	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIII THE ADMINISTRATIVE AGENT	 	 	81	 
	 

	 	SECTION 13.1
	 	Appointment and Authority
	 	 	81	 
	 

	 	SECTION 13.2
	 	Rights as a Lender
	 	 	81	 
	 

	 	SECTION 13.3
	 	Exculpatory Provisions
	 	 	81	 
	 

	 	SECTION 13.4
	 	Reliance by the Administrative Agent
	 	 	82	 
	 

	 	SECTION 13.5
	 	Delegation of Duties
	 	 	82	 
	 

	 	SECTION 13.6
	 	Resignation of Administrative Agent
	 	 	82	 
	 

	 	SECTION 13.7
	 	Non-Reliance on Administrative Agent and Other Lenders
	 	 	83	 
	 

	 	SECTION 13.8
	 	Collateral and Guaranty Matters
	 	 	84	 






iii 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIV MISCELLANEOUS	 	 	84	 
	 

	 	SECTION 14.1
	 	Notices
	 	 	84	 
	 

	 	SECTION 14.2
	 	Amendments, Waivers and Consents
	 	 	86	 
	 

	 	SECTION 14.3
	 	Expenses; Indemnity
	 	 	87	 
	 

	 	SECTION 14.4
	 	Right of Set Off
	 	 	89	 
	 

	 	SECTION 14.5
	 	Governing Law; Jurisdiction, Etc.
	 	 	90	 
	 

	 	SECTION 14.6
	 	Waiver of Jury Trial
	 	 	90	 
	 

	 	SECTION 14.7
	 	Reversal of Payments
	 	 	91	 
	 

	 	SECTION 14.8
	 	Injunctive Relief
	 	 	91	 
	 

	 	SECTION 14.9
	 	Accounting Matters
	 	 	91	 
	 

	 	SECTION 14.10
	 	Successors and Assigns; Participations
	 	 	91	 
	 

	 	SECTION 14.11
	 	Confidentiality
	 	 	94	 
	 

	 	SECTION 14.12
	 	Performance of Duties
	 	 	95	 
	 

	 	SECTION 14.13
	 	All Powers Coupled with Interest
	 	 	95	 
	 

	 	SECTION 14.14
	 	Survival of Indemnities
	 	 	95	 
	 

	 	SECTION 14.15
	 	Titles and Captions
	 	 	96	 
	 

	 	SECTION 14.16
	 	Severability of Provisions
	 	 	96	 
	 

	 	SECTION 14.17
	 	Counterparts; Integration; Effectiveness; Electronic Execution
	 	 	96	 
	 

	 	SECTION 14.18
	 	Term of Agreement
	 	 	96	 
	 

	 	SECTION 14.19
	 	USA Patriot Act
	 	 	97	 
	 

	 	SECTION 14.20
	 	Independent Effect of Covenants
	 	 	97	 
	 

	 	SECTION 14.21
	 	Language
	 	 	97	 






iv 









 





EXHIBITS




	 	 	 	 	 
	Exhibit A-1

	 	—
	 	Form of Revolving Credit Note
	Exhibit A-2

	 	—
	 	Form of Swingline Note
	Exhibit B

	 	—
	 	Form of Notice of Borrowing
	Exhibit C

	 	—
	 	Form of Notice of Account Designation
	Exhibit D

	 	—
	 	Form of Notice of Prepayment
	Exhibit E

	 	—
	 	Form of Notice of Conversion/Continuation
	Exhibit F

	 	—
	 	Form of Officer’s Compliance Certificate
	Exhibit G

	 	—
	 	Form of Assignment and Assumption






SCHEDULES




	 	 	 	 	 
	Schedule 1.1

	 	 	 	Cash Equivalents
	Schedule 1.1(a)

	 	—
	 	Mandatory Cost Rate
	Schedule 7.1(a)

	 	—
	 	Jurisdictions of Organization and Qualification
	Schedule 7.1(b)

	 	—
	 	Subsidiaries and Capitalization
	Schedule 7.1(i)

	 	—
	 	ERISA Plans
	Schedule 7.1(l)

	 	—
	 	Material Contracts
	Schedule 7.1(m)

	 	—
	 	Labor and Collective Bargaining Agreements
	Schedule 7.1(u)

	 	—
	 	Indebtedness and Guaranty Obligations
	Schedule 7.1(v)

	 	—
	 	Litigation
	Schedule 11.2

	 	—
	 	Existing Liens
	Schedule 11.3

	 	—
	 	Existing Loans, Advances and Investments
	Schedule 11.8

	 	—
	 	Transactions with Affiliates







v 











 





     This CREDIT AGREEMENT, dated as of October 2, 2008, is entered into by and among TEKELEC, a
California corporation (the “U.S. Borrower”), TEKELEC INTERNATIONAL, SPRL, a societe privee
a responsabilité limitée organized under the laws of the Kingdom of Belgium (the “Belgian
Borrower”, and together with the U.S. Borrower, each a “Borrower” and collectively, the
“Borrowers”), the lenders who are or may become a party to this Agreement (collectively,
the “Lenders”) and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as
Administrative Agent for the Lenders.



STATEMENT OF PURPOSE




     The Borrowers have requested, and the Lenders have agreed, to extend certain credit facilities
to the Borrowers on the terms and conditions of this Agreement.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, such parties hereby agree as follows:



ARTICLE I




DEFINITIONS




     SECTION 1.1 Definitions. The following terms when used in this Agreement shall have the
meanings assigned to them below:



     “Account” has the meaning assigned thereto in the UCC.



     “Administrative Agent” means Wachovia, in its capacity as Administrative Agent
hereunder, and any successor thereto appointed pursuant to Section 13.6.



     “Administrative Agent’s Correspondent” means Wachovia Bank, National Association,
London Branch, or any other financial institution designated by the Administrative Agent to act as
its correspondent hereunder with respect to the distribution and payment of Alternative Currency
Loans.



     “Administrative Agent’s Office” means the office of the Administrative Agent specified
in or determined in accordance with the provisions of Section 14.1(c).



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



     “Affiliate” means, with respect to any Person, any other Person (other than a
Subsidiary of any of the Borrowers) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, such first Person
or any of its Subsidiaries. As used in this definition, the term “control” means the power,
directly or indirectly, to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities, by contract or otherwise.



     “Agreement” means this Credit Agreement, as amended, restated, supplemented or
otherwise modified from time to time.



1









 





     “Alternative Currency” means the Euro.



     “Alternative Currency Amount” means with respect to each Loan made or continued (or to
be made or continued) in an Alternative Currency, the amount of such Alternative Currency which is
equivalent to the principal amount in Dollars of such Loan at the most favorable spot exchange rate
determined by the Administrative Agent to be available to it at approximately 11:00 a.m. two (2)
Business Days before such Loan is made or continued (or to be made or continued). When used with
respect to any other sum expressed in Dollars, “Alternative Currency Amount” shall mean the
amount of such Alternative Currency which is equivalent to the amount so expressed in Dollars at
the most favorable spot exchange rate determined by the Administrative Agent to be available to it
at the relevant time.



     “Alternative Currency Loan” means any Revolving Credit Loan denominated in an
Alternative Currency and all such Alternative Currency Loans collectively as the context requires.



     “Applicable Insolvency Laws” means all Applicable Laws governing bankruptcy,
reorganization, arrangement, adjustment of debts, relief of debtors, dissolution, insolvency,
fraudulent transfers or conveyances or other similar laws, whether foreign or domestic (including,
without limitation, 11 U.S.C. Sections 544, 547, 548 and 550 and other “avoidance” provisions of
Title 11 of the United States Code, as amended or supplemented).



     “Applicable Law” means all applicable provisions of constitutions, laws, statutes,
ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders
of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.



     “Applicable Margin” means the corresponding percentages per annum as set forth below
based on the Consolidated Total Leverage Ratio; provided, that with respect to each LIBOR
Rate Loan made in an Alternative Currency, the Applicable Margin shall include the Mandatory Cost
Rate, as determined pursuant to the formula set forth on Schedule 1.1(a) hereto.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Revolving Credit Loans
	Pricing Level	 	Consolidated Total Leverage Ratio	 	Undrawn Fee	 	LIBOR +	 	Base Rate +
	I
	 	Less than 1.00

	 	 	0.250	%	 	 	1.75	%	 	 	0.00	%
	II
	 	Greater than or equal to
1.00 to 1.00, but less
2.00 to 1.00

	 	 	0.300	%	 	 	2.25	%	 	 	0.00	%
	III
	 	Greater than 2.00 to 1:00

	 	 	0.350	%	 	 	2.75	%	 	 	0.00	%





The Applicable Margin shall be determined and adjusted quarterly on the date (each a
“Calculation Date”) ten (10) Business Days after receipt by the Administrative Agent of the
Officer’s Compliance Certificate pursuant to Section 8.2 for the most recently ended fiscal
quarter of the U.S. Borrower; provided that (a) the Applicable Margin shall be based on
Pricing Level I until the first Calculation Date for the fiscal quarter of the U.S. Borrower ending


2









 






December 31, 2008 and, thereafter the Pricing Level shall be determined by reference to the
Consolidated Total Leverage Ratio as of the last day of the most recently ended fiscal quarter of
the U.S. Borrower preceding the applicable Calculation Date, and (b) if the U.S. Borrower fails to
provide the Officer’s Compliance Certificate as required by Section 8.2 for the most
recently ended fiscal quarter of the U.S. Borrower preceding the applicable Calculation Date, the
Applicable Margin from such Calculation Date shall be based on Pricing Level III until such time as
an appropriate Officer’s Compliance Certificate is provided, at which time the Pricing Level shall
be determined by reference to the Consolidated Total Leverage Ratio as of the last day of the most
recently ended fiscal quarter of the U.S. Borrower preceding such Calculation Date. The Applicable
Margin shall be effective from one Calculation Date until the next Calculation Date. Any
adjustment in the Applicable Margin shall be applicable to all Extensions of Credit then existing
or subsequently made or issued.



Notwithstanding the foregoing, in the event that any financial statement or Officer’s Compliance
Certificate delivered pursuant to Section 8.1 or 8.2 is shown to be inaccurate
(regardless of whether (i) this Agreement is in effect, or (ii) the Revolving Credit Commitments
are in effect, or (iii) any Extension of Credit is outstanding when such inaccuracy is discovered
or such financial statement or Officer’s Compliance Certificate was delivered), and such
inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any
period (an “Applicable Period”) than the Applicable Margin applied for such Applicable
Period, then (x) the Borrower Agent shall promptly deliver to the Agent a correct Officer’s
Compliance Certificate for such Applicable Period, (y) the Applicable Margin for such Applicable
Period shall be determined as if the Consolidated Total Leverage Ratio in the corrected Officer’s
Compliance Certificate were applicable for such Applicable Period, and (z) the applicable Borrower
shall promptly pay to the Administrative Agent the accrued additional interest owing as a result of
such increased Applicable Margin for such Applicable Period, which payment shall be promptly
applied by the Administrative Agent in accordance with Section 5.4. Nothing in this
paragraph shall limit the rights of the Administrative Agent and Lenders with respect to
Sections 5.1(c) and 12.1.




     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender. Notwithstanding the foregoing, any Fund that is organized in the form of a collateralized
debt obligation or a collateralized loan obligation shall not be an Approved Fund.



     “Asset Coverage Ratio” means, as of any date of determination, the ratio of (a) the.
Borrowers’ Consolidated Adjusted Current Assets to (b) the portion of the Borrowers’ Consolidated
Senior Indebtedness that is unsecured.



     “Asset Disposition” means the disposition of any or all of the assets (including,
without limitation, the Capital Stock of a Subsidiary or any ownership interest in a joint venture)
of either Borrower or any Subsidiary thereof whether by sale, lease, transfer or otherwise. The
term “Asset Disposition” shall not include any issuances of Capital Stock.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 14.10), and accepted by the Administrative Agent, in substantially the form of
Exhibit G or any other form approved by the Administrative Agent.



3









 





     “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease, the
capitalized amount or principal amount of the remaining lease payments under the relevant lease
that would appear on a balance sheet of such Person prepared as of such date in accordance with
GAAP if such lease were accounted for as a Capital Lease.



     “Base Rate” means, at any time, the higher of (a) the Prime Rate and (b) the Federal
Funds Rate plus 1/2 of 1%; each change in the Base Rate shall take effect simultaneously
with the corresponding change or changes in the Prime Rate or the Federal Funds Rate.



     “Base Rate Loan” means any Loan bearing interest at a rate based upon the Base Rate as
provided in Section 5.1(a).



     “Belgian Borrower” has the meaning assigned thereto in the introductory paragraph
hereto.



     “Belgian Borrower Guaranteed Obligations” has the meaning assigned thereto in
Section 4.1.



     “Borrower Agent” has the meaning assigned thereto in Section 5.15.



     “Borrowers” has the meaning assigned thereto in the introductory paragraph hereto.



     “Business Day” means any day other than a Saturday, Sunday or legal holiday on which
banks in Charlotte, North Carolina and New York, New York, are open for the conduct of their
domestic or international commercial banking business and:




     (a) if such day relates to any interest rate settings as to a LIBOR Rate Loan
denominated in Dollars, any funding, disbursements, settlements and payments in Dollars in
respect of any LIBOR Rate Loan, or any other dealings in Dollars to be carried out pursuant
to this Agreement in respect of any such LIBOR Rate Loan, means any such day on which
dealings in deposits in Dollars are conducted by and between banks in the London interbank
eurodollar market; and




     (b) if such day relates to any interest rate settings as to a LIBOR Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in
respect of any such LIBOR Rate Loan, or any other dealings in Euro to be carried out
pursuant to this Agreement in respect of any such LIBOR Rate Loan, means a TARGET Day.



     “Calculation Date” has the meaning assigned thereto in the definition of Applicable
Margin.



     “Capital Asset” means, with respect to the Borrowers and their Subsidiaries, any asset
that should, in accordance with GAAP, be classified and accounted for as a capital asset on a
Consolidated balance sheet of the Borrowers and their Subsidiaries.



4









 





     “Capital Lease” means any lease of any property by the Borrowers or any of their
Subsidiaries, as lessee, that should, in accordance with GAAP, be classified and accounted for as a
capital lease on a Consolidated balance sheet of the Borrowers and their Subsidiaries.



     “Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case
of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of capital stock, (c) in the case of a partnership,
partnership interests (whether general or limited), (d) in the case of a limited liability company,
membership interests and (e) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.



     “Cash Equivalents” means the investments and type of investments described in Schedule
1.1.



     “Change in Control” means an event or series of events by which (a) any person or
group of persons (within the meaning of Section 13(d) of the Securities Exchange Act of
1934, as amended), shall obtain ownership or control in one or more series of transactions of more
than thirty-five percent (35%) of the Capital Stock or thirty-five percent (35%) of the voting
power of the U.S. Borrower entitled to vote in the election of members of the board of directors of
the U.S. Borrower or (b) the U.S. Borrower shall cease to directly or indirectly beneficially own
and control 100% of the issued and outstanding Capital Stock of each class of the Belgian Borrower
and each Subsidiary listed on Schedule 7.1(b) hereto.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Closing Date” means the date of this Agreement or such later Business Day upon which
each condition described in Section 6.2 shall be satisfied or waived in all respects in a
manner acceptable to the Administrative Agent, in its sole discretion.



     “Code” means the Internal Revenue Code of 1986, and the rules and regulations
thereunder, each as amended or modified from time to time.



     “Collateral” means the L/C Collateral and the collateral security for the Obligations
pledged or granted pursuant to the Security Documents.



     “Consolidated” means, when used with reference to financial statements or financial
statement items of any Person, such statements or items on a consolidated basis in accordance with
applicable principles of consolidation under GAAP.



     “Consolidated Adjusted Current Assets” shall mean, at any date, the sum of (a) cash
and Cash Equivalents of the Borrowers and their Subsidiaries that are not encumbered by any Liens,
(b) fifty percent (50%) of the value of the Borrowers and their Subsidiaries auction rate
securities valued at par, and (c) 50% of the Borrowers and their Subsidiaries’ Eligible Accounts
Receivable.



5









 





     “Consolidated EBITDA” means, for any period, the sum of the following determined on a
Consolidated basis, without duplication, for the Borrowers and their Subsidiaries in accordance
with GAAP: (a) Consolidated Net Income for such period plus (b) the sum of the following
to the extent deducted in determining Consolidated Net Income: (i) income and franchise taxes, (ii)
Consolidated Interest Expense, (iii) amortization and depreciation and (iv) non-cash stock
compensation expense, minus (c) the sum of the following to the extent included in
determining Consolidated Net Income: (i) the net income (or loss) of any unconsolidated investment
or Subsidiary of the U.S. Borrower under GAAP, except to the extent such net income is actually
paid in cash to the Borrowers or any of their Subsidiaries by dividend or other distribution during
such period, (ii) the net income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary of such Person or is merged into or consolidated with a Borrower or any of its
Subsidiaries or that Person’s assets are acquired by such Person or any of its Subsidiaries, (iii)
the net income (if positive) of any Subsidiary of the U.S. Borrower (other than the Belgian
Borrower) to the extent that (x) the declaration or payment of dividends or similar distributions
by such Subsidiary to the Borrowers or any of their Subsidiaries of such net income is not at the
time permitted by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such Subsidiary and (y) such
restriction on the declaration or payment of dividends or similar distributions described above
exists and continues for a three consecutive calendar month period. The aforementioned exclusion
of such net income in (c)(iii) above applies only if and to the extent that the net income of any
such Subsidiaries in the aggregate which are subject to the limitations on the payment of dividends
as of the balance sheet date for the period being measured does not exceed, in the aggregate for
any period, ten percent (10%) of the Consolidated Net Income of the Borrowers and their
Subsidiaries. If the amount of net income in the aggregate for all Subsidiaries exceeds such
amount, then the actual amount of net income so limited shall be subtracted from Consolidated
EBITDA; provided, however, that such amount shall not be subtracted from
Consolidated EBITDA if such amount does not exceed $2,000,000. The Borrower Agent shall provide
the Administrative Agent written notice of any restriction on the declaration or payment of
dividends or similar distributions (including written notice of any restriction on the declaration
or payment of dividends or similar distributions with respect to the Belgian Borrower) within five
(5) Business Days of becoming aware of any such restrictions.



     “Consolidated Interest Expense” means, with respect to the Borrowers and their
Subsidiaries for any period, the gross interest expense (including, without limitation, interest
expense attributable to Capital Leases and all net payment obligations pursuant to Hedging
Agreements) of the Borrowers and their Subsidiaries, all determined for such period on a
Consolidated basis, without duplication, in accordance with GAAP.



     “Consolidated Net Income” means, with respect to the Borrowers and their Subsidiaries,
for any period of determination, the net income (or loss) of the Borrowers and their Subsidiaries
from continuing operations for such period, determined on a Consolidated basis in accordance with
GAAP; provided that there shall be excluded from Consolidated Net Income: (a) the net
income or net loss from any discontinued operations of the Borrowers or their Subsidiaries and (b)
extraordinary gains and extraordinary losses (whether cash or non-cash) incurred from activities
outside the normal business activities of the Borrowers or their Subsidiaries (including, without
limitation, gains and losses resulting from the sale of any substantial amount of assets of the
Borrowers or any of their Subsidiaries, write-off of acquired in process research and



6









 







development expenses, and investment gains or losses, other than those associated with
short-term fixed rate income securities), all as determined in accordance with GAAP.



     “Consolidated Net Worth” means, at any date, (a) the total of depreciated value of
Consolidated assets appearing on the balance sheet of the Borrowers and their Subsidiaries
minus (b) all of the Borrowers and their Subsidiaries Consolidated liabilities appearing on
the balance sheet of the Borrowers and their Subsidiaries (including, without limitation, Capital
Leases, Synthetic Leases, all reserves for deferred taxes and Subordinated Indebtedness), in each
case determined as of such date on a Consolidated basis and in accordance with GAAP.



     “Consolidated Senior Indebtedness” means, as of any date of determination with respect
to the Borrower and their Subsidiaries on a Consolidated basis without duplication, the sum of (a)
all Indebtedness of the Borrowers and their Subsidiaries minus (b) all Subordinated
Indebtedness of the Borrowers and their Subsidiaries minus (c) all Letters of Credit issued
and outstanding under Article III hereunder minus (d) cash secured standby and
commercial letters of credit issued by lenders other than the Lenders as permitted under
Section 11.1(k).



     “Consolidated Senior Leverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated Senior Indebtedness on such date to (b) Consolidated EBITDA for the period of
four (4) consecutive fiscal quarters ending on or immediately prior to such date.



     “Consolidated Tangible Assets” means, at any date, (a) the total of depreciated value
of Consolidated assets appearing on the balance sheet of the Borrowers and their Subsidiaries
minus (b) the aggregate amount of any intangible assets of the Borrowers and their
Subsidiaries including, without limitation, goodwill, franchises, licenses, patents, trademarks,
trade names, copyrights, service marks, and brand names.



     “Consolidated Tangible Net Worth” means, at any date, (a) the total of depreciated
value of Consolidated Tangible Assets appearing on the balance sheet of the Borrowers and their
Subsidiaries minus (b) all of the Borrowers and their Subsidiaries Consolidated liabilities
appearing on the balance sheet of the Borrowers and their Subsidiaries (including, without
limitation, Capital Leases, Synthetic Leases, all reserves for deferred taxes and Subordinated
Indebtedness), in each case determined as of such date on a Consolidated basis and in accordance
with GAAP.



     “Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated Total Indebtedness on such date to (b) Consolidated EBITDA for the period of
four (4) consecutive fiscal quarters ending on or immediately prior to such date.



     “Consolidated Total Indebtedness” means, as of any date of determination with respect
to the Borrowers and their Subsidiaries on a Consolidated basis without duplication, the sum of all
Indebtedness of the Borrower and their Subsidiaries minus all Letters of Credit issued and
outstanding under Article III hereunder minus cash secured standby and commercial
letters of credit issued by lenders other than the Lenders as permitted under Section
11.1(k).



     “Credit Facility” means, collectively, the Revolving Credit Facility, the Swingline
Facility and the L/C Facility.



7









 





     “Default” means any of the events specified in Section 12.1 which with the
passage of time, the giving of notice or any other condition, would constitute an Event of Default.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Revolving Credit Loans, participations in L/C Obligations or participations in Swingline Loans
required to be funded by it hereunder within one (1) Business Day of the date required to be funded
by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date
when due, unless such amount is the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.



     “Deposit Account” has the meaning as set forth in the UCC.



     “Depository Requirement” has the meaning set forth in Section 9.11.



     “Disputes” has the meaning set forth in Section 14.7.



     “Dollars” or “$” means, unless otherwise qualified, dollars in lawful currency of the
United States.



     “Dollar Amount” means (a) with respect to each Loan made or continued (or to be made
or continued), or Letter of Credit issued or extended (or to be issued or extended), in Dollars,
the principal amount thereof and (b) with respect to each Revolving Credit Loan made or continued
(or to be made or continued) in an Alternative Currency, the amount of Dollars which is equivalent
to the principal amount of such Revolving Credit Loan, at the most favorable spot exchange rate
determined by the Administrative Agent at approximately 11:00 a.m. London time two (2) Business
Days before such Loan is made or continued (or to be made or continued). When used with respect to
any other sum expressed in an Alternative Currency, “Dollar Amount” shall mean the amount
of Dollars which is equivalent to the amount so expressed in such Alternative Currency at the most
favorable spot exchange rate determined by the Administrative Agent to be available to it at the
relevant time.



     “Domestic Subsidiary” means any Subsidiary of the U.S. Borrower organized under the
laws of any state of the United States or the District of Columbia.



     “Eligible Account Receivable” shall mean each account receivable of the Borrowers or
their Subsidiaries that arises in the ordinary course of business that meets the following
eligibility requirements: (a) the Account is not outstanding ninety (90) days or greater beyond the
contractual due date of such Account or payment; (b) the sale of goods or services reflected in
such Account are due and payable under the contract or sales agreement with the Account debtor, (c)
the amounts due under the Account are not subject to any claims, returns or disputes of any kind;
(d) the Account debtor is not an Affiliate of the Borrowers or their Subsidiaries and is not a
supplier and the Account is not otherwise exposed to risk of set-off; and (e) not more than thirty
percent (30%) of the outstanding invoices owing by the Account debtor are more than ninety (90)
days past due from the date of the original contractual due date.



     “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved
Fund, and (d) any other Person (other than a natural person) approved by (i) the Administrative



8









 







Agent, (ii) in the case of any assignment of a Revolving Credit Commitment, the Swingline
Lender and the Issuing Lender, and (iii) unless a Default or Event of Default has occurred and is
continuing, the U.S. Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, “Eligible Assignee” shall not include
(A) the U.S. Borrower or any of the U.S. Borrower’s Affiliates or Subsidiaries and (B) any entity
that is organized in the form of a collateralized debt obligation or a collateralized loan
obligation.



     “Employee Benefit Plan” means (a) any employee benefit plan within the meaning of
Section 3(3) of ERISA that is maintained for employees of the U.S. Borrower or any of its
Subsidiaries or (b) any Pension Plan or Multiemployer Plan that has at any time within the
preceding six (6) years been maintained for the employees of the U.S. Borrower or any current or
former ERISA Affiliate.



     “EMU” means economic and monetary union as contemplated in the Treaty on European
Union.



     “EMU Legislation” means legislative measures of the Council of European Union for the
introduction of, change over to or operation of the Euro.



     “Environmental Claims” means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, written allegations, notices of
noncompliance or violation, investigations (other than internal reports prepared by any Person in
the ordinary course of business and not in response to any third party action or request of any
kind) or proceedings relating in any way to any actual or alleged violation of or liability under
any Environmental Law or relating to any permit issued, or any approval given, under any such
Environmental Law, including, without limitation, any and all claims by Governmental Authorities
for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution,
indemnification cost recovery, compensation or injunctive relief resulting from Hazardous Materials
or arising from alleged injury or threat of injury to human health or the environment.



     “Environmental Laws” means any and all federal, foreign, state, provincial and local
laws, statutes, ordinances, codes, rules, standards and regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to the protection of
human health or the environment, including, but not limited to, requirements pertaining to the
manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous Materials.



     “ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and
regulations thereunder, each as amended or modified from time to time.



     “ERISA Affiliate” means any Person who together with either Borrower is treated as a
single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section
4001(b) of ERISA.



     “Euro” means the single currency to which the Participating Member States of the
European Union have converted.



9









 





     “Eurodollar Reserve Percentage” means, for any day, the percentage (expressed as a
decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for
such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without limitation, any basic,
supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category
of liabilities for a member bank of the Federal Reserve System in New York City.



     “Event of Default” means any of the events specified in Section 12.1;
provided that any requirement for passage of time, giving of notice, or any other
condition, has been satisfied.



     “Excess Payment” has the meaning assigned thereto in Section 2.7(c).



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Lender or any other recipient of any payment to be made by or on account of any obligation
of either Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which either Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower Agent under
Section 5.12(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office)
or is attributable to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with Section 5.11(d), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office
(or assignment), to receive additional amounts from such Borrower with respect to such withholding
tax pursuant to Section 5.11(a).



     “Extensions of Credit” means, as to any Lender at any time, (a) an amount equal to the
sum of (i) the aggregate principal amount of all Revolving Credit Loans made by such Lender then
outstanding , (ii) such Lender’s Revolving Credit Commitment Percentage of the L/C Obligations then
outstanding, and (iii) such Lender’s Revolving Credit Commitment Percentage of the Swingline Loans
then outstanding, or (b) the making of any Loan or participation in any Letter of Credit by such
Lender, as the context requires.



     “FDIC” means the Federal Deposit Insurance Corporation, or any successor thereto.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day (or, if such day is not a Business Day, for
the immediately preceding Business Day), as published by the Federal Reserve Bank of New York on
the Business Day next succeeding such day, provided that if such rate is not so published
for any day which is a Business Day, the average of the quotation for such day on such transactions
received by the Administrative Agent from three (3) Federal funds brokers of recognized standing
selected by the Administrative Agent.



     “Fiscal Year” means the fiscal year of the U.S. Borrower ending on December 31.



10









 





     “Foreign Lender” means, with respect to any applicable Borrower, any Lender that is
organized under the laws of a jurisdiction other than that in which such Borrower is resident for
tax purposes. For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.



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



     “GAAP” means generally accepted accounting principles, as recognized by the American
Institute of Certified Public Accountants and the Financial Accounting Standards Board,
consistently applied and maintained on a consistent basis for the Borrowers and their Subsidiaries
throughout the period indicated and (subject to Section 14.9) consistent with the prior
financial practice of the Borrowers and their Subsidiaries.



     “Governmental Approvals” means all authorizations, consents, approvals, permits,
licenses and exemptions of, registrations and filings with, and reports to, all Governmental
Authorities.



     “Governmental Authority” shall mean any nation or government, any state, province or
territory or other political subdivision thereof, any governmental agency, department, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank), any securities exchange and any self-regulatory organization.



     “Guaranty Obligation” means, with respect to the Borrowers and their Subsidiaries,
without duplication, any obligation, contingent or otherwise, of any such Person pursuant to which
such Person has directly or indirectly guaranteed any Indebtedness of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of any such Person (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness (whether arising by virtue of partnership arrangements, by
agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part); provided, that the term
Guaranty Obligation shall not include endorsements for collection or deposit in the ordinary course
of business.



     “Hazardous Materials” means any substances or materials (a) which are or become
defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or
mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive,
corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to
human health or the environment and are or become regulated by any Governmental Authority, (c) the
presence of which require investigation or remediation under any Environmental Law or common law,
(d) the discharge or emission or release of which requires a permit or license under any
Environmental Law or other Governmental Approval, (e) which are deemed to constitute a nuisance or
a trespass which pose a health or safety hazard to Persons or



11









 







neighboring properties, or (f) which contain, without limitation, asbestos, polychlorinated
biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances
or waste, crude oil, nuclear fuel, natural gas or synthetic gas.



     “Hedging Agreement” means any agreement with respect to any Interest Rate Contract,
forward rate agreement, commodity swap, forward foreign exchange agreement, currency swap
agreement, cross-currency rate swap agreement, currency option agreement or other agreement or
arrangement designed to alter the risks of any Person arising from fluctuations in interest rates,
currency values or commodity prices, all as amended, restated, supplemented or otherwise modified
from time to time.



     “Hedging Obligations” means all existing or future payment and other obligations owing
by either Borrower under any Hedging Agreement (which such Hedging Agreement is permitted
hereunder) with any Person that is a Lender or an Affiliate of a Lender at the time such Hedging
Agreement is executed.



     “Indebtedness” means, with respect to the Borrowers and their Subsidiaries at any date
and without duplication, the sum of the following calculated in accordance with GAAP:



     (a) all liabilities, obligations and indebtedness for borrowed money including, but not
limited to, obligations evidenced by bonds, debentures, notes or other similar instruments of any
such Person;



     (b) all obligations to pay the deferred purchase price of property or services of any such
Person (including, without limitation, all obligations under non-competition, earn-out or similar
agreements), except trade payables arising in the ordinary course of business;



     (c) the Attributable Indebtedness of such Person with respect to such Person’s obligations in
respect of Capital Leases and Synthetic Leases (regardless of whether accounted for as indebtedness
under GAAP);



     (d) all Indebtedness of any other Person secured by a Lien on any asset owned or being
purchased by such Person (including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been assumed by such Person or
is limited in recourse;



     (e) all Guaranty Obligations of Indebtedness of any such Person;



     (f) all obligations, contingent or otherwise, of any such Person relative to the face amount
of letters of credit, whether or not drawn, including, without limitation, any Reimbursement
Obligation, and banker’s acceptances issued for the account of any such Person (excluding any cash
secured standby and commercial letters of credit); and



     (g) all Net Hedging Obligations in excess of $2,000,000.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person.



12









 





     “Indemnified Taxes” means Taxes and Other Taxes other than Excluded Taxes.



     “Interest Period” has the meaning assigned thereto in Section 5.1(b).



     “Interest Rate Contract” means any interest rate swap agreement, interest rate cap
agreement, interest rate floor agreement, interest rate collar agreement, interest rate option or
any other agreement regarding the hedging of interest rate risk exposure executed in connection
with hedging the interest rate exposure of any Person and any confirming letter executed pursuant
to such agreement, all as amended, restated, supplemented or otherwise modified from time to time.



     “ISP98” means the International Standby Practices (1998 Revision, effective January 1,
1999), International Chamber of Commerce Publication No. 590.



     “Issuing Lender” means with respect to Letters of Credit issued hereunder on or after
the Closing Date, Wachovia, in its capacity as issuer thereof, or any successor thereto.



     “L/C Collateral” has the meaning assigned thereto in Section 3.7.



     “L/C Commitment” means $10,000,000 in the form of an offering basis line of credit.



     “L/C Deposit” has the meaning assigned thereto in Section 3.1.



     “L/C Facility” means the letter of credit facility established pursuant to Article
III.



     “L/C Obligations” means at any time, an amount equal to the sum of (a) the aggregate
undrawn and unexpired amount of then outstanding Letters of Credit, (b) the aggregate amount of
drawings under Letters of Credit which have not then been reimbursed pursuant to Section
3.5, and (c) all other interest, indemnities, reimbursement obligations, commissions, fees and
expenses owed to the Issuing Lender and Administrative Agent pursuant to Article III.



     “Lender” means each Person executing this Agreement as a Lender (including, without
limitation, the Issuing Lender and the Swingline Lender unless the context otherwise requires) set
forth on the signature pages hereto and each Person that hereafter becomes a party to this
Agreement as a Lender pursuant to Section 14.10.



     “Lending Office” means, with respect to any Lender, the office of such Lender
maintaining such Lender’s Extensions of Credit.



     “Letter of Credit Application” means an application, in the form specified by the
Issuing Lender from time to time, requesting the Issuing Lender to issue a Letter of Credit.



     “Letter of Credit Maturity Date” means the earlier of (a) the first anniversary of the
Closing Date and (b) the date of termination of the L/C Commitment by the Administrative Agent on
behalf of the Lenders pursuant to Section 12.2(a).



     “Letters of Credit” has the meaning assigned thereto in Section 3.1.



     “LIBOR” means the rate of interest per annum determined on the basis of the rate for
deposits in Dollars in minimum amounts of at least $5,000,000 (or the Alternative Currency



13









 







Amount thereof with respect to a borrowing to be made in an Alternative Currency) for a period
equal to the applicable Interest Period which appears on the Telerate Page 3750, at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest
Period (rounded upward, if necessary, to the nearest 1/100th of 1%). If, for any
reason, such rate does not appear on Telerate Page 3750, then “LIBOR” shall be determined by the
Administrative Agent to be the arithmetic average of the rate per annum at which deposits in the
Permitted Currency in which the applicable Loan is denominated would be offered by first class
banks in the London interbank market to the Administrative Agent (or the Administrative Agent’s
Correspondent) at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of the applicable Interest Period for a period equal to such Interest Period. Each calculation
by the Administrative Agent of LIBOR shall be conclusive and binding for all purposes, absent
manifest error.



     “LIBOR Rate” means



     (i) with respect to any LIBOR Rate Loan denominated in Dollars, a rate per annum (rounded
upwards, if necessary, to the next higher 1/100th of 1%) determined by the Administrative Agent
pursuant to the following formula:



	 	 	 	 	 	 	 
	 

	 	LIBOR Rate =
	 	LIBOR
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	1.00 - Eurodollar Reserve Percentage	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	and 	 	 







     (ii) with respect to any LIBOR Rate Loan denominated in any Alternative Currency, a rate per
annum (rounded upwards, if necessary, to the next higher 1/100th of 1%) equal to LIBOR.



Each calculation by the Administrative Agent of the LIBOR Rate shall be conclusive and binding for
all purposes, absent manifest error.



     “LIBOR Rate Loan” means any Loan bearing interest at a rate based upon the LIBOR Rate
as provided in Section 5.1(a).



     “Lien” means, with respect to any asset, any mortgage, leasehold mortgage, lien,
pledge, charge, security interest, hypothecation or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement relating to such
asset.



     “Loan Documents” means, collectively, this Agreement, each Note, the Letter of Credit
Applications, the Security Documents, and each other document, instrument, certificate and
agreement executed and delivered by either Borrower or any of their Subsidiaries thereof in
connection with this Agreement or otherwise referred to herein or contemplated hereby, all as may
be amended, restated, supplemented or otherwise modified from time to time.



     “Loans” means the collective reference to the Revolving Credit Loans and the Swingline
Loans, and “Loan” means any of such Loans.



14









 





     “Mandatory Cost Rate” means an addition to the interest rate on any Revolving Credit
Loan made by any Lender to compensate such Lender for the cost imputed to the Lender resulting from
the imposition from time to time under or pursuant to the Bank of England Act 1998 and/or by the
Bank of England and/or the Financial Services Authority (or other Governmental Authorities of the
United Kingdom) of a requirement to place non-interest bearing cash ratio deposits or special
deposits (whether interest bearing or not) with the Bank of England and/or fees to the Financial
Services Authority calculated by reference to liabilities used to fund the Revolving Credit Loans,
expressed as a rate per annum and determined pursuant to the formula set forth on Schedule
1.1(a) hereto.



     “Material Adverse Effect” means, with respect to the Borrowers or any of their
Subsidiaries, taken as a whole, a material adverse effect on (a) the properties, business,
operations or condition of any such Person or (b) the ability of any such Person to perform its
obligations under the Loan Documents to which it is a party.



     “Material Contract” means any contract or other written agreement of either Borrower
or any of their Subsidiaries meeting the definition of a “material definitive agreement” required
to be disclosed under item 1.01 of Form 8-K (excluding any contract listed in Item
601(b)(10)(ii)(A) of SEC Regulation S-K).



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which the U.S. Borrower or any ERISA Affiliate is making, or is accruing an obligation to
make, or has accrued an obligation to make contributions within the preceding six (6) years.



     “Net Divested Asset Value” means, with respect to any Asset Disposition, (a) the
aggregate net book value of the divested assets minus (b) total cash consideration received
for such divested assets.



     “Net Hedging Obligations” means, as of any date, the Termination Value of any Hedging
Agreement on such date.



     “Notes” means the collective reference to the Revolving Credit Notes and the Swingline
Note.



     “Notice of Account Designation” has the meaning assigned thereto in Section
2.3(b).



     “Notice of Borrowing” has the meaning assigned thereto in Section 2.3(a).



     “Notice of Conversion/Continuation” has the meaning assigned thereto in Section
5.2.



     “Notice of Prepayment” has the meaning assigned thereto in Section 2.4(c).



     “Obligations” means, in each case, whether now in existence or hereafter arising: (a)
the principal of and interest on (including interest accruing after the filing of any bankruptcy or
similar petition) the Loans, (b) the L/C Obligations, (c) all Hedging Obligations and (d) all other
fees and commissions (including attorneys’ fees), charges, indebtedness, loans, liabilities,



15









 







financial accommodations, obligations, covenants and duties owing by the Borrower or any of
their Subsidiaries to the Lenders or the Administrative Agent, in each case under any Loan Document
or otherwise, with respect to any Loan or Letter of Credit of every kind, nature and description,
direct or indirect, absolute or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any note.



     “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.



     “Officer’s Compliance Certificate” means a certificate of the chief financial officer
or the treasurer of the U.S. Borrower substantially in the form of Exhibit F.



     “Operating Lease” means, as to any Person as determined in accordance with GAAP, any
lease of property (whether real, personal or mixed) by such Person as lessee which is not a Capital
Lease.



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



     “Participant” has the meaning assigned thereto in Section 14.10(d).



     “Participating Member State” means each state so described in any EMU Legislation.



     “PBGC” means the Pension Benefit Guaranty Corporation or any successor agency.



     “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which
is subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is
maintained for the employees of the U.S. Borrower or any ERISA Affiliates or (b) has at any time
within the preceding six (6) years been maintained for the employees of the U.S. Borrower or any of
its current or former ERISA Affiliates.



     “Permitted Acquisition” means any investment by either Borrower or any of their
Subsidiaries in the form of acquisitions of all or substantially all of the business or a line of
business (whether by the acquisition of Capital Stock, assets or any combination thereof) of any
other Person if each such acquisition meets all of the following requirements:



     (a) the Person or business to be acquired shall be in a substantially similar line of business
as the Borrowers and their Subsidiaries pursuant to Section 11.12;



     (b) no later than five (5) Business Days prior to the proposed closing date of such
acquisition, the Borrower Agent shall have delivered to the Administrative Agent and the Lenders an
Officer’s Compliance Certificate for the most recent fiscal quarter end preceding such acquisition
demonstrating, in form and substance reasonably satisfactory thereto, (A) pro forma
compliance (as of the date of the acquisition and after giving effect thereto and any Extensions of
Credit made or to be made in connection therewith) with each covenant contained in Sections
10.1 and 10.2; provided, however, that if GAAP financial statements are
not available in connection with the acquisition of a foreign entity, the Borrower Agent may use
the non-GAAP foreign financial statements for such foreign entity solely in connection with



16









 







calculating the pro forma compliance in Dollars with the covenants required in
this paragraph (b);



     (c) no later than five (5) Business Days prior to the proposed closing date of such
acquisition the Borrower Agent shall have delivered to the Administrative Agent a term sheet
outlining the proposed acquisition and, at the request of the Administrative Agent, the Borrower
Agent shall discuss the terms of such acquisition with the Administrative Agent;



     (d) no Event of Default shall have occurred and be continuing both before and after giving
effect to such acquisition;



     (e) the Borrower Agent shall have obtained the prior written consent of the Administrative
Agent and the Required Lenders prior to the consummation of such acquisition if the Permitted
Acquisition Consideration for any such acquisition (or series of related acquisitions), together
with all other acquisitions consummated during the term of this Agreement exceeds fifty percent
(50%) of the Borrowers’ Consolidated Tangible Net Worth as of the preceding fiscal quarter.



Notwithstanding any of the foregoing, in the event that the purchase price for any acquisition by
any Credit Party is paid with the Capital Stock of the U. S. Borrower, clause (e) shall not apply
to such Permitted Acquisition.



     “Permitted Acquisition Consideration” means the aggregate amount of the purchase
price, including, but not limited to, any assumed debt, earn-outs (valued at the maximum amount
payable thereunder), deferred payments, net of the applicable acquired company’s cash and Cash
Equivalent, balance (as shown on its most recent financial statements delivered in connection with
the applicable Permitted Acquisition) to be paid on a singular basis;



     “Permitted Currency” means Dollars or any Alternative Currency, or each such currency,
as the context requires.



     “Permitted Liens” means the Liens permitted pursuant to Section 11.2.



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



     “Pledge Agreements” means each of the pledge agreements executed by the U.S. Borrower
in favor of the Administrative Agent for the benefit of itself and the Lenders, as acknowledged and
agreed by the Pledged Foreign Subsidiaries, as amended, restated, supplemented or otherwise
modified from time to time.



     “Pledged Foreign Subsidiary” means each of (a) the Belgian Borrower, (b) Tekelec do
Brasil Ltda., and (c) Tekelec France SAS.



     “Prime Rate” means, at any time, the rate of interest per annum publicly announced
from time to time by Wachovia as its prime rate. Each change in the Prime Rate shall be effective
as of the opening of business on the day such change in such prime rate occurs. The parties hereto
acknowledge that the rate announced publicly by Wachovia as its prime rate is an index or base rate
and shall not necessarily be its lowest or best rate charged to its customers or other banks.



17









 





     “Register” has the meaning assigned thereto in Section 14.10(c).



     “Reimbursement Obligation” means the obligation of the U.S. Borrower to reimburse the
Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.



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



     “Required Lenders” means, at any date, any combination of Lenders having more than
fifty percent (50%) of the aggregate amount of the L/C Commitment plus the Revolving Credit
Commitment or, if the Revolving Credit Commitment or L/C Commitment has been terminated, any
combination of Lenders holding more than fifty percent (50%) of the aggregate Revolving Credit
Loans or L/C Obligations, as applicable; provided that the Revolving Credit Commitment or
L/C Commitment of any Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.



     “Responsible Officer” means, as to any Person, the chief executive officer, president,
chief financial officer, controller, treasurer or assistant treasurer of such Person or any other
officer of such Person holding an office reasonably acceptable to the Administrative Agent as a
“Responsible Officer”. Any document delivered hereunder that is signed by a Responsible Officer of
a Person shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other organizational action on the part of such Person and such Responsible
Officer shall be conclusively presumed to have acted as an officer on behalf of such Person and not
in a personal capacity.



     “Revolving Credit Commitment” means (a) as to any Revolving Credit Lender, the
obligation of such Revolving Credit Lender to make Revolving Credit Loans to the account of the
Borrowers hereunder in an aggregate principal amount at any time outstanding not to exceed the
amount set forth opposite such Revolving Credit Lender’s name on the Register, as such amount may
be modified at any time or from time to time pursuant to the terms hereof and (b) as to all
Revolving Credit Lenders, the aggregate commitment of all Revolving Credit Lenders to make
Revolving Credit Loans, as such amount may be modified at any time or from time to time pursuant to
the terms hereof. The Revolving Credit Commitment of all the Revolving Credit Lenders on the
Closing Date shall be $50,000,000.



     “Revolving Credit Commitment Percentage” means, as to any Revolving Lender at any
time, the ratio of (a) the amount of the Revolving Credit Commitment of such Revolving Credit
Lender to (b) the Revolving Credit Commitment of all the Revolving Credit Lenders.



     “Revolving Credit Facility” means the revolving credit facility established pursuant
to Article II.



     “Revolving Credit Lenders” means Lenders with a Revolving Credit Commitment.



     “Revolving Credit Loan” means any revolving loan made to a Borrower pursuant to
Section 2.1, and all such revolving loans collectively as the context requires.



18









 





     “Revolving Credit Obligation” means an Obligation of either Borrower arising under the
Revolving Credit Facility.



     “Revolving Credit Maturity Date” means the earliest to occur of (a) October 2, 2011
(subject to extension in accordance with Section 2.8), (b) the date of termination of the
entire Revolving Credit Commitment by the U.S. Borrower pursuant to Section 2.5, and (c)
the date of termination of the Revolving Credit Commitment by the Administrative Agent on behalf of
the Lenders pursuant to Section 12.2(a).



     “Revolving Credit Note” means a promissory note made by each of the Borrowers in favor
of a Lender evidencing the Revolving Credit Loans made by such Lender, substantially in the form of
Exhibit A-1, and any amendments, supplements and modifications thereto, any substitutes therefor,
and any replacements, restatements, renewals or extension thereof, in whole or in part.



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.



     “Sanctioned Entity” shall mean (a) an agency of the government of, (b) an organization
directly or indirectly controlled by, or (c) a person resident in a country that is subject to a
sanctions program identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/programs, or as otherwise published from time
to time as such program may be applicable to such agency, organization or person.



     “Sanctioned Person” shall mean a person named on the list of Specially Designated
Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn/index.html, or as otherwise published from time to time.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Security Documents” means the collective reference to the Pledge Agreements, and each
other agreement or writing pursuant to which the U.S. Borrower purports to pledge or grant a
security interest in any property or assets securing the Obligations or any such Person purports to
guaranty the payment and/or performance of the Obligations, in each case, as amended, restated,
supplemented or otherwise modified from time to time.



     “Solvent” means, as to the Borrowers and their Subsidiaries, taken as a whole, on a
particular date, that any such Person (a) has capital sufficient to carry on its business and
transactions and all business and transactions in which it is about to engage and is able to pay
its debts as they mature and (b) has assets having a value (at fair valuation in accordance with
GAAP), greater than the amount required to pay its probable liabilities (including contingencies).



     “Subordinated Indebtedness” means any Indebtedness of the Borrowers or any of their
Subsidiaries subordinated in right and time of payment to the Obligations and containing such other
terms and conditions, in each case as are satisfactory to the Administrative Agent.



19









 





     “Subsidiary” means as to any Person, any corporation, partnership, limited liability
company or other entity of which more than fifty percent (50%) of the outstanding Capital Stock
having ordinary voting power to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity is at the time owned by or
the management is otherwise controlled by such Person (irrespective of whether, at the time,
Capital Stock of any other class or classes of such corporation, partnership, limited liability
company or other entity shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified, references to “Subsidiary” or “Subsidiaries” herein
shall refer to those of the U.S. Borrower.



     “Swingline Commitment” means the lesser of (a) $10,000,000 and (b) the Revolving
Credit Commitment.



     “Swingline Facility” means the swingline facility established pursuant to Section
2.2.



     “Swingline Lender” means Wachovia in its capacity as swingline lender hereunder.



     “Swingline Loan” means any swingline loan made by the Swingline Lender to the U.S.
Borrower pursuant to Section 2.2, and all such swingline loans collectively as the context
requires.



     “Swingline Note” means a promissory note made by the U.S. Borrower in favor of the
Swingline Lender evidencing the Swingline Loans made by the Swingline Lender, substantially in the
form of Exhibit A-2, and any amendments, supplements and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.



     “Swingline Termination Date” means the first to occur of (a) the resignation of
Wachovia as Administrative Agent in accordance with Section 13.6, and (b) the Revolving
Credit Maturity Date.



     “Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in
accordance with GAAP.



     “TARGET” shall mean Trans-European Automated Real-time Gross Settlement Express
Transfer payment system (or, if such system ceases to be operative, such other payment system (if
any) determined by the Administrative Agent to be a suitable replacement and approved by the U.S.
Borrower (such approval not to be unreasonably withheld or delayed)).



     “TARGET Day” means any day on which TARGET is open for the settlement of payments in
Euro.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.




20











 





     “Termination Event” means except for any such event or condition that could not
reasonably be expected to have a Material Adverse Effect: (a) a “Reportable Event” described in
Section 4043 of ERISA for which the notice requirement has not been waived by the PBGC, or (b) the
withdrawal of the U.S. Borrower or any ERISA Affiliate from a Pension Plan during a plan year in
which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, or (c) the
termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan
assets are not sufficient to pay all plan liabilities, or (d) the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e)
any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan, or (f) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302 of ERISA, or (g) the
partial or complete withdrawal of the U.S. Borrower of any ERISA Affiliate from a Multiemployer
Plan if withdrawal liability is asserted by such plan, or (h) any event or condition which results
in the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA,
or (i) any event or condition which results in the termination of a Multiemployer Plan under
Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan
under Section 4042 of ERISA.



     “Termination Value” means, in respect of any one or more Hedging Agreements, after
taking into account the effect of any legally enforceable netting agreement relating to such
Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed
out and termination value(s) determined in accordance therewith, such termination value(s), and (b)
for any date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such Hedging
Agreements (which may include a Lender or any Affiliate of a Lender).



     “Treaty on European Union” means the Treaty of Rome of March 25, 1957, as amended by
the Single European Act of 1986 and the Maastricht Treaty (signed February 7, 1992), as amended
from time to time.



     “UCC” means the Uniform Commercial Code as in effect in the State of New York, as
amended or modified from time to time.



     “Undrawn Fee” has the meaning assigned thereto in Section 5.3.



     “Uniform Customs” means the Uniform Customs and Practice for Documentary Credits (1993
Revision), effective January, 1994 International Chamber of Commerce Publication No. 500.



     “United States” means the United States of America.



     “U.S. Borrower” has the meaning assigned thereto in the introductory paragraph hereto.



     “U.S. Borrower Guaranty” means the unconditional guaranty of the payment of the
Obligations of the Borrower under Article IV of this Agreement.



21









 





     “Wachovia” means Wachovia Bank, National Association, a national banking association,
and its successors.



     “Wholly-Owned” means, with respect to a Subsidiary, that all of the shares of Capital
Stock of such Subsidiary are, directly or indirectly, owned or controlled by the U.S. Borrower
and/or one or more of its Wholly-Owned Subsidiaries (except for directors’ qualifying shares or
other shares required by Applicable Law to be owned by a Person other than the U.S. Borrower).



     SECTION 1.2 Other Definitions and Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document: (a) the
definitions of terms herein shall apply equally to the singular and plural forms of the terms
defined, (b) the words “include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”, (c) the word “will” shall be construed to have the same meaning and
effect as the word “shall”, (d) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein), (e) any reference
herein to any Person shall be construed to include such Person’s successors and assigns, (f) the
words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer
to this Agreement in its entirety and not to any particular provision hereof, (g) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (h) the words “asset” and “property”
shall be construed to have the same meaning and effect and except as otherwise provided herein to
refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights, (i) the term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form, and (j) in the computation of periods of time
from a specified date to a later specified date, the word “from” means “from and including;” the
words “to” and “until” each mean “to but excluding;” and the word “through” means “to and
including”.



     SECTION 1.3 Accounting Terms. All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with GAAP as in effect from time to time, applied on a consistent basis and
in a manner consistent with that used in preparing the audited financial statements required by
Section 8.1(b), except as otherwise specifically prescribed herein.



     SECTION 1.4 UCC Terms. Terms defined in the UCC in effect on the Closing Date and not
otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided
by those definitions. Subject to the foregoing, the term “UCC” refers, as of any date of
determination, to the UCC then in effect.



     SECTION 1.5 Rounding. Any financial ratios required to be maintained by the Borrowers
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one decimal place more than the number of decimal places by which
such ratio is expressed herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).



22









 





     SECTION 1.6 References to Agreement and Laws. Unless otherwise expressly provided herein, (a)
references to formation documents, governing documents, agreements (including the Loan Documents)
and other contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only to the extent that
such amendments, restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Applicable Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or interpreting such
Applicable Law.



     SECTION 1.7 Times of Day. Unless otherwise specified, all references herein to times of day
shall be references to Eastern time in the United States (daylight or standard, as applicable).



     SECTION 1.8 Letter of Credit Amounts. Unless otherwise specified, all references herein to
the amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of
such Letter of Credit after giving effect to all increases thereof contemplated by such Letter of
Credit or the Letter of Credit Application therefor, whether or not such maximum face amount is in
effect at such time.



     SECTION 1.9 Amount of Obligations. Unless otherwise specified, for purposes of this
Agreement, any determination of the amount of any outstanding Revolving Credit Loans, Swingline
Loans, L/C Obligations or other Obligations shall be based upon the Dollar Amount of such
outstanding Revolving Credit Loans, Swingline Loans, L/C Obligations or other Obligations.



ARTICLE II




REVOLVING CREDIT FACILITY




     SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions of this Agreement,
and in reliance upon the representations and warranties set forth herein, each Revolving Credit
Lender severally agrees to make Revolving Credit Loans denominated in Dollars to the U.S. Borrower
and Revolving Credit Loans denominated in the Alternative Currency to the Belgian Borrower, in each
case from time to time from the Closing Date to, but not including, the Revolving Credit Maturity
Date as requested by the applicable Borrower in accordance with the terms of Section 2.3;
provided, that (a) the aggregate principal amount of all outstanding Revolving Credit Loans
(after giving effect to any amount requested) shall not exceed the Revolving Credit Commitment
less the sum of all outstanding Swingline Loans and (b) the principal amount of outstanding
Revolving Credit Loans from any Revolving Credit Lender shall not at any time exceed such Revolving
Credit Lender’s Revolving Credit Commitment less such Revolving Credit Lender’s Revolving
Credit Commitment Percentage of outstanding Swingline Loans. Each Revolving Credit Loan by a
Revolving Credit Lender shall be in a principal amount equal to such Revolving Lender’s Revolving
Credit Commitment Percentage of the aggregate principal amount of Revolving Credit Loans requested
on such occasion in the applicable requested Permitted Currency. Revolving Credit Loans to be made
in an Alternative Currency shall be funded in an amount equal to the Alternative Currency Amount of
such Revolving Credit Loan. Subject to the terms and conditions hereof, the Borrowers may



23









 







borrow, repay and reborrow Revolving Credit Loans hereunder until the Revolving Credit
Maturity Date.



     SECTION 2.2 Swingline Loans.



     (a) Availability. Subject to the terms and conditions of this Agreement, the
Swingline Lender agrees to make Swingline Loans to the U.S. Borrower from time to time from the
Closing Date through, but not including, the Swingline Termination Date; provided, that (i)
all Swingline Loans shall be denominated in Dollars and (ii) based upon the Dollar Amount of all
outstanding Revolving Credit Loans, the aggregate principal amount of all outstanding Swingline
Loans (after giving effect to any amount requested), shall not exceed the lesser of (A) the
Revolving Credit Commitment less the sum of all outstanding Revolving Credit Loans and (B) the
Swingline Commitment.



     (b) Refunding.



          (i) Swingline Loans shall be refunded by the Revolving Credit Lenders on demand by the
Swingline Lender. Such refundings shall be made by the Revolving Credit Lenders in accordance with
their respective Revolving Credit Commitment Percentages and shall thereafter be reflected as
Revolving Credit Loans of the Revolving Credit Lenders on the books and records of the
Administrative Agent. Each Revolving Credit Lender shall fund its respective Revolving Credit
Commitment Percentage of Revolving Credit Loans as required to repay Swingline Loans outstanding to
the Swingline Lender upon demand by the Swingline Lender but in no event later than 1:00 p.m. on
the next succeeding Business Day after such demand is made. No Revolving Credit Lender’s
obligation to fund its respective Revolving Credit Commitment Percentage of a Swingline Loan shall
be affected by any other Revolving Credit Lender’s failure to fund its Revolving Credit Commitment
Percentage of a Swingline Loan, nor shall any Revolving Credit Lender’s Revolving Credit Commitment
Percentage be increased as a result of any such failure of any other Revolving Credit Lender to
fund its Revolving Credit Commitment Percentage of a Swingline Loan.




          (ii) The U.S. Borrower shall pay to the Swingline Lender on demand the amount of such
Swingline Loans to the extent amounts received from the Revolving Credit Lenders are not sufficient
to repay in full the outstanding Swingline Loans requested or required to be refunded. In
addition, the U.S. Borrower hereby authorizes the Administrative Agent to charge any account
maintained by the U.S. Borrower with the Swingline Lender (up to the amount available therein) in
order to immediately pay the Swingline Lender the amount of such Swingline Loans to the extent
amounts received from the Revolving Credit Lenders are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be refunded. If any portion of any such
amount paid to the Swingline Lender shall be recovered by or on behalf of the U.S. Borrower from
the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be
ratably shared among all the Revolving Credit Lenders in accordance with their respective Revolving
Credit Commitment Percentages (unless the amounts so recovered by or on behalf of the U.S. Borrower
pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of
Default of which the Administrative Agent has received notice in the manner required pursuant to
Section 13.3 and which such Event of Default has not been waived by the Required Lenders or
the Lenders, as applicable).




24









 








          (iii) Each Revolving Credit Lender acknowledges and agrees that its obligation to refund
Swingline Loans in accordance with the terms of this Section is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including, without limitation,
non-satisfaction of the conditions set forth in Article VI. Further, each Revolving Credit
Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans
pursuant to this Section, one of the events described in Section 12.1(j) or (k)
shall have occurred, each Revolving Credit Lender will, on the date the applicable Revolving Credit
Loan would have been made, purchase an undivided participating interest in the Swingline Loan to be
refunded in an amount equal to its Revolving Credit Commitment Percentage of the aggregate amount
of such Swingline Loan. Each Revolving Credit Lender will immediately transfer to the Swingline
Lender, in immediately available funds, the amount of its participation and upon receipt thereof
the Swingline Lender will deliver to such Revolving Credit Lender a certificate evidencing such
participation dated the date of receipt of such funds and for such amount. Whenever, at any time
after the Swingline Lender has received from any Revolving Credit Lender such Revolving Credit
Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any payment on
account thereof, the Swingline Lender will distribute to such Revolving Credit Lender its
participating interest in such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Credit Lender’s participating interest was
outstanding and funded).




     SECTION 2.3 Procedure for Advances of Revolving Credit Loans and Swingline Loans.



     (a) Requests for Borrowing. The applicable Borrower shall give the Administrative Agent
irrevocable prior written notice substantially in the form of Exhibit B (a “Notice of
Borrowing”) not later than 11:00 a.m. (i) on the same Business Day as each Base Rate Loan and
each Swingline Loan, (ii) at least three (3) Business Days before each LIBOR Rate Loan denominated
in Dollars and (iii) at least three (3) Business Days before each LIBOR Rate Loan denominated in an
Alternative Currency, of its intention to borrow, specifying: (A) the Borrower of such Loan, (B)
the date of such borrowing, which shall be a Business Day, (C) if such Borrower is the U.S.
Borrower, whether such Loan is to be a Revolving Credit Loan or a Swingline Loan, (D) if such Loan
is denominated in Dollars, whether such Loan shall be a LIBOR Rate Loan or a Base Rate Loan, (E) in
the case of a LIBOR Rate Loan, the duration of the Interest Period applicable thereto and (F) the
amount of such borrowings and (1) with respect to Base Rate Loans (other than Swingline Loans), in
an aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof, (2)
with respect to LIBOR Rate Loans denominated in Dollars, in an aggregate principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof, and (3) with respect to LIBOR Rate
Loans denominated in an Alternative Currency, in an aggregate principal Alternative Currency Amount
of 1,000,000 Euro or a whole multiple of 500,000 Euro in excess thereof and (4) with respect to
Swingline Loans, in an aggregate principal amount of $100,000 or a whole multiple of $100,000 in
excess thereof; provided, however, that (x) Swingline Loans may only be denominated
in Dollars and may only be made to the U.S. Borrower, (y) the U.S. Borrower may only borrow Loans
denominated in Dollars, and (z) the Belgian Borrower may only borrow Revolving Credit Loans in the
Alternative Currency.


A Notice of Borrowing received after 11:00 a.m. shall be deemed received on the next Business Day.
The Administrative Agent shall promptly notify the Lenders of each Notice of Borrowing.




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     (b) Disbursement of Revolving Credit Loans Denominated in Dollars and Swingline Loans.
Not later than 1:00 p.m. on the proposed borrowing date for any Revolving Credit Loan denominated
in Dollars and any Swingline Loan, (i) each Lender will make available to the Administrative Agent,
for the account of the U.S. Borrower, at the office of the Administrative Agent in Dollars in funds
immediately available to the Administrative Agent, such Lender’s Revolving Credit Commitment
Percentage of the Revolving Credit Loan to be made on such borrowing date and (ii) the Swingline
Lender will make available to the Administrative Agent, for the account of the U.S. Borrower, at
the office of the Administrative Agent in Dollars in funds immediately available to the
Administrative Agent, the Swingline Loan to be made on such borrowing date. The U.S. Borrower
hereby irrevocably authorizes the Administrative Agent to disburse the proceeds of each borrowing
requested pursuant to this Section 2.3 in immediately available funds by crediting or
wiring such proceeds to the deposit account of the U.S. Borrower identified in the most recent
notice substantially in the form of Exhibit C (a “Notice of Account Designation”) delivered
by the Borrower Agent to the Administrative Agent or as may be otherwise agreed upon by the
Borrower Agent and the Administrative Agent from time to time. Subject to Section 5.7
hereof, the Administrative Agent shall not be obligated to disburse the portion of the proceeds of
any Revolving Credit Loan requested pursuant to this Section 2.3 to the extent that any
Lender has not made available to the Administrative Agent its Revolving Credit Commitment
Percentage of such Revolving Credit Loan. Revolving Credit Loans to be made for the purpose of
refunding Swingline Loans shall be made by the Revolving Credit Lenders as provided in Section
2.2(b).



     (c) Disbursement of Revolving Credit Loans denominated in an Alternative Currency.
Not later than 11:00 a.m. London time, on or before the proposed borrowing date for any Revolving
Credit Loan denominated in an Alternative Currency, each Lender will make available to the
Administrative Agent, for the account of the Belgian Borrower, at the office of the Administrative
Agent’s Correspondent in the requested Alternative Currency in funds immediately available to the
Administrative Agent, such Lender’s Revolving Credit Commitment Percentage of the Alternative
Currency Amount of the Revolving Credit Loan to be made on such borrowing date. The Belgian
Borrower hereby irrevocably authorizes the Administrative Agent to disburse the proceeds of each
borrowing requested pursuant to this Section 2.3 in immediately available funds by
crediting or wiring such proceeds to the deposit account of the Belgian Borrower identified in the
most recent Notice of Account Designation delivered by the Borrower Agent to the Administrative
Agent or as may be otherwise agreed upon by the Borrower Agent and the Administrative Agent from
time to time. Subject to Section 5.7, the Administrative Agent shall not be obligated to
disburse the portion of the proceeds of any Loan requested pursuant to this Section 2.3 to
the extent that any Lender has not made available to the Administrative Agent its Revolving Credit
Commitment Percentage of such Loan.



     SECTION 2.4 Repayment and Prepayment of Revolving Credit Loans and Swingline Loans.



     (a) Repayment on the Revolving Credit Maturity Date. (i) The U.S. Borrower hereby
agrees to repay in Dollars the outstanding principal amount of all Revolving Credit Loans
denominated in Dollars in full on the Revolving Credit Maturity Date together with all accrued but
unpaid interest thereon, (ii) the Belgian Borrower and the U.S. Borrower hereby agree, jointly and
severally, to repay in the Alternative Currency (or as agreed to in writing by the



26









 







Administrative Agent, in Dollars) the outstanding principal amount of all Revolving Credit
Loans denominated in the Alternative Currency in full on the Revolving Credit Maturity Date
together with all accrued but unpaid interest thereon, and (iii) the U.S. Borrower hereby agrees to
repay in Dollars all Swingline Loans in accordance with Section 2.2(b), together with all
accrued but unpaid interest thereon.



     (b) Mandatory Repayments.



          (i) Revolving Credit Loans. If at any time, based upon the Dollar Amount (as
determined by the Administrative Agent under Section 2.4(b)(iii), which determination shall
be conclusive absent manifest error) the outstanding principal amount of all Revolving Credit Loans
(including Alternative Currency Loans) plus the sum of all outstanding Swingline Loans exceeds (A)
solely because of currency fluctuations, one hundred and five percent (105%) of the Revolving
Credit Commitment, or (B) for any other reason, the Revolving Credit Commitment, then, in each such
case, the U.S. Borrower shall (I) first, if (and to the extent) necessary to eliminate such
excess, immediately repay outstanding Swingline Loans (and/or reduce any pending request for such
Loans on such day by the Dollar Amount of such excess), (II) second, if (and to the extent)
necessary to eliminate such excess, immediately repay outstanding Revolving Credit Loans which are
Base Rate Loans by the Dollar Amount of such excess (and/or reduce any pending request for such
Loans on such day by the Dollar Amount of such excess), and (III) third, if (and to the
extent) necessary to eliminate such excess, immediately repay Revolving Credit Loans which are
LIBOR Rate Loans (and/or reduce any pending requests for a borrowing or continuation or conversion
of such Loans submitted in respect of such Loans on such day by the Dollar Amount of such excess).




          (ii) Swingline Loans. If at any time the outstanding principal amount of all
Swingline Loans exceeds the lesser of (1) the Revolving Credit Commitment less the sum of all
outstanding Revolving Credit Loans and (2) the Swingline Commitment, then, in each such case, such
excess shall be immediately repaid by the U.S. Borrower to the Administrative Agent for the account
of the Lenders.




          (iii) Compliance and Payments. The Borrowers’ compliance with this Section
2.4(b) shall be tested from time to time by the Administrative Agent at its sole discretion,
but in any event shall be tested on (A) the date on which either Borrower requests the Lenders to
make a Loan and (B) the date an interest payment is due under Section 5.1(d). Each such
repayment pursuant to this Section 2.4(b) shall be accompanied by any amount required to be
paid pursuant to Section 5.9.




     (c) Optional Prepayments.



          (i) Each Borrower may at any time and from time to time repay the Loans denominated in Dollars
or the Alternative Currency, upon irrevocable notice to the Administrative Agent, substantially in
the form of Exhibit D (a “Notice of Prepayment”) given not later than 11:00 a.m. (A) on the
same Business Day as each Base Rate Loan and each Swingline Loan and (B) at least three (3)
Business Days before each LIBOR Rate Loan, specifying (I) the date of repayment, (II) the amount of
repayment, (III) whether the repayment is of Revolving Credit Loans, Swingline Loans, or a
combination thereof, and, if of a combination thereof, the amount allocable to each, (IV) whether
the repayment is of LIBOR Rate Loans




27









 







denominated in an Alternative Currency, LIBOR Rate Loans denominated in Dollars, Base Rate
Loans, or a combination thereof, and, if of a combination thereof, the amount allocable to each.
Upon receipt of such notice, the Administrative Agent shall promptly notify each Lender. If any
such notice is given, the amount specified in such notice shall be due and payable on the date set
forth in such notice. Partial repayments shall be in an aggregate amount of (i) $1,000,000 or a
whole multiple of $500,000 in excess thereof with respect to Base Rate Loans (other than Swingline
Loans), (ii) $1,000,000 or a whole multiple of $500,000 in excess thereof with respect to LIBOR
Rate Loans denominated in Dollars, (iii) 1,000,000 Euro or a whole multiple of 1,000,000 Euro in
excess thereof with respect to LIBOR Rate Loans denominated in an Alternative Currency and (iv)
$100,000 or a whole multiple of $100,000 in excess thereof with respect to Swingline Loans. A
Notice of Prepayment received after 11:00 a.m. shall be deemed received on the next Business Day.
Each such repayment shall be accompanied by any amount required to be paid pursuant to Section
5.9 hereof.




     (d) Limitation on Repayment of LIBOR Rate Loans. The Borrowers may not repay any
LIBOR Rate Loan on any day other than on the last day of the Interest Period applicable thereto
unless such repayment is accompanied by any amount required to be paid pursuant to Section
5.9 hereof.



     (e) Hedging Agreements. No repayment or prepayment pursuant to this Section shall
affect any of the Borrower’s obligations under any Hedging Agreement.



     (f) Payment of Interest and Other Expenses. Each repayment or prepayment pursuant to
this Section 2.4 shall be accompanied by accrued interest on the amount repaid.



     SECTION 2.5 Permanent Reduction of the Revolving Credit Commitment .



     (a) Voluntary Reduction. The U.S. Borrower, on behalf of itself and Belgian Borrower,
shall have the right at any time and from time to time, upon at least five (5) Business Days prior
written notice to the Administrative Agent, to permanently reduce, without premium or penalty, (i)
the entire Revolving Credit Commitment at any time or (ii) portions of the Revolving Credit
Commitment, from time to time, in an aggregate principal amount not less than $1,000,000 or any
whole multiple of $1,000,000 in excess thereof. Any reduction of the Revolving Credit Commitment
shall be applied to the Revolving Credit Commitment of each Revolving Credit Lender according to
its Revolving Credit Commitment Percentage. All commitment fees accrued until the effective date
of any termination of the Revolving Credit Commitment shall be paid on the effective date of such
termination.



     (b) Corresponding Payments. Each permanent reduction permitted or required pursuant
to this Section shall be accompanied by a payment of principal sufficient to reduce the aggregate
Dollar Amount of all outstanding Revolving Credit Loans and Swingline Loans, as applicable, after
such reduction to the Revolving Credit Commitment as so reduced. Any reduction of the Revolving
Credit Commitment to zero shall be accompanied by payment of all outstanding Revolving Credit Loans
and Swingline Loans and shall result in the termination of the Revolving Credit Commitment and the
Swingline Commitment and the Revolving Credit Facility. If the reduction of the Revolving Credit
Commitment requires the repayment of any LIBOR Rate Loan, such repayment shall be accompanied by
any amount required to be paid pursuant to Section 5.9 hereof.



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     SECTION 2.6 Termination of Revolving Credit Facility.. The Revolving Credit Facility shall
terminate on the Revolving Credit Maturity Date.



     SECTION 2.7 Nature of Obligations; Bankruptcy Limitations; Agreement for Contribution.



     (a) Nature of Obligations. The Borrowers shall be jointly and severally liable for
any Revolving Credit Obligations denominated in the Alternative Currency. The Belgian Borrower
shall not be liable for any Revolving Credit Loans in Dollars made to the U.S. Borrower or any L/C
Obligations of the U.S. Borrower.



     (b) Bankruptcy Limitations. Notwithstanding anything to the contrary contained in
this Agreement, it is the intention of each Borrower, the Administrative Agent and the Revolving
Credit Lenders that, in any proceeding involving the bankruptcy, reorganization, arrangement,
adjustment of debts, relief of debtors, dissolution or insolvency or any similar proceeding with
respect to any Borrower or its assets, the amount of such Borrower’s obligations with respect to
the Obligations shall be equal to, but not in excess of, the maximum amount thereof not subject to
avoidance or recovery by operation of Applicable Insolvency Laws after giving effect to Section
2.7(c). To that end, but only in the event and to the extent that after giving effect to
Section 2.7(c), such Borrower’s obligations with respect to Obligations or any payment made
pursuant to such Obligations would, but for the operation of the first sentence of this Section
2.7(b), be subject to avoidance or recovery in any such proceeding under Applicable Insolvency
Laws after giving effect to Section 2.7(c), the amount of such Borrower’s obligations with
respect to the Obligations shall be limited to the largest amount which, after giving effect
thereto, would not, under Applicable Insolvency Laws, render such Borrower’s obligations with
respect to the Obligations unenforceable or avoidable or otherwise subject to recovery under
Applicable Insolvency Laws. To the extent any payment actually made pursuant to the Obligations
exceeds the limitation of the first sentence of this Section 2.7(b) and is otherwise
subject to avoidance and recovery in any such proceeding under Applicable Insolvency Laws, the
amount subject to avoidance shall in all events be limited to the amount by which such actual
payment exceeds such limitation and the Obligations as limited by the first sentence of this
Section 2.7(b) shall in all events remain in full force and effect and be fully enforceable
against such Borrower. The first sentence of this Section 2.7(b) is intended solely to
preserve the rights of the Administrative Agent and the Lenders hereunder against such Borrower in
such proceeding to the maximum extent permitted by Applicable Insolvency Laws and neither such
Borrower nor any other Person shall have any right or claim under such sentence that would not
otherwise be available under Applicable Insolvency Laws in such proceeding.



     (c) Agreement for Contribution. The Borrowers hereby agree among themselves that, if
the U.S. Borrower shall make an Excess Payment (as defined below) in connection with any
Alternative Currency Loans made to the Belgian Borrower, the U.S. Borrower shall have a right of
contribution from the Belgian Borrower for such Excess Payment. The payment obligations of the
U.S. Borrower under this Section 2.7(c) shall be subordinate and subject in right of
payment to the Obligations until such time as the Obligations have been paid in full, and neither
Borrower shall exercise any right or remedy under this Section 2.7(c) against the other
Borrower until the Obligations have been paid in full. For purposes of this Section
2.7(c), “Excess Payment” shall mean the amount paid by the U.S. Borrower for any
Revolving Credit Obligations in connection with Alternative Currency Loans made to the Belgian
Borrower. No



29









 







Borrower shall have any right of subrogation, indemnity or reimbursement under Applicable Law
in respect of any payment of Revolving Credit Obligations (other than the contribution rights set
forth in this Section 2.7(c)) against the other Borrower. No Person other than a Lender or
Borrower may rely on the provisions of this Section 2.7(c). Notwithstanding the foregoing,
should no Default or Event of Default exist or be caused thereby, the Belgian Borrower may
reimburse the U.S. Borrower for any Excess Payment.



     SECTION 2.8 Repayment on the Revolving Credit Maturity Date. The Borrowers shall have two (2)
options to request that the Lenders extend the Revolving Credit Maturity Date by one (1) year
(each, an “Extension Option”), provided that (a) no Default or Event of Default has
occurred and is continuing at the time such Extension Option is exercised, and no Default or Event
of Default will occur upon the exercise of such Extension Option, and (b) the Borrowers’ second
Extension Option shall expire if the first Extension Option shall not have been exercised. In
order to exercise each Extension Option, the Borrower Agent shall deliver to the Administrative
Agent written notice of their request to exercise such Extension Option, which notice (a) with
respect to the first Extension Option, shall be delivered no earlier than the first anniversary of
the Closing Date and no later than the date that is ninety (90) days prior to the Revolving Credit
Maturity Date (prior to such extension), and (b) with respect to the second Extension Option, shall
be delivered no earlier than the original Revolving Credit Maturity Date and no later than the date
that is ninety (90) days prior to the Revolving Credit Maturity Date (as extended by the First
Extension Option). Within 30 days of delivery of such notice, the Required Lenders (in their sole
and absolute discretion) shall notify the Borrower Agent whether or not they consents to such
extension (which consent may be given or withheld in the Lender’s sole and absolute discretion).
If the Required Lenders fail to respond within the above time period, they shall be deemed not to
have consented to such extension. As a condition precedent to such extension, the Borrower Agent
shall deliver to the Administrative Agent, a certificate, dated as of the date of the extension (i)
certifying and attaching the resolutions adopted by the Credit Parties approving or consenting to
such extension and, (ii) in the case of the Borrowers, certifying that, before and after giving
effect to such extension, the representations and warranties contained in Article VII are
true and correct in all material respects on and as of the date of the extension and no Default or
Event of Default exists.



ARTICLE III




LETTER OF CREDIT FACILITY




     SECTION 3.1 L/C Commitment. Subject to the terms and conditions hereof, the Issuing Lender
agrees to issue commercial letters of credit and standby letters of credit (collectively,
“Letters of Credit”) for the account of the U.S. Borrower on any Business Day from the
Closing Date to but not including the fifth (5th) Business Day prior the Letter of
Credit Maturity Date 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
(a) after giving effect to such issuance, the L/C Obligations would exceed the L/C Commitment or
(b) prior to such issuance, the U.S. Borrower has not deposited with the Administrative Agent an
amount in Dollars (or other liquid assets acceptable to the Administrative Agent (in its sole
discretion) subject to the Administrative Agent’s standard advance rates or margin requirements for
such liquid assets) equal to the face amount of such Letter of Credit to be issued (the “L/C




30









 




Deposit”). Each Letter of Credit shall (i) be denominated in Dollars in a minimum
amount of $25,000 (or such lesser amount as agreed to by the Issuing Lender), (ii) be a commercial
letter of credit or standby letter of credit issued to support obligations of the U.S. Borrower or
any of its Domestic Subsidiaries, contingent or otherwise, incurred in the ordinary course of
business, (iii) expire on a date that is no later than the one-year anniversary of the Letter of
Credit Maturity Date and (iv) be subject to the Uniform Customs (for commercial letters of credit)
and/or ISP98 (for standby letters of credit), as set forth in the Letter of Credit Application or
as determined by the Issuing Lender and, to the extent not inconsistent therewith, the laws of the
State of New York. The Issuing Lender shall not at any time be obligated to issue any Letter of
Credit hereunder if such issuance would conflict with, or cause the Issuing Lender to exceed any
limits imposed by, any Applicable Law. References herein to “issue” and derivations thereof with
respect to Letters of Credit shall also include extensions or modifications of any outstanding
Letters of Credit, unless the context otherwise requires.




     SECTION 3.2 Procedure for Issuance of Letters of Credit. The U.S. Borrower may from time to
time request that the Issuing Lender issue a Letter of Credit by delivering (a) to the Issuing
Lender at the Administrative Agent’s Office a Letter of Credit 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 and (b) the L/C Deposit. Upon receipt of any Letter
of Credit Application, the Issuing Lender shall process such Letter of Credit Application and the
certificates, documents and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall, subject to Section 3.1 and Article
VI, 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 (3) Business Days after its
receipt of the Letter of Credit 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 by the Issuing Lender and the U.S. Borrower.
The Issuing Lender shall promptly furnish to the U.S. Borrower a copy of such Letter of Credit and
promptly notify each Lender of the issuance and upon request by any Lender, furnish to such Lender
a copy of such Letter of Credit and the amount of such Lender’s participation therein.



     SECTION 3.3 Commissions and Other Charges.



     (a) Issuance Fee. The U.S. Borrower shall pay to the Issuing Lender an issuance fee
with respect to each Letter of Credit in an amount equal to the face amount of such Letter of
Credit multiplied by one-half of one percent (0.500%) per annum. Such issuance fee shall be
payable monthly in arrears on the last Business Day of each calendar month commencing with the
first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit
Maturity Date and thereafter on demand of the Administrative Agent.



     (b) Other Costs. In addition to the foregoing fees and commissions, the U.S. 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, effecting payment under, amending or
otherwise administering any Letter of Credit.



     SECTION 3.4 Reimbursement Obligation of the U.S. Borrower. In the event of any drawing under
any Letter of Credit, the U.S. Borrower agrees to reimburse, in same day funds,



31









 







the Issuing Lender on each date on which the Issuing Lender notifies the U.S. Borrower of the
date and amount of a draft paid under any Letter of Credit for the amount of (a) such draft so paid
and (b) any amounts referred to in Section 3.3(a) incurred by the Issuing Lender in
connection with such payment. If the U.S. Borrower shall fail to reimburse the Issuing Lender as
provided above, the unreimbursed amount of such drawing shall bear interest at the rate which would
be payable on any outstanding Base Rate Loans which were then overdue from the date such amounts
become payable (whether at stated maturity, by acceleration or otherwise) until payment in full.



     SECTION 3.5 Obligations Absolute. The U.S. Borrower’s obligations under this Article
III (including, without limitation, the Reimbursement Obligation) shall be absolute and
unconditional under any and all circumstances and irrespective of any set off, counterclaim or
defense to payment which the U.S. Borrower may have or have had against the Issuing Lender or any
beneficiary of a Letter of Credit or any other Person. The U.S. Borrower also agrees that the
Issuing Lender shall not be responsible for, and the U.S. Borrower’s Reimbursement Obligation under
Section 3.5 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 U.S. 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 U.S. 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 caused by the
Issuing Lender’s gross negligence or willful misconduct, as determined by a court of competent
jurisdiction by final nonappealable judgment. The U.S. 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 shall be
binding on the U.S. Borrower and shall not result in any liability of the Issuing Lender to the
U.S. Borrower. The responsibility of the Issuing Lender to the U.S. 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
documents (including each draft) delivered under such Letter of Credit in connection with such
presentment are in conformity with such Letter of Credit.



     SECTION 3.6 Effect of Letter of Credit Application. To the extent that any provision of any
Letter of Credit Application related to any Letter of Credit is inconsistent with the provisions of
this Article III, the provisions of this Article III shall apply.



     SECTION 3.7 Collateral. The U.S. Borrower hereby grants to the Issuing Lender a security
interest in the following collateral (collectively, the “L/C Collateral”) as collateral
security for the prompt payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the L/C Obligations: all L/C Deposits, in each case, in an amount
equal to the face amount of all issued and outstanding Letters of Credit, and in all events, all
any and replacements, substitutions, profits, products, cash and non-cash proceeds of the foregoing
in any form and wherever located and all books and records in whatever form maintained in
connection with such L/C Collateral.



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ARTICLE IV




UNCONDITIONAL U.S. BORROWER GUARANTY




     SECTION 4.1 Guaranty of Obligations. The U.S. Borrower hereby unconditionally 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 payment of all
Obligations of the Belgian Borrower, whether primary or secondary (whether by way of endorsement or
otherwise), whether now existing or hereafter arising, whether or not from time to time reduced or
extinguished (except by payment thereof) or hereafter increased or incurred, whether or not
recovery may be or hereafter become barred by the statute of limitations, whether enforceable or
unenforceable as against the Belgian Borrower, whether or not discharged, stayed or otherwise
affected by any Applicable Insolvency Law or proceeding thereunder, whether created directly with
the Administrative Agent or any other Lender or acquired by the Administrative Agent or any other
Lender through assignment, endorsement or otherwise, whether matured or unmatured, whether joint or
several, as and when the same become due and payable (whether at maturity or earlier, by reason of
acceleration, mandatory repayment or otherwise), in accordance with the terms of any such
instruments evidencing any such obligations, including all renewals, extensions or modifications
thereof (all Obligations of the Belgian Borrower, including all of the foregoing, being hereinafter
collectively referred to as the “Belgian Borrower Guaranteed Obligations”).



     SECTION 4.2 Nature of Guaranty.



     (a) The U.S. Borrower agrees that this U.S. Borrower Guaranty is a continuing, unconditional
guaranty of payment and performance and not of collection, and that its obligations under this U.S.
Borrower Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:




     (i) the genuineness, validity, regularity, enforceability or any future amendment of,
or change in, this Agreement or any other Loan Document or any other agreement, document or
instrument to which the Borrowers or any of their respective Subsidiaries or Affiliates is
or may become a party;




     (ii) the absence of any action to enforce this U.S. Borrower Guaranty, this Agreement,
any other Loan Document or any Hedging Agreement, or the waiver or consent by the
Administrative Agent or any other Lender with respect to any of the provisions of this U.S.
Borrower Guaranty, this Agreement, any other Loan Document or any Hedging Agreement;




     (iii) the existence, value or condition of, or failure to perfect its Lien against, any
security for or other guaranty of the Belgian Borrower Guaranteed Obligations or any action,
or the absence of any action, by the Administrative Agent or any other Lender in respect of
such security or guaranty (including, without limitation, the release of any such security
or guaranty);




     (iv) any structural change in, restructuring of or other similar change of the U.S.
Borrower, the Belgian Borrower or any of their respective Subsidiaries; or



33









 






     (v) any other action or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor;



it being agreed by the U.S. Borrower that its obligations under this U.S. Borrower Guaranty shall
not be discharged except as under the terms of Section 4.6 below.




     (b) The U.S. Borrower represents, warrants and agrees that the Belgian Borrower Guaranteed
Obligations and its obligations under this U.S. Borrower Guaranty are not and shall not be subject
to any counterclaims, offsets or defenses of any kind (other than the defense of payment) against
the Administrative Agent, the Lenders or the Borrower whether now existing or which may arise in
the future.



     (c) The U.S. Borrower hereby agrees and acknowledges that the Belgian Borrower Guaranteed
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 U.S. Borrower Guaranty,
and all dealings between the Borrower and the U.S. Borrower, on the one hand, and the
Administrative Agent and any other Lender, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this U.S. Borrower Guaranty.



     SECTION 4.3 Waivers. To the extent permitted by Applicable Law, the U.S. Borrower expressly
waives the benefit of all provisions of Applicable Law which are or might be in conflict with this
U.S. Borrower Guaranty and all of the following rights and defenses (and agrees not to take
advantage of or assert any such right or defense):



     (a) any rights it may now or in the future have under any statute, or at law or in equity, or
otherwise, to compel the Administrative Agent or any other Lender to proceed in respect of the
Belgian Borrower Guaranteed Obligations against either Borrower or any other Person or against any
security for or other guaranty of the payment and performance of the Belgian Borrower Guaranteed
Obligations before proceeding against, or as a condition to proceeding against, the U.S. Borrower;



     (b) any defense based upon the failure of the Administrative Agent or any other Lender to
commence an action in respect of the Belgian Borrower Guaranteed Obligations against the Belgian
Borrower, the U.S. Borrower, any other guarantor or any other Person or any security for the
payment and performance of the Belgian Borrower Guaranteed Obligations;



     (c) any right to insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshalling of assets or redemption laws,
or exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise
affect the performance by the U.S. Borrower of its obligations under, or the enforcement by the
Administrative Agent or the other Lenders of, this U.S. Borrower Guaranty;



     (d) any right of diligence, presentment, demand, protest and notice (except as specifically
required herein) of whatever kind or nature with respect to any of the Belgian Borrower Guaranteed
Obligations and waives, to the fullest extent permitted by Applicable Laws, the benefit of all
provisions of Applicable Law which are or might be in conflict with the terms of this U.S. Borrower
Guaranty; and



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     (e) any and all right to notice of the creation, renewal, extension or accrual of any of the
Belgian Borrower Guaranteed Obligations and notice of or proof of reliance by the Administrative
Agent or any other Lender upon, or acceptance of, this U.S. Borrower Guaranty.



     The U.S. Borrower agrees that any notice or directive given at any time to the Administrative
Agent or any other Lender which is inconsistent with any of the foregoing waivers shall be null
and void and may be ignored by the Administrative Agent or such other Lender, and, in addition, may
not be pleaded or introduced as evidence in any litigation relating to this U.S. Borrower Guaranty
for the reason that such pleading or introduction would be at variance with the written terms of
this U.S. Borrower Guaranty, unless the Administrative Agent has specifically agreed otherwise in
writing. The foregoing waivers are of the essence of the transaction contemplated by this
Agreement and the other Loan Documents and, but for this U.S. Borrower Guaranty and such waivers,
the Administrative Agent and other Lenders would decline to enter into this Agreement and the other
Loan Documents.



     SECTION 4.4 Modification of Loan Documents, Etc. Neither the Administrative Agent nor any
other Lender shall incur any liability to the U.S. Borrower as a result of any of the following,
and none of the following shall impair or release this U.S. Borrower Guaranty or any of the
obligations of the U.S. Borrower under this U.S. Borrower Guaranty:



     (a) any change or extension of the manner, place or terms of payment of, or renewal or
alteration of all or any portion of, the Belgian Borrower Guaranteed Obligations;



     (b) any action under or in respect of this Agreement or the other Loan Documents in the
exercise of any remedy, power or privilege contained therein or available to any of them at law, in
equity or otherwise, or waiver or refraining from exercising any such remedies, powers or
privileges;



     (c) any amendment to, or modification of, in any manner whatsoever, the Loan Documents;



     (d) any extension or waiver of the time for performance by the U.S. Borrower, any other
guarantor, the Belgian Borrower or any other Person of, or compliance with, any term, covenant or
agreement on its part to be performed or observed under a Loan Document, or waiver of such
performance or compliance or consent to a failure of, or departure from, such performance or
compliance;



     (e) the taking and holding of security or collateral for the payment of the Belgian Borrower
Guaranteed Obligations or the sale, exchange, release, disposal of, or other dealing with, any
property pledged, mortgaged or conveyed, or in which the Administrative Agent or the other Lenders
have been granted a Lien, to secure any Indebtedness of the U.S. Borrower, any other guarantor or
the Belgian Borrower to the Administrative Agent or the other Lenders;



     (f) the release of anyone who may be liable in any manner for the payment of any amounts owed
by the U.S. Borrower, any other guarantor or the Belgian Borrower to the Administrative Agent or
any other Lender;



35









 





     (g) any modification or termination of the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors of the U.S. Borrower, any other guarantor or
the Belgian Borrower are subordinated to the claims of the Administrative Agent or any other
Lender; or



     (h) any application of any sums by whomever paid or however realized to any Belgian Borrower
Guaranteed Obligations owing by the U.S. Borrower, any other guarantor or the Belgian Borrower to
the Administrative Agent or any other Lender in such manner as the Administrative Agent or any
other Lender shall determine in its reasonable discretion.



     SECTION 4.5 Demand by the Administrative Agent. In addition to the terms set forth in this
Article IV and in no manner imposing any limitation on such terms, if all or any portion of
the then outstanding Belgian Borrower Guaranteed Obligations are declared to be immediately due and
payable, then the U.S. Borrower shall, upon demand in writing therefor by the Administrative Agent
to the U.S. Borrower, pay all or such portion of the outstanding Belgian Borrower Guaranteed
Obligations due hereunder then declared due and payable.



     SECTION 4.6 Termination; Reinstatement.



     (a) Subject to clause (c) below, this U.S. Borrower Guaranty shall remain in full force and
effect until all the Belgian Borrower Guaranteed Obligations and all the obligations of the U.S.
Borrower under this U.S. Borrower Guaranty shall have been paid in full and the Revolving Credit
Commitments terminated.



     (b) No payment made by the Belgian Borrower, the U.S. Borrower or any other Person received or
collected by the Administrative Agent or any other Lender from the Belgian Borrower, the U.S.
Borrower or any other Person by virtue of any action or proceeding or any setoff or appropriation
or application at any time or from time to time in reduction of or in payment of the Belgian
Borrower Guaranteed Obligations shall be deemed to modify, reduce, release or otherwise affect the
liability of the U.S. Borrower hereunder which shall, notwithstanding any such payment (other than
any payment made by the U.S. Borrower in respect of the Obligations of the U.S. Borrower or any
payment received or collected from the U.S. Borrower in respect of the Obligations of the U.S.
Borrower), remain liable for the Obligations of the U.S. Borrower up to the maximum liability of
the U.S. Borrower hereunder until the Belgian Borrower Guaranteed Obligations and all the
Obligations of the U.S. Borrower shall have been paid in full and the Revolving Credit Commitments
terminated.



     (c) The U.S. Borrower agrees that, if any payment made by the Belgian Borrower or any other
Person applied to the Belgian Borrower Guaranteed Obligations is at any time annulled, set aside,
rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be
refunded or repaid, or is repaid in whole or in part pursuant to a good faith settlement of a
pending or threatened claim, or the proceeds of any Collateral are required to be refunded by the
Administrative Agent or any other Lender to the Belgian Borrower, its estate, trustee, receiver or
any other Person, including, without limitation, the U.S. Borrower, under any Applicable Law or
equitable cause, then, to the extent of such payment or repayment, the U.S. Borrower’s liability
hereunder shall be and remain in full force and effect, as fully as if such
payment had never been made, and, if prior thereto, this U.S. Borrower Guaranty shall have been
canceled or surrendered, this U.S. Borrower Guaranty shall be reinstated in full force and effect,



36









 







and such prior cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of the U.S. Borrower in respect of the amount of such payment.



     SECTION 4.7 No Subrogation. Notwithstanding any payment or payments by the U.S. Borrower
hereunder, or any setoff or application of funds of the U.S. Borrower by the Administrative Agent
or any other Lender, or the receipt of any amounts by the Administrative Agent or any other Lender
with respect to any of the Belgian Borrower Guaranteed Obligations, the U.S. Borrower shall not be
entitled to be subrogated to any of the rights of the Administrative Agent or any other Lender
against the Belgian Borrower, the other Subsidiary Guarantors or any other guarantor or against any
collateral security held by the Administrative Agent or any other Lender for the payment of the
Belgian Borrower Guaranteed Obligations nor shall the U.S. Borrower seek any reimbursement from the
Belgian Borrower, any of the other Subsidiary Guarantors or any of the other guarantors in respect
of payments made by the U.S. Borrower in connection with the Belgian Borrower Guaranteed
Obligations, until all amounts owing to the Administrative Agent and the other Lenders on account
of the Belgian Borrower Guaranteed Obligations are paid in full and the Revolving Credit
Commitments are terminated. If any amount shall be paid to the U.S. Borrower on account of such
subrogation rights at any time when all of the Belgian Borrower Guaranteed Obligations shall not
have been paid in full or the Revolving Credit Commitments have not been terminated, such amount
shall be held by the U.S. Borrower in trust for the Administrative Agent, segregated from other
funds of the U.S. Borrower, and shall, forthwith upon receipt by the U.S. Borrower, be turned over
to the Administrative Agent (duly endorsed by the U.S. Borrower to the Administrative Agent, if
required) to be applied against the Belgian Borrower Guaranteed Obligations, whether matured or
unmatured, in such order as set forth in this Agreement.



     SECTION 4.8 Payments. Payments by the U.S. Borrower shall be made to the Administrative
Agent, to be credited and applied to the Belgian Borrower Guaranteed Obligations in accordance with
Section 12.4 of this Agreement, in immediately available Dollars, to an account designated
by the Administrative Agent or at the Administrative Agent’s Office or at any other address that
may be specified in writing from time to time by the Administrative Agent. Any and all payments by
or on account of any obligation of the U.S. Borrower under this U.S. Borrower Guaranty shall be
made free and clear of and without reduction or withholding for any taxes.



ARTICLE V




GENERAL LOAN PROVISIONS




     SECTION 5.1 Interest.



     (a) Interest Rate Options. Subject to the provisions of this Section 5.1, (i)
at the election of the U.S. Borrower, Revolving Credit Loans denominated in Dollars shall bear
interest at (A) the Base Rate plus the Applicable Margin or (B) the LIBOR Rate plus the Applicable
Margin; provided that the LIBOR Rate shall not be available until three (3) Business Days
after the Closing Date, (ii) at the election of the Belgian Borrower, Revolving Credit Loans
denominated in the Alternative Currency shall bear interest at the LIBOR Rate plus the
Applicable Margin; provided that the LIBOR Rate shall not be available until three (3)
Business Days after the Closing Date and (iii) Swingline Loans denominated in Dollars shall bear
interest



37









 







at the Base Rate plus the Applicable Margin. The applicable Borrower shall select the
rate of interest and Interest Period, if any, applicable to any Loan at the time a Notice of
Borrowing or a Notice of Conversion/Continuation is given pursuant to Section 5.2. Each
Loan or portion thereof bearing interest based on the Base Rate (including, without limitation,
each Swingline Loan) shall be a “Base Rate Loan” and each Loan or portion thereof bearing
interest based on the LIBOR Rate shall be a “LIBOR Rate Loan.” Any Loan or any portion
thereof as to which the applicable Borrower has not duly specified an interest rate as provided
herein shall be deemed a Base Rate Loan denominated in Dollars.



     (b) Interest Periods. Each interest period (the “Interest Period”) applicable
to each LIBOR Rate Loan shall be a period of one (1), two (2) or three (3) months; provided
that:




     (i) the Interest Period shall commence on the date of advance of or conversion to any
LIBOR Rate Loan and, in the case of immediately successive Interest Periods, each successive
Interest Period shall commence on the date on which the immediately preceding Interest
Period expires;




     (ii) if any Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day; provided,
that if any Interest Period with respect to a LIBOR Rate Loan would otherwise expire on a
day that is not a Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the immediately preceding
Business Day;




     (iii) any Interest Period with respect to a LIBOR Rate Loan 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 the relevant calendar month at the end of such Interest Period;




     (iv) no Interest Period shall extend beyond the Revolving Credit Maturity Date; and




     (v) there shall be no more than five (5) Interest Periods in effect at any time.



     (c) Default Rate. Subject to Section 12.3, (i) immediately upon the
occurrence and during the continuance of an Event of Default under Section 12.1(a), (b),
(j) or (k), or (ii) at the election of the Required Lenders, upon the occurrence and
during the continuance of any other Event of Default, (A) the Borrowers shall no longer have the
option to request LIBOR Rate Loans, Alternative Currency Loans or, Swingline Loans or Letters of
Credit (in the case of the U.S. Borrower), (B) all outstanding LIBOR Rate Loans shall bear interest
at a rate per annum of two percent (2%) in excess of the rate then applicable to LIBOR Rate Loans
until the end of the applicable Interest Period and thereafter at a rate equal to two percent (2%)
in excess of the rate then applicable to Base Rate Loans, and (C) all outstanding Base Rate Loans,
Letters of Credit and other Obligations arising hereunder or under any other Loan Document shall
bear interest at a rate per annum equal to two percent (2%) in excess of the rate then applicable
to Base Rate Loans or such other Obligations arising hereunder or under any other Loan Document.
Interest
shall continue to accrue on the Obligations after the filing by or against the U.S. Borrower
of any



38









 







petition seeking any relief in bankruptcy or under any act or law pertaining to insolvency
or debtor relief, whether state, federal or foreign.



     (d) Interest Payment and Computation. Interest on each Base Rate Loan, LIBOR Rate
Loan and Letters of Credit shall be due and payable in arrears on the last Business Day of each
calendar month commencing October 31, 2008. All computations of interest for Base Rate Loans when
the Base Rate is determined by the Prime Rate shall be made on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed. All other computations of fees and interest
provided hereunder shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on the basis of a
365-day year).



     (e) Maximum Rate. In no contingency or event whatsoever shall the aggregate of all
amounts deemed interest under this Agreement charged or collected pursuant to the terms of this
Agreement exceed the highest rate permissible under any Applicable Law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a
court determines that the Lenders have charged or received interest hereunder in excess of the
highest applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative Agent’s option (i)
promptly refund to the applicable Borrower any interest received by the Lenders in excess of the
maximum lawful rate or (ii) apply such excess to the principal balance of the Obligations as
determined by the Administrative Agent. It is the intent hereof that the Borrowers not pay or
contract to pay, and that neither the Administrative Agent nor any Lender receive or contract to
receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be
paid by the Borrowers under Applicable Law.



     SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans. Provided that no
Default or Event of Default has occurred and is then continuing, the U.S. Borrower shall have the
option to (a) convert at any time following the third Business Day after the Closing Date all or
any portion of any outstanding Base Rate Loans (other than Swingline Loans) in a principal amount
equal to $1,000,000 or any whole multiple of $1,000,000 in excess thereof into one or more LIBOR
Rate Loans denominated in Dollars or (b) upon the expiration of any Interest Period, (i) convert
all or any part of its outstanding LIBOR Rate Loans denominated in Dollars in a principal amount
equal to $1,000,000 or a whole multiple of $1,000,000 in excess thereof into Base Rate Loans (other
than Swingline Loans) or (ii) continue such LIBOR Rate Loans as LIBOR Rate Loans. Provided that no
Default or Event of Default has occurred and is then continuing, the Belgian Borrower shall have
the option to upon the expiration of any Interest Period, continue any Alternative Currency Loan
denominated in any Permitted Currency in a principal amount of $1,000,000 or any whole multiple of
$1,000,000 in excess thereof as a LIBOR Rate Loan in the same Permitted Currency. Whenever either
Borrower desires to convert or continue Loans as provided above, such Borrower shall give the
Administrative Agent irrevocable prior written notice in the form attached as Exhibit E (a
“Notice of Conversion/Continuation”) not later than three (3) Business Days before the day
on which a proposed conversion or continuation of such Loan is to be effective specifying (A) the
Loans to be converted or continued, and, in the case of any LIBOR Rate Loan to be converted or
continued, the last day of the Interest Period therefor, (B) the Permitted Currency in which such
Loan is denominated, (C) the effective date of such conversion or continuation (which shall be a
Business Day), (D) the principal amount of such Loans to be converted or continued and (E) the



39









 







Interest Period to be applicable to such converted or continued LIBOR Rate Loan. The
Administrative Agent shall promptly notify the Lenders of such Notice of Conversion/ Continuation.



     SECTION 5.3 Fees.



     (a) Undrawn Fee. Commencing on the Closing Date, the Borrower Agent shall pay to the
Administrative Agent, for the account of the Revolving Credit Lenders, a non-refundable undrawn fee
(the “Undrawn Fee”) at a rate per annum equal to the Applicable Margin on the average daily
unused portion of the Revolving Credit Commitment; provided, that the amount of outstanding
Swingline Loans shall not be considered usage of the Revolving Credit Commitment for the purpose of
calculating such Undrawn Fee. The Undrawn Fee shall be payable in arrears on the last Business Day
of each calendar quarter during the term of this Agreement commencing December 31, 2008 and ending
on the Revolving Credit Maturity Date. Such commitment fee shall be distributed by the
Administrative Agent to the Revolving Credit Lenders pro rata in accordance with the Lenders’
respective Revolving Credit Commitment Percentages.



     (b) Commitment Fee. On the Closing Date, the Borrower Agent shall pay to the
Administrative Agent, for the account of the Revolving Credit Lenders, a non-refundable commitment
fee equal to one-half of one percent (0.500%) of the aggregate Revolving Credit Commitment. Such
commitment fee shall be distributed by the Administrative Agent to the Revolving Credit Lenders
pro rata in accordance with the Revolving Credit Lenders’ respective Revolving
Credit Commitment Percentages. Such commitment fee shall be fully earned and due and payable on
the Closing Date.



     (c) Other Fees. The Borrower Agent shall pay to the Administrative Agent such fees in
accordance with the terms and conditions set forth in Section 9.11.



     SECTION 5.4 Manner of Payment.



     (a) Loans Denominated in Dollars and Letters of Credit. Each payment by the U.S.
Borrower on account of the principal of or interest on any Loan or Letter of Credit denominated in
Dollars or of any fee, commission or other amounts (including the Reimbursement Obligation with
respect to any Letter of Credit) payable to the Lenders under this Agreement (except as set forth
in Section 5.4(b)) shall be made in Dollars not later than 1:00 p.m. on the date specified
for payment under this Agreement to the Administrative Agent at the Administrative Agent’s Office
for the account of the Lenders (other than as set forth below) pro rata in accordance with their
respective Revolving Credit Commitment Percentages (except as specified below) in immediately
available funds and shall be made without any set-off, counterclaim or deduction whatsoever. Any
payment received after such time but before 2:00 p.m. on such day shall be deemed a payment on such
date for the purposes of Section 12.1, but for all other purposes shall be deemed to have
been made on the next succeeding Business Day. Any payment received after 2:00 p.m. shall be
deemed to have been made on the next succeeding Business Day for all purposes. With respect to
each Letter of Credit, each payment of the Issuing Lender’s fees commissions shall be made in like
manner, but for the account of the Issuing Lender.




40











 





     (b) Loans Denominated in the Alternative Currency. Each payment by the Borrowers on
account of the principal of or interest on the Loans denominated in any Alternative Currency shall
be made in such Alternative Currency (or as agreed to in writing by the Administrative Agent, in
Dollars) not later than 11:00 a.m. (the time of the Administrative Agent’s Correspondent) on the
date specified for payment under this Agreement to the Administrative Agent’s account with the
Administrative Agent’s Correspondent for the account of the Lenders (other than as set forth below)
pro rata in accordance with their respective Revolving Credit Commitment Percentages (except as set
forth below) in immediately available funds, and shall be made without any set-off, counterclaim or
deduction whatsoever. Any payment received after such time but before 12:00 noon (the time of the
Administrative Agent’s Correspondent) on such day shall be deemed a payment on such date for the
purposes of Section 12.1, but for all other purposes shall be deemed to have been made on
the next succeeding Business Day. Any payment received after 12:00 noon (the time of the
Administrative Agent’s Correspondent) shall be deemed to have been made on the next succeeding
Business Day for all purposes.



     (c) Upon receipt by the Administrative Agent of each payment set forth in Section
5.4(a) and (b) above, the Administrative Agent shall distribute to each Lender at its
address for notices set forth herein its pro rata share of such payment in
accordance with such Lender’s Commitment Percentage, (except as specified below) and shall wire
advice of the amount of such credit to each Lender. Each payment to the Administrative Agent of
the Issuing Lender’s fees shall be made in like manner, but for the account of the Issuing Lender.
Each payment to the Administrative Agent of Administrative Agent’s fees or expenses shall be made
for the account of the Administrative Agent and any amount payable to any Lender under Sections
5.9, 5.10, 5.11 or 14.3 shall be paid to the Administrative Agent for
the account of the applicable Lender. Subject to Section 5.1(b)(ii), if any payment under
this Agreement shall be specified to be made upon a day which is not a Business Day, it shall be
made on the next succeeding day which is a Business Day and such extension of time shall in such
case be included in computing any interest if payable along with such payment.



     SECTION 5.5 Evidence of Indebtedness.



     (a) Extensions of Credit. The Extensions of Credit made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount of the Extensions of
Credit made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to
so record or any error in doing so shall not, however, limit or otherwise affect the obligation of
the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of
any conflict between the accounts and records maintained by any Lender and the accounts and records
of the Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrowers shall execute and deliver to such
Lender (through the Administrative Agent) a Revolving Credit Note and/or Swingline Note, as
applicable, which shall evidence such Lender’s Revolving Credit Loans and/or Swingline Loans, as
applicable, in addition to such accounts or records. Each Lender may attach schedules to its Notes
and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.



41









 





     (b) Participations. In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice
accounts or records evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swingline Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error.



     SECTION 5.6 Adjustments. If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its
Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion
of the aggregate amount of its Loans and accrued interest thereon or other such obligations (other
than pursuant to Sections 5.9, 5.10, 5.11 or 14.3 hereof) greater
than its pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the Loans and such other obligations of the other Lenders, or
make such other adjustments as shall be equitable, so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them; provided that



          (i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and




          (ii) the provisions of this paragraph shall not be construed to apply to (A) any payment made
by a Borrower pursuant to and in accordance with the express terms of this Agreement or (B) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or participations in Swingline Loans and Letters of Credit to any assignee or
participant, other than to such Borrower or any Subsidiary thereof (as to which the provisions of
this paragraph shall apply).



Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against each Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of each Borrower in the amount of
such participation.




     SECTION 5.7 Obligations of Lenders.



     (a) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
borrowing that such Lender will not make available to the Administrative Agent such Lender’s share
of such borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.3(b) and may, in reliance upon such
assumption, make available to the applicable Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable borrowing available to the Administrative
Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest



42









 







thereon, for each day from and including the date such amount is made available to such
Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a
payment to be made by such Lender, (x) with respect to any Loan denominated in Dollars, the greater
of the daily average Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, and (y) with respect to any Loan
denominated in the Alternative Currency, the rate per annum equal to the Administrative Agent’s
aggregate marginal cost (including the cost of maintaining any required reserves or deposit
insurance and of any fees, penalties, overdraft charges or other costs or expenses incurred by the
Administrative Agent as a result of the failure to deliver funds hereunder) of carrying such
amount, and (ii) in the case of a payment to be made by a Borrower, the interest rate applicable to
Base Rate Loans. If such Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the
such Borrower the amount of such interest paid by such Borrower for such period. If such Lender
pays its share of the applicable borrowing to the Administrative Agent, then the amount so paid
shall constitute such Lender’s Loan included in such borrowing. Any payment by a Borrower shall be
without prejudice to any claim such Borrower may have against a Lender that shall have failed to
make such payment to the Administrative Agent. A certificate of the Administrative Agent with
respect to any amounts owing under this Section 5.7 shall be conclusive, absent manifest
error.



     (b) Nature of Obligations of Lenders Regarding Extensions of Credit. The obligations
of the Lenders under this Agreement to make the Loans and issue or participate in Letters of Credit
are several and are not joint or joint and several. The failure of any Lender to make available
its Revolving Credit Commitment Percentage of any Loan requested by the applicable Borrower shall
not relieve it or any other Lender of its obligation, if any, hereunder to make its Revolving
Credit Commitment Percentage of such Loan available on the borrowing date, but no Lender shall be
responsible for the failure of any other Lender to make its Revolving Credit Commitment Percentage
of such Loan available on the borrowing date.



     SECTION 5.8 Changed Circumstances.



     (a) Circumstances Affecting LIBOR Rate and Alternative Currency Availability. If with
respect to any Interest Period for any LIBOR Rate Loan the Administrative Agent or any Lender
(after consultation with the Administrative Agent) shall determine that (i) by reason of
circumstances affecting the foreign exchange and interbank markets generally, deposits in the
Alternative Currency in the applicable amounts are not being quoted on Telerate Page 3750 or
offered to the Administrative Agent or such Lender for such Interest Period, (ii) a fundamental
change has occurred in the foreign exchange or interbank markets with respect to the Alternative
Currency (including, without limitation, changes in national or international financial, political
or economic conditions or currency exchange rates or exchange controls) or (iii) it has become
otherwise materially impractical for the Administrative Agent or the Lenders to make such Loan in
the Alternative Currency, then the Administrative Agent shall forthwith give notice thereof to the
Borrower Agent. Thereafter, until the Administrative Agent notifies the Borrower Agent that such
circumstances no longer exist, the obligation of the Lenders to make LIBOR Rate Loans or
Alternative Currency Loans, as applicable, and the right of the Borrowers to convert any Loan to or
continue any Loan as a LIBOR Rate Loan or an Alternative Currency Loan, as applicable, shall be
suspended, and the Borrowers shall repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such LIBOR Rate Loan or Alternative Currency Loan, as



43









 







applicable, together with accrued interest thereon, on the last day of the then current
Interest Period applicable to such LIBOR Rate Loan or Alternative Currency Loan, as applicable, or,
in the case of a Loan made to the U.S. Borrower, convert the then outstanding principal amount of
each such LIBOR Rate Loan to a Base Rate Loan in Dollars as of the last day of such Interest
Period; provided that if the U.S. Borrower elects to make such conversion, the U.S.
Borrower shall pay to the Administrative Agent and the Lenders any and all costs, fees and other
expenses incurred by the Administrative Agent and the Lenders in effecting such conversion.



     (b) Laws Affecting LIBOR Rate and Alternative Currency Availability. If, after the
date hereof, the introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or directive (whether or not
having the force of law) of any such Governmental Authority, central bank or comparable agency,
shall make it unlawful or impossible for any of the Lenders (or any of their respective Lending
Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate Loan or any
Alternative Currency Loan, such Lender shall promptly give notice thereof to the Administrative
Agent and the Administrative Agent shall promptly give notice to the Borrower Agent and the other
Lenders. Thereafter, until the Administrative Agent notifies the Borrower Agent that such
circumstances no longer exist, (i) the obligations of the Lenders to make LIBOR Rate Loans or
Alternative Currency Loans, as applicable, and the right (if any) of the Borrowers to convert any
Loan or continue any Loan as a LIBOR Rate Loan or an Alternative Currency Loan, as applicable,
shall be suspended and thereafter the U.S. Borrower may select only Base Rate Loans hereunder and
the Belgian Borrower shall not be permitted to make any borrowings under this Agreement, and (ii)
if any of the Lenders may not lawfully continue to maintain a LIBOR Rate Loan or an Alternative
Currency Loan, as applicable, to the end of then current Interest Period applicable thereto as a
LIBOR Rate Loan or Alternative Currency Loan, as applicable, the applicable LIBOR Rate Loan or an
Alternative Currency Loan, as applicable, shall immediately be repaid, together with accrued
interest thereon and any amount payable under Section 5.9, or converted (if a LIBOR Rate Loan in
Dollars to the U.S. Borrower) to a Base Rate Loan in Dollars for the remainder of such Interest
Period; provided that if the U.S. Borrower elects to make such conversion, the U.S.
Borrower shall pay to the Administrative Agent and the Lenders any and all costs, fees and other
expenses incurred by the Administrative Agent and the Lenders in effecting such conversion.



     (c) Exchange Indemnification and Increased Costs. Each of the U.S. Borrower and
Belgian Borrower shall, upon demand from the Administrative Agent, pay to the Administrative Agent
or any applicable Lender, the amount of (i) any loss or cost or increased cost incurred by the
Administrative Agent or any applicable Lender, (ii) any reduction in any amount payable to or in
the effective return on the capital to the Administrative Agent or any applicable Lender, (iii) any
interest or any other return, including principal, foregone by the Administrative Agent or any
applicable Lender as a result of the introduction of, change over to or operation of the Euro, or
(iv) any currency exchange loss, that Administrative Agent or any Lender sustains as a result of
any payment being made by such applicable Borrower in a currency other than that originally
extended to such Borrower or as a result of any other currency exchange loss incurred by the
Administrative Agent or any applicable Lender under this Agreement; provided,
however, that the Belgian Borrower shall only be responsible for any such amounts owed in
connection with



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Alternative Currency Loans. A certificate of the Administrative Agent setting forth the basis
for determining such additional amount or amounts necessary to compensate the Administrative Agent
or the applicable Lender shall be conclusively presumed to be correct save for manifest error.



     SECTION 5.9 Indemnity. Each of the U.S. Borrower and Belgian Borrower hereby agree to
indemnify each of the Lenders against any loss or expense which may arise or be attributable to
each Lender’s obtaining, liquidating or employing deposits or other funds acquired to effect, fund
or maintain any Loan (a) as a consequence of any failure by a Borrower to make any payment when due
of any amount due hereunder in connection with a LIBOR Rate Loan or an Alternative Currency Loan,
(b) due to any failure of a Borrower to borrow, continue or convert on a date specified therefor in
a Notice of Borrowing or Notice of Conversion/Continuation or (c) due to any payment, prepayment or
conversion of any LIBOR Rate Loan or an Alternative Currency Loan on a date other than the last day
of the Interest Period therefor; provided, however, that the Belgian Borrower shall
only be responsible for any indemnification owed in connection with Alternative Currency Loans.
The amount of such loss or expense shall be determined, in the applicable Lender’s sole discretion,
based upon the assumption that such Lender funded its Revolving Credit Commitment Percentage of the
LIBOR Rate Loans in the London interbank market and using any reasonable attribution or averaging
methods which such Lender deems appropriate and practical. A certificate of such Lender setting
forth the basis for determining such amount or amounts necessary to compensate such Lender shall be
forwarded to the Borrower Agent through the Administrative Agent and shall be conclusively presumed
to be correct save for manifest error.



     SECTION 5.10 Increased Costs.



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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or advances, loans or other credit extended or participated in by, any Lender (except
any reserve requirement reflected in the LIBOR Rate) or the Issuing Lender;




     (ii) subject any Lender or the Issuing Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any LIBOR Rate Loan made by it, or change the basis of taxation of payments to such Lender
or the Issuing Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 5.11 and the imposition of, or any change in the rate of any
Excluded Taxes payable by such Lender or the Issuing Lender); or




     (iii) impose on any Lender or the Issuing Lender or the London interbank market any
other condition, cost or expense affecting this Agreement or LIBOR Rate Loans made by such
Lender or any Letter of Credit or participation therein;




and the result of any of the foregoing shall be to increase the cost to such Lender of
making, converting into or maintaining any LIBOR Rate Loan or an Alternative Currency Loan
(or of maintaining its obligation to make any such Loan), or to increase



45









 







the cost to such Lender or the Issuing Lender of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any
Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender
or the Issuing Lender hereunder (whether of principal, interest or any other amount) then,
upon written request of such Lender or the Issuing Lender, the applicable Borrower shall
promptly pay to any such Lender or the Issuing Lender, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Lender, as the case may be,
for such additional costs incurred or reduction suffered; provided, however,
that the Belgian Borrower shall only be responsible for any such amounts owed in connection
with Alternative Currency Loans.



     (b) Capital Requirements. If any Lender or the Issuing Lender determines that any
Change in Law affecting such Lender or the Issuing Lender or any Lending Office of such Lender or
such Lender’s or the Issuing Lender’s holding company, if any, regarding capital requirements has
or would have the effect of reducing the rate of return on such Lender’s or the Issuing Lender’s
capital or on the capital of such Lender’s or the Issuing Lender’s holding company, if any, as a
consequence of this Agreement, the Revolving Credit Commitment of such Lender or the Loans made by,
or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Lender, to a level below that which such Lender or the Issuing Lender or such Lender’s or
the Issuing Lender’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the Issuing Lender’s policies and the policies of such Lender’s or
the Issuing Lender’s holding company with respect to capital adequacy), then from time to time upon
written request of such Lender or such Issuing Lender the Borrowers shall promptly pay to such
Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding
company for any such reduction suffered; provided, however, that the Belgian
Borrower shall only be responsible for any such amounts owed in connection with Alternative
Currency Loans.



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



     (d) Delay in Requests. Failure or delay on the part of any Lender or the Issuing
Lender to demand compensation pursuant to this Section shall not constitute a waiver of such
Lender’s or the Issuing Lender’s right to demand such compensation; provided that the
Borrowers shall not be required to compensate a Lender or the Issuing Lender pursuant to this
Section for any increased costs incurred or reductions suffered more than nine (9) months prior to
the date that such Lender or the Issuing Lender, as the case may be, notifies the Borrower Agent of
the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the
Issuing Lender’s intention to claim compensation therefor (except that if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the nine-month period referred to
above shall be extended to include the period of retroactive effect thereof).



46









 





     SECTION 5.11 Taxes.



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



     (b) Payment of Other Taxes by the Borrowers. Without limiting the provisions of
paragraph (a) above, each Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with Applicable Law.



     (c) Indemnification by Borrowers. Each Borrower shall indemnify the Administrative
Agent, each Lender and the Issuing Lender, within ten (10) Business Days after demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the Issuing Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority; provided, however, that the Belgian Borrower shall only be
responsible for any such amounts owed in connection with Alternative Currency Loans.. A
certificate as to the amount of such payment or liability delivered to the Borrower Agent by a
Lender or the Issuing Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender or the Issuing Lender, shall be conclusive absent
manifest error.



     (d) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a Borrower is resident for
tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower Agent (with a copy to the
Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested by
the Borrower Agent or the Administrative Agent, 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 of withholding. In addition, any Lender, if requested by the Borrower Agent or the
Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or
reasonably requested by the Borrower Agent or the Administrative Agent as will enable the Borrower
Agent or the Administrative Agent to determine whether or not such Lender is subject to backup
withholding or information reporting requirements. Without limiting the generality of the
foregoing, in the event that a Borrower is a resident for tax purposes in the United States, any
Foreign Lender shall deliver to the Borrower Agent and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this



47









 







Agreement (and from time to time thereafter upon the request of the Borrower Agent or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of
the following is applicable:




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




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




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




     (iv) any other form prescribed by Applicable Law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by Applicable Law to permit the Borrower
Agent to determine the withholding or deduction required to be made.



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



     (f) Survival. Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained in this Section
shall survive the payment in full of the Obligations and the termination of the Revolving Credit
Commitment.



     SECTION 5.12 Mitigation Obligations; Replacement of Lenders.



48









 





     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 5.10, or requires either Borrower to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 5.11, then
such Lender shall use reasonable efforts to designate a different Lending Office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 5.10 or Section
5.11, as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower Agent hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
5.10, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 5.11, or if any
Lender defaults in its obligation to fund Loans hereunder, then the Borrower Agent may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 14.10), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment);
provided that




     (i) the Borrower Agent shall have paid to the Administrative Agent the assignment fee
specified in Section 14.10,




     (ii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in Letters of Credit, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 5.9) from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the applicable Borrower (in
the case of all other amounts),




     (iii) in the case of any such assignment resulting from a claim for compensation under
Section 5.10 or payments required to be made pursuant to Section 5.11, such
assignment will result in a reduction in such compensation or payments thereafter, and




     (iv) such assignment does not conflict with Applicable Law.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower Agent to
require such assignment and delegation cease to apply.



     SECTION 5.13 Security. The Obligations of the Borrowers (other than the L/C Obligations which
are secured pursuant to Article III hereunder) shall be secured by the U.S. Borrower as
provided in the Security Documents.



49









 





     SECTION 5.14 Regulatory Limitation. In the event, as a result of increases in the value of
the Alternative Currency against the Dollar or for any other reason, the obligation of any of the
Lenders to make Loans (taking into account the Dollar Amount of the Obligations and all other
indebtedness required to be aggregated under 12 U.S.C.A. §84, as amended, the regulations
promulgated thereunder and any other Applicable Law) is determined by such Lender to exceed its
then applicable legal lending limit under 12 U.S.C.A. §84, as amended, and the regulations
promulgated thereunder, or any other Applicable Law, the amount of additional Extensions of Credit
such Lender shall be obligated to make or issue or participate in hereunder shall immediately be
reduced to the maximum amount which such Lender may legally advance (as determined by such Lender),
the obligation of each of the remaining Lenders hereunder shall be proportionately reduced, based
on their applicable Revolving Credit Commitment Percentages and, to the extent necessary under such
laws and regulations (as determined by each of the Lenders, with respect to the applicability of
such laws and regulations to itself).



     SECTION 5.15 Appointment of Borrower Agent. The Belgian Borrower hereby irrevocably appoints
and authorizes the U.S. Borrower, and the U.S. Borrower hereby accepts such appointment and agrees
to act, as agent of the Belgian Borrower (in such capacity, the “Borrower Agent”) (a) to
provide the Administrative Agent with all notices with respect to all Extension of Credit obtained
for the benefit of the Belgian Borrower and all other consents, notices and instructions under this
Agreement, (b) to take such action on behalf of the Belgian Borrower, as the Borrower Agent deems
appropriate on its behalf to obtain Extensions of Credit and to exercise such other powers as are
reasonably incidental thereto to carry out the purposes of this Agreement, (c) to act as its agent
for service of process and notices required to be delivered under this Agreement or the other Loan
Documents, it being understood and agreed that receipt by the Borrower Agent of summons, notice or
similar item shall be deemed effective receipt by the Belgian Borrower and its Subsidiaries and (d)
to take such other actions as are expressly provided for in this Agreement and the other Loan
Documents.



ARTICLE VI




CLOSING; CONDITIONS OF CLOSING AND BORROWING




     SECTION 6.1 Closing. The closing shall take place at the offices of K&L Gates LLP at 10:00
a.m. on October 2, 2008, or at such other place, date and time as the parties hereto shall mutually
agree.



     SECTION 6.2 Conditions to Closing and Initial Extensions of Credit. The obligation of the
Lenders to close this Agreement and to make the initial Loan or issue or participate in the initial
Letter of Credit, if any, is subject to the satisfaction of each of the following conditions:



     (a) Executed Loan Documents. This Agreement, a Revolving Credit Note in favor of each
Lender requesting a Revolving Credit Note in favor of each Lender requesting a Swingline Note in
favor of the Swingline Lender (if requested thereby) and the Security Documents, together with any
other applicable Loan Documents, shall have been duly authorized, executed and delivered to the
Administrative Agent by the parties thereto, shall be in full force and effect and no Default or
Event of Default shall exist hereunder or thereunder.



50









 





     (b) Closing Certificates; Etc. The Administrative Agent shall have received each of
the following in form and substance reasonably satisfactory to the Administrative Agent:




     (i) Officer’s Certificate of the each. Borrower. A certificate from a
Responsible Officer of each Borrower to the effect that all representations and warranties
of such Borrower contained in this Agreement and the other Loan Documents are true, correct
and complete; that such Borrower is not in violation of any of the covenants contained in
this Agreement and the other Loan Documents; that, after giving effect to the transactions
contemplated by this Agreement, no Default or Event of Default has occurred and is
continuing; and that each Borrower, as applicable, has satisfied each of the conditions set
forth in Section 6.2 and Section 6.3.




     (ii) Certificate of Secretary of each Borrower. A certificate of a Responsible
Officer of each Borrower certifying as to the incumbency and genuineness of the signature of
each officer of such Borrower executing Loan Documents to which it is a party and certifying
that attached thereto is a true, correct and complete copy of (A) the articles or
certificate of incorporation (or equivalent documentation) of such Borrower and all
amendments thereto, certified as of a recent date by the appropriate Governmental Authority
in its jurisdiction of incorporation or formation, (B) the bylaws or other governing
document of such Borrower as in effect on the Closing Date, (C) resolutions duly adopted by
the board of directors or other governing body of such Borrower authorizing the transactions
contemplated hereunder and the execution, delivery and performance of this Agreement and the
other Loan Documents to which it is a party, and (D) each certificate required to be
delivered pursuant to Section 6.2(b)(iii).




     (iii) Certificates of Good Standing. Certificates as of a recent date of the
good standing (or equivalent documentation to the extent that such certificates are
available under the Applicable Laws of such jurisdiction) of each Borrower under the laws of
its jurisdiction of organization and, to the extent requested by the Administrative Agent,
each other jurisdiction where the failure of such Borrower to be so qualified to do business
would have a Material Adverse Effect.




     (iv) Opinions of Counsel. Favorable opinions of counsel to the Borrowers
addressed to the Administrative Agent and the Lenders with respect to the Borrowers, the
Loan Documents, the Collateral and such other matters as the Lenders shall request.




     (v) Tax Forms. Copies of the United States Internal Revenue Service forms
required by Section 5.11(d).



     (c) Personal Property Collateral.




     (i) Filings and Recordings. The Administrative Agent shall have received all
filings and recordations that are necessary to perfect the security interests of the
Administrative Agent, on behalf of itself and the Lenders, in the Collateral and the
Administrative Agent shall have received evidence reasonably satisfactory to the
Administrative Agent that upon such filings and recordations such security interests
constitute valid and perfected first priority Liens thereon.



51









 






     (ii) Lien Search. The Administrative Agent shall have received the results of a
Lien search (including a search as to judgments, pending litigation and tax matters), in
form and substance reasonably satisfactory thereto, made against the U.S. Borrower under the
Uniform Commercial Code (or applicable judicial docket) as in effect in the state in which
such Borrower is located (pursuant to the UCC), indicating among other things that its
assets are free and clear of any Lien except for Permitted Liens.




     (iii) Hazard and Liability Insurance. The Administrative Agent shall have
received certificates of property hazard, business interruption and liability insurance,
evidence of payment of all insurance premiums for the current policy year of each (naming
the Administrative Agent as additional insured on all certificates for liability insurance),
and, if requested by the Administrative Agent, copies (certified by a Responsible Officer of
the U.S. Borrower) of insurance policies in form and substance reasonably satisfactory to
the Administrative Agent.



     (d) Deposit Account/Bank Fees. The Borrower Agent shall have either (i) satisfied the
Depository Requirement set forth in Section 9.11(a) or (ii) paid to the Administrative
Agent the fee set forth in Section 9.11(b).



     (e) Consents; Defaults.




     (i) Governmental and Third Party Approvals. The Borrowers shall have received
all material governmental, shareholder and third party consents and approvals necessary (or
any other material consents as determined in the reasonable discretion of the Administrative
Agent) in connection with the transactions contemplated by this Agreement and the other Loan
Documents and the other transactions contemplated hereby and all applicable waiting periods
shall have expired without any action being taken by any Person that could reasonably be
expected to restrain, prevent or impose any material adverse conditions on any of the
Borrowers or such other transactions or that could seek or threaten any of the foregoing,
and no law or regulation shall be applicable which in the reasonable judgment of the
Administrative Agent could reasonably be expected to have such effect.




     (ii) No Injunction, Etc. No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any Governmental
Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of,
or which is related to or arises out of this Agreement or the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby, or which, in the
Administrative Agent’s sole discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement or the other Loan Documents or the consummation
of the transactions contemplated hereby or thereby.



     (f) Financial Matters.




     (i) Financial Statements. The Administrative Agent shall have received (A) the
audited Consolidated balance sheet of the Borrowers and their Subsidiaries as of December
31, 2007 and the related audited statements of income and retained earnings and cash flows
for the Fiscal Year then ended and (B) unaudited Consolidated balance



52









 







sheet of the Borrowers and their Subsidiaries as of June 30, 2008 and related unaudited
interim statements of income and retained earnings.




     (ii) Financial Condition Certificate. The Borrower Agent shall have delivered
to the Administrative Agent a certificate, in form and substance satisfactory to the
Administrative Agent, and certified as accurate by a Responsible Officer of the Borrower
Agent, that (A) the Borrowers and each of their Subsidiaries, taken as a whole, are Solvent,
(B) the Borrowers and their Subsidiaries, taken as a whole, have not entered into or
incurred debts or liabilities beyond its ability to pay such debts or liabilities as they
mature and (C) attached thereto are calculations evidencing compliance on a pro
forma basis with the covenants contained in Article X.




     (iii) Payment at Closing. The U.S. Borrower shall have paid (A) to the
Administrative Agent and the Lenders the fees set forth or referenced in Section 5.3
any other accrued and unpaid fees or commissions due hereunder, (B) all fees, charges and
disbursements of counsel to the Administrative Agent (directly to such counsel if requested
by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, and (C)
to any other Person such amount as may be due thereto in connection with the transactions
contemplated hereby, including all taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of any of the Loan Documents.



     (g) Miscellaneous.




     (i) Notice of Borrowing. The Administrative Agent shall have received a Notice
of Account Designation specifying the account or accounts to which the proceeds of any Loans
made after the Closing Date are to be disbursed.




     (ii) Due Diligence. The Administrative Agent shall have completed, to its
satisfaction, all legal, tax, business and other due diligence with respect to the business,
assets, liabilities, operations and condition (financial or otherwise) of the Borrowers and
their Subsidiaries in scope and determination satisfactory to the Administrative Agent in
its sole discretion.




     (iii) Other Documents. All opinions, certificates and other instruments and
all proceedings in connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Administrative Agent. The Administrative Agent
shall have received copies of all other documents, certificates and instruments reasonably
requested thereby, with respect to the transactions contemplated by this Agreement.



     SECTION 6.3 Conditions to All Extensions of Credit. The obligations of the Lenders to make
any Extensions of Credit (including the initial Extension of Credit) and/or the Issuing Lender to
issue or extend any Letter of Credit are subject to the satisfaction of the following conditions
precedent on the relevant borrowing, issuance or extension date:



     (a) Continuation of Representations and Warranties. The representations and
warranties contained in Article VII shall be true and correct in all material respects on
and as of



53









 







such borrowing, continuation, conversion, issuance or extension date with the same effect as
if made on and as of such date, except for any representation and warranty made as of an earlier
date, which representation and warranty shall remain true and correct as of such earlier date.



     (b) No Existing Default. No Default or Event of Default shall have occurred and be
continuing (i) on the borrowing, continuation or conversion date with respect to such Loan or after
giving effect to the Loans to be made, continued or converted on such date or (ii) on the issuance
or extension date with respect to such Letter of Credit or after giving effect to the issuance or
extension of such Letter of Credit on such date.



     (c) Notices. The Administrative Agent shall have received a Notice of Borrowing or
Notice of Conversion/Continuation, as applicable, from the Borrower Agent in accordance with
Section 2.3(a) or Section 5.2, as applicable.



     (d) Compliance with Borrowing Limits. The U.S. Borrower shall have demonstrated that
compliance with Section 2.4(b)(i) on the borrowing, conversion or continuation date with
respect to such Revolving Credit Loan or after giving effect to the such Revolving Credit Loans to
be made, converted or continued on such date or (ii) on the issuance or extension date with respect
to such Letter of Credit or after giving effect to the issuance or extension of such Letter of
Credit on such date.



     (e) Foreign Security Interests and Filings. With regard to each Pledged Foreign
Subsidiary, the U.S. Borrower shall have provided the Administrative Agent with evidence reasonably
satisfactory to the Administrative Agent of the Administrative Agent’s perfected security interest
having a first priority position (or the equivalent thereof pursuant to the Applicable Laws and
practices of any relevant foreign jurisdiction) in 65% of the Capital Stock to be pledged under the
Security Documents of each Pledged Foreign Subsidiary.



     (f) Foreign Counsel Opinions. The Administrative Agent shall have received favorable
opinions of Belgian counsel, French counsel and Brazilian counsel addressed to the Administrative
Agent and the Lenders with respect to the Pledged Foreign Subsidiaries, the Loan Documents, the
Collateral and such other matters as the Lenders shall request.



ARTICLE VII




REPRESENTATIONS AND WARRANTIES 




     SECTION 7.1 Representations and Warranties. To induce the Administrative Agent and Lenders to
enter into this Agreement and to induce the Lenders to make Extensions of Credit, each Borrower
hereby represents and warrants to the Administrative Agent and Lenders both before and after giving
effect to the transactions contemplated hereunder that:



     (a) Organization; Power; Qualification. Each of the Borrowers and their Subsidiaries
is duly organized, validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, has the power and authority to own its properties and to carry on its
business as now being and hereafter proposed to be conducted and is duly qualified and authorized
to do business in each jurisdiction in which the character of its properties or the nature of its
business requires such qualification and authorization except in jurisdictions where the



54









 







failure to be so qualified or in good standing could not reasonably be expected to result in a
Material Adverse Effect. The jurisdictions in which the Borrowers and their Subsidiaries are
organized and qualified to do business as of the Closing Date are described on Schedule
7.1(a).



     (b) Ownership. Each Subsidiary of the Borrowers as of the Closing Date is listed on
Schedule 7.1(b). As of the Closing Date, the capitalization of the Borrowers and their
Subsidiaries (other than the U.S. Borrower) consists of the number of shares, authorized, issued
and outstanding, of such classes and series, with or without par value, described on Schedule
7.1(b). All outstanding shares have been duly authorized and validly issued and are fully paid
and nonassessable, with no personal liability attaching to the ownership thereof, and not subject
to any preemptive or similar rights, except as described on Schedule 7.1(b). The
shareholders of the Borrowers (other than the U.S. Borrower) and each of their Subsidiaries and the
number of shares owned by each as of the Closing Date are described on Schedule 7.1(b). As
of the Closing Date, there are no outstanding stock purchase warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever, which are convertible
into, exchangeable for or otherwise provide for or permit the issuance of Capital Stock of the
Borrowers or their Subsidiaries, except as described on Schedule 7.1(b).



     (c) Authorization of Agreement, Loan Documents and Borrowing. Each of the Borrowers
and their Subsidiaries has the right, power and authority and has taken all necessary corporate and
other action to authorize the execution, delivery and performance of this Agreement and each of the
other Loan Documents to which it is a party in accordance with their respective terms. This
Agreement and each of the other Loan Documents has been duly executed and delivered by the duly
authorized officers of each of the Borrowers and each of its Subsidiaries party thereto, and each
such document constitutes the legal, valid and binding obligation of the Borrowers or its
Subsidiary party thereto, enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal
debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in
general and the availability of equitable remedies.



     (d) Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc. The
execution, delivery and performance by each of the Borrowers and their Subsidiaries of the Loan
Documents to which each such Person is a party, in accordance with their respective terms, the
Extensions of Credit hereunder and the transactions contemplated hereby do not and will not, by the
passage of time, the giving of notice or otherwise, (i) require any Governmental Approval or
violate any Applicable Law relating to the Borrowers or any of their Subsidiaries where the failure
to obtain such Governmental Approval could reasonably be expected to have a Material Adverse
Effect, (ii) conflict with, result in a breach of or constitute a default under the articles of
incorporation, bylaws or other organizational documents of the Borrowers or any of their
Subsidiaries, (iii) conflict with, result in a breach of or constitute a default under any
indenture, agreement or other instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person, which could
reasonably be expected to have a Material Adverse Effect, (iv) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such
Person other than Liens arising under the Loan Documents or (v) require any consent or
authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority
and no consent of any other Person is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement other than consents, authorizations,



55









 







filings or other acts or consents for which the failure to obtain or make could not reasonably
be expected to have a Material Adverse Effect and other than consents or filings under the UCC.



     (e) Compliance with Law; Governmental Approvals. Each of the Borrowers and their
Subsidiaries (i) has all Governmental Approvals required by any Applicable Law for it to conduct
its business, each of which is in full force and effect, is final and not subject to review on
appeal and is not the subject of any pending or, to the best of its knowledge, threatened attack by
direct or collateral proceeding, (ii) is in compliance with each Governmental Approval applicable
to it and in compliance with all other Applicable Laws relating to it or any of its respective
properties and (iii) has timely filed all material reports, documents and other materials required
to be filed by it under all Applicable Laws with any Governmental Authority and has retained all
material records and documents required to be retained by it under Applicable Law except in each
case (i), (ii) or (iii) where the failure to have, comply or file could not reasonably be expected
to have a Material Adverse Effect.



     (f) Tax Returns and Payments. Each of the Borrowers and their Subsidiaries has duly
filed or caused to be filed all federal, state, local and other tax returns required by Applicable
Law to be filed, where such failure to file could reasonably be expected to have a Material Adverse
Effect, and has paid, or made adequate provision for the payment of, all federal, state, local and
other taxes, assessments and governmental charges or levies upon it and its property, income,
profits and assets which are due and payable. Such returns accurately reflect in all material
respects all liability for taxes of the Borrowers and their Subsidiaries for the periods covered
thereby. There is no ongoing audit or examination or, to the knowledge of the Borrowers, other
investigation by any Governmental Authority of the tax liability of the. Borrowers and their
Subsidiaries that could reasonably be expected to give rise to an assessment, levy, charge or claim
in amount greater than $5,000,000. No Governmental Authority has asserted any Lien or other claim
against the Borrowers or any of their Subsidiaries thereof with respect to unpaid taxes which has
not been discharged or resolved other than Permitted Liens. The charges, accruals and reserves on
the books of the Borrowers and any of their Subsidiaries in respect of federal, state, local and
other taxes for all Fiscal Years and portions thereof since the organization of the Borrowers and
any of their Subsidiaries are in the judgment of the Borrowers adequate, and the Borrower do not
anticipate any additional taxes or assessments for any of such years.



     (g) Intellectual Property Matters. To the Borrowers’ knowledge, each of the Borrowers
and their Subsidiaries own or possess rights to use all material franchises, licenses, copyrights,
copyright applications, patents, patent rights or licenses, patent applications, trademarks,
trademark rights, service mark, service mark rights, trade names, trade name rights, copyrights and
other rights with respect to the foregoing which are reasonably necessary to conduct its business.
To the Borrowers’ knowledge, no event has occurred which permits, or after notice or lapse of time
or both would permit, the revocation or termination of any such rights, and neither the Borrowers
nor any of their Subsidiaries are liable to any Person for infringement under Applicable Law with
respect to any such rights as a result of its business operations except as could not reasonably be
expected to have a Material Adverse Effect.



     (h) Environmental Matters.



56









 






     (i) The properties owned, leased or operated by the Borrower and their Subsidiaries do
not contain, and to their knowledge have not previously contained, any Hazardous Materials
in amounts or concentrations which (A) constitute or constituted a violation of applicable
Environmental Laws or (B) could give rise to liability under applicable Environmental Laws;




     (ii) To the knowledge of the Borrowers, each of their Subsidiaries and such properties
and all operations conducted in connection therewith are in compliance, and for the past
three (3) years have been in compliance, with all applicable Environmental Laws;




     (iii) To the knowledge of the Borrowers, there is no contamination at, under or
migrating from properties owned, leased or operated by the Borrowers, or such operations
which could interfere with the continued operation of such properties or impair the fair
saleable value thereof;




     (iv) Within the last three (3) years, neither the Borrowers nor any of their
Subsidiaries has received any written notice of violation, alleged violation,
non-compliance, liability or potential liability regarding Hazardous Materials, or
compliance with Environmental Laws, nor do the Borrowers or any Subsidiaries thereof have
knowledge or reason to believe that any such notice will be received or is being threatened;




     (v) To the knowledge of the Borrowers, Hazardous Materials have not been transported or
disposed of to or from the properties owned, leased or operated by the Borrowers and their
Subsidiaries in violation of, or in a manner or to a location which could reasonably be
expected to give rise to liability under, Environmental Laws, nor have any Hazardous
Materials been generated, treated, stored or disposed of at, on or under any of such
properties in violation of, or in a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Laws;




     (vi) Within the last three (3) years, no judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the Borrowers, threatened, under
any Environmental Law to which the Borrowers or any Subsidiary thereof is or will be named
as a potentially responsible party with respect to such properties or operations conducted
in connection therewith, 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 Borrowers, any Subsidiaries or
such properties or such operations that could reasonably be expected to have a Material
Adverse Effect; and




     (vii) Within the last three (3) years, there has been no release, or to the best of the
Borrowers’ knowledge, threat of release, of Hazardous Materials at or from properties owned,
leased or operated by the Borrowers or their Subsidiaries, now or in the past, in violation
of or in amounts or in a manner that could give rise to liability under Environmental Laws
that could reasonably be expected to have a Material Adverse Effect.



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     (i) Employee Benefit Matters.




     (i) As of the Closing Date, neither the U.S. Borrower nor any ERISA Affiliate maintains
or contributes to, or has any obligation under, any Employee Benefit Plans other than those
identified on Schedule 7.1(i);




     (ii) The U.S. Borrower and each ERISA Affiliate is in material compliance with all
applicable provisions of ERISA and the regulations and published interpretations thereunder
with respect to all Employee Benefit Plans except for any required amendments for which the
remedial amendment period as defined in Section 401(b) of the Code has not yet expired and
except where a failure to so comply could not reasonably be expected to have a Material
Adverse Effect. Each Employee Benefit Plan that is intended to be qualified under Section
401(a) of the Code has been determined by the Internal Revenue Service to be so qualified,
and each trust related to such plan has been determined to be exempt under Section 501(a) of
the Code except for such plans that have not yet received determination letters but for
which the remedial amendment period for submitting a determination letter has not yet
expired. No liability has been incurred by the U.S. Borrower or any ERISA Affiliate which
remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or
any Multiemployer Plan except for a liability that could not reasonably be expected to have
a Material Adverse Effect;




     (iii) As of the Closing Date, no Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code) been incurred
(without regard to any waiver granted under Section 412 of the Code), nor has any funding
waiver from the Internal Revenue Service been received or requested with respect to any
Pension Plan, nor has the U.S. Borrower or any ERISA Affiliate failed to make any
contributions or to pay any amounts due and owing as required by Section 412 of the Code,
Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such
contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any
event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect
to any Pension Plan;




     (iv) Except where the failure of any of the following representations to be correct in
all material respects could not reasonably be expected to have a Material Adverse Effect,
neither the U.S. Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt
prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code,
(B) incurred any liability to the PBGC which remains outstanding other than the payment of
premiums and there are no premium payments which are due and unpaid, (C) failed to make a
required contribution or payment to a Multiemployer Plan, or (D) failed to make a required
installment or other required payment under Section 412 of the Code;




     (v) No Termination Event has occurred or is reasonably expected to occur; and




     (vi) Except where the failure of any of the following representations to be correct in
all material respects could not reasonably be expected to have a Material



58









 







Adverse Effect, no proceeding, claim (other than a benefits claim in the ordinary
course of business), lawsuit and/or investigation is existing or, to the best knowledge of
the U.S. Borrower after due inquiry, threatened concerning or involving any (A) employee
welfare benefit plan (as defined in Section 3(1) of ERISA) currently maintained or
contributed to by the U.S. Borrower or any ERISA Affiliate, (B) Pension Plan or (C)
Multiemployer Plan.



     (j) Margin Stock. Neither the U.S. Borrower nor any Subsidiary thereof is engaged
principally or as one of its activities in the business of extending credit for the purpose of
“purchasing” or “carrying” any “margin stock” (as each such term is defined or used, directly or
indirectly, in Regulation U of the Board of Governors of the Federal Reserve System). No part of
the proceeds of any of the Loans or Letters of Credit will be used for purchasing or carrying
margin stock or for any purpose which violates, or which would be inconsistent with, the provisions
of Regulation T, U or X of such Board of Governors.



     (k) Government Regulation. Neither the U.S. Borrower nor any Subsidiary thereof is an
“investment company” or a company “controlled” by an “investment company” (as each such term is
defined or used in the Investment Company Act of 1940, as amended).



     (l) Material Contracts. Schedule 7.1(l) sets forth a complete and accurate
list of all Material Contracts, the five largest customers (based on orders booked in the four (4)
preceding fiscal quarters) and the five largest suppliers (based on dollars spent in the four (4)
preceding fiscal quarters) of the Borrowers and their Subsidiaries in effect as of the Closing Date
not listed on any other Schedule hereto; other than as set forth in Schedule 7.1(l), each
such Material Contract is, and after giving effect to the consummation of the transactions
contemplated by the Loan Documents will be, in full force and effect in accordance with the terms
thereof. To the extent requested by the Administrative Agent, the Borrowers and their Subsidiaries
have delivered to the Administrative Agent a true and complete copy of each Material Contract
required to be listed on Schedule 7.1(l) or any other Schedule hereto. Neither the
Borrowers nor any of their Subsidiaries (nor, to the knowledge of the Borrowers, any other party
thereto) is in breach of or in default under any Material Contract in any material respect.



     (m) Employee Relations. Neither of the Borrowers nor their Subsidiaries is party to
any collective bargaining agreement nor has any labor union been recognized as the representative
of its employees except as set forth on Schedule 7.1(m). The Borrowers know of no pending,
threatened or contemplated strikes, work stoppage or other collective labor disputes involving its
employees or those of its Subsidiaries that could reasonably be expected to have a Material Adverse
Effect.



     (n) Burdensome Provisions. The Borrowers and their Subsidiaries do not presently
anticipate that future expenditures needed to meet the provisions of any statutes, orders, rules or
regulations of a Governmental Authority will be so burdensome as to have a Material Adverse Effect.
No Subsidiary is party to any agreement or instrument or otherwise subject to any restriction or
encumbrance that restricts or limits its ability to make dividend payments or other distributions
in respect of its Capital Stock to the Borrowers or any Subsidiary or to transfer any of its assets
or properties to the Borrowers or any other Subsidiary in each case other than existing under or by
reason of the Loan Documents or Applicable Law.



59









 





     (o) Financial Statements. The audited and unaudited financial statements delivered
pursuant to Section 6.2(f)(i) are complete and correct in all material respects and fairly
present on a Consolidated basis the assets, liabilities and financial position of the Borrowers and
their Subsidiaries as at such dates, and the results of the operations and changes of financial
position for the periods then ended (other than customary year-end adjustments for unaudited
financial statements). All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP. Such financial statements show all material
indebtedness and other material liabilities, direct or contingent, of the Borrowers and their
Subsidiaries as of the date thereof, including material liabilities for taxes, material
commitments, and Indebtedness, in each case, to the extent required to be disclosed under GAAP.



     (p) No Material Adverse Change. Since the later of (i) December 31, 2007 or (ii)
December 31 of the last Fiscal Year of the U.S. Borrower where the Lenders have received the annual
audited financial statements of the U.S. Borrower, there has been no material adverse change in the
properties, business, operations, or condition (financial or otherwise) of the Borrowers and their
Subsidiaries, taken as a whole, and no event has occurred or condition arisen that could reasonably
be expected to have a Material Adverse Effect.



     (q) Solvency. As of the Closing Date and after giving effect to each Extension of
Credit made hereunder: (i) the Borrowers and each of their Subsidiaries, taken as a whole, will be
Solvent and (ii) the Borrowers and each of their Subsidiaries, taken as a whole, have not entered
into or incurred debts or liabilities beyond its ability to pay such debts or liabilities as they
mature.



     (r) Titles to Properties. Each of the Borrowers and their Subsidiaries have such
title to the real property owned or leased by it as is necessary or desirable to the conduct of its
business and valid and legal title to all of its personal property and assets, including, but not
limited to, those reflected on the balance sheets of the Borrowers and their Subsidiaries delivered
pursuant to Section 7.1(o), except (i) those which have been disposed of by the Borrower or
their Subsidiaries subsequent to such date which dispositions have been in the ordinary course of
business or as otherwise expressly permitted hereunder and (ii) where the failure to have such
title would have a Material Adverse Effect.



     (s) Insurance. The properties of the Borrowers and their Subsidiaries are insured
with financially sound and reputable insurance companies not Affiliates of the Borrowers, in such
amounts, with such deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in locations where the Borrowers or
their applicable Subsidiary operates.



     (t) Liens. None of the properties and assets of the Borrowers or any Subsidiary
thereof is subject to any Lien, except Permitted Liens. Neither the Borrowers nor any Subsidiary
thereof has signed any financing statement or any security agreement authorizing any Lender
thereunder to file any financing statement, except to perfect those Permitted Liens.



     (u) Indebtedness and Guaranty Obligations. Schedule 7.1(u) is a complete and
correct listing of all Indebtedness and Guaranty Obligations of the Borrowers and their
Subsidiaries as of the Closing Date in excess of $3,000,000. The Borrowers and their Subsidiaries
have performed and are in compliance with all of the material terms of such




60










 




Indebtedness and Guaranty Obligations and all instruments and agreements relating thereto, and no
default or event of default, or event or condition which with notice or lapse of time or both would
constitute such a default or event of default on the part of the Borrowers or any of their
Subsidiaries exists with respect to any such Indebtedness or Guaranty Obligation.




     (v) Litigation. Except for matters existing on the Closing Date and set forth on
Schedule 7.1(v), there are no actions, suits or proceedings pending nor, to the knowledge
of the Borrowers, threatened against or in any other way relating adversely to or affecting the
Borrowers or any Subsidiary thereof or any of their respective properties in any court or before
any arbitrator of any kind or before or by any Governmental Authority that (i) has or could
reasonably be expected to have a Material Adverse Effect, or (ii) materially adversely affects any
transaction contemplated hereby.



     (w) Absence of Defaults. No event has occurred or is continuing which constitutes a
Default or an Event of Default, or which constitutes, or which with the passage of time or giving
of notice or both would constitute, a default or event of default by the Borrowers or any
Subsidiary thereof under any Material Contract or judgment, decree or order to which the Borrowers
or their Subsidiaries are a party or by which the Borrowers or their Subsidiaries or any of their
respective properties may be bound or which would require the. Borrowers or their Subsidiaries to
make any payment thereunder prior to the scheduled maturity date therefor.



     (x) Senior Indebtedness Status. The Obligations of the Borrowers and each of its
Subsidiaries under this Agreement and each of the other Loan Documents ranks and shall continue to
rank at least senior in priority of payment to all Subordinated Indebtedness and all senior
unsecured Indebtedness of each such Person and is designated as “Senior Indebtedness” under all
instruments and documents, now or in the future, relating to all Subordinated Indebtedness and all
senior unsecured Indebtedness of such Person.



     (y) OFAC. None of the U.S. Borrower, any Subsidiary of the U.S. Borrower or any
Affiliate of the U.S. Borrower or any Subsidiary: (i) is a Sanctioned Person, (ii) has more than
ten percent (10%) of its assets in Sanctioned Entities, or (iii) derives more than ten percent
(10%) of its operating income from investments in, or transactions with Sanctioned Persons or
Sanctioned Entities. The proceeds of any Loan will not be used and have not been used to fund any
operations in, finance any investments or activities in, or make any payments to, a Sanctioned
Person or a Sanctioned Entity.



     (z) Disclosure. To the knowledge of the Borrowers, the Borrower and/or their
Subsidiaries have disclosed to the Administrative Agent and the Lenders all agreements, instruments
and corporate or other restrictions to which the Borrowers or any of their Subsidiaries are
subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No financial statement, material
report, material certificate or other material information furnished (whether in writing or
orally), taken together as a whole, by or on behalf of either of the Borrowers or any of their
Subsidiaries to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby or delivered hereunder contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to projected
financial information, pro forma financial information, estimated financial information



61









 







and other projected or estimated information, such information was prepared in good faith
based upon assumptions believed to be reasonable at the time.



     SECTION 7.2 Survival of Representations and Warranties, Etc. All representations and
warranties set forth in this Article VII and all representations and warranties contained
in any certificate, or any of the Loan Documents (including, but not limited to, any such
representation or warranty made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations and warranties made
under this Agreement shall be made or deemed to be made at and as of the Closing Date (except those
that are expressly made as of a specific date), shall survive the Closing Date and shall not be
waived by the execution and delivery of this Agreement, any investigation made by or on behalf of
the Lenders or any borrowing hereunder. Such representations and warranties shall terminate when
all the Obligations have been paid and satisfied in full and the Revolving Credit Commitment
terminated.



ARTICLE VIII




FINANCIAL INFORMATION AND NOTICES




     Until all the Obligations have been paid and satisfied in full and the Revolving Credit
Commitment terminated, unless consent has been obtained in the manner set forth in Section
14.2, the Borrowers will furnish or cause to be furnished to the Administrative Agent at the
Administrative Agent’s Office at the address set forth in Section 14.1, or such other
office as may be designated by the Administrative Agent from time to time:



     SECTION 8.1 Financial Statements and Projections.



     (a) Quarterly Financial Statements. As soon as practicable and in any event within
forty-five (45) days after the end of the first three fiscal quarters of each Fiscal Year
(commencing with the fiscal quarter ended September 30, 2008), an unaudited Consolidated and
consolidating balance sheet of the Borrowers and their Subsidiaries as of the close of such fiscal
quarter and unaudited Consolidated and consolidating profit and loss statements, and Consolidated
cash flow statements for the fiscal quarter then ended and that portion of the Fiscal Year then
ended, including the notes and schedules thereto, all in reasonable detail and prepared by the
Borrowers in accordance with GAAP and the reporting requirements of the SEC and, if applicable,
containing disclosure of the effect on the financial position or results of operations of any
change in the application of accounting principles and practices during the period, and certified
by the chief financial officer of the U.S. Borrower to present fairly in all material respects the
financial condition of the Borrowers and their Subsidiaries on a Consolidated and consolidating
basis as of their respective dates and the results of operations of the Borrowers and their
Subsidiaries for the respective periods then ended, subject to normal year end adjustments.



     (b) Annual Financial Statements. As soon as practicable and in any event within one
hundred and twenty (120) days after the end of each Fiscal Year (commencing with the fiscal year
ended December 31, 2008), an audited Consolidated balance sheet and unaudited consolidating balance
sheet of the Borrowers and their Subsidiaries as of the close of such Fiscal Year and audited
Consolidated profit and loss statements and Consolidated cash flow statements and unaudited
consolidating profit and loss statements for the Fiscal Year then ended, including



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the notes and schedules thereto, all in reasonable detail and prepared in accordance with GAAP
and, if applicable, containing disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles and practices during the year.
Such audited annual financial statements shall be audited by an independent certified public
accounting firm acceptable to the Administrative Agent, and accompanied by a report thereon by such
certified public accountants that is not qualified with respect to scope limitations imposed by the
Borrowers or any of their Subsidiaries or with respect to accounting principles followed by the
Borrowers or any of their Subsidiaries not in accordance with GAAP.



     (c) Accounts Receivable Aging. The Borrower Agent shall deliver to the Administrative
Agent, within forty-five (45) days after the end of each fiscal quarter of each Fiscal Year
(commencing with the fiscal quarter ended September 30, 2008), a reconciliation of Consolidated
trade accounts receivable (which shall be net of applicable reserves (as determined in accordance
with GAAP) and which shall agree to the U.S. Borrower’s publicly filed financial statements on Form
10-K and Form 10-Q), to the Borrowers’ Eligible Accounts Receivable, which will include the
customer name and customer account balance for each trade account receivable that does not
constitute an Eligible Account Receivable. The Borrower Agent shall provide, at the Administrative
Agent’s request (but no more than quarterly), (i) the aged trial balances that comprise the
Borrowers Consolidated trade accounts receivable balance (including, without limitation, sufficient
information and assistance from the Borrower Agent to verify the Borrower’s ineligible accounts
receivable and Eligible Accounts Receivables and (ii) a revised Schedule 7.1(l).



     SECTION 8.2 Officer’s Compliance Certificate. At each time financial statements are delivered
pursuant to Sections 8.1(a) or (b) and at such other times as the Administrative
Agent shall reasonably request, an Officer’s Compliance Certificate.



     SECTION 8.3 Accountants’ Certificate. At each time financial statements are delivered
pursuant to Section 8.1(b), a certificate of the independent public accountants certifying
such financial statements that in connection with their audit, nothing came to their attention that
caused them to believe that the Borrowers failed to comply with the terms, covenants, provisions or
conditions of Article X , insofar as they relate to financial and accounting matters or, if
such is not the case, specifying such non-compliance and its nature and period of existence.



     SECTION 8.4 Other Reports. Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrowers or its board of directors by its independent public accountant in
connection with their auditing function, including, without limitation, any management report and
any management responses thereto; and



     SECTION 8.5 Notice of Litigation and Other Matters. Promptly (but in no event later than ten
(10) days after a Responsible Officer of the Borrowers obtains knowledge thereof), telephonic and
written notice of:



     (a) the commencement of all proceedings and investigations by or before any Governmental
Authority and all actions and proceedings in any court or before any arbitrator against or
involving the Borrowers or any Subsidiary thereof or any of their respective properties, assets or
businesses that if adversely determined could reasonably be expected to have a Material Adverse
Effect;



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     (b) any notice of any violation received by the Borrowers or any Subsidiary thereof from any
Governmental Authority including, without limitation, any notice of violation of Environmental Laws
which in any such case could reasonably be expected to have a Material Adverse Effect;



     (c) any labor controversy that has resulted in, or threatens to result in, a strike or other
adverse work action against the Borrowers or any Subsidiary thereof;



     (d) any attachment, judgment, lien, levy or order exceeding $3,000,000 that may be assessed
against or threatened against the Borrowers or any Subsidiary thereof;



     (e) (i) any Default or Event of Default or (ii) any event which constitutes or which with the
passage of time or giving of notice or both would constitute a default or event of default under
any Material Contract to which the Borrower or any of their Subsidiaries is a party or by which the
Borrowers or any Subsidiary thereof or any of their respective properties may be bound which could
reasonably be expected to have a Material Adverse Effect;



     (f) (i) any unfavorable determination letter from the Internal Revenue Service regarding the
qualification of an Employee Benefit Plan under Section 401(a) of the Code (along with a copy
thereof), (ii) all notices received by the U.S. Borrower or any ERISA Affiliate of the PBGC’s
intent to terminate any Pension Plan or to have a trustee appointed to administer any Pension Plan,
(iii) all notices received by the U.S. Borrower or any ERISA Affiliate from a Multiemployer Plan
sponsor concerning the imposition or amount of withdrawal liability pursuant to Section 4202 of
ERISA and (iv) the U.S. Borrower obtaining knowledge or reason to know that the U.S. Borrower or
any ERISA Affiliate has filed or intends to file a notice of intent to terminate any Pension Plan
under a distress termination within the meaning of Section 4041(c) of ERISA; and



     (g) any event which makes any of the representations set forth in Section 7.1 that is
subject to materiality or Material Adverse Effect qualifications inaccurate in any respect or any
event which makes any of the representations set forth in Section 7.1 that is not subject
to materiality or Material Adverse Effect qualifications inaccurate in any material respect; and



     (h) promptly after the same are available (and to the extent not publicly available), copies
of each annual report, proxy or financial statement or other report or communication sent to the
stockholders of the U.S. Borrower, and copies of all annual, regular, periodic and special reports
and registration statements which the U.S. Borrower may file or be required to file with the SEC
under Section 13 or 15(d) of the Securities Exchange Act of 1934.



          Documents required to be delivered pursuant to Section 8.1(a) or (b) and
Section 8.5(h) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the U.S. Borrower posts such documents, or provides a link
thereto on the U.S. Borrower’s website on the Internet at the website address listed in Section
14.1; or (ii) on which such documents are posted on the U.S. Borrower’s behalf on an Internet
or intranet website, if any, to which each Lender and the Administrative Agent have access (whether
a commercial, third-party website or whether sponsored by the Administrative Agent).
Notwithstanding anything contained herein, in every instance the U.S. Borrower shall be



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required to provide paper copies of the Officer’s Compliance Certificates required by
Section 8.2 to the Administrative Agent.




          The U.S. Borrower hereby acknowledges that (a) the Administrative Agent will make available to
the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the U.S.
Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials
on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the U.S. Borrower or its securities) (each, a “Public
Lender”). The U.S. Borrower hereby agrees that so long as the U.S. Borrower is the issuer of
any outstanding debt or equity securities that are registered or issued pursuant to a private
offering or is actively contemplating issuing any such securities it will use commercially
reasonable efforts to identify that portion of the Borrower Materials that may be distributed to
the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on
the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the U.S. Borrower shall be
deemed to have authorized the Administrative Agent, the L/C Issuer and the Lenders to treat such
Borrower Materials as not containing any material non-public information (although it may be
sensitive and proprietary) with respect to the U.S. Borrower or its securities for purposes of
United States Federal and state securities laws (provided, however, that to the
extent such Borrower Materials constitute Information, they shall be treated as set forth in
Section 14.11); (y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Investor;” and (z) the
Administrative Agent shall be entitled to treat either Borrower Materials that are not marked
“PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public
Investor.




     SECTION 8.6 Accuracy of Information. All written information, reports, statements and other
papers and data furnished by or on behalf of the Borrowers to the Administrative Agent or any
Lender whether pursuant to this Article VIII or any other provision of this Agreement, or
any of the other Loan Documents, shall, at the time the same is so furnished, comply with the
representations and warranties set forth in Section 7.1(z).



ARTICLE IX




AFFIRMATIVE COVENANTS




     Until all of the Obligations have been paid and satisfied in full and the Revolving Credit
Commitment terminated, unless consent has been obtained in the manner provided for in Section
14.2, the Borrowers will, and will cause each of its Subsidiaries to:



     SECTION 9.1 Preservation of Corporate Existence and Related Matters. Except as permitted by
Section 11.4, preserve and maintain its separate corporate existence and all rights,
franchises, licenses and privileges necessary to the conduct of its business, and qualify and
remain qualified as a foreign corporation and authorized to do business in each jurisdiction in
which the failure to so qualify could reasonably be expected to have a Material Adverse Effect.



     SECTION 9.2 Maintenance of Property. Protect and preserve all properties necessary in and
material to its business, including copyrights, patents, trade names, service marks and



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trademarks; maintain in good working order and condition, ordinary wear and tear excepted, all
buildings, equipment and other tangible real and personal property necessary and useful to its
business; and from time to time make or cause to be made all repairs, renewals and replacements
thereof and additions to such property necessary for the conduct of its business, so that the
business carried on in connection therewith may be conducted in a commercially reasonable manner.
The Borrowers shall, and shall cause each of their Subsidiaries to, conduct its business in
substantially the same locations (except as a result of Permitted Acquisitions or Asset
Dispositions permitted herein) and manner as such business is conducted on the Closing Date and has
been conducted prior to the Closing Date.



     SECTION 9.3 Insurance. Maintain insurance with financially sound and reputable insurance
companies against such risks and in such amounts as are customarily maintained by similar
businesses and as may be required by Applicable Law or as reasonably required by the Administrative
Agent (including, without limitation, hazard and business interruption insurance, commercial
general liability insurance, and workers compensation insurance), and from time to time thereafter
deliver to the Administrative Agent upon its request information in reasonable detail as to the
insurance then in effect, stating the names of the insurance companies, the amounts and rates of
the insurance, the dates of the expiration thereof and the properties and risks covered thereby.



     SECTION 9.4 Accounting Methods and Financial Records. Maintain a system of accounting, and
keep proper books, records and accounts (which shall be true and complete in all material respects)
as may be required or as may be necessary to permit the preparation of financial statements in
accordance with GAAP and in compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.



     SECTION 9.5 Payment and Performance of Obligations. Pay and perform (a) all Obligations under
this Agreement and the other Loan Documents, (b) all taxes, assessments and other governmental
charges that may be levied or assessed upon it or any of its property and (c) all other
indebtedness, obligations and liabilities in accordance with customary trade practices,
provided, that the applicable Borrower or such Subsidiary may contest any item described in
clause (b) of this Section in good faith so long as adequate reserves are maintained with respect
thereto in accordance with GAAP.



     SECTION 9.6 Compliance With Laws and Approvals. Observe and remain in compliance with all
Applicable Laws and maintain in full force and effect all Governmental Approvals, in each case
applicable to the conduct of its business except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.



     SECTION 9.7 Environmental Laws. In addition to and without limiting the generality of
Section 9.6, (a) comply with, and ensure such compliance by all tenants and subtenants with
all applicable Environmental Laws and obtain and comply with and maintain, and ensure that all
tenants and subtenants, if any, obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable Environmental Laws where
the failure to so comply could reasonably be expected to have a Material Adverse Effect, (b)
conduct and complete all investigations, studies, sampling and testing, and all remedial, removal
and other actions required under Environmental Laws, and promptly comply with all lawful orders and
directives of any Governmental Authority regarding Environmental Laws, and



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(c) defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective parents, Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise, arising out of, or
in any way relating to the presence of Hazardous Materials, or the violation of, noncompliance with
or liability under any Environmental Laws applicable to the operations of the Borrowers or any
Subsidiaries, or any orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney’s and consultant’s fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except to the extent that any
of the foregoing directly result from the gross negligence or willful misconduct of the party
seeking indemnification therefor, as determined by a court of competent jurisdiction by final
nonappealable judgment.



     SECTION 9.8 Compliance with ERISA. In addition to and without limiting the generality of
Section 9.6, (a) except where the failure to so comply could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (i) comply with applicable
provisions of ERISA and the regulations and published interpretations thereunder with respect to
all Employee Benefit Plans, (ii) not take any action or fail to take action the result of which
could be a liability to the PBGC or to a Multiemployer Plan, (iii) not participate in any
prohibited transaction that could result in any civil penalty under ERISA or tax under the Code and
(iv) operate each Employee Benefit Plan in such a manner that will not incur any tax liability
under Section 4980B of the Code or any liability to any qualified beneficiary as defined in Section
4980B of the Code and (b) furnish to the Administrative Agent upon the Administrative Agent’s
request such additional information about any Employee Benefit Plan as may be reasonably requested
by the Administrative Agent.



     SECTION 9.9 Compliance With Agreements. Comply in all respects with each term, condition and
provision of all leases, agreements and other instruments entered into in the conduct of its
business including, without limitation, any Material Contract where the failure to so comply could
reasonably be expected to have a Material Adverse Effect.



     SECTION 9.10 Visits and Inspections. Permit representatives of the Administrative Agent or
their respective agents from time to time upon prior reasonable notice and at such times during
normal business hours, (which shall be at the U.S. Borrower’s sole expense upon the occurrence and
during the continuance of an Event of Default), to visit and inspect its properties; inspect, audit
and make extracts from its books, records and files, including, but not limited to, management
letters prepared by independent accountants; and discuss with its principal officers, and its
independent accountants, its business, assets, liabilities, financial condition, results of
operations and business prospects. Upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent or any Lender may do any of the foregoing at any time without
advance notice.



     SECTION 9.11 Deposit Account/Bank Fees. The Borrower Agent shall either (a) establish and
continue to maintain interest bearing Deposit Accounts with the Administrative Agent with a minimum
compensating balance of at least $5,000,000 until such time the Borrower Agent has established
other domestic depository and cash management services satisfactory to the Administrative Agent
(the “Depository Requirement”) or (b) pay to the Administrative Agent a non-refundable,
fully-earned fee in the amount of $8,333.33 per month



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until such time as the Depository Requirement has been, and continues to be, satisfied by the
Borrower Agent (such fee shall be due and payable on the Closing Date (pro-rated for the first
month) and thereafter on the first Business Day of each calendar month during the term of this
Agreement).



     SECTION 9.12 Use of Proceeds. The Borrowers shall use the proceeds of the Revolving Credit
Facility and the Swingline Facility solely for general corporate purposes, including without
limitation, the payment of certain fees and expenses incurred in connection with this Agreement,
Permitted Acquisitions, and repurchases of U.S. Borrower’s Capital Stock permitted under
Section 11.6.



     SECTION 9.13 Further Assurances. Make, execute and deliver all such additional and further
acts, things, deeds and instruments as the Administrative Agent or the Required Lenders (through
the Administrative Agent) may reasonably require to document and consummate the transactions
contemplated hereby and to vest completely in and insure the Administrative Agent and the Lenders
their respective rights under this Agreement, the Letters of Credit and the other Loan Documents.



ARTICLE X




FINANCIAL COVENANTS




     Until all of the Obligations have been paid and satisfied in full and the Revolving Credit
Commitment terminated, unless consent has been obtained in the manner set forth in Section
14.2, the Borrowers and their Subsidiaries on a Consolidated basis will not:



     SECTION 10.1 Consolidated Senior Leverage Ratio: As of each fiscal quarter end, permit the
Consolidated Senior Leverage Ratio to be greater than 1.50 to 1.00.



     SECTION 10.2 Consolidated Total Leverage Ratio: As of each fiscal quarter end, permit the
Consolidated Total Leverage Ratio to be greater than 2.50 to 1.00.



     SECTION 10.3 Minimum Asset Coverage Ratio: At any time but measured as of each fiscal
quarter end, permit the Asset Coverage Ratio to be less than 1.50 to 1.00.



     SECTION 10.4 Continued Profitability: As of any fiscal quarter end, permit the Consolidated
Net Income of the Borrowers, to be less than $1.00 for the immediately preceding four (4) fiscal
quarters:



ARTICLE XI




NEGATIVE COVENANTS




     Until all of the Obligations have been paid and satisfied in full and the Revolving Credit
Commitment terminated, unless consent has been obtained in the manner set forth in Section
14.2, the Borrowers have not and will not and will not permit any of their Subsidiaries to:



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     SECTION 11.1 Limitations on Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness except:



     (a) The Obligations;



     (b) Indebtedness incurred in connection with Hedging Agreements made in the ordinary course of
business provided such Hedging Agreements are non-speculative;



     (c) Funded Indebtedness existing on the Closing Date and not otherwise permitted under this
Section and listed on Schedule 7.1(u), and the renewal, refinancing, extension and
replacement (but not the increase in the aggregate principal amount) thereof;



     (d) Indebtedness of the Borrowers and their Subsidiaries incurred in connection with Capital
Leases and purchase money Indebtedness in an aggregate amount not to exceed $10,000,000 on any date
of determination;



     (e) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets
were acquired from such Person, to the extent such Indebtedness was not incurred in connection with
or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, not to
exceed in the aggregate at any time outstanding $5,000,000;



     (f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;



     (g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a)
through (e) of this Section;



     (h) Subordinated Indebtedness made in the ordinary course of business owed by any Subsidiary
of the U.S. Borrower to the U.S. Borrower pursuant to Section 11.3(f), (g) and (h);



     (i) Subordinated Indebtedness made in the ordinary course of business owed by the U.S.
Borrower to any Subsidiary of the U.S. Borrower;



     (j) Subordinated Indebtedness; provided that in the case of each issuance of
Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing
or would be caused by the issuance of such Subordinated Indebtedness, and (ii) the Administrative
Agent shall have received satisfactory written evidence that the U.S. Borrower would be in
compliance with all covenants contained in this Agreement on a pro forma basis
after giving effect to the issuance of any such Subordinated Indebtedness; provided,
further, that any Subordinated Indebtedness permitted hereunder in connection with
Subordinated Indebtedness convertible to Capital Stock shall include subordination provisions
subordinating interest payments for up to 179 days upon notice of a Default or Event of Default;



     (k) Indebtedness of up to $5,000,000 in cash secured standby and commercial letters of credit
issued by lenders other than the Lenders; provided, however, that notwithstanding
the foregoing, the Borrowers shall be permitted to continue their existing credit facility with
Wells Fargo Bank, National Association until December 15, 2008 at which time such credit facility
with Wells Fargo Bank, National Association must be terminated or amended to be solely a letter of
credit facility and in compliance with this Section 11.1(k); and



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     (l) additional Indebtedness not otherwise permitted pursuant to this Section in an aggregate
amount outstanding not to exceed $3,000,000.



     SECTION 11.2 Limitations on Liens. Create, incur, assume or suffer to exist, any Lien on or
with respect to any of its assets or properties (including, without limitation, shares of Capital
Stock), real or personal, whether now owned or hereafter acquired, except:



     (a) Liens of the Administrative Agent for the benefit of the Administrative Agent and the
Lenders under the Loan Documents;



     (b) (i) Liens not otherwise permitted by this Section and in existence on the Closing Date and
described on Schedule 11.2, and (ii) Liens incurred in connection with any refinancing,
refunding, renewal or extension of Indebtedness pursuant to Section 11.1(c); provided that
such Liens (A) were not created in contemplation of such refinancing, refundings, renewal or
extension and (B) do not extend to cover any other property or assets of the Borrowers and their
Subsidiaries;



     (c) Liens for taxes, assessments and other governmental charges or levies (excluding any Lien
imposed pursuant to any of the provisions of ERISA or Environmental Laws) not yet due or as to
which the period of grace, if any, related thereto has not expired or which are being contested in
good faith and by appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;



     (d) the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for
labor, materials, supplies or rentals incurred in the ordinary course of business, (i) which are
not overdue for a period of more than thirty (30) days or (ii) which are being contested in good
faith and by appropriate proceedings if adequate reserves are maintained to the extent required by
GAAP;



     (e) Liens consisting of deposits or pledges made in the ordinary course of business in
connection with, or to secure payment of, obligations under workers’ compensation, unemployment
insurance or similar legislation;



     (f) Liens constituting encumbrances in the nature of zoning restrictions, easements and rights
or restrictions of record on the use of real property, which in the aggregate are not substantial
in amount and which do not, in any case, detract from the value of such property or impair the use
thereof in the ordinary conduct of business;



     (g) Liens existing on any asset of any Person at the time such Person becomes a Subsidiary or
is merged or consolidated with or into a Subsidiary which (i) were not created in contemplation of
or in connection with such event and (ii) do not extend to or cover any other property or assets of
the Borrowers or any of their Subsidiaries, so long as any Indebtedness related to any such Liens
are permitted under Section 11.1(e);



     (h) Liens securing Indebtedness permitted under Section 11.1(d); provided that
(i) such Liens shall be created substantially simultaneously with the acquisition or lease of the
related asset, (ii) such Liens do not at any time encumber any property other than the property
financed by such Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased



70









 







and (iv) the principal amount of Indebtedness secured by any such Lien shall at no time exceed
one hundred percent (100%) of the original purchase price or lease payment amount of such property
at the time it was acquired; and



     (i) Liens not otherwise permitted hereunder securing obligations not at any time exceeding in
the aggregate $3,000,000.



     SECTION 11.3 Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own,
invest in or otherwise acquire, directly or indirectly, any Capital Stock, interests in any
partnership or joint venture (including, without limitation, the creation or capitalization of any
Subsidiary), evidence of Indebtedness or other obligation or security, substantially all or a
portion of the business or assets of any other Person or any other investment or interest
whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans,
advances or extensions of credit to, or any investment in cash or by delivery of property in, any
Person except:



     (a) investments (i) existing on the Closing Date in Subsidiaries existing on the Closing Date,
and (ii) other loans, advances and investments described on Schedule 11.3 existing on the
Closing Date;



     (b) investments in cash and Cash Equivalents;



     (c) investments by the Borrowers or any of their Subsidiaries in the form of Permitted
Acquisitions;



     (d) Hedging Agreements permitted pursuant to Section 11.1;



     (e) purchases of assets in the ordinary course of business;



     (f) from the Closing Date through March 31, 2009, investments, loans and advances by the U.S.
Borrower in the Belgian Borrower in connection with the capitalization, start-up and operating
expenses of the Belgian Borrower in an aggregate amount not to exceed $10,000,000 (all such
investments, loans and advances to be set forth in the Officer’s Compliance Certificate);



     (g) other investments, loans and advances by the U.S. Borrower in any of the Pledged Foreign
Subsidiaries in an aggregate amount not to exceed $10,000,000 at any one time outstanding during
the term of this Facility;



     (h) investments, loans and advances by the U.S. Borrower in any Subsidiary of the U.S.
Borrower (other than the Pledged Foreign Subsidiaries) in an aggregate amount not to exceed
$3,000,000 at any one time outstanding; and



     (i) investments in minority interests in business(es) engaged generally in the business
engaged in by the Borrowers and their Subsidiaries, taken as a whole, in an aggregate amount not to
exceed $10,000,000 in any Fiscal Year.



     SECTION 11.4 Limitations on Mergers and Liquidation. Merge, consolidate or enter into any
similar combination with any other Person or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution) except:



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     (a) any Wholly-Owned Subsidiary of the Borrowers (other than the Pledged Foreign Subsidiaries)
may be merged or consolidated with or into the Borrowers (provided that the Borrowers shall
be the continuing or surviving Person) or with or into any Subsidiary (provided that the
Subsidiary shall be the continuing or surviving Person);



     (b) any Wholly-Owned Subsidiary of the a Borrower (other than the Pledged Foreign
Subsidiaries) may sell, lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the U.S. Borrower or any other Wholly-Owned Subsidiary
(provided that if the transferor in such a transaction is a Subsidiary, then the transferee
must either be the U.S. Borrower or a Subsidiary);



     (c) any Wholly-Owned Subsidiary of the U.S. Borrower (other than the Pledged Foreign
Subsidiaries) may merge into the Person such Wholly-Owned Subsidiary was formed to acquire in
connection with a Permitted Acquisition; and



     (d) any Subsidiary of a Borrower (other than the Pledged Foreign Subsidiaries) may wind-up or
dissolve into the Borrowers or any Wholly-Owned Subsidiary of the Borrowers (provided that
if the Subsidiary subject to such winding up or dissolution is a Subsidiary, such Subsidiary shall
wind-up or dissolve into the Borrowers or another Subsidiary).



     SECTION 11.5 Limitations on Asset Dispositions. Make any Asset Disposition (including,
without limitation, the sale of any receivables and leasehold interests and any sale-leaseback or
similar transaction) except:



     (a) the sale of inventory in the ordinary course of business;



     (b) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business
of the Borrowers or any of their Subsidiaries;



     (c) the transfer of assets to the Borrowers or any of their Subsidiaries pursuant to
Section 11.4 (b);



     (d) the Borrowers or any Subsidiary thereof may (i) write-off, discount, sell or otherwise
dispose of defaulted or past due receivables and similar obligations in the ordinary course of
business and not as part of an accounts receivable financing transaction and (ii) discount
non-recourse non-U.S. customer notes, accounts receivable, bankers acceptances, trade acceptances,
bills of exchange or letters of credit where customers’ accounts receivable are otherwise subject
to a long period of collection, credit risk, currency risk or country and political risk in the
ordinary course of business and not as part of an accounts receivable financing transaction;



     (e) the disposition of any Hedging Agreement;



     (f) the sale, loan, licensing or other dispositions of either the Borrower’s or any of their
Subsidiaries’ software products or the licensing of either the Borrower’s or any of their
Subsidiaries’ intellectual property, in either case, in the ordinary course of business; and



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     (g) additional Asset Dispositions not otherwise permitted pursuant to this Section,
provided that the Net Divested Asset Value of such Asset Dispositions, together with all
other Asset Dispositions during the term of this Agreement, does not exceed $150,000,000.



     SECTION 11.6 Limitations on Dividends and Distributions. Declare or pay any dividends upon
any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly,
any shares of its Capital Stock, or make any distribution of cash, property or assets among the
holders of shares of its Capital Stock, or make any material change in its capital structure;
provided that:



     (a) the Borrowers or any Subsidiary thereof may pay dividends in shares of its own Capital
Stock;



     (b) any Subsidiary may pay cash dividends to the U.S. Borrower;



     (c) the U.S. Borrower may declare or pay cash dividends upon its Capital Stock,
provided that no Default or Event of Default shall have occurred or be continuing (prior to
and immediately after the declaration and payment of such dividend) and the Borrowers shall be in
pro forma compliance with the covenants set forth in Article X (prior to
and immediately after the declaration and payment of such dividend); and



     (d) the U.S. Borrower may repurchase its shares of its Capital Stock, provided that
the U.S. Borrower maintains, prior to and immediately after such repurchase, a Consolidated Net
Worth greater than or equal to $360,000,000.



     SECTION 11.7 Limitations on Exchange and Issuance of Capital Stock. Issue, sell or otherwise
dispose of any class or series of Capital Stock that, by its terms or by the terms of any security
into which it is convertible or exchangeable, is, or upon the happening of an event or passage of
time would be, (a) convertible or exchangeable into Indebtedness or (b) required to be redeemed or
repurchased, including at the option of the holder, in whole or in part, or has, or upon the
happening of an event or passage of time would have, a redemption or similar payment due.



     SECTION 11.8 Transactions with Affiliates. Directly or indirectly (a) make any loan or
advance to, or purchase or assume any note or other obligation to or from, any of its officers,
directors, shareholders or other Affiliates, or to or from any member of the immediate family of
any of its officers, directors, shareholders or other Affiliates, or subcontract any operations to
any of its Affiliates or (b) enter into, or be a party to, any other transaction not described in
clause (a) above with any of its Affiliates other than:




     (i) transactions permitted by Section 11.3, 11.4, 11.5(f),
11.6 and 11.7;




     (ii) transactions existing on the Closing Date and described on Schedule 11.8;




     (iii) normal compensation and reimbursement of reasonable expenses of officers and
directors; and




     (iv) other transactions in the ordinary course of business on terms as favorable as
would be obtained by it on a comparable arms-length transaction with an independent,



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unrelated third party as determined in good faith by the board of directors of the U.S.
Borrower.



     SECTION 11.9 Certain Accounting Changes; Organizational Documents. (a) Change its Fiscal Year
end, or make any change in its accounting treatment and reporting practices except as required by
GAAP or (b) amend, modify or change its articles of incorporation (or corporate charter or other
similar organizational documents) or amend, modify or change its bylaws (or other similar
documents) in any manner adverse in any respect to the rights or interests of the Lenders;
provided, however, that the U.S. Borrower may convert to a Delaware corporation so
long as they provide the Administrative Agent at least thirty (30) days written notice prior to the
filing of such conversion.



     SECTION 11.10 Amendments; Payments and Prepayments of Subordinated Indebtedness.



     (a) Amend or modify (or permit the modification or amendment of) any of the terms or
provisions of any Subordinated Indebtedness in any respect which would materially adversely affect
the rights or interests of the Administrative Agent and Lenders hereunder.



     (b) Cancel, forgive, make any payment or prepayment on, or redeem or acquire for value
(including, without limitation, (i) by way of depositing with any trustee with respect thereto
money or securities before due for the purpose of paying when due and (ii) at the maturity thereof)
any Subordinated Indebtedness, except refinancings, refundings, renewals, extensions or exchange of
any Subordinated Indebtedness permitted by Section 11.1(h), (i) and (j).



     SECTION 11.11 Restrictive Agreements.



     (a) Enter into any Indebtedness which contains any negative pledge on assets or any covenants
more restrictive than the provisions of Articles IX, X and XI, or which
restricts, limits or otherwise encumbers its ability to incur Liens on or with respect to any of
its assets or properties other than the assets or properties securing such Indebtedness.



     (b) Enter into or permit to exist any agreement which impairs or limits the ability of any
Subsidiary of the Borrowers to pay dividends to the Borrowers.



     SECTION 11.12 Nature of Business. Alter in any material respect, the general nature of the
business engaged in by the Borrowers and their Subsidiaries, considered as a whole, from the
general nature of the business engaged in by the Borrowers and their Subsidiaries, considered as a
whole, as of the Closing Date.



     SECTION 11.13 Impairment of Security Interests. Take or omit to take any action, which might
or would have the result of materially impairing the security interests in favor of the
Administrative Agent with respect to the Collateral or grant to any Person (other than the
Administrative Agent for the benefit of itself and the Lenders pursuant to the Security Documents)
any interest whatsoever in the Collateral, except for Permitted Liens and Asset Dispositions
permitted under Section 11.5.



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ARTICLE XII




DEFAULT AND REMEDIES




     SECTION 12.1 Events of Default. Each of the following shall constitute an Event of Default,
whatever the reason for such event and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment or order of any court or any order, rule or
regulation of any Governmental Authority or otherwise:



     (a) Default in Payment of Principal of Loans and Reimbursement Obligations. Either
Borrower shall default in any payment of principal of any Loan or Reimbursement Obligation when and
as due (whether at maturity, by reason of acceleration or otherwise).



     (b) Other Payment Default. Either Borrower shall default in the payment when and as
due (whether at maturity, by reason of acceleration or otherwise) of interest on any Loan or
Reimbursement Obligation or the payment of any other Obligation and such default shall continue for
a period of three (3) Business Days.



     (c) Misrepresentation. Any representation, warranty, certification or statement of
fact made by either Borrower or their Subsidiaries (or deemed made by or on behalf of any
Subsidiary of either Borrower) in any Loan Document, or in any document delivered in connection
herewith or therewith that is subject to materiality or Material Adverse Effect qualifications,
shall be incorrect or misleading in any respect when made or deemed made or any representation,
warranty, certification or statement of fact made or deemed made by or on behalf of either
Borrower, any Subsidiary, any other Loan Document, or in any document delivered in connection
herewith or therewith that is not subject to materiality or Material Adverse Effect qualifications,
shall be incorrect or misleading in any material respect when made or deemed made.



     (d) Default in Performance of Certain Covenants. The Borrowers or any of their
Subsidiaries shall default in the performance or observance of any covenant or agreement contained
in Sections 8.1, 8.2 or 8.5(e)(i) or Articles X or XI
(other than Section 11.11(a) which shall be subject to the cure period in Section
12.1(e) below).



     (e) Default in Performance of Other Covenants and Conditions. Any Borrower or any
Subsidiary thereof shall default in the performance or observance of any term, covenant, condition
or agreement contained in this Agreement (other than as specifically provided for otherwise in this
Section) or any other Loan Document and such default shall continue uncured for a period of thirty
(30) days after written notice thereof has been given to the Borrower Agent by the Administrative
Agent; provided, however that such notice and opportunity to cure shall not apply
in the case of any default which is not capable of being cured at all or within such thirty (30)
day period or which was a willful and knowing breach by such Borrower or any Subsidiary;
provided, further, that such thirty (30) day period shall be extended by a
reasonably longer period (such period to be reasonably determined by the Administrative Agent) so
long as the cure is commenced with the initial thirty (30) day period and thereafter is prosecuted
to completion with reasonable diligence.



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     (f) Hedging Agreement. Either Borrower or any Subsidiary thereof shall default in the
performance or observance of any terms, covenant, condition or agreement (after giving effect to
any applicable grace or cure period) under any Hedging Agreement and such default causes the
termination of such Hedging Agreement and the Termination Value owed by such Borrower or such
Subsidiary as a result thereof exceeds $2,000,000.



     (g) Indebtedness Cross-Default. The Borrowers or any of their Subsidiaries shall (i)
default in the payment of any Indebtedness (other than the Loans or any Reimbursement Obligation)
the aggregate outstanding amount of which Indebtedness is in excess of $5,000,000 beyond the period
of grace if any, provided in the instrument or agreement under which such Indebtedness was created
and the applicable Borrower or such Subsidiary is not contesting such default in good faith and
adequate reserves are not maintained with respect thereto in accordance with GAAP, or (ii) default
in the observance or performance of any other agreement or condition relating to any Indebtedness
(other than the Loans or any Reimbursement Obligation) the aggregate outstanding amount of which
Indebtedness is in excess of $5,000,000 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 a trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Indebtedness to become due prior to its stated maturity (any
applicable grace period having expired) and the applicable Borrower or such Subsidiary is not
contesting such default in good faith and adequate reserves are not maintained with respect thereto
in accordance with GAAP.



     (h) Other Cross-Defaults. The Borrowers or any of their Subsidiaries shall default in
the payment when due with respect to any Material Contract and the applicable Borrower or such
Subsidiary is not contesting such default in good faith and adequate reserves are not maintained
with respect thereto in accordance with GAAP.



     (i) Change in Control. Any Change in Control shall occur.



     (j) Voluntary Bankruptcy Proceeding. Either Borrower or any of their Subsidiaries
shall (i) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in
effect), (ii) file a petition seeking to take advantage of any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or composition for adjustment of
debts, (iii) consent to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv) apply for or
consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a
substantial part of its property, domestic or foreign, (v) admit in writing its inability to pay
its debts as they become due, (vi) make a general assignment for the benefit of creditors, or (vii)
take any corporate action for the purpose of authorizing any of the foregoing.



     (k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced
against either Borrower or any Subsidiary thereof in any court of competent jurisdiction seeking
(i) relief under the federal bankruptcy laws (as now or hereafter in effect) or under any other
laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or the
like for such Borrower or any Subsidiary thereof or for all or any substantial



76









 







part of their respective assets, domestic or foreign, and such case or proceeding shall
continue without dismissal or stay for a period of sixty (60) consecutive days, or an order
granting the relief requested in such case or proceeding (including, but not limited to, an order
for relief under such federal bankruptcy laws) shall be entered.



     (l) Failure of Agreements. Any provision of this Agreement or any provision of any
other Loan Document shall for any reason cease to be valid and binding on either Borrower or any of
their Subsidiaries or any such Person shall so state in writing, or any Loan Document shall for any
reason cease to create a valid and perfected first priority Lien on, or security interest in, any
of the Collateral purported to be covered thereby, in each case other than in accordance with the
express terms hereof or thereof.



     (m) Termination Event. The occurrence of any of the following events: (i) the U.S.
Borrower or any ERISA Affiliate fails to make full payment when due of all amounts which, under the
provisions of any Pension Plan or Section 412 of the Code, the U.S. Borrower or any ERISA Affiliate
is required to pay as contributions thereto, (ii) an accumulated funding deficiency in excess of
$5,000,000 occurs or exists, whether or not waived, with respect to any Pension Plan, (iii) a
Termination Event or (iv) the U.S. Borrower or any ERISA Affiliate as employers under one or more
Multiemployer Plans makes a complete or partial withdrawal from any such Multiemployer Plan and the
plan sponsor of such Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding $5,000,000.



     (n) Judgment. A judgment or order for the payment of money which causes the aggregate
amount of all such judgments to exceed $5,000,000 in any Fiscal Year shall be entered against
either Borrower or any of their Subsidiaries by any court and, in either case, (i) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (ii) there is a period of
10 consecutive days during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, is not in effect.



     (o) Environmental. Any one or more Environmental Claims shall have been asserted
against the Borrowers or any of their Subsidiaries; the Borrowers or any of their Subsidiaries
would be reasonable likely to incur liability as a result thereof; and such liability would be
reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.



     SECTION 12.2 Remedies. Upon the occurrence and during the continuance of an Event of Default,
with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower Agent (such notice to
be delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by facsimile pursuant to Section 14.1; provided, that upon any facsimile delivery
under this Section 12.2, the Administrative Agent shall use its commercially reasonably
efforts to also provide notice by hand or overnight courier service or mailed by certified or
registered mail):



     (a) Acceleration; Termination of Facilities. Terminate the Revolving Credit
Commitment and/or the L/C Commitment and declare the principal of and interest on the Loans and the
Reimbursement Obligations at the time outstanding, and all other amounts owed to the Lenders and to
the Administrative Agent under this Agreement or any of the other Loan



77









 







Documents (including, without limitation, all L/C Obligations, whether or not the
beneficiaries of then outstanding Letters of Credit shall have presented or shall be entitled to
present the documents required thereunder) and all other Obligations (other than Hedging
Obligations), to be forthwith due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind, all of which are
expressly waived by each Borrower, anything in this Agreement or the other Loan Documents to the
contrary notwithstanding, and terminate the Credit Facility and any right of the Borrowers to
request borrowings or Letters of Credit thereunder; provided, that upon the occurrence of
an Event of Default specified in Section 12.1(j) or (k), the Credit Facility shall
be automatically terminated and all Obligations (other than Hedging Obligations) shall
automatically become due and payable without presentment, demand, protest or other notice of any
kind, all of which are expressly waived by each Borrower, anything in this Agreement or in any
other Loan Document to the contrary notwithstanding.



     (b) Letters of Credit. Amounts held by the Administrative Agent as part of the L/C
Collateral 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 have
expired or been fully drawn upon, if any, shall be applied to repay the other Obligations on a pro
rata basis. After all such Letters of Credit shall have expired or been fully drawn upon, the
Reimbursement Obligation shall have been satisfied and all other Obligations shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned to the U.S.
Borrower.



     (c) Rights of Collection. Exercise on behalf of the Lenders all of its other rights
and remedies under this Agreement, the other Loan Documents and Applicable Law, in order to satisfy
all of the Borrowers’ Obligations; provided, however, that the Belgian Borrower
shall only be responsible for any such amounts owed in connection with Alternative Currency Loans
(including, without limitation, all principal, interest, fees, indemnities, documented
out-of-pocket expenses, reasonable legal fees or other amounts owed under this connection with this
Agreement in connection with the Alternative Currency Loans).



     SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc. The enumeration of the rights
and remedies of the Administrative Agent and the Lenders set forth in this Agreement is not
intended to be exhaustive and the exercise by the Administrative Agent and the Lenders of any right
or remedy shall not preclude the exercise of any other rights or remedies, all of which shall be
cumulative, and shall be in addition to any other right or remedy given hereunder or under the
other Loan Documents or that may now or hereafter exist at law or in equity or by suit or
otherwise. No delay or failure to take action on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, power or privilege or shall be construed to be
a waiver of any Event of Default. No course of dealing between any Borrower, the Administrative
Agent and the Lenders or their respective agents or employees shall be effective to change, modify
or discharge any provision of this Agreement or any of the other Loan Documents or to constitute a
waiver of any Event of Default.



     SECTION 12.4 Crediting of Payments and Proceeds. In the event that any Borrower shall fail to
pay any of the Obligations when due and the Obligations have been accelerated



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pursuant to Section 12.2, all payments received by the Lenders upon the Obligations
and all net proceeds from the enforcement of the Obligations shall be applied:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts, including reasonable attorney fees, payable to the Administrative Agent
in its capacity as such and the Issuing Lender in its capacity as such (ratably among the
Administrative Agent and the Issuing Lender in proportion to the respective amounts described in
this clause First payable to them);



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders, including reasonable
attorney fees (ratably among the Lenders in proportion to the respective amounts described in this
clause Second payable to them);



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and Reimbursement Obligations and any Hedging Obligations (including any
termination payments and any accrued and unpaid interest thereon)(ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable to them);



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and Reimbursement Obligations (ratably among the Lenders in proportion to the respective
amounts described in this clause Fourth held by them);



     Fifth, to the Administrative Agent for the account of the Issuing Lender, to cash
collateralize any L/C Obligations then outstanding; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the U.S. Borrower or as otherwise required by Applicable Law.



     SECTION 12.5 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to either. Borrower or any of their Subsidiaries,
the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrowers) shall be entitled and
empowered, by intervention in such proceeding or otherwise:



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the reasonable compensation,
documented out-of-pocket expenses, disbursements and advances of the Lenders and the Administrative
Agent and their respective agents and counsel and all other amounts due the Lenders and the
Administrative Agent under Sections 3.3, 5.3 and 14.3) allowed in such
judicial proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;



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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 3.3,
5.3 and 14.3.



     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.



     SECTION 12.6 Judgment Currency.



     (a) The obligation of the Borrowers to make payments of principal and interest hereunder and
the obligation of any such Person to make payments of any other amounts payable hereunder or
pursuant to any other Loan Document in the currency specified for such payment shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment, which is expressed
in or converted into any other currency, except to the extent that such tender or recovery shall
result in the actual receipt by each of the Administrative Agent and Lenders of the full amount of
the particular currency expressed to be payable pursuant to the applicable Loan Document. The
Administrative Agent shall, using all amounts obtained or received from the Borrowers pursuant to
any such tender or recovery in payment of principal of and interest on the Obligations, promptly
purchase the applicable currency at the most favorable spot exchange rate determined by the
Administrative Agent to be available to it. The obligation of the Borrowers to make payments in
the applicable currency shall be enforceable as an alternative or additional cause of action solely
for the purpose of recovering in the applicable currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the currency expressed to be payable pursuant to the
applicable Loan Document.



     (b) Without limiting Section 12.6(a), the Borrowers shall indemnify and hold harmless
the Administrative Agent, the Lenders, the Issuing Lenders hereunder against any loss incurred by
the Administrative Agent, any Lender, any Issuing Lender hereunder or any issuing lender under any
Additional Facility as a result of any payment or recovery described in Section 12.6(a) and
as a result of any variation having occurred in rates of exchange between the date of any such
amount becoming due under this Agreement or any other Loan Document and the date of actual payment
thereof except for losses that are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from such indemnified party’s gross negligence or willful
misconduct. The foregoing indemnity shall constitute a separate and independent obligation of the
Borrowers and shall continue in full force and effect notwithstanding any such payment or recovery.




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ARTICLE XIII




THE ADMINISTRATIVE AGENT




     SECTION 13.1 Appointment and Authority. Each of the Lenders and the Issuing Lender hereby
irrevocably appoints Wachovia to act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf
and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the Issuing Lender, and neither the Borrowers nor any Subsidiary thereof shall have rights as a
third party beneficiary of any of such provisions.



     SECTION 13.2 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with any Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



     SECTION 13.3 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law;
and



     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
any Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.


The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Section 14.2 and Section 12.2) or
(ii) in the


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absence of its own gross negligence or willful misconduct as determined by a court of competent
jurisdiction by final nonappealable judgment. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until notice describing such Default is given to the
Administrative Agent by the Borrowers, a Lender or the Issuing Lender.



The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this Agreement or any
other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article VI or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.




     SECTION 13.4 Reliance by the Administrative Agent. The Administrative Agent shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Lender,
the Administrative Agent may presume that such condition is satisfactory to such Lender or the
Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such
Lender or the Issuing Lender prior to the making of such Loan or the issuance of such Letter of
Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrowers), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.



     SECTION 13.5 Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or through
any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative Agent.



     SECTION 13.6 Resignation of Administrative Agent.



     (a) The Administrative Agent may at any time give written notice of its resignation to the
Lenders, the Issuing Lender and the Borrower Agent. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, with the consent of the Borrower Agent,



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to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the Issuing Lender, appoint a successor
Administrative Agent meeting the qualifications set forth above provided that if the Administrative
Agent shall notify the Borrower Agent and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the Issuing Lender under any
of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the Issuing Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this paragraph.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this paragraph). The fees payable by the
Borrower Agent to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower Agent and such successor. After the
retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 14.3 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



     (b) Any resignation by Wachovia as Administrative Agent pursuant to this Section shall also
constitute its resignation as Issuing Lender and Swingline Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring Issuing Lender
and Swingline Lender, (b) the retiring Issuing Lender and Swingline Lender shall be discharged from
all of their respective duties and obligations hereunder or under the other Loan Documents, and (c)
the successor Issuing Lender shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangement satisfactory
to the retiring Issuing Lender to effectively assume the obligations of the retiring Issuing Lender
with respect to such Letters of Credit.



     SECTION 13.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the
Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender and the Issuing Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other



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Lender or any of their Related Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any other Loan Document or any related agreement or any
document furnished hereunder or thereunder.



     SECTION 13.8 Collateral and Guaranty Matters. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion,



     (a) to release any Lien on any Collateral granted to or held by the Administrative Agent, for
the ratable benefit of itself and the Lenders, under any Loan Document (i) upon repayment of the
outstanding principal of and all accrued interest on the Loans and Reimbursement Obligations,
payment of all outstanding fees and expenses hereunder, the termination of the Revolving Credit
Commitment and the expiration or termination of all Letters of Credit, (ii) that is sold or to be
sold as part of or in connection with any sale permitted hereunder or under any other Loan
Document, or (iii) subject to Section 14.2, if approved, authorized or ratified in writing
by the Required Lenders;



     (b) to subordinate or release any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document to the holder of any Permitted Lien; and



     (c) to release any Subsidiary from its obligations under any Loan Documents if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.


Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release or subordinate its interest in particular types or
items of property pursuant to this Section.




ARTICLE XIV




MISCELLANEOUS




     SECTION 14.1 Notices.



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




	 	If to the

Borrower Agent: 	 	
Tekelec

5200 Paramount Parkway

Morrisville, North Carolina 27560

Attention of: Mr. William Everett

Telephone No.: (919) 460-5500

Facsimile No.: (919)-461-6845





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	 	 	 	E-mail: bill.everett@tekelec.com

Webpage: www.tekelec.com
	 
	 	and 	 	Tekelec

5200 Paramount Parkway

Morrisville, North Carolina 27560

Attention of: Mr. Stuart H. Kupinsky

Telephone No.: (919) 388-6268

Facsimile No.: (919) 461-6845

E-mail: stuart.kupinsky@tekelec.com
	 
	 	With copies to: 	 	Bryan Cave LLP

One Metropolitan Square

211 North Broadway, Suite 3600

St. Louis, Missouri 63102-2750

Attention of: Paula Dinger Pace, Esq.

Telephone No.: (314) 259-2226

Facsimile No.: (314) 552-8226

E-mail: pdpace@bryancave.com
	 
	 	If to Wachovia as

Administrative Agent: 	 	
Wachovia Bank, National Association

150 Fayetteville Street Mall

Raleigh, North Carolina 27602

Attention of: C. Douglass Riddle

Telephone No.: (919) 881-7001

Facsimile No.: (919) 881-6473

E-mail: doug.riddle@wachovia.com
	 
	 	With copies to: 	 	Evan Wolkofsky, Esq.

K&L Gates LLP

Heart Tower

214 North Tryon Street, 47th Floor

Charlotte, North Carolina

Telephone No.: (704) 331-7493

Facsimile No.: (704) 331-3193

E-mail: evan.wolkofsky@klgates.com
	 
	 	If to any Lender: 	 	To the address set forth on the Register




Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in paragraph (b) below,
shall be effective as provided in said paragraph (b).




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     (b) Electronic Communications. Notices and other communications to the Lenders and
the Issuing Lender hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the Issuing
Lender pursuant to Article II if such Lender or the Issuing Bank, as applicable, has
notified the Administrative Agent that is incapable of receiving notices under such Article by
electronic communication. The Administrative Agent or the Borrower Agent may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (c) Administrative Agent’s Office. The Administrative Agent hereby designates its
office located at the address set forth above, or any subsequent office which shall have been
specified for such purpose by written notice to the Borrower Agent and Lenders, as the
Administrative Agent’s Office referred to herein, to which payments due are to be made and at which
Loans will be disbursed and Letters of Credit requested.



     (d) Change of Address, Etc. Any party hereto may change its address or facsimile
number for notices and other communications hereunder by notice to the other parties hereto.



     SECTION 14.2 Amendments, Waivers and Consents. Except as set forth below or as specifically
provided in any Loan Document, any term, covenant, agreement or condition of this Agreement or any
of the other Loan Documents may be amended or waived by the Lenders, and any consent given by the
Lenders, if, but only if, such amendment, waiver or consent is in writing signed by the Required
Lenders (or by the Administrative Agent with the consent of the Required Lenders) and delivered to
the Administrative Agent and, in the case of an amendment, signed by the Borrowers;
provided, that no amendment, waiver or consent shall:



     (a) waive any condition set forth in Section 6.2 without the written consent of each
Lender directly affected thereby;



     (b) amend, modify or waive Section 6.3 or any other provision of this Agreement if the
effect of such amendment, modification or waiver is to require the Revolving Credit Lenders to make
Revolving Credit Loans when such Revolving Credit Lenders would not otherwise be required to do so
without the prior written consent of any combination of Revolving Credit Lenders whose Revolving
Credit Commitments aggregate more than fifty percent (50%) of the Revolving Credit Commitment;



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     (c) extend or increase the Revolving Credit Commitment of any Lender (or reinstate any
Revolving Credit Commitment terminated pursuant to Section 12.2) or the amount of Loans of
any Lender without the written consent of such Lender;



     (d) postpone any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;



     (e) reduce the principal of, or the rate of interest specified herein on, any Loan or
Reimbursement Obligation, or (subject to clause (iv) of the second proviso to this Section) any
fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided that only the consent of the
Required Lenders shall be necessary (i) to waive any obligation of the Borrowers to pay interest at
the rate set forth in Section 5.1(c) during the continuance of an Event of Default, or (ii)
to amend any financial covenant hereunder (or any defined term used therein) even if the effect of
such amendment would be to reduce the rate of interest on any Loan or Reimbursement Obligation or
to reduce any fee payable hereunder;



     (f) change Section 5.4 or Section 12.4 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of each
Lender directly affected thereby;



     (g) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender directly affected thereby; or



     (h) release all or a material portion of the Collateral or release any Security Document
(other than as authorized in Section 13.9 or as otherwise specifically permitted or
contemplated in this Agreement or the applicable Security Document) without the written consent of
each Lender;


provided further, that (i) no amendment, waiver or consent shall, unless in writing
and signed by the Issuing Lender in addition to the Lenders required above, affect the rights or
duties of the Issuing Lender under this Agreement or any Letter of Credit Application relating to
any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Swingline Lender in addition to the Lenders required above,
affect the rights or duties of the Swingline Lender under this Agreement; and (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to
the Lenders required above, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Revolving Credit Commitment of such Lender may not be increased or
extended without the consent of such Lender.




     SECTION 14.3 Expenses; Indemnity.



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     (a) Costs and Expenses. The Borrowers shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
preparation, negotiation, execution, delivery and administration of this Agreement and the other
Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Lender in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder (to be
paid by U.S. Borrower) and (iii) all out-of-pocket expenses incurred by the Administrative Agent,
any Lender or the Issuing Lender (including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Lender or the Issuing Lender), in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.



     (b) Indemnification by the Borrowers. The Borrowers shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the Issuing Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, and shall pay or reimburse
any such Indemnitee for, any and all losses, claims (including, without limitation, any
Environmental Claims or civil penalties or fines assessed by OFAC), damages, liabilities and
related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the
Borrowers or any of their Subsidiaries arising out of, in connection with, or as a result of (i)
the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the Issuing Lender to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by the Borrowers or any of their Subsidiaries, or any
Environmental Claim related in any way to the Borrowers or any of their Subsidiaries, (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrowers or any of their Subsidiaries, and regardless of whether any Indemnitee is a party
thereto, or (v) any claim (including, without limitation, any Environmental Claims or civil
penalties or fines assessed by OFAC), investigation, litigation or other proceeding (whether or not
the Administrative Agent or any Lender is a party thereto) and the prosecution and defense thereof,
arising out of or in any way connected with the Loans, this Agreement, any other Loan Document, or
any documents contemplated by or referred to herein or therein or the transactions contemplated
hereby or thereby, including without limitation, reasonable attorneys and consultant’s fees,
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable



88









 







judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee
or (y) result from a claim brought by the Borrowers or any of their Subsidiaries against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other
Loan Document, if such Borrower has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction.



     (c) Reimbursement by Lenders. To the extent that the Borrowers for any reason fails
to indefeasibly pay any amount required under clause (a) or (b) of this Section to be paid by it to
the Administrative Agent (or any sub-agent thereof), the Issuing Lender or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the Issuing Lender or such Related Party, as the case may be, such Lender’s pro rata
share (determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the Issuing Lender in its capacity as
such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent) or Issuing Lender in connection with such capacity. The obligations of the
Lenders under this clause (c) are subject to the provisions of Section 5.7.



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
Applicable Law, the Borrowers shall not assert, and hereby waive, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in clause (b) above shall be liable for any damages arising from the use
by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.



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



     SECTION 14.4 Right of Set Off. If an Event of Default shall have occurred and be continuing,
each Lender, the Issuing Lender, the Swingline Lender and each of their respective Affiliates is
hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable
Law, to set off and apply any and all deposits (general or special, time or demand, provisional or
final, in whatever currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the Issuing Lender, the Swingline Lender or any such Affiliate to or for
the credit or the account of any Borrower or any of their Subsidiaries against any and all of the
Obligations of the Borrowers now or hereafter existing under this Agreement or any other Loan
Document to such Lender, the Issuing Lender or the Swingline Lender, irrespective of whether or not
such Lender, the Issuing Lender or the Swingline Lender shall have made any demand under this
Agreement or any other Loan Document and although such obligations of such Borrower may be
contingent or unmatured or are owed to a branch or office of such Lender, the Issuing Lender or the
Swingline Lender different from the branch or



89









 







office holding such deposit or obligated on such indebtedness. The rights of each Lender, the
Issuing Lender, the Swingline Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, the
Issuing Lender, the Swingline Lender or their respective Affiliates may have. Each Lender, the
Issuing Lender and the Swingline Lender agrees to notify the Borrower Agent and the Administrative
Agent promptly after any such setoff and application (such notice to be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by facsimile pursuant to
Section 14.1; provided, that upon any facsimile delivery under this Section
14.4, the Administrative Agent shall use its commercially reasonably efforts to also provide
notice by hand or overnight courier service or mailed by certified or registered mail);
provided that the failure to give such notice shall not affect the validity of such setoff
and application.



     SECTION 14.5 Governing Law; Jurisdiction, Etc.



     (a) Governing Law. This Agreement and the other Loan Documents, unless expressly set
forth therein, shall be governed by, and construed in accordance with, the law of the State of New
York, without reference to the conflicts or choice of law principles thereof.



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



     (c) Waiver of Venue. Each Borrower (including the Borrower Agent) irrevocably and
unconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it
may now or hereafter have to the laying of venue of any action or proceeding arising out of or
relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of
this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by Applicable Law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.



     (d) Service of Process. Each party hereto irrevocably consents to service of process
in the manner provided for notices in Section 14.1. Nothing in this Agreement will affect
the right of any party hereto to serve process in any other manner permitted by Applicable Law.



     SECTION 14.6 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE



90









 







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



     SECTION 14.7 Reversal of Payments. To the extent the either Borrower or the Borrower Agent
makes a payment or payments to the Administrative Agent for the ratable benefit of the Lenders or
the Administrative Agent receives any payment or proceeds of the collateral which payments or
proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent
of such payment or proceeds repaid, the Obligations or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if such payment or proceeds had not been
received by the Administrative Agent.



     SECTION 14.8 Injunctive Relief. The Borrowers recognize that, in the event the either
Borrower fails to perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders. Therefore, the
Borrower agree that the Lenders, at the Lenders’ option, shall be entitled to temporary and
permanent injunctive relief in any such case without the necessity of proving actual damages.



     SECTION 14.9 Accounting Matters. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either the
Borrower Agent or the Required Lenders shall so request, the Administrative Agent, the Lenders and
the Borrower Agent shall negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval of the Required
Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the Borrower Agent shall
provide to the Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving effect to such
change in GAAP.



     SECTION 14.10 Successors and Assigns; Participations.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations



91









 







hereunder except (i) to an assignee in accordance with the provisions of paragraph (b) of this
Section, (ii) by way of participation in accordance with the provisions of paragraph (d) of this
Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions
of paragraph (f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in paragraph (d) of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Revolving Credit Commitment and the Loans at the time owing to it); provided
that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Revolving Credit Commitment and the Loans at the time owing to it
or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved
Fund, no minimum amount need be assigned; and




     (B) in any case not described in paragraph (b)(i)(A) of this Section, the
aggregate amount of the Revolving Credit Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the applicable Revolving Credit Commitment is
not then in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent
or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date) shall not be less than $5,000,000, in the case of any assignment in respect of
the Revolving Credit Facility, unless each of the Administrative Agent and, so long
as no Event of Default has occurred and is continuing, the Borrower Agent otherwise
consents (each such consent not to be unreasonably withheld or delayed);




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loan or the Revolving Credit Commitment assigned;




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:




     (A) the consent of the Borrower Agent (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has occurred
and is continuing at the time of such assignment or (y) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund;



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     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
the Revolving Credit Facility if such assignment is to a Person that is not a Lender
with a Revolving Credit Commitment, an Affiliate of such Lender or an Approved Fund
with respect to such Lender; and




     (C) the consents of the Issuing Lender and the Swingline Lender (such consents
not to be unreasonably withheld or delayed) shall be required for any assignment
that increases the obligation of the assignee to participate in exposure under one
or more Letters of Credit (whether or not then outstanding) or for any assignment in
respect of the Revolving Credit Facility.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 for each assignment, and the assignee, if it is not
a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to any
Borrower or any of the Borrowers’ Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 5.8, 5.9, 5.10, 5.11 and
14.3 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance with paragraph (d)
of this Section.




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




93











 




(but only to the extent of entries in the Register that are applicable to such Lender), at any
reasonable time and from time to time upon reasonable prior notice.




     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment and/or the Loans owing to
it); provided that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrowers, the Administrative Agent, Issuing Lender,
Swingline Lender and the other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver or modification described in
Section 14.2 that directly affects such Participant and could not be effected by a vote of
the Required Lenders. Subject to paragraph (e) of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 5.8, 5.9, 5.10
and 5.11 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 14.4 as though it were a
Lender, provided such Participant agrees to be subject to Section 5.6 as though it were a
Lender.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Sections 5.10 and 5.11 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower Agent’s prior
written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 5.11 unless the Borrower Agent is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 5.11(d) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including without limitation any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



     SECTION 14.11 Confidentiality. Each of the Administrative Agent, the Lenders and the Issuing
Lender agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and other representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the



94









 







confidential nature of such Information and instructed to keep such Information confidential), (b)
to the extent requested by any regulatory authority purporting to have jurisdiction over it
(including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by Applicable Laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document (or any Hedging Agreement with a Lender or the
Administrative Agent) or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, Participant or proposed Participant, or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrowers and
their obligations, (g) with the consent of the Borrower Agent, (h) to Gold Sheets and other
similar bank trade publications, such information to consist of deal terms and other information
customarily found in such publications, or (i) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender, the Issuing Lender or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrowers or any of their Subsidiaries. For
purposes of this Section, “Information” means all information received from the Borrowers
or any of their Subsidiaries relating to the Borrowers or any of their Subsidiaries or any of their
respective businesses, other than any such information that is available to the Administrative
Agent, any Lender or the Issuing Lender on a nonconfidential basis prior to disclosure by any
Borrower or any of their Subsidiaries; provided that, in the case of information received
from any Borrower or any of their Subsidiaries after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



     SECTION 14.12 Performance of Duties. Each of the Borrower’s obligations under this Agreement
and each of the other Loan Documents shall be performed by such Borrower or the Borrower Agent at
their sole cost and expense.



     SECTION 14.13 All Powers Coupled with Interest. All powers of attorney and other
authorizations granted to the Lenders, the Administrative Agent and any Persons designated by the
Administrative Agent or any Lender pursuant to any provisions of this Agreement or any of the other
Loan Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of
the Obligations remain unpaid or unsatisfied, any of the Revolving Credit Commitment remains in
effect or the Credit Facility has not been terminated.



     SECTION 14.14 Survival of Indemnities. Notwithstanding any termination of this Agreement, the
indemnities to which the Administrative Agent and the Lenders are entitled under the provisions of
this Article XIV and any other provision of this Agreement and the other Loan Documents
shall continue in full force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.



95









 





     SECTION 14.15 Titles and Captions. Titles and captions of Articles, Sections and subsections
in, and the table of contents of, this Agreement are for convenience only, and neither limit nor
amplify the provisions of this Agreement.



     SECTION 14.16 Severability of Provisions. Any provision of this Agreement or any other Loan
Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions hereof or thereof or affecting the validity
or enforceability of such provision in any other jurisdiction.



     SECTION 14.17 Counterparts; Integration; Effectiveness; Electronic Execution.



     (a) Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents, and any separate letter agreements with respect to
fees payable to the Administrative Agent, constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in favor of
the Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof. Except as provided in Section 6.2, this
Agreement shall become effective when it shall have been executed by the Administrative Agent and
when the Administrative Agent shall have received counterparts hereof that, when taken together,
bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a
signature page of this agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.



     (b) Electronic Execution of Assignments. The words “execution,” “signed,” “signature,”
and words of like import in any Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.



     SECTION 14.18 Term of Agreement. This Agreement shall remain in effect from the Closing Date
through and including the date upon which all Obligations arising hereunder or under any other Loan
Document shall have been indefeasibly and irrevocably paid and satisfied in full and the Revolving
Credit Commitment has been terminated. No termination of this Agreement shall affect the rights
and obligations of the parties hereto arising prior to such termination or in respect of any
provision of this Agreement which survives such termination.



96









 





     SECTION 14.19 USA Patriot Act. The Administrative Agent and each Lender hereby notifies the
Borrower Agent that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify
and record information that identifies the Borrowers, which information includes the name and
address of each Borrower and other information that will allow such Lender to identify such
Borrower in accordance with the Act.



     SECTION 14.20 Independent Effect of Covenants. In the event there is a conflict or
inconsistency between this Agreement and any other Loan Document, the terms of this Agreement shall
control; provided that any provision of the Security Documents which further restricts the
rights of the Borrowers or their Subsidiaries or gives the Administrative Agent or Lenders
additional rights shall not be deemed to be in conflict or inconsistent with this Agreement and
shall be given full force and effect.



     SECTION 14.21 Language. The parties acknowledge that they have required that this agreement
and all related documents be drawn up in English.



[Signature pages to follow]





97









 








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



	 	 	 	 	 
	 	TEKELEC,

as Borrower and Borrower Agent

 	 
	 	By:  	/s/ William H. Everett
 	 
	 	 	Name:  	William H. Everett 	 
	 	 	Title:  	Executive Vice President and

Chief Financial Officer 	 
	 
	 	TEKELEC INTERNATIONAL, SPRL,

as Borrower

 	 
	 	By:  	/s/ William H. Everett
 	 
	 	 	Name:  	William H. Everett 	 
	 	 	Title:  	Manager 	 




[Credit Agreement — Tekelec and Tekelec International SPRL]



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	AGENTS AND LENDERS:



WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Swingline Lender, Issuing

Lender and Lender

 	 
	 	By:  	/s/ C. Douglass Riddle
 	 
	 	 	Name:  	C. Douglass Riddle 	 
	 	 	Title:  	Senior Vice President 	 



[Credit Agreement — Tekelec and Tekelec International SPRL]


 









 






	 	 	 	 	 



Schedule 1.1

to

Credit Agreement




Cash Equivalents




U.S. Treasury Securities 






Direct obligations of the U.S. Treasury including Treasury Bills, Treasury Notes and
Treasury Bonds.



U.S. Federal Agencies and Government Sponsored Enterprises





Government National Mortgage Association (GNMA), Tennessee Valley Authority (TVA), World
Bank, Federal Farm Credit Bank (FFCB), Federal National Mortgage Association (FNMA),
Federal Home Loan Mortgage Corporation (FHLMC), Federal Home Loan Bank (FHLB), Student
Loan Marketing Association (SLMA), Financing Corporation (FICO), The Resolution Funding
Corporation (REFCO), Farm Credit System Financial Assistance Corporation, the Federal
Housing Finance Board and all other government sponsored agencies and enterprises.



Money Market Funds





Funds regulated under 2a-7, offer daily purchase and redemption and maintain a net asset
value of 1.00.



Municipal Securities 





Fixed rate debt issued by public entities primarily to finance capital projects.




Debt is issued as either a general obligation or revenue bond. General obligation bonds
are backed by the taxing and further borrowing power of the municipality. Revenue bonds
are supported directly by the revenue of the municipal project.



Municipal Variable Rate Demand Notes





Long-term municipal bonds with contractual puts by the holder of the security on interest
rate reset dates which could be daily, weekly, semiannual or annually



Repurchase Agreement Contracts





Repurchase agreements must be 30 days or less and shall be collateralized and marked to
market each day to maintain 102% collateralization by U.S. Treasury securities or by US
Government agencies and instrumentalities, other types of collateral or securities backed
by the full faith and credit of the U.S. Government.



Negotiable Certificates of Deposits, Time Deposits and Banker’s Acceptances 





Bank investments with a minimum short term credit rating of A-1/P-1 and a long term credit
rating of at least AA- or Aa3.



Corporate Notes





Investments in medium term notes or long-term notes of corporate issuers with a remaining
term to maturity of less than three years. Must be rated AA- or Aa3 by rating agencies.



Commercial Paper





An unsecured promissory note of a corporate issuer with a maturity of 270 days or less.



 









 






Issuer must have a short-term credit rating of at least A-1, P-1 or F-1 and a long-term
rating of AA- and Aa3 by the rating agencies



Tax-Exempt Commercial Paper.





An unsecured promissory note of a corporate issuer with a maturity of 270 days or
less. Issuer must have a short-term credit rating of at least A-1, P-1 or F-1 and a
long-term rating of AA- and Aa3 by the rating agencies.



 









 





Schedule 1.1(a)

to

Credit Agreement




Mandatory Cost Rate




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




          2. On the first day of each Interest Period (or as soon as possible thereafter), the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost
Rate”) for each Lender in accordance with the paragraphs set out below. The Mandatory Cost
Rate will be calculated by the Administrative Agent as a weighted average of the Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the
relevant Loan) and will be expressed as a percentage rate per annum.




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




          4. The Additional Cost Rate for any Lender lending from a Lending Office in the United Kingdom
will be calculated by the Administrative Agent as follows:




          in relation to a Loan in denominated in any Alternative Currency:




	 	 	 	 	 
	 

	 	E x 0.01

300
	 	percent per annum.






          Where:





	E 	 	is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Administrative Agent as being the
average of the most recent rates of charge supplied by any applicable
reference banks (the “Reference Banks”) to the Administrative Agent
pursuant to paragraph 7 below and expressed in pounds per £1,000,000.





          5. For the purposes of this Schedule 1.1(a):




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




 









 








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




          (c) “Reference Banks” means the principal London Office of Wachovia Bank, National
Association or such other bank as may be appointed by the Administrative Agent after consultation
with the Borrower;




          (d) “Special Deposits” has the meanings given to it from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England; and




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




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




          7. If requested by the Administrative Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Administrative Agent the rate
of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees
Rules in respect of the relevant financial year of the Financial Services Authority (calculated for
this purpose by that Reference Bank as being the average of the Fee Tariffs applicable to that
Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base
of that Reference Bank.




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




          (a) the jurisdiction of its Lending Office; and




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




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




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




 









 








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




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




          12. Any determination by the Administrative Agent pursuant to this Schedule 1.1(a) in
relation to a formula, the Mandatory Cost Rate, an Additional Cost Rate or any amount payable to a
Lender shall, in the absence of manifest error, be conclusive and binding on all parties.




          13. The Administrative Agent may from time to time, after consultation with the Borrower Agent
and the Lenders, determine and notify to all parties of any amendments which are required to be
made to this Schedule 1.1(a) in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the Financial Services Authority or
the European Central Bank (or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest error, be conclusive and
binding on all parties.