exv10w2






Exhibit 10.2




AMENDMENT NO. 4 TO CREDIT AGREEMENT




     This AMENDMENT NO. 4 TO CREDIT AGREEMENT (this “Amendment”), dated as of June 24,
2011, is entered into by and between GEN-PROBE INCORPORATED, a Delaware corporation (the
“Borrower”), and BANK OF AMERICA, N.A. (the “Lender”).



RECITALS




     A. The Borrower and the Lender are party to that certain Credit Agreement dated as of February
27, 2009 (as amended by Amendment to Credit Agreement dated as of March 23, 2009, as amended by
Amendment No. 2 to Credit Agreement dated as of February 11, 2010, as amended by Amendment No. 3 to
Credit Agreement dated as of February 10, 2011, as amended hereby and as further amended, restated,
extended, supplemented or otherwise modified from time to time, the “Credit Agreement”),
pursuant to which the Lender has extended certain credit facilities to the Borrower.



     B. The Borrower has requested that the Lender agree to certain amendments with respect to the
Credit Agreement, and the Lender has agreed to such request, subject to the terms and conditions of
this Amendment.



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



     1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings, if any, assigned to such terms in the Credit Agreement. As used herein,
“Amendment Documents” means this Amendment, the Credit Agreement (as amended by this
Amendment), and each certificate and other document executed and delivered by the Borrower pursuant
to Section 4 hereof.



     2. Amendment to Credit Agreement. Subject to the terms and conditions set forth
herein, the Credit Agreement is hereby amended such that, after giving effect to all such
amendments, it shall read in its entirety as attached hereto as Exhibit A. The Credit
Agreement, as so amended, is referred to herein as the “Amended Credit Agreement”.



     3. Representations and Warranties. The Borrower hereby represents and warrants to the
Lender as follows:



          (a) After giving effect to this Amendment, no Default or Event of Default has occurred and is
continuing.




          (b) The execution, delivery and performance by the Borrower of this Amendment and the other
Amendment Documents have been duly authorized by all necessary corporate and other organizational
action and do not and will not require any registration with, consent or approval of, or notice to
or action by, any Person (including any Governmental Authority) in order to be effective and
enforceable.




          (c) All representations and warranties of the Borrower contained in Article V of the
Amended Credit Agreement are true and correct on and as of the Effective Date after giving effect
to this Amendment, except to the extent that any such representation and warranty
specifically relates to an earlier date, in which case they shall be true and correct as of such
earlier date after giving effect to this Amendment.




          (d) The Borrower is entering into this Amendment on the basis of its own investigation and for
its own reasons, without reliance upon the Lender or any other Person.




          (e) The obligations of the Borrower under the Amended Credit Agreement and each other Loan
Document are not subject to any defense, counterclaim, set-off, right of recoupment, abatement or
other claim.




     4. Effective Date. This Amendment will become effective when each of the conditions
precedent set forth in this Section 4 has been satisfied (the “Effective Date”):



          (a) The Lender shall have received from the Borrower a duly executed original counterpart to
this Amendment.




1









 





          (b) The Borrower shall have paid to the Lender all reasonable and documented costs and
attorneys’ fees incurred by the Lender in connection with this Amendment and the other Amendment
Documents, to the extent invoiced prior to the Effective Date.




          (c) The Lender shall have received, in form and substance satisfactory to it, such additional
approvals, consents, documents and other information as the Lender shall reasonably request.




     5. Reservation of Rights. The Borrower acknowledges and agrees that neither the
execution nor the delivery by the Lender of this Amendment shall (a) be deemed to create a course
of dealing or otherwise obligate the Lender to execute similar amendments or consents under the
same or similar circumstances in the future or (b) be deemed to create any implied waiver of any
right or remedy of the Lender with respect to any term or provision of any Loan Document.



     6. Miscellaneous.



          (a) Except as expressly amended or modified hereby, all terms, covenants and provisions of the
Credit Agreement are and shall remain in full force and effect and all references therein to such
Credit Agreement shall henceforth refer to the Credit Agreement as modified by this Amendment.
This Amendment shall be deemed incorporated into, and be a part of, the Credit Agreement.




          (b) This Amendment shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. No third party beneficiaries are intended in connection
with this Amendment.




          (c) THIS AMENDMENT IS SUBJECT TO THE PROVISIONS OF SECTION 9.13, 9.14 AND
9.15 OF THE CREDIT AGREEMENT RELATING TO, INTER ALIA, GOVERNING LAW, SUBMISSION TO
JURISDICTION, VENUE, WAIVER OF THE RIGHT TO TRIAL BY JURY, AND JUDICIAL REFERENCE, THE PROVISIONS
OF WHICH SECTIONS ARE BY THIS REFERENCE INCORPORATED HEREIN IN FULL.




          (d) This Amendment may be executed in any number of counterparts, each of which shall be
deemed an original, but all such counterparts together shall constitute but one and the same
instrument. Each of the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party hereto or thereto either in the form of an
executed original or an executed original sent by telecopy, facsimile or other electronic
transmission (including .PDF) to be followed promptly by mailing of a hard copy original, and the
receipt by the Lender of a telecopy, facsimile or other electronically transmitted document
purportedly bearing the signature of the Borrower or one of the other parties hereto, as
applicable, shall bind the Borrower or such other party, respectively, with the same force and
effect as the delivery of a hard copy original. Any failure by the Lender to receive the hard copy
executed original of such document shall not diminish the binding effect of receipt of the
telecopy, facsimile or other electronically transmitted executed original of such document of the
party whose hard copy page was not received by the Lender.




          (e) This Amendment contains the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein. This Amendment supersedes all prior drafts and
communications with respect thereto. This Amendment may not be amended except by a written
agreement executed by the Borrower and the Lender.




          (f) If any term or provision of this Amendment shall be deemed prohibited by or invalid under
any applicable law, such provision shall be invalidated without affecting the remaining provisions
of this Amendment or the Credit Agreement, respectively.




          (g) The Borrower covenants to pay to or reimburse the Lender, upon demand, for all reasonable
and documented out-of-pocket costs and expenses incurred in connection with the development,
preparation, negotiation, execution and delivery, and enforcement of this Amendment.




          (h) This Amendment shall constitute a “Loan Document” under and as defined in the Credit
Agreement.




[Remainder of this page intentionally left blank]




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.



	 	 	 	 	 	 	 

	 	 	GEN-PROBE INCORPORATED, as the Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Herm Rosenman
 

	 	 
	 

	 	Name:
	 	Herm Rosenman	 	 
	 

	 	Title:
	 	Senior Vice President, Finance & Chief Financial Officer	 	 






Signature Page to Amendment No. 4 to Credit Agreement




 









 





	 	 	 	 	 	 	 

	 	 	BANK OF AMERICA, N.A., as the Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ John C. Plecque
 

John C. Plecque
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






Signature Page to Amendment No. 4 to Credit Agreement





 











 





Exhibit A to Amendment No. 4




 





CREDIT AGREEMENT




Dated as of February 27, 2009

as amended by

Amendment to Credit Agreement dated as of March 23, 2009

Amendment No. 2 to Credit Agreement dated as of February 11, 2010

Amendment No. 3 to Credit Agreement dated as of February 10, 2011

Amendment No. 4 to Credit Agreement dated as of June 24, 2011




between




GEN-PROBE INCORPORATED,




as Borrower,




and




BANK OF AMERICA, N.A.,




as Lender




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	ARTICLE I.
	 	DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	1.01
	 	Defined Terms	 	 	1	 
	1.02
	 	Other Interpretive Provisions	 	 	11	 
	1.03
	 	Accounting Terms	 	 	12	 
	1.04
	 	Rounding	 	 	12	 
	1.05
	 	Times of Day	 	 	12	 
	1.06
	 	Letter of Credit Amounts	 	 	12	 
	1.07
	 	Exchange Rates; Currency Equivalents	 	 	12	 
	1.08
	 	Additional Alternative Currencies	 	 	13	 
	1.09
	 	Change of Currency	 	 	13	 
	ARTICLE II.
	 	THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	13	 
	2.01
	 	Loans	 	 	13	 
	2.02
	 	Borrowings, Conversions and Continuations of Loans	 	 	13	 
	2.03
	 	Letters of Credit	 	 	14	 
	2.04
	 	Prepayments	 	 	17	 
	2.05
	 	Termination or Reduction of Commitment	 	 	17	 
	2.06
	 	Repayment of Loans	 	 	17	 
	2.07
	 	Interest	 	 	17	 
	2.08
	 	Commitment Fee	 	 	18	 
	2.09
	 	Computation of Interest and Fees	 	 	18	 
	2.10
	 	Evidence of Debt	 	 	18	 
	2.11
	 	Payments Generally	 	 	18	 
	ARTICLE III.
	 	TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	19	 
	3.01
	 	Taxes	 	 	19	 
	3.02
	 	Illegality	 	 	20	 
	3.03
	 	Inability to Determine Rates	 	 	20	 
	3.04
	 	Increased Costs	 	 	21	 
	3.05
	 	Compensation for Losses	 	 	21	 
	3.06
	 	Mitigation Obligations	 	 	22	 
	3.07
	 	Survival	 	 	22	 
	ARTICLE IV.
	 	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	22	 
	4.01
	 	Conditions of Initial Credit Extension	 	 	22	 
	4.02
	 	Conditions to all Credit Extensions	 	 	23	 
	ARTICLE V.
	 	REPRESENTATIONS AND WARRANTIES	 	 	24	 
	5.01
	 	Existence, Qualification and Power	 	 	24	 
	 
	 	 	 	 	 	 
	 i






 









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	5.02
	 	Authorization; No Contravention	 	 	24	 
	5.03
	 	Governmental Authorization; Other Consents	 	 	24	 
	5.04
	 	Binding Effect	 	 	24	 
	5.05
	 	Financial Statements; No Material Adverse Effect	 	 	24	 
	5.06
	 	Litigation	 	 	24	 
	5.07
	 	No Default	 	 	25	 
	5.08
	 	Ownership of Property; Liens	 	 	25	 
	5.09
	 	Environmental Compliance	 	 	25	 
	5.10
	 	Insurance	 	 	25	 
	5.11
	 	Taxes	 	 	25	 
	5.12
	 	ERISA Compliance	 	 	25	 
	5.13
	 	Subsidiaries	 	 	26	 
	5.14
	 	Margin Regulations; Investment Company Act	 	 	26	 
	5.15
	 	Disclosure	 	 	26	 
	5.16
	 	Compliance with Laws	 	 	26	 
	5.17
	 	Taxpayer Identification Number	 	 	26	 
	5.18
	 	Intellectual Property; Licenses, Etc	 	 	26	 
	5.19
	 	Rights in Collateral; Priority of Liens	 	 	26	 
	ARTICLE VI.
	 	AFFIRMATIVE COVENANTS	 	 	27	 
	6.01
	 	Financial Statements	 	 	27	 
	6.02
	 	Certificates; Other Information	 	 	27	 
	6.03
	 	Notices	 	 	28	 
	6.04
	 	Payment of Obligations	 	 	28	 
	6.05
	 	Preservation of Existence, Etc	 	 	28	 
	6.06
	 	Maintenance of Properties	 	 	28	 
	6.07
	 	Maintenance of Insurance	 	 	29	 
	6.08
	 	Compliance with Laws	 	 	29	 
	6.09
	 	Books and Records	 	 	29	 
	6.10
	 	Inspection Rights	 	 	29	 
	6.11
	 	Use of Proceeds	 	 	29	 
	6.12
	 	Collateral Records	 	 	29	 
	6.13
	 	Security Interests	 	 	29	 
	6.14
	 	Security Accounts	 	 	29	 
	ARTICLE VII.
	 	NEGATIVE COVENANTS	 	 	30	 
	7.01
	 	Fundamental Changes	 	 	30	 
	7.02
	 	Change in Nature of Business	 	 	30	 
	7.03
	 	Use of Proceeds	 	 	30	 
	 
	 	 	 	 	 	 
	 ii






 









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	7.04
	 	Total Outstandings not to Exceed Borrowing Base	 	 	30	 
	ARTICLE VIII.
	 	EVENTS OF DEFAULT AND REMEDIES	 	 	30	 
	8.01
	 	Events of Default	 	 	30	 
	8.02
	 	Remedies Upon Event of Default	 	 	32	 
	ARTICLE IX.
	 	MISCELLANEOUS	 	 	32	 
	9.01
	 	Amendments, Etc	 	 	32	 
	9.02
	 	Notices	 	 	32	 
	9.03
	 	No Waiver; Cumulative Remedies	 	 	33	 
	9.04
	 	Expenses; Indemnity; Damage Waiver	 	 	33	 
	9.05
	 	Payments Set Aside	 	 	34	 
	9.06
	 	Successors and Assigns	 	 	34	 
	9.07
	 	Treatment of Certain Information; Confidentiality	 	 	35	 
	9.08
	 	Right of Setoff	 	 	35	 
	9.09
	 	Interest Rate Limitation	 	 	35	 
	9.10
	 	Counterparts; Integration; Effectiveness	 	 	36	 
	9.11
	 	Survival of Representations and Warranties	 	 	36	 
	9.12
	 	Severability	 	 	36	 
	9.13
	 	Governing Law; Jurisdiction; Etc	 	 	36	 
	9.14
	 	Waiver of Jury Trial	 	 	37	 
	9.15
	 	California Judicial Reference	 	 	37	 
	9.16
	 	Electronic Execution of Assignments and Certain Other Documents	 	 	37	 
	9.17
	 	USA PATRIOT Act Notice	 	 	37	 
	9.18
	 	Time of the Essence	 	 	37	 
	 
	 	 	 	 	 	 
	 iii






 









 






	 	 	 	 	 	 	 
	SCHEDULES
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	1.01
	 	Approved Collateral	 	 	 	 
	5.06
	 	Litigation	 	 	 	 
	5.09
	 	Environmental Matters	 	 	 	 
	5.13
	 	Subsidiaries and Other Equity Investments	 	 	 	 
	9.02
	 	Lender's Office, Certain Addresses for Notices	 	 	 	 
	 
	 	 	 	 	 	 
	EXHIBITS
	 	 	 	 	 	 
	Form of
	 	 	 	 	 	 
	A
	 	Loan Notice	 	 	 	 
	B
	 	Compliance Certificate	 	 	 	 
	C
	 	Pledge Agreement	 	 	 	 
	 
	 	 	 	 	 	 
	 iv











 









 








CREDIT AGREEMENT




     CREDIT AGREEMENT (this “Agreement”) is entered into as of February 27, 2009, between
GEN-PROBE INCORPORATED, a Delaware corporation (“Borrower”) and BANK OF AMERICA, N.A.
(“Lender”).



     Borrower has requested that Lender provide a revolving credit facility, and Lender is willing
to do so on the terms and conditions set forth herein. In consideration of the mutual covenants
and agreements herein contained, the parties hereto covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



     “Agreement” means this Credit Agreement.



     “Alternative Currency” means each of Euro and Sterling, and each other currency (other
than Dollars) that is approved in accordance with Section 1.08.



     “Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by the Lender at such time on the basis of the Spot Rate (determined in respect of the
most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.



     “Applicable Rate” means a per annum rate equal to:



     (a) with respect to Base Rate Loans, 0%;



     (b) with respect to Eurodollar Rate Loans and Letters of Credit, 0.60%; and



     (c) with respect to the commitment fee, 0.25%.



     “Applicable Time” means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such Alternative Currency as
may be determined by the Lender to be necessary for timely settlement on the relevant date in
accordance with normal banking procedures in the place of payment.



     “Approved Collateral” means Collateral satisfactory to Lender in its sole discretion
of the type(s) shown in Schedule 1.01 hereto; provided that (i) Cash Collateral and (ii)
U.S. Treasury bills, notes and bonds maintained at Merrill Lynch Pierce Fenner & Smith, Inc. shall
be deemed satisfactory to the Lender.



     “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
Obligation, the capitalized 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.



     “Audited Financial Statements” means the audited consolidated balance sheet of
Borrower and its Subsidiaries for the fiscal year ended December 31, 2008, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of Borrower and its Subsidiaries, including the notes thereto.



1









 





     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Commitment pursuant to
Section 2.05, and (c) the date of termination of the commitment of Lender to make Loans and
L/C Credit Extensions pursuant to Section 8.02.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (i)
the Federal Funds Rate plus 1/2 of 1.0%, (ii) the Prime Rate, and (iii) except during a Eurodollar
Unavailability Period, the Eurodollar Rate plus 1.0%.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and,
in the case of Eurodollar Rate Loans, having the same Interest Period made by the Lender pursuant
to Section 2.01.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where Lender’s Office is located and, if such day relates to any Eurodollar Rate Loan or a Base
Rate Loan accruing interest based on the Eurodollar Rate, means any such day on which dealings in
Dollar deposits are conducted by and between banks in the London interbank eurodollar market.



     “Cash Collateralize” and “Cash Collateral” have the meaning specified in
Section 2.03(e).



     “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 first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 9.01.



     “Code” means the Internal Revenue Code of 1986.



     “Collateral” shall mean any and all assets and rights and interests in or to property
of Borrower and each of the other Loan Parties, whether real or personal, tangible or intangible,
in which a Lien is granted or purported to be granted pursuant to the Collateral Documents.



     “Collateral Documents” means all agreements, instruments and documents now or
hereafter executed and delivered in connection with this Agreement pursuant to which Liens are
granted or purported to be granted to Lender in Collateral securing all or part of the Obligations
each in form and substance satisfactory to Lender, including the Pledge Agreement and any control
agreement.



     “Collateral Value” means, with respect to each type of Approved Collateral, the amount
determined by Lender at any given time, as follows:



     (a) If the Collateral is stock, the Collateral Value shall be determined by multiplying (i)
the per share price of such stock at the most recent close of trading on a trading exchange for
such stock, times (ii) the number of shares of such stock held by Lender as Collateral. In the
event that stock held as Collateral is not traded on an exchange, the Collateral Value of such
stock shall be determined by obtaining the quoted value of such stock from a reputable brokerage
firm selected by Lender. If no such quote is available, the value will be determined by Lender in
its sole discretion.



     (b) If the Collateral is a mutual fund, the Collateral Value shall be determined by
multiplying (i) the most recent per share net asset value of such mutual fund obtained from the
Wall Street Journal or Barron’s, times (ii) the number of shares of such mutual fund held by Lender
as Collateral. In the event that such net asset value is not available in the Wall Street Journal
or Barron’s, the Collateral Value shall be the value quoted to Lender by a reputable brokerage firm
selected by Lender.



2









 





     (c) If the Collateral is corporate bonds, the Collateral Value shall be determined from the
most recent closing price for such bonds obtained from the Wall Street Journal. If such closing
price is not available in the Wall Street Journal, the Collateral Value shall be the value quoted
to Lender by a reputable brokerage firm selected by Lender.



     (d) If the Collateral is government or agency obligations or bonds, the Collateral Value shall
be determined from the most recent closing bid price for such bonds obtained from the Wall Street
Journal. If such closing bid price is not available in the Wall Street Journal, the Collateral
Value shall be the value quoted to Lender by a reputable brokerage firm selected by Lender.



     (e) If the Collateral is Cash Collateral, the Collateral Value shall be the stated balance or
face amount thereof.



     (f) For all other Collateral, the Collateral Value shall be determined by Lender in its sole
discretion.



     “Commitment” means, as to Lender, its obligation to make Loans to Borrower pursuant to
Section 2.01, in an aggregate principal amount at any one time outstanding not to exceed
the amount of $250,000,000, as such amount may be adjusted from time to time in accordance with
this Agreement.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
B.



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



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



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than L/C Fees an
interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable
to Base Rate Loans plus (iii) 2% per annum; provided, however, that with
respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest
rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b)
when used with respect to L/C Fees, a rate equal to the Applicable Rate plus 2% per annum.



     “Dollar” and “$” mean lawful money of the United States.



     “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the Lender at such time on the basis of
the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of
Dollars with such Alternative Currency.



     “EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



     “Euro” and “EUR” mean the lawful currency of the “Participating Member States”
introduced in accordance with the EMU Legislation.



3









 





     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of
Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA
Affiliate.



     “Eurodollar Base Rate” has the meaning specified in the definition of Eurodollar Rate.



     “Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate
Loan, a rate per annum determined by Lender pursuant to the following formula:



	 	 	 	 	 

	Eurodollar Rate =

	 	Eurodollar Base Rate
 

1.00 – Eurodollar Reserve Percentage
	 	 







Where,




“Eurodollar Base Rate” means, (a) for such Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to (A) the British Bankers Association LIBOR
Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by Lender from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, or (B) if such published rate is not
available at such time for any reason, the rate per annum determined by Lender to be the
rate at which deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued
or converted by Bank of America and with a term equivalent to such Interest Period would be
offered by Bank of America’s London Branch to major banks in the



4









 







London interbank eurodollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period; and




(b) for any day with respect to a Base Rate Loan, the rate per annum equal to (i) BBA LIBOR
for Dollar deposits being delivered in the London interbank market for a term of one month
commencing that day (or, if such day is not a Business Day, on the next preceding Business
Day) or (ii) if such published rate is not available at such time for any reason, the rate
determined by Bank of America to be the rate at which deposits in Dollars for delivery on
such day (or, if such day is not a Business Day, on the next preceding Business Day) in same
day funds in the approximate amount of the Base Rate Loan being made, continued or converted
by Lender and with a term equal to one month would be offered by Bank of America’s London
Branch to major banks in the London interbank Eurodollar market at their request at the date
and time of determination.




“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on
such day, whether or not applicable to Lender, under regulations issued from time to time by
the Board of Governors of the Federal Reserve System of the United States for determining
the maximum reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan
shall be adjusted automatically as of the effective date of any change in the Eurodollar
Reserve Percentage.



     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate (excluding any Loan that bears interest at the rate specified in clause (iii) of
the definition of Base Rate).



     “Eurodollar Unavailability Period” means any period of time during which a notice
delivered to the Borrower in accordance with Section 3.03(a) shall remain in force and
effect.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Taxes” means, with respect to Lender, or any other recipient of any payment
to be made by or on account of any obligation of 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 Lender, in which its applicable Lending Office is located, and (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other jurisdiction in which Borrower
is located, (c) any backup withholding tax that is required by the Code to be withheld from amounts
payable to Lender if it has failed to comply with clause (A) of Section 3.01(e)(ii).



     “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, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined
by Lender.



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



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



5









 





     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



     “Incurrence Borrowing Base” means the amount determined by multiplying the applicable
Collateral Value by the Incurrence Borrowing Base Percentage shown for that type of Approved
Collateral on Schedule 1.01. The Incurrence Borrowing Base shall be calculated separately
for each type of Collateral. Where there is more than one type of Approved Collateral, the
Incurrence Borrowing Base shall be the sum of the amounts determined by such calculations.



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:



     (a) all obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar instruments;



     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments;



     (c) net obligations of such Person under any Swap Contract;



     (d) all obligations of such Person to pay the deferred purchase price of property or services
(other than time-based licenses, raw material purchase contracts and trade accounts payable, in
each case arising in the ordinary course of business and not past due for more than 90 days after
the date on which such obligation became due);



     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property 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;



     (f) All Attributable Indebtedness of such Person;



     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interest in such Person or any other Person, valued, in the case
of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and



     (h) all Guarantees of such Person in respect of any of the foregoing.



6









 





     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. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 9.04(b).



     “Information” has the meaning specified in Section 9.07.



     “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds one month, the
respective dates that fall every 30 days after the beginning of such Interest Period shall also be
Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each calendar
month and the Maturity Date.



     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by Borrower in its
Loan Notice; provided that:




     (i) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (ii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and




     (iii) no Interest Period shall extend beyond the Maturity Date.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the L/C Application,
and any other document, agreement and instrument entered into by Lender and Borrower (or any
Subsidiary) or in favor of Lender and relating to such Letter of Credit.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “L/C Application” means an application and agreement for the issuance or amendment of
a Letter of Credit in the form from time to time in use by Lender.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



7









 





     “L/C Expiration Date” means the day that is thirty days prior to the Maturity Date
then in effect (or, if such day is not a Business Day, the next preceding Business Day).



     “L/C Fee” has the meaning specified in Section 2.03(g).



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all L/C
Borrowings and all Unreimbursed Amounts. For purposes of computing the amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of determination a
Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in
the amount so remaining available to be drawn.



     “L/C Sublimit” means an amount equal to $10,000,000. The L/C Sublimit is part of, and
not in addition to, the Commitment.



     “Lender” has the meaning specified in the introductory paragraph hereto.



     “Lender’s Office” means Lender’s address and, as appropriate, account as set forth on
Schedule 9.02, or such other address or account as Lender may from time to time notify
Borrower.



     “Letter of Credit” means any standby letter of credit issued hereunder. Letters of
Credit may be issued in Dollars or in an Alternative Currency.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Loan” has the meaning specified in Section 2.01.



     “Loan Documents” means this Agreement, each Issuer Document, each Collateral Document,
and any certificate delivered by or on behalf of any Loan Party pursuant hereto.



     “Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one
Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.



     “Loan Parties” means, collectively, Borrower and each Affiliate of Borrower executing
a Loan Document.



     “Maintenance Borrowing Base” means the amount determined by multiplying the applicable
Collateral Value by the Maintenance Borrowing Base Percentage shown for that type of Approved
Collateral in the table on Schedule 1.01. The Maintenance Borrowing Base shall be
calculated separately for each type of Collateral. Where there is more than one type of Approved
Collateral, the Maintenance Borrowing Base shall be the sum of the amounts determined by such
calculations.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) of Borrower and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of any Loan Party to perform its obligations under any Loan
Document to which it is a party; (c) a material adverse effect upon the legality, validity, binding
effect or enforceability against any Loan Party of any Loan Document to which it is a party, or (d)
a material adverse effect upon the perfection or priority of any Lien under the Collateral
Documents.



     “Maturity Date” means February 24, 2012; provided, however, that if such date is not a
Business Day, the Maturity Date shall be the next preceding Business Day.



8









 





     “Medicaid” means that government-sponsored entitlement program under Title XIX, P.L.
89-97 of the Social Security Act, which provides federal grants to states for medical assistance
based on specific eligibility criteria, as set forth on Section 1396. et seq. of Title 42 of the
United States Code.



     “Medicare” means that government-sponsored insurance program under Title XVIII, P.L.
89-97, of the Social Security Act, which provides for a health insurance system for eligible
elderly and disabled individuals, as set forth at Section 1395, et seq. of Title 42 of the United
States Code.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



     “Other Taxes” means all present or future stamp, intangible 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.



     “Outstanding Amount” means (i) with respect to Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of Loans, occurring on such date; and (ii) with respect to any L/C Obligations on any
date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on
such date after giving effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date, including as a result of
any reimbursement by the Borrower of Unreimbursed Amounts (including by means of a Borrowing).



     “Participant” has the meaning specified in Section 9.06(c).



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by Borrower or any ERISA Affiliate or to which Borrower or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.



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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by Borrower or, with respect to any such plan that is subject to Section 412 of
the Code or Title IV of ERISA, any ERISA Affiliate.



     “Pledge Agreement” means the Security Agreement — Securities, substantially in the
form of Exhibit C.



9









 





     “Pledged Collateral” means the “Collateral”, as defined in the Pledge Agreement.



     “Prime Rate” means the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank
of America based upon various factors including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in such rate announced by
Bank of America shall take effect at the opening of business on the day specified in the public
announcement of such change.



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



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Loans, a Loan Notice, and (b) with respect to an L/C Credit Extension, an L/C
Application.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, general counsel, treasurer, assistant treasurer or controller of a Loan Party and, solely
for purposes of notices given pursuant to Article II, any other officer or employee of the
applicable Loan Party so designated by any of the foregoing officers in a notice to Lender. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.



     “Revaluation Date” means, with respect to any Letter of Credit, each of the following:
(a) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (b) each
date of an amendment of any such Letter of Credit having the effect of increasing the amount
thereof (solely with respect to the increased amount), (c) each date of any payment by the Lender
under any Letter of Credit denominated in an Alternative Currency, and (d) such additional dates as
the Lender shall determine in its reasonable discretion.



     “Social Security Act” means the Social Security Act of 1965.



     “Spot Rate” for a currency means the rate determined by the Lender to be the rate
quoted as the spot rate for the purchase by the Lender of such currency with another currency
through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two
Business Days prior to the date as of which the foreign exchange computation is made;
provided that the Lender may obtain such spot rate from another financial institution
designated by the Lender if the Lender does not have as of the date of determination a spot buying
rate for any such currency; and provided further that the Lender may use such spot
rate quoted on the date as of which the foreign exchange computation is made in the case of any
Letter of Credit denominated in an Alternative Currency.



     “Sterling” and “£” mean the lawful currency of the United Kingdom.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction



10









 




is governed by or subject to any master agreement, and (b) any and all transactions of any
kind, and the related confirmations, which are subject to the terms and conditions of, or governed
by, any form of master agreement published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such
master agreement, together with any related schedules, a “Master Agreement”), including any
such obligations or liabilities under any Master Agreement.




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



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



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



     “Threshold Amount” means $10,000,000.



     “TLS Acquisition” means the acquisition by Borrower or a Subsidiary of Borrower of the
outstanding and to be issued ordinary shares of Tepnel Life Sciences, PLC.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



     “United States” and “U.S.” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c).



     1.02 Other Interpretive 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. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) 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 or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions



11









 




consolidating, amending, replacing or interpreting such law and any reference to any law or
regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified
or supplemented from time to time, and (vi) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.




     (b) 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.”



     (c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03 Accounting Terms.



     (a) Generally. 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 applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either Borrower or Lender
shall so request, Lender and Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in GAAP;
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) Borrower shall provide to
Lender 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.



     1.04 Rounding. Any financial ratios required to be maintained by Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of 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).



     1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Pacific time (daylight or standard, as applicable).



     1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter
of Credit in effect at such time; provided, however, that with respect to any
Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides
for one or more automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of
Credit after giving effect to all such increases, whether or not such maximum stated amount is in
effect at such time.



     1.07 Exchange Rates; Currency Equivalents.



     (a) The Lender shall determine the Spot Rates as of each Revaluation Date to be used for
calculating Dollar Equivalent amounts of Letters of Credit and Outstanding Amounts of L/C
Obligations denominated in Alternative Currencies. Such Spot Rates shall become effective as of
such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur. Except for purposes of financial
statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or
except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for
purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the
Lender.



     (b) Wherever in this Agreement in connection with the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Letter of Credit is denominated in



12









 




an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of
such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit
being rounded upward), as determined by the Lender.




     1.08 Additional Alternative Currencies. The Borrower may from time to time request that
Letters of Credit be issued in a currency other than those specifically listed in the definition of
“Alternative Currency;” provided that such requested currency is a lawful currency (other
than Dollars) that is readily available and freely transferable and convertible into Dollars. Any
such request shall be made to the Lender not later than 11:00 a.m., ten (10) Business Days prior to
the date of the desired Letter of Credit (or such other time or date as may be agreed by the
Lender, in its sole discretion). The Lender shall notify the Borrower not later than 11:00 a.m.,
ten (10) Business Days after receipt of such request whether it consents, in its sole discretion,
to the issuance of Letters of Credit in such requested currency. Any failure by the Lender to
respond to such request within such time period shall be deemed to be a refusal by the Lender to
permit Letters of Credit to be issued in such requested currency. If the Lender consents to the
issuance of Letters of Credit in such requested currency, such currency shall thereupon be deemed
for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit
issuances.



     1.09 Change of Currency.



     (a) Each obligation of the Borrower to make a payment denominated in the national currency
unit of any member state of the European Union that adopts the Euro as its lawful currency after
the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with
the EMU Legislation).



     (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Lender may from time to time specify to be appropriate to reflect the adoption
of the Euro by any member state of the European Union and any relevant market conventions or
practices relating to the Euro.



     (c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Lender may from time to time specify to be appropriate to reflect a change in
currency of any other country and any relevant market conventions or practices relating to the
change in currency.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Loans. Subject to the terms and conditions set forth herein, Lender severally agrees to
make loans in Dollars (each such loan, a “Loan”) to Borrower from time to time, on any
Business Day during the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of the Commitment; provided, however, that after giving
effect to any Borrowing, (i) the Total Outstandings shall not exceed the Commitment, and (ii) the
Total Outstandings shall not exceed the Incurrence Borrowing Base. Within the limits of the
Commitment, and subject to the other terms and conditions hereof, Borrower may borrow under this
Section 2.01, prepay under Section 2.04, and reborrow under this Section
2.01. Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.



     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon Borrower’s irrevocable notice to Lender, which may be
given by telephone. Each such notice must be received by Lender not later than 11:00 a.m. (i)
three Business Days prior to the requested date of any Borrowing of, conversion to or continuation
of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii)
on the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to Lender of a
written Loan Notice, appropriately completed and signed by a Responsible Officer of Borrower. Each
Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount
of $1,000,000 or a whole multiple of $100,000 in excess thereof. Each Borrowing of or conversion
to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. If Borrower fails to specify a Type of Loan in a Loan Notice or if Borrower fails
to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be
made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.



13









 





     (b) Following receipt of a Loan Notice, upon satisfaction of the applicable conditions set
forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section
4.01), Lender shall make funds available to Borrower either by (i) crediting the account of
Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and reasonably acceptable to)
Lender by Borrower; provided, however, that if, on the date the Loan Notice with
respect to such Borrowing is given by Borrower, there are L/C Borrowings outstanding, then the
proceeds of such Borrowing first, shall be applied, to the payment in full of any such L/C
Borrowings, and second, shall be made available to Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
an Event of Default, no Loans may be requested as, converted to or continued as Eurodollar Rate
Loans without the consent of Lender, and Lender may demand that any or all of the then outstanding
Eurodollar Rate Loans be converted immediately to Base Rate Loans and Borrower agrees to pay all
amounts due under Section 3.05 in accordance with the terms thereof due to any such
conversion.



     (d) Lender shall promptly notify Borrower of the interest rate applicable to any Interest
Period for Eurodollar Rate Loans upon determination of such interest rate.



     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than 10 Interest
Periods in effect with respect to Loans.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) Lender agrees, (1) from
time to time on any Business Day during the period from the Closing Date until the L/C
Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more
Alternative Currencies for the account of Borrower, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed
the Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the L/C
Sublimit, and (z) the Total Outstandings shall not exceed the Incurrence Borrowing Base.
Each request by Borrower for the issuance or amendment of a Letter of Credit shall be deemed
to be a representation by Borrower that the L/C Credit Extension so requested complies with
the conditions set forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, Borrower’s ability to obtain Letters
of Credit shall be fully revolving, and accordingly Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have expired or that have
been drawn upon and reimbursed.




     (ii) Lender shall be under no obligation to issue any Letter of Credit, if:




     (A) subject to Section 2.03(b)(ii), unless otherwise specifically
agreed by Lender, the expiry date of such requested Letter of Credit would occur
more than twelve months after the date of issuance or last extension of such Letter
of Credit; or




     (B) unless otherwise specifically agreed by Lender, the expiry date of such
requested Letter of Credit would occur later than 365 days after the Maturity Date;




     (C) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain Lender from issuing such Letter of
Credit, or any Law applicable to Lender or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over
Lender shall prohibit, or request that Lender refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall impose upon
Lender with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which Lender is not otherwise compensated hereunder) not in effect
on the Closing Date, or shall impose upon Lender any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which Lender in good faith
deems material to it;



14









 






     (D) the issuance of such Letter of Credit would violate one or more policies of
Lender applicable to letters of credit generally;




     (E) such Letter of Credit is in an initial stated amount less than $25,000;




     (F) such Letter of Credit is to be denominated in a currency other than Dollars
or an Alternative Currency; or




     (G) unless specifically agreed to by Lender, such Letter of Credit contains any
provisions for automatic reinstatement of the stated amount after any drawing
thereunder.




     (iii) Lender shall not be obligated to amend any Letter of Credit if (A) Lender would
not be obligated at such time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of Borrower delivered to Lender in the form of a L/C Application, appropriately
completed and signed by a Responsible Officer of Borrower. Such L/C Application must be
received by Lender not later than 11:00 a.m. at least two Business Days (or such later date
and time as Lender may agree in a particular instance in its sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the case of a request
for an initial issuance of a Letter of Credit, such L/C Application shall specify in form
and detail satisfactory to Lender: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the
purpose and nature of the requested Letter of Credit; and (H) such other matters as Lender
may require. In the case of a request for an amendment of any outstanding Letter of Credit,
such L/C Application shall specify in form and detail satisfactory to Lender (I) the Letter
of Credit to be amended; (II) the proposed date of amendment thereof (which shall be a
Business Day); (III) the nature of the proposed amendment; and (IV) such other matters as
Lender may require. Additionally, Borrower shall furnish to Lender such other documents and
information pertaining to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as Lender may require.




     (ii) If the Borrower so requests in any applicable L/C Application, the Lender may, in
its sole discretion, agree to issue a Letter of Credit that has automatic extension
provisions (each, an “Auto-Extension Letter of Credit”); provided that any
such Auto-Extension Letter of Credit must permit the Lender to prevent any such extension at
least once in each twelve-month period (commencing with the date of issuance of such Letter
of Credit) by giving prior notice to the beneficiary thereof not later than a day in each
such twelve-month period to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by the Lender, the Borrower shall not be required to make a
specific request to the Lender for any such extension.




     (iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, Lender
will also deliver to Borrower a true and complete copy of such Letter of Credit or
amendment.



     (c) Drawings and Reimbursements. Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of Credit, Lender shall notify Borrower
thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the Borrower
shall reimburse the Lender in such Alternative Currency, unless (A) the Lender (at its option)
shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the
absence of any such requirement for reimbursement in Dollars, the Borrower shall have notified the
Lender promptly following receipt of the notice of drawing that the Borrower will reimburse the
Lender in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of
Credit denominated in an Alternative Currency, the Lender shall notify the Borrower of the Dollar
Equivalent of the amount of the drawing promptly following the determination thereof. Not later
than 11:00 a.m. on the date of any payment by the Lender under a Letter of Credit to be reimbursed
in Dollars, or the Applicable Time on the date of any payment by the Lender under a Letter of
Credit to be reimbursed in an Alternative Currency, the Borrower shall reimburse Lender in an
amount equal to the amount of



15









 




such drawing and in the applicable currency. If Borrower fails to so reimburse Lender by such
time, Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on
the honor date in an amount equal to the amount of the unreimbursed drawing (expressed in Dollars
in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (the “Unreimbursed Amount”), without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but
subject to the amount of the unutilized portion of the Commitment and the conditions set forth in
Section 4.02 (other than the delivery of a Loan Notice).




     (d) Obligations Absolute. The obligation of Borrower to reimburse Lender for each
drawing under each Letter of Credit shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all circumstances, including the
following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), Lender or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by Lender under such Letter of Credit against presentation of a draft
or certificate that does not strictly comply with the terms of such Letter of Credit; or any
payment made by Lender under such Letter of Credit to any Person purporting to be a trustee
in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any proceeding under any
Debtor Relief Law;




     (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Borrower or in the relevant currency markets generally;
or




     (vi) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, Borrower or any Subsidiary.


Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is
delivered to it and, in the event of any claim of noncompliance with Borrower’s instructions or
other irregularity, Borrower will promptly notify Lender. Borrower shall be conclusively deemed to
have waived any such claim against Lender and its correspondents unless such notice is given as
aforesaid.




     (e) Cash Collateral. Upon the request of Lender, if, as of the Maturity Date, any L/C
Obligation for any reason remains outstanding, Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.04 and
8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes hereof, “Cash Collateralize” means to pledge and deposit with or deliver to
Lender, as collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to Lender. Derivatives of such term (including
“Cash Collateral”) have corresponding meanings. Borrower hereby grants to Lender a
security interest in all such cash, deposit accounts and all balances therein and all proceeds of
the foregoing. Cash collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America.



     (f) Applicability of ISP. Unless otherwise expressly agreed by Lender and Borrower
when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit.



16









 





     (g) L/C Fees. Borrower shall pay to Lender a letter of credit fee (the “L/C
Fee”) for each Letter of Credit equal to the Applicable Rate times the Dollar
Equivalent of the daily amount available to be drawn under such Letter of Credit. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. L/C Fees shall be
(i) due and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of such Letter of Credit,
on the L/C Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in
arrears. If there is any change in the Applicable Rate during any quarter, the Dollar Equivalent
of the daily amount available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the
request of the Lender, while any Event of Default exists, all L/C Fees shall accrue at the Default
Rate.



     (h) Documentary and Processing Charges. Borrower shall pay directly to Lender the
customary issuance, presentation, amendment and other processing fees, and other standard costs and
charges, of Lender relating to letters of credit as from time to time in effect. Such individual
customary fees and standard costs and charges are due and payable on demand and are nonrefundable.



     (i) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Documents, the terms hereof shall control.



     2.04 Prepayments.



     (a) Borrower may, upon notice to Lender, at any time or from time to time voluntarily prepay
Loans in whole or in part without premium or penalty; provided that (i) such notice must be
received by Lender not later than 11:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate
Loans are to be prepaid, the Interest Period(s) of such Loans. If such notice is given by
Borrower, Borrower shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall
be accompanied by all accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section 3.05.



     (b) If for any reason the Total Outstandings at any time exceed the Commitment then in effect,
Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess; provided, however, that Borrower shall not
be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.04(b)
unless after the prepayment in full of the Loans the Total Outstandings exceed the Commitment then
in effect.



     2.05 Termination or Reduction of Commitment. Borrower may, upon notice to Lender, terminate
the Commitment, or from time to time permanently reduce the Commitment; provided that (i)
any such notice shall be received by Lender not later than 11:00 a.m. five Business Days prior to
the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate
amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) Borrower shall
not terminate or reduce the Commitment if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Outstandings would exceed the Commitment, and (iv) if, after
giving effect to any reduction of the Commitment, the L/C Sublimit exceeds the amount of the
Commitment, such L/C Sublimit shall be automatically reduced by the amount of such excess. All
fees accrued until the effective date of any termination of the Commitment shall be paid on the
effective date of such termination.



     2.06 Repayment of Loans. Borrower shall repay to Lender on the Maturity Date the aggregate
principal amount of Loans outstanding on such date.



     2.07 Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and
(ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate.



17









 





     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, then upon the request of Lender, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Laws.




     (iii) Upon the request of Lender, while any Event of Default exists, Borrower shall pay
interest on the principal amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.




     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     2.08 Commitment Fee. In addition to certain fees described in subsections (g) and
(h) of Section 2.03, Borrower shall pay to Lender a commitment fee equal to the
Applicable Rate times the actual daily amount by which the Commitment exceeds the sum of
(i) the Outstanding Amount of Loans and (ii) the Outstanding Amount of L/C Obligations. The
commitment fee shall accrue at all times during the Availability Period, including at any time
during which one or more of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the last day of the
Availability Period. The commitment fee shall be calculated quarterly in arrears.



     2.09 Computation of Interest and Fees. 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
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). Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid, provided that
any Loan that is repaid on the same day on which it is made shall bear interest for one day. Each
determination by Lender of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.



     2.10 Evidence of Debt. The Credit Extensions made by Lender shall be evidenced by one or more
accounts or records maintained by Lender in the ordinary course of business. The accounts or
records maintained by Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by Lender to Borrower 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
Borrower hereunder to pay any amount owing with respect to the Obligations.



     2.11 Payments Generally.



     (a) (i) General. All payments to be made by Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by Borrower hereunder shall be made to Lender, at the Lending Office
in Dollars and in immediately available funds not later than 12:00 noon on the date specified
herein. All payments received by the Lender (i) after 12:00 noon, in the case of payments in
Dollars, or (ii) after the Applicable Time specified by the Lender in the case of payments in an
Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue. If any payment to be made by Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be. If, for any reason, the Borrower is prohibited by any Law from making any required
payment hereunder in an Alternative Currency (if required to do so by the terms hereof), the
Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency
payment amount.



18









 





     (ii) On each date when the payment of any interest or fees are due hereunder, Borrower agrees
to maintain on deposit in an ordinary checking account maintained by Borrower with Lender (as such
account shall be designated by Borrower in a written notice to Lender from time to time, the
“Borrower Account”) an amount sufficient to pay such interest or fees in full on such date.
Borrower hereby authorizes Lender (A) to deduct automatically all principal, interest or fees when
due hereunder from the Borrower Account, and (B) if and to the extent any payment of principal,
interest or fees under this Agreement is not made when due to deduct any such amount from any or
all of the accounts of Borrower maintained at Lender. Lender agrees to provide written notice to
Borrower of any automatic deduction made pursuant to this Section 2.11(a)(ii) showing in
reasonable detail the amounts of such deduction. Lender agrees to reimburse Borrower for any
amounts deducted from such accounts in excess of amount due hereunder and under any other Loan
Documents.



     (b) Funding Source. Nothing herein shall be deemed to obligate Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a representation by Lender
that it has obtained or will obtain the funds for any Loan in any particular place or manner.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments by Borrower to or on account of any obligation of Borrower hereunder or
under any other Loan Document shall to the extent permitted by applicable Laws be made free and
clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require
Borrower or Lender to withhold or deduct any Tax, such Tax shall be withheld or deducted in
accordance with such Laws as determined by Borrower or Lender, as the case may be, upon the basis
of the information and documentation to be delivered pursuant to subsection (e) below.




     (ii) If Borrower or Lender shall be required by the Code to withhold or deduct any
Taxes, including both United States Federal backup withholding and withholding taxes, from
any payment, then (A) Lender shall withhold or make such deductions as are determined by
Lender to be required based upon the information and documentation it has received pursuant
to subsection (e) below, (B) Lender shall timely pay the full amount withheld or deducted to
the relevant Governmental Authority in accordance with the Code, and (C) to the extent that
the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrower shall be increased as necessary so that after any required
withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) Lender receives an amount equal to the sum it
would have received had no such withholding or deduction been made.



     (b) Payment of Other Taxes by Borrower. Without limiting the provisions of subsection
(a) above, Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable Laws.



     (c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, Borrower shall, and does hereby, indemnify Lender and shall make payment in respect
thereof within 10 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) withheld or deducted by Borrower or paid by Lender, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of any such payment or liability delivered
to Borrower by Lender, shall be conclusive absent manifest error.




     (ii) Without limiting the provisions of subsection (a) or (b) above, Lender shall, and
does hereby, indemnify Borrower, and shall make payment in respect thereof within 10 days
after demand therefor, against any and all Taxes and any and all related losses, claims,
liabilities, penalties, interest and expenses (including the fees, charges and disbursements
of any counsel for Borrower) incurred by or asserted against Borrower by any Governmental
Authority as a result of the failure by Lender to deliver, or as a result of the inaccuracy,
inadequacy or deficiency of, any documentation required to be delivered by Lender to
Borrower pursuant to subsection (e). The agreements in this clause (ii) shall survive the
termination of the Commitment and the repayment, satisfaction or discharge of all other
Obligations.



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     (d) Evidence of Payments. Upon request by Borrower, after any payment of Taxes by
Borrower to a Governmental Authority as provided in this Section 3.01, Borrower shall
deliver to Lender or Lender shall deliver to Borrower, as the case may be, the original or a
certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy
of any return required by Laws to report such payment or other evidence of such payment reasonably
satisfactory to Borrower.



     (e) Status of Lender. (i) Lender shall deliver to Borrower, at the time or times
prescribed by applicable Laws or when reasonably requested by Borrower, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit Borrower to determine
(A) whether or not payments made hereunder or under any other Loan Document are subject to Taxes,
(B) if applicable, the required rate of withholding or deduction, and (C) Lender’s entitlement to
any available exemption from, or reduction of, applicable Taxes in respect of all payments to be
made to Lender by Borrower pursuant to this Agreement or otherwise to establish Lender’s status for
withholding tax purposes in the applicable jurisdiction.




     (ii) Lender shall promptly (A) notify Borrower of any change in circumstances which
would modify or render invalid any claimed exemption or reduction, and (B) take such steps
as shall not be materially disadvantageous to it, in the reasonable judgment of Lender, and
as may be reasonably necessary (including the re-designation of its Lending Office) to avoid
any requirement of applicable Laws of any jurisdiction that Borrower make any withholding or
deduction for taxes from amounts payable to such Lender.



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



     3.02 Illegality. If Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on
the authority of Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by Lender to Borrower, any obligation of Lender to make
or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans, or, if
such notice relates to the unlawfulness or asserted unlawfulness of charging interest based on the
Eurodollar Rate, to make Base Rate Loans as to which the interest rate is determined with reference
to the Eurodollar Rate shall be suspended until Lender notifies Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice, Borrower shall,
upon demand from Lender prepay or, if applicable, convert all Eurodollar Rate Loans of Lender to
Base Rate Loans, and Base Rate Loans as to which the interest rate is determined with reference to
the Eurodollar Rate to Base Rate Loans as to which the rate of interest is not determined with
reference to the Eurodollar Rate, either on the last day of the Interest Period therefor, if Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if Lender
may not lawfully continue to maintain such Eurodollar Rate Loans or Base Rate Loans.
Notwithstanding the foregoing and despite the illegality for Lender to make, maintain or fund
Eurodollar Rate Loans or Base Rate Loans as to which the interest rate is determined with reference
to the Eurodollar Rate, Lender shall remain committed to make Base Rate Loans and shall be entitled
to recover interest at the Base Rate. Upon any such prepayment or conversion, Borrower shall also
pay accrued interest on the amount so prepaid or converted and all amounts due under Section
3.05 in accordance with the terms thereof due to such prepayment or conversion.



     3.03 Inability to Determine Rates. If Lender determines in connection with any request for a
Eurodollar Rate Loan or a conversion to or continuation thereof that (i) Dollar deposits are not
being offered to banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for
determining the Eurodollar Base Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or (iii) the Eurodollar Base Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
Lender of funding such Loan, Lender will promptly so notify



20









 




Borrower. Thereafter, the obligation of Lender to make or maintain Eurodollar Rate Loans and
Base Rate Loans as to which the interest rate is determined with references to the Eurodollar Rate
shall be suspended until Lender revokes such notice. Upon receipt of such notice, Borrower may
revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate
Loans or, failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.




     3.04 Increased Costs.



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




     (ii) 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 credit extended or participated in by, Lender (except any reserve requirement
reflected in the Eurodollar Rate);




     (iii) subject Lender to any tax of any kind whatsoever with respect to this Agreement,
any Letter of Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation
of payments to Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by Lender); or




     (iv) impose on Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by Lender or any Letter of
Credit;


and the result of any of the foregoing shall be to increase the cost to Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to Lender of participating in, issuing or maintaining any Letter of Credit, or
to reduce the amount of any sum received or receivable by Lender hereunder (whether of principal,
interest or any other amount) then, upon request of Lender, Borrower will pay to Lender such
additional amount or amounts as will compensate Lender for such additional costs incurred or
reduction suffered.




     (b) Capital Requirements. If Lender determines that any Change in Law affecting
Lender or any Lending Office of Lender or Lender’s holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on Lender’s capital or on
the capital of Lender’s holding company, if any, as a consequence of this Agreement, the Commitment
or the Loans made by Lender, or the Letters of Credit issued by it, to a level below that which
Lender or Lender’s holding company could have achieved but for such Change in Law (taking into
consideration Lender’s policies and the policies of Lender’s holding company with respect to
capital adequacy), then from time to time Borrower will pay to Lender such additional amount or
amounts as will compensate Lender or Lender’s holding company for any such reduction suffered.



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



     (d) Delay in Requests. Failure or delay on the part of Lender to demand compensation
pursuant to the foregoing provisions of this Section shall not constitute a waiver of Lender’s
right to demand such compensation, provided that Borrower shall not be required to
compensate Lender pursuant to the foregoing provisions of this Section for any increased costs
incurred or reductions suffered more than six months prior to the date that such Lender notifies
Borrower of the Change in Law giving rise to such increased costs or reductions and of 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 six-month period referred to above shall be
extended to include the period of retroactive effect thereof).



     3.05 Compensation for Losses. Upon demand of Lender from time to time, Borrower shall
promptly compensate Lender for and hold Lender harmless from any loss, cost or expense incurred by
it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise); or



21









 





     (b) any failure by Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by Borrower; or



     (c) any failure by Borrower to make payment in respect of any drawing under any Letter of
Credit denominated in an Alternative Currency on its scheduled due date or any payment thereof in a
different currency;


including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. Borrower shall also pay any customary administrative
fees charged by Lender in connection with the foregoing. For purposes of calculating amounts
payable by Borrower to Lender under this Section 3.05, Lender shall be deemed to have
funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.




     3.06 Mitigation Obligations. If Lender requests compensation under Section 3.04, or
Borrower is required to pay any additional amount to Lender or any Governmental Authority for the
account of Lender, pursuant to Section 3.01, or if Lender gives a notice pursuant to
Section 3.02, then Lender shall, as applicable, 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
Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for
the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not
subject Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to
Lender. Borrower hereby agrees to pay all reasonable costs and expenses incurred by Lender in
connection with any such designation or assignment.



     3.07 Survival. All of Borrower’s obligations under this Article III shall survive
termination of the Commitment, and repayment of all other Obligations hereunder.



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of Lender to make its initial
Credit Extension hereunder is subject to satisfaction of the following conditions precedent:



     (a) Lender’s receipt of the following, each of which shall be originals or telecopies
(followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party (if applicable), each dated the Closing Date (or, in
the case of certificates of governmental officials, a recent date before the Closing Date) and each
in form and substance reasonably satisfactory to Lender:




     (i) executed counterparts of this Agreement, and all Collateral Documents, sufficient
in number for distribution to Lender and Borrower;




     (ii) [Reserved];




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as Lender may require
evidencing the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this Agreement and the other
Loan Documents to which such Loan Party is a party;




     (iv) such documents and certifications as Lender may reasonably require to evidence
that each Loan Party is duly organized or formed, and that each Loan Party is validly
existing, in good standing and qualified to engage in business in each jurisdiction where
its ownership, lease or operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect;



22









 






     (v) a favorable opinion of counsel to the Loan Parties acceptable to Lender, addressed
to Lender, in form and substance satisfactory to Lender;




     (vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required by any Governmental Authority in
connection with the execution, delivery and performance by such Loan Party and the validity
against such Loan Party of the Loan Documents to which it is a party, and such consents,
licenses and approvals shall be in full force and effect, or (B) stating that no such
consents, licenses or approvals are so required;




     (vii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the
conditions specified in Sections 4.02(a) and (b) have been satisfied, and
(B) that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect;




     (viii) evidence that all commitments under the Credit Agreement dated July 1, 2004
between Borrower and Wells Fargo Bank, N.A., as lender (as amended, the “Existing Credit
Agreement”), have been or concurrently with the Closing Date are being terminated, and
all outstanding amounts thereunder paid in full and all Liens securing obligations
thereunder terminated; and




     (ix) such other assurances, certificates, documents, consents or opinions as Lender
reasonably may require.



     (b) Any fees required to be paid on or before the Closing Date shall have been paid.



     (c) Unless waived by Lender, Borrower shall have paid all reasonable fees, charges and
disbursements of counsel to Lender (directly to such counsel if requested by Lender) to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements
incurred or to be incurred by it through the closing proceedings (provided that such estimate shall
not thereafter preclude a final settling of accounts between Borrower and Lender).



     (d) The Closing Date shall have occurred on or before February 27, 2009.



     4.02 Conditions to all Credit Extensions. The obligation of Lender to honor any Request for
Credit Extension is subject to the following conditions precedent:



     (a) The representations and warranties of Borrower and each other Loan Party contained in
Article V or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct on and as of the
date of such Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct as of such
earlier date, and except that for purposes of this Section 4.02, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to
the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01.



     (b) No Default shall exist, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.



     (c) After giving effect to the proposed Credit Extension, the Total Outstandings shall not
exceed the Incurrence Borrowing Base.



     (d) Lender shall have received a Request for Credit Extension in accordance with the
requirements hereof.



     (e) Lender shall have received, in form and substance satisfactory to it, such other
certificates or documents related to the Collateral as Lender reasonably may require.



23









 





     (f) In the case of any request for a Letter of Credit to be denominated in an Alternative
Currency, there shall not have occurred any change in national or international financial,
political or economic conditions or currency exchange rates or exchange controls which in the
reasonable opinion of the Lender would make it impracticable for such Letter of Credit to be
denominated in the relevant Alternative Currency.



     Each Request for Credit Extension submitted by Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a), (b)
and (c) have been satisfied on and as of the date of the applicable Credit Extension.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     Borrower represents and warrants to Lender that:



     5.01 Existence, Qualification and Power. Each Loan Party and each Subsidiary thereof (a) is
duly organized or formed, validly existing and, as applicable, in good standing under the Laws of
the jurisdiction of its incorporation or organization, (b) has all requisite power and authority
and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease
its assets and carry on its business and (ii) execute, deliver and perform its obligations under
the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as
applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such qualification or license;
except in each case referred to in clause (b)(i), or (c), to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to be made under (i)
any material Contractual Obligation to which such Person is a party or affecting such Person or the
properties of such Person or any of its Subsidiaries or (ii) any material order, injunction, writ
or decree of any Governmental Authority or any arbitral award to which such Person or its property
is subject; or (c) violate any material Law.



     5.03 Governmental Authorization; Other Consents. No material approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Party of this Agreement or any other Loan Document, other than
court filings required in connection with judicial enforcement proceedings.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, except as enforceability may be limited by Debtor
Relief Laws or by general equitable principles (whether enforcement is sought by proceedings in law
or in equity).



     5.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements
(i) were prepared in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of Borrower and its Subsidiaries as of the date thereof and their results
of operations for the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show
all material indebtedness and other liabilities, direct or contingent, of Borrower and its
Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and
Indebtedness to the extent required to be shown in accordance with GAAP.



     (b) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of Borrower, overtly threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any
of their properties or revenues (a) that purport to affect or pertain to this



24









 




Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b)
except as specifically disclosed in Schedule 5.06, either individually or in the aggregate,
as to which there is a reasonable likelihood that there would ensue a Material Adverse Effect, and
there has been no change in the status, or financial effect on any Loan Party or any Subsidiary
thereof, of the matters described on Schedule 5.06 that would reasonably be expected to
result in a Material Adverse Effect.




     5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is in default under or
with respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.



     5.08 Ownership of Property; Liens. Each of Borrower and each Subsidiary has good record and
marketable title in fee simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
Collateral is subject to no Liens, other than Liens permitted by the Pledge Agreement.



     5.09 Environmental Compliance. Borrower and its Subsidiaries conduct in the ordinary course
of business a review of the effect of existing Environmental Laws and claims alleging potential
liability or responsibility for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof Borrower has reasonably concluded that, except
as specifically disclosed in Schedule 5.09, such Environmental Laws and claims would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10 Insurance. The properties of Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of Borrower, in such amounts (after giving
effect to any self-insurance compatible with the following standards), with such deductibles and
covering such risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where Borrower or the applicable Subsidiary operates.



     5.11 Taxes. Borrower and its Subsidiaries have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate reserves have
been provided in accordance with GAAP. There is no proposed tax assessment against Borrower or any
Subsidiary that would reasonably be expected to have a Material Adverse Effect.



     5.12 ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. With respect to each Plan that is intended to
qualify under Section 401(a) of the Code (i) Borrower has received a favorable determination letter
from the IRS, (ii) an application for such a letter is currently being processed by the IRS with
respect thereto, or (iii) Borrower is entitled to rely on an IRS opinion letter with respect to the
qualification of such Plan, and in the case of the foregoing clauses (i), (ii) and (iii), to the
best knowledge of Borrower, nothing has occurred which would prevent, or cause the loss of, such
qualification. Borrower and each ERISA Affiliate have made all required contributions to each Plan
subject to Section 412 of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.



     (b) There are no pending or, to the best knowledge of Borrower, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably
be expected to have a Material Adverse Effect. There has been no violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or would reasonably be expected to
result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (iv) neither Borrower nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.



25









 





     5.13 Subsidiaries. As of the Closing Date, Borrower has no Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity
Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are
owned by Borrower or its Subsidiaries, as set forth on Part (a) of Schedule 5.13. As of
the Closing Date, Borrower has no equity investments in any other corporation or entity other than
those specifically disclosed in Part(b) of Schedule 5.13.



     5.14 Margin Regulations; Investment Company Act.



     (a) Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. None of the proceeds of any Loan, nor any Letter of Credit is being used, directly
or indirectly for the purpose of purchasing or carrying margin stock.



     (b) None of Borrower, any Person Controlling Borrower, or any Subsidiary is, or is required to
be registered as, an “investment company” under the Investment Company Act of 1940.



     5.15 Disclosure. Borrower has disclosed to Lender all agreements, instruments and corporate
or other restrictions to which it or any of its Subsidiaries is 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 report, financial statement, certificate or other material information
furnished (whether in writing or as oral accompaniment to the delivery of any such writing) by or
on behalf of any Loan Party to Lender in connection with the transactions contemplated hereby
(other than information of a general economic nature not pertaining specifically to Borrower or its
Subsidiaries) and the negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case, as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, Borrower represents only
that such information was prepared in good faith based upon assumptions believed to be reasonable
at the time (it being understood that such projected financial information is subject to
significant uncertainties and contingencies and that actual results may differ materially from such
projections).



     5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance in
all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.



     5.17 Taxpayer Identification Number. Borrower’s true and correct U.S. taxpayer identification
number is set forth on Schedule 9.02.



     5.18 Intellectual Property; Licenses, Etc. Borrower and its Subsidiaries own, or possess the
right to use, consistent with generally accepted industry practice, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights that are reasonably necessary for the operation of their respective businesses,
without conflict with the material rights of any other Person that would reasonably be expected to
have a Material Adverse Effect. To the best knowledge of Borrower, no slogan or other advertising
device, product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by Borrower or any Subsidiary infringes upon any material rights held
by any other Person that would reasonably be expected to have a Material Adverse Effect. Except as
set forth on Schedule 5.06, no claim or litigation regarding any of the foregoing is
pending or, to the best knowledge of Borrower, overtly threatened, which, either individually or in
the aggregate, would reasonably be expected to have a Material Adverse Effect.



     5.19 Rights in Collateral; Priority of Liens. Borrower and each other Loan Party own the
property granted by it as Collateral under the Collateral Documents, free and clear of any and all
Liens in favor of third parties (other than Liens permitted by the Pledge Agreement). Upon the
proper filing of UCC financing statements, and the taking of the other actions required by the
Lender (including the execution of control agreements governing investment or deposit accounts),
the Liens granted pursuant to the Collateral Documents will constitute valid and enforceable first,
prior and perfected Liens on the Collateral in favor of Lender.



26









 





ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied (other than inchoate indemnification obligations), or any Letter
of Credit shall remain outstanding, Borrower shall, and shall (except in the case of the covenants
set forth in Sections 6.01, 6.02, and 6.03) cause each Subsidiary to:



     6.01 Financial Statements. Deliver to Lender:



     (a) as soon as available, but in any event within 120 days after the end of each fiscal year
of Borrower, a consolidated balance sheet of Borrower and its Subsidiaries as at the end of such
fiscal year, and the related consolidated statements of income or operations, changes in
shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance
with GAAP, audited and accompanied by a report and opinion of Ernst & Young LLP or any other
independent certified public accountant of nationally recognized standing reasonably acceptable to
Lender, which report and opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit; and



     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of Borrower, a consolidated balance sheet of Borrower and
its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of
income or operations, for such fiscal quarter and for the portion of Borrower’s fiscal year then
ended, and the related consolidated statements of changes in shareholders’ equity, and cash flows
for the portion of the Borrower’s fiscal year then ended, in each case setting forth in comparative
form, as applicable the figures for the corresponding fiscal quarter of the previous fiscal year
and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by
the chief executive officer, chief financial officer, treasurer or controller of Borrower as fairly
presenting the financial condition, results of operations, shareholders’ equity and cash flows of
Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.



     6.02 Certificates; Other Information. Deliver to Lender:



     (a) concurrently with the delivery of the financial statements referred to in Section
6.01(a), a certificate of its independent certified public accountants stating that in making
the examination necessary for the audit no knowledge was obtained of any Default or, if any such
Default shall exist, stating the nature and status of such event;



     (b) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b), a duly completed Compliance Certificate signed by the chief executive
officer, chief financial officer, treasurer or controller of Borrower;



     (c) promptly after any request by Lender, copies of any detailed audit reports, management
letters or recommendations submitted to the board of directors (or the audit committee of the board
of directors) of Borrower by independent accountants in connection with the accounts or books of
Borrower or any Subsidiary, or any audit of any of them;



     (d) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of Borrower, and copies of all
annual, regular, periodic and special reports and registration statements which Borrower may file
or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to Lender pursuant
hereto;



     (e) as soon as available, but in any event within 15 days after the end of each calendar
month, a report in form satisfactory to Lender detailing the Pledged Collateral, the Collateral
Value, and changes relating thereto occurring during such month;



     (f) promptly, and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence received from the
Securities and Exchange Commission (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation by such agency regarding any Loan Party or
any Subsidiary thereof; and



27









 





     (g) promptly, such additional information regarding the business, financial or corporate
affairs of Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as
Lender may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (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 Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the internet at the website address listed on Schedule 9.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet of intranet
website, if any, to which the Lender has access. Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(b) to the Lender.



     6.03 Notices. Promptly notify Lender:



     (a) of the occurrence of any Default;



     (b) of any matter that has resulted or would reasonably be expected to result in a Material
Adverse Effect, including any such matter consisting of or involving (i) breach or non-performance
of, or any default under, a Contractual Obligation of Borrower or any Subsidiary; or (ii) any
dispute, litigation, investigation, proceeding or suspension between Borrower or any Subsidiary and
any Governmental Authority;



     (c) of the commencement of, or any material development in, any litigation or proceeding
involving more than $10,000,000 and affecting Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;



     (d) of the occurrence of any ERISA Event;



     (e) of any material change in accounting policies or financial reporting practices by Borrower
or any Subsidiary; and



     (f) of the consummation of the TLS Acquisition.



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of Borrower setting forth details of the occurrence referred to therein and stating what
action Borrower has taken and proposes to take with respect thereto. Each notice pursuant to
Section 6.03(a) shall describe with particularity any and all provisions of this Agreement
and any other Loan Document that have been breached.



     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its material obligations and liabilities, including (a) all material tax liabilities, assessments
and governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by Borrower or such Subsidiary; (b) all lawful material
claims which, if unpaid, would by law become a Lien upon its property; and (c) all material
Indebtedness, as and when due and payable, but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness.



     6.05 Preservation of Existence, Etc. (a) Preserve and maintain in full force and effect its
legal existence and good standing under the Laws of the jurisdiction of its organization except in
a transaction permitted by Section 7.01; (b) take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; and (c) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which would reasonably be
expected to have a Material Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment reasonably necessary in the operation of its business in good working
order and condition, ordinary wear and tear excepted; and (b) make all reasonably necessary repairs
thereto and renewals and replacements thereof except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.



28









 





     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of Borrower, insurance with respect to its properties and business against
loss or damage of the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts (after giving effect to any self-insurance compatible
with the following standards) as are customarily carried under similar circumstances by such other
Persons.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws,
permits, approvals and certifications, and all orders, writs, injunctions and decrees applicable to
it or to its business or property (including all U.S. Food and Drug Administration (and similar
foreign agencies) regulations, rules and certifications), except in such instances in which (a)
such requirement of Law or permit, approval, certification, order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure
to comply therewith could not reasonably be expected to have a Material Adverse Effect.



     6.09 Books and Records. (a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of Borrower or such Subsidiary, as the
case may be sufficient to comply with all applicable requirements of the Securities and Exchange
Commission and applicable Laws, and sufficient to allow for the preparation of financial statements
in accordance with GAAP (or in the case of foreign Subsidiaries, generally accepted accounting
principles in effect from time to time in their respective jurisdictions of organization); and (b)
maintain such books of record and account in material conformity with all applicable requirements
of any Governmental Authority having regulatory jurisdiction over Borrower or such Subsidiary, as
the case may be. Borrower shall maintain at all times books and records pertaining to the
Collateral in such detail, form and scope as Lender shall reasonably require.



     6.10 Inspection Rights. Permit representatives and independent contractors of Lender to visit
and inspect any of its properties, to examine its corporate, financial and operating records, and
make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with
its directors, officers, and independent public accountants, all at the expense of Borrower and at
such reasonable times during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to Borrower; provided, however, that when an Event of
Default exists Lender (or any of its representatives or independent contractors) may do any of the
foregoing at the expense of Borrower at any time during normal business hours and without advance
notice.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions (i) to consummate the TLS
Acquisition, and (ii) for other general corporate purposes not in contravention of any Law or of
any Loan Document.



     6.12 Collateral Records. To execute and deliver, and to cause each other Loan Party to
execute and deliver to Lender, within five Business Days of Lender’s request, from time to time,
solely for Lender’s convenience in maintaining a record of the Collateral, such written statements
and schedules as Lender may reasonably require designating, identifying or describing the
Collateral. The failure by Borrower or any other Loan Party, however, to promptly give Lender such
statements or schedules shall not affect, diminish, modify or otherwise limit the Liens on the
Collateral granted pursuant to the Collateral Documents.



     6.13 Security Interests. (a) Defend the Collateral against all claims and demands of all
Persons at any time claiming the same or any interest therein, (b) comply with the requirements of
all state and federal laws in order to grant to Lender valid and perfected first priority security
interests in the Collateral, with perfection, in the case of any investment property, deposit
account or letter of credit, being effected by giving Lender control of such investment property or
deposit account or letter of credit, rather than by the filing of a Uniform Commercial Code
(“UCC”) financing statement with respect to such investment property, and (c) do whatever
Lender may reasonably request, from time to time, to effect the purposes of this Agreement and the
other Loan Documents, including filing notices of liens, UCC financing statements, and amendments,
renewals and continuations thereof; and, paying claims which might, if unpaid, become a Lien on the
Collateral. Lender is hereby authorized by Borrower to file any UCC financing statements covering
the Collateral whether or not Borrower’s signatures appear thereon.



     6.14 Security Accounts. At all times, maintain the Pledged Collateral (other than Cash
Collateral) with Merrill Lynch, Pierce, Fenner & Smith, Inc.



29









 





ARTICLE VII.

NEGATIVE COVENANTS




     So long as Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied (other than inchoate indemnification obligations), or any Letter
of Credit shall remain outstanding, Borrower shall not, nor shall it permit any Subsidiary to,
directly or indirectly:



     7.01 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of related transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:



     (a) any Subsidiary may merge with (i) Borrower, provided that Borrower shall be the
continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that
when any Loan Party is merging with another Subsidiary, the Loan Party shall be the continuing or
surviving Person;



     (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to Borrower or to another Subsidiary; provided that if the
transferor in such a transaction is a Loan Party, then the transferee must either be Borrower or a
Loan Party;



     (c) so long as no Default has occurred and is continuing or would result therefrom, each of
the Borrower and any of its Subsidiaries may merge with or (other than in the case of any Loan
Party) consolidate with, any other Person or permit any other Person to merge or (other than in the
case of any Loan Party) consolidate with it; provided, however, that in each case
after giving effect thereto in the case of any such merger to which a Loan Party is a party, such
Loan Party is the surviving corporation; and



     (d) any Subsidiary of the Borrower may liquidate, sell, transfer or lease or otherwise dispose
of all or substantially all of its assets so long as no Default has occurred and is continuing or
would result therefrom and such assets do not constitute Collateral or all or substantially all of
the assets of Borrower and its Subsidiaries, taken as a whole.



     7.02 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by Borrower and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto.



     7.03 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



     7.04 Total Outstandings not to Exceed Borrowing Base. Permit the amount of Total Outstandings
to exceed the Maintenance Borrowing Base at any time; provided that if the amount of Total
Outstandings at any time exceeds the Maintenance Borrowing Base, then no breach shall exist under
this Section 7.04 provided Borrower shall, within two Business Days from the date of
Lender’s written notification thereof, either (i) pledge additional Approved Collateral, or (ii)
reduce the outstanding amount of the Total Outstandings such that, in either case, after giving
effect to such additional collateral or prepayment, the amount of Total Outstandings does not
exceed the Incurrence Borrowing Base.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii)
within three days after the same becomes due, any interest on any Loan or on any L/C Obligation, or
any fee due hereunder, or (iii) within five days after the same becomes due, any other amount
payable hereunder or under any other Loan Document; or



30









 





     (b) Specific Covenants. Borrower fails to perform or observe any term, covenant or
agreement contained in any of Section 6.01, 6.02, 6.03(a), 6.05 (as
to the legal existence of Borrower), 6.10, 6.11, 6.12, or 6.14 or
Article VII; or



     (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for 30 days or any default or Event of
Default occurs under any other Loan Document; or



     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of Borrower or any other Loan Party herein,
in any other Loan Document, or in any document delivered in connection herewith or therewith shall
be incorrect or misleading in any material respect when made or deemed made; or



     (e) Cross-Default. (i) Borrower or any Subsidiary (A) fails to make any payment when
due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under
Swap Contracts) having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the
effect of which default or other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased
or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under
such Swap Contract as to which Borrower or any Subsidiary is the Defaulting Party (as defined in
such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to
which Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by Borrower or such Subsidiary as a result thereof is greater than the
Threshold Amount; or



     (f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 90 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues undismissed or
unstayed for 90 calendar days, or an order for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) Borrower or any Subsidiary becomes unable
or admits in writing its inability or fails generally to pay its debts as they become due, or (ii)
any writ or warrant of attachment or execution or similar process is issued or levied against all
or any material part of the property of any such Person and is not released, vacated or fully
bonded within 60 days after its issue or levy; or



     (h) Judgments. There is entered against Borrower or any Subsidiary (i) one or more
final judgments or orders for the payment of money in an aggregate amount (as to all such judgments
or orders) exceeding the Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary
final judgments that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced
by any creditor upon such judgment or order, or (B) there is a period of 20 consecutive days during
which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in
effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of Borrower under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) Borrower or any ERISA Affiliate fails to pay when due,
after the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of the Threshold Amount; or



31









 





     (j) Invalidity of Loan Documents. Any Loan Document or any provision thereof, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force
and effect; or any Loan Party or any other Person contests in any manner the validity or
enforceability of any Loan Document or any provision thereof; or any Loan Party denies that it has
any or further liability or obligation under any Loan Document, or purports to revoke, terminate or
rescind any Loan Document or any provision thereof; or Lender fails or ceases to have a perfected,
first priority security interest in any Collateral; or



     (k) Licenses and Authorizations. Any material license, permit, authorization,
certification or approval of any Governmental Authority (including the U.S. Food and Drug
Administration) relating to Borrower or its business is withdrawn, cancelled, terminated or forfeit
for any reason, which would reasonably be expected to have a Material Adverse Effect; or



     (l) Other Defaults. There occurs any “Event of Default” under and as defined in any
Collateral Document; or



     (m) Material Adverse Effect. There occurs any event or circumstance that has a
Material Adverse Effect.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, Lender
may take any or all of the following actions:



     (a) declare the commitment of Lender to make Loans and any obligation of Lender to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by Borrower;



     (c) require that Borrower Cash Collateralize the L/C Obligations (in an amount equal to the
then Outstanding Amount thereof); and



     (d) exercise all rights and remedies available to it under the Loan Documents or applicable
law;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to Borrower under the Bankruptcy Code of the United States, the
obligation of Lender to make Loans and any obligation of Lender to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of Lender.




ARTICLE IX.

MISCELLANEOUS




     9.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by Borrower or any other Loan Party therefrom, shall
be effective unless in writing signed by the Lender and Borrower or the applicable Loan Party, as
the case may be, and each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.



     9.02 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 subsection (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 telecopier,
and all notices and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, to the address, telecopier number, electronic
mail address or telephone number specified for the recipient on Schedule 9.02.


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 telecopier shall be deemed to have been
given when sent (except that, if not given during normal






32









 







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 subsection (b) below, shall be effective as provided in such subsection (b).




     (b) Electronic Communications. Lender or Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to particular
notices or communications. Unless Lender 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) Change of Address, Etc. Each of Borrower and Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by notice to the
other party hereto.



     (d) Reliance by Lender. Lender shall be entitled to rely and act upon any notices
(including telephonic Loan Notices) purportedly given by or on behalf of Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. Borrower shall indemnify Lender and the
Related Parties from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of Borrower. All telephonic notices
to and other telephonic communications with Lender may be recorded by Lender, and Borrower hereto
hereby consents to such recording.



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



     9.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by Lender (including the reasonable fees, charges and disbursements of counsel for
Lender), 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 Lender in connection with
the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by Lender (including the fees, charges and
disbursements of any counsel for Lender), and shall pay all fees and time charges for attorneys who
may be employees of 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 Borrower. Borrower shall indemnify Lender and each Related
Party of Lender (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for any Indemnitee) incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by Borrower or any other Loan
Party 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, or the administration of this
Agreement and the other Loan Documents (including in respect of any matters addressed in
Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including (x) the TLS Acquisition or (y) any refusal by the 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



33









 




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 Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by Borrower or any other Loan Party against an Indemnitee for breach in
bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower
or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim
as determined by a court of competent jurisdiction.




     (c) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
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 subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee 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 other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.



     (d) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (e) Survival. The agreements in this Section shall survive the termination of the
Commitment and the repayment, satisfaction or discharge of all the other Obligations.



     9.05 Payments Set Aside. To the extent that any payment by or on behalf of Borrower is made
to Lender, or Lender exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by Lender in its discretion)
to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Debtor Relief Law or otherwise, then to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such setoff had not occurred.



     9.06 Successors and Assigns.



     (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 nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
Lender and Lender may not assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii)
by way of participation in accordance with the provisions of subsection (d) of this Section, or
(iii) by way of pledge or assignment of a security interest subject to the restrictions of
subsection (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 subsection (d) of this Section and, to the
extent expressly contemplated hereby, the Related Parties of Lender) any legal or equitable right,
remedy or claim under or by reason of this Agreement.



     (b) Assignments by Lender. 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 the
Commitment and the Loans at the time owing to it); provided that any such assignment shall
be subject to the consent of Borrower (such consent not to be unreasonably withheld or delayed)
shall be required unless an Event of Default has occurred and is continuing at the time of such
assignment.



     (c) Participations. Lender may at any time, without the consent of, or notice to,
Borrower, sell participations to any Person (other than a natural person (each, a
“Participant”) in all or a portion of Lender’s rights and/or obligations under this



34









 




Agreement (including all or a portion of the Commitment and/or the Loans (owing to it);
provided that (i) Lender’s obligations under this Agreement shall remain unchanged, (ii)
Lender shall remain solely responsible to Borrower for the performance of such obligations and
(iii) Borrower shall continue to deal solely and directly with Lender in connection with Lender’s
rights and obligations under this Agreement.




     (d) Certain Pledges. 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 Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for Lender as a party hereto.



     9.07 Treatment of Certain Information; Confidentiality. 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, trustees, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any regulatory
authority, 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
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, or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to Borrower and its obligations, (g) with the consent of Borrower or (h) 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 Lender or any of its Affiliates on a nonconfidential basis from a source
other than Borrower. For purposes of this Section, “Information” means all information
received from Borrower or any Subsidiary relating to Borrower or any Subsidiary or any of their
respective businesses, other than any such information that is available to Lender on a
nonconfidential basis prior to disclosure by Borrower or any Subsidiary, provided that, in
the case of information received from Borrower or any Subsidiary 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. Lender acknowledges that (a) the Information may include material
non-public information concerning Borrower or a Subsidiary, as the case may be, (b) it has
developed compliance procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with applicable Law, including
Federal and state securities Laws.



     9.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, Lender
and each of its 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 Lender or any such Affiliate to or for the credit or
the account of Borrower or any other Loan Party against any and all of the obligations of Borrower
or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to
Lender or any such Affiliate, irrespective of whether or not Lender shall have made any demand
under this Agreement or any other Loan Document and although such obligations of Borrower or such
Loan Party may be contingent or unmatured or are owed to a branch or office of Lender different
from the branch or office holding such deposit or obligated on such indebtedness. The rights of
Lender and its Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that Lender or its Affiliates may have. Lender agrees to notify
Borrower promptly after any such setoff and application, provided that the failure to give
such notice shall not affect the validity of such setoff and application. Notwithstanding the
provisions of this Section 9.08, if at any time Lender or any of its Affiliates maintains
one or more deposit accounts for Borrower or any other Loan Party into which Medicare and/or
Medicaid receivables are deposited, such Person shall waive the right of setoff set forth herein.



     9.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to
Borrower. In determining whether the interest contracted for, charged, or received by Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or



35









 




premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and
(c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.




     9.10 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 constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by Lender and when Lender 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
telecopy or other electronic imaging means shall be effective as delivery of a manually executed
counterpart of this Agreement.



     9.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by Lender, regardless of any
investigation made by Lender and notwithstanding that Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full force and effect as
long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter
of Credit shall remain outstanding.



     9.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     9.13 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF CALIFORNIA.



     (b) SUBMISSION TO JURISDICTION. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF CALIFORNIA SITTING IN SAN MATEO COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE NORTHERN DISTRICT OF CALIFORNIA 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 CALIFORNIA 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 LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ANY OTHER LOAN PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     (c) WAIVER OF VENUE. BORROWER AND EACH OTHER LOAN PARTY 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.



36









 





     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     9.14 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR 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.



     9.15 California Judicial Reference. If any action or proceeding is filed in a court of the
State of California by or against any party hereto in connection with any of the transactions
contemplated by this Agreement or any other Loan Document, (a) the court shall, and is hereby
directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to
a referee (who shall be a single active or retired judge) to hear and determine all of the issues
in such action or proceeding (whether of fact or of law) and to report a statement of decision,
provided that at the option of any party to such proceeding, any such issues pertaining to a
“provisional remedy” as defined in California Code of Civil Procedure Section 1281.8 shall be heard
and determined by the court, and (b) without limiting the generality of Section 9.04,
Borrower shall be solely responsible to pay all fees and expenses of any referee appointed in such
action or proceeding.



     9.16 Electronic Execution of Assignments and Certain Other Documents. The words “execution,”
“signed,” “signature,” and words of like import in any amendment or other modification hereof
(including waivers and consents) 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.



     9.17 USA PATRIOT Act Notice. Lender hereby notifies Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
Borrower, which information includes the name and address of Borrower and other information that
will allow Lender to identify Borrower in accordance with the Act. Borrower shall, promptly
following a request by Lender, provide all documentation and other information that Lender requests
in order to comply with its ongoing obligations under applicable “know your customer” and
anti-money laundering rules and regulations, including the Act.



     9.18 Time of the Essence. Time is of the essence of the Loan Documents.



[Remainder of page intentionally left blank]




37









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	GEN-PROBE INCORPORATED

 	 
	 	By:  	 	 
	 
	 	Name:  	 	 
	 
	 	Title:  	 	 
	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	 	 
	 	Name:  	John C. Plecque 	 
	 	Title:  	Senior Vice President 	 
	 



Signature Page to Credit Agreement






 









 








SCHEDULE 1.01




APPROVED COLLATERAL




	 	 	 	 	 	 	 	 	 
	 	 	Incurrence Borrowing Base	 	Maintenance Borrowing
	Approved Collateral Types	 	Percentage	 	Base Percentage
	Listed Stocks (NYSE/NASDAQ National Market, Minimum $5.00
Per Share)

(Non-purpose Loan)
	 	 	70	%	 	 	75	%
	NASDAQ Small Capital Stocks

(Minimum $5.00 Per Share)

(Non-purpose Loan)
	 	 	50	%	 	 	55	%
	 
	 	 	 	 	 	 	 	 
	U.S. Government Obligations
	 	 	90	%	 	 	95	%
	 
	 	 	 	 	 	 	 	 
	U.S. Agency Obligations
	 	 	80	%	 	 	85	%
	 
	 	 	 	 	 	 	 	 
	State/Municipal Bonds

(A/A2 or higher ratings from Standard & Poor’s Ratings
Services and Moody’s Investors Service, Inc., respectively)
	 	 	80	%	 	 	85	%
	 
	 	 	 	 	 	 	 	 
	Corporate Bonds

(BBB-/Baa3 or higher ratings from Standard & Poor’s
Ratings Services and Moody’s Investors Service, Inc.,
respectively)
	 	 	80	%	 	 	85	%
	 
	 	 	 	 	 	 	 	 
	Commercial Paper with ratings from Standard & Poor’s
Ratings Services and Moody’s Investors Service, Inc.,
respectively of:
	 	 	 	 	 	 	 	 
	A1/P1
	 	 	90	%	 	 	90	%
	A2/P2
	 	 	85	%	 	 	85	%
	 
	 	 	 	 	 	 	 	 
	Mutual Funds (Quoted in the Wall Street Journal or Barron’s)
	 	 	 	 	 	 	 	 
	Money Market
	 	 	95	%	 	 	95	%
	U.S. Government Obligations
	 	 	90	%	 	 	95	%
	Corporate/Municipal Bonds
	 	 	80	%	 	 	85	%
	Equities (Excluding International Funds)
	 	 	70	%	 	 	75	%
	 
	 	 	 	 	 	 	 	 
	Bank of America, N.A. Deposit Account
	 	 	100	%	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	Other Federally Insured Deposit Accounts
	 	 	90	%	 	 	90	%






Schedule 1.01




1









 





SCHEDULE 5.06




LITIGATION




Digene Corporation




     In December 2006, Digene Corporation, or Digene, filed a demand for binding arbitration
against F. Hoffman-La Roche Ltd. and Roche Molecular Systems, Inc., collectively referred to as
Roche, with the International Centre for Dispute Resolution of the American Arbitration Association
in New York, or ICDR. Digene’s arbitration demand challenges the validity of the February 2005
supply and purchase agreement between Borrower and Roche. Under the supply and purchase agreement,
Roche manufactures and supplies Borrower with human papillomavirus, or HPV, oligonucleotide
products. Digene’s demand asserts, among other things, that Roche materially breached a
cross-license agreement between Roche and Digene by granting Borrower an improper sublicense and
seeks a determination that the supply and purchase agreement is null and void.



     On July 13, 2007, the ICDR arbitrators granted Borrower’s petition to join the arbitration.
On August 27, 2007, Digene filed an amended arbitration demand and asserted a claim against
Borrower for tortious interference with the cross-license agreement. The arbitration hearing in
this matter commenced October 27, 2008 and the presentation of evidence concluded November 10,
2008. In December 2008 and January 2009, the parties filed post-hearing briefs and closing
arguments were presented on January 30, 2009.



Schedule 5.06




1









 





SCHEDULE 5.09




ENVIRONMENTAL MATTERS




None



Schedule 5.09





1











 





SCHEDULE 5.13




SUBSIDIARIES

AND OTHER EQUITY INVESTMENTS





			
	Part (a).	 	Subsidiaries.





	 	 	 
	Name	 	Jurisdiction of Formation
	Gen-Probe Sales & Service, Inc.

	 	Delaware
	Gen-Probe International, Inc.

	 	Delaware
	Gen-Probe UK Limited

	 	United Kingdom
	Molecular Light Technology Limited and its subsidiaries:

	 	United Kingdom
	— Molecular Light Technology Research Limited

	 	United Kingdom
	— Bioanalysis Limited

	 	United Kingdom
	Gen-Probe Italia, S.r.l.

	 	Italy
	Gen-Probe Deutschland GmbH

	 	Germany







			
	Part (b).	 	Other Equity Investments.





Qualigen, Inc.




Schedule 5.13





1









 








SCHEDULE 9.02




LENDER’S OFFICE,

CERTAIN ADDRESSES FOR NOTICES




GEN-PROBE INCORPORATED:

10210 Genetic Center Drive

San Diego, CA 92121

Attention: General Counsel

Telephone: (858) 410-8918

Telecopier: (858) 410-8637

Electronic Mail: BillB@gen-probe.com

Website Address: www.gen-probe.com

U.S. Taxpayer Identification Number: 33-0044608




LENDER:




Standby Letters of Credit:




Bank of America, N.A.

Trade Operations-Los Angeles #22621

1000 W. Temple Street, 7th Floor

CA9-705-07-05

Los Angeles, CA 90012-1514




			

	Attention:

	 	Tai Anh Lu
	 

	 	Officer
	 

	 	Telephone: 213.481.7840
	 

	 	Telecopier: 213.580.8442
	 

	 	Electronic Mail: tai_anh.lu@bankofamerica.com






Bank of America, N.A.

Trade Operations

One Fleet Way

Mail Code: PA6-580-02-30

Scranton, PA 18507




			

	Attention:

	 	Alfonso (Al) Malave
	 

	 	Telephone: 570.330.4212
	 

	 	Telecopier: 570.330.4186
	 

	 	Electronic Mail: alfonso.malave@bankofamerica.com






Other Notices as Lender:

Bank of America, N.A.

530 Lytton Avenue, Suite 101

Mail Code: CA5-106-01-05

Palo Alto, CA 94301

Attention: John Plecque

Telephone: (650) 853-4475

Telecopier: (877) 722-2364

Electronic Mail: John.Plecque@bankofamerica.com




Schedule 9.02





1









 








EXHIBIT A




FORM OF LOAN NOTICE




Date:                     ,      





			
	To:	 	Bank of America, N.A.





Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of February 27, 2009 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), between
Gen-Probe Incorporated, a Delaware corporation (the “Borrower”), and Bank of America, N.A.,
as Lender.



     The undersigned hereby requests (select one):



	 	 	 	 	 

	 

	 	A Borrowing of Loans
	 	A conversion or continuation of Loans






     1. On
                                        
           
                                       
           (a Business Day).



     2. In the amount of $
                                        
         
                             .



     3. Comprised of
                                        
                
                            .



[Type of Loan requested]




     4. For Eurodollar Rate Loans: with an Interest Period of            months.



     The Borrowing, if any, requested herein complies with the provisos to the first sentence of
Section 2.01 of the Agreement.



	 	 	 	 	 	 	 

	 	 	GEN-PROBE INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 
	 	 
	 
	 

	 	Name:
	 	 

	 	 
	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Form of Loan Notice





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EXHIBIT B




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                     ,
             





			
	To:	 	Bank of America, N.A.





Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of February 27, 2009 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), between
Gen-Probe Incorporated, a Delaware corporation (“Borrower”) and Bank of America, N.A., as
Lender.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                                        
            
        
of Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to
Lender on the behalf of Borrower, and that:



[Use following paragraph 1 for fiscal year-end financial statements]




     1. The Borrower has delivered the year-end audited financial statements required by
Section 6.01(a) of the Agreement for the fiscal year of Borrower ended as of the above
date, together with the report and opinion of an independent certified public accountant required
by such section.



[Use following paragraph 1 for fiscal quarter-end financial statements]




     1. The Borrower has delivered the unaudited financial statements required by Section
6.01(b) of the Agreement for the fiscal quarter of Borrower ended as of the above date. Such
financial statements fairly present the financial condition, results of operations and cash flows
of Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of Borrower during the accounting period covered by such
financial statements.



     3. A review of the activities of Borrower during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period
Borrower performed and observed all its Obligations under the Loan Documents, and



[select one:]




     [to the best knowledge of the undersigned during such fiscal period, Borrower performed and
observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]



—or—




     [to the best knowledge of the undersigned, during such fiscal period, the following covenants
or conditions have not been performed or observed and the following is a list of each such Default
and its nature and status:]



     4. The representations and warranties of Borrower contained in Article V of the
Agreement, and/or any representations and warranties of Borrower or any other Loan Party that are
contained in any document furnished at any time under or in connection with the Loan Documents,
are, to the best knowledge of the undersigned, true and correct in all material respects on and as
of the date hereof, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct in all material respects as of
such earlier date, and except that for purposes of this Compliance Certificate, the representations
and warranties contained in subsections (a) and (b) of Section 5.05 of the



Form of Compliance Certificate





B-1









 








Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 6.01 of the Agreement, including the statements in
connection with which this Certificate is delivered.




     5. The borrowing base analysis and information set forth on Schedule 2 attached hereto
are true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
                                        
,
                     20      .




	 	 	 	 	 	 	 

	 	 	GEN-PROBE INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 
	 	 
	 
	 

	 	Name:
	 	 

	 	 
	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Form of Compliance Certificate





B-2









 








For the Quarter/Year ended __________________ (“Statement Date”)




SCHEDULE 2

to the Compliance Certificate





	I.	 	Section 7.04 — Total Outstandings vs. Borrowing Base.





	 	 	 	 	 
	A. Total Outstandings at Statement Date:
	 	$	                    	 
	 
	 	 	 	 
	B. Maintenance Borrowing Base at Statement Date:
	 	$	                    	 
	 
	 	 	 	 
	C. Difference (Line 1.A. minus Line 1.B.):
	 	$	                    	 
	 
	 	 	 	 
	D. Maximum Permitted:
	 	$0	 






Form of Compliance Certificate





B-3









 








EXHIBIT C




FORM OF PLEDGE AGREEMENT




Form of Pledge Agreement







[See
Exhibit 10.2 to Form 8-K filed March 4, 2009]






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