exv10w1






Exhibit 10.1




EXECUTION COPY


 











CREDIT AGREEMENT




dated as of



October 21, 2011



among



VISTAPRINT LIMITED, as a Borrower



VISTAPRINT SCHWEIZ GMBH, as a Borrower



VISTAPRINT B.V., as a Borrower



VISTAPRINT N.V., as Guarantor




The Subsidiary Borrowers Party Hereto



The Lenders Party Hereto



JPMORGAN CHASE BANK, N.A.

as Administrative Agent



HSBC BANK USA, NATIONAL ASSOCIATION

as Syndication Agent



and



RBS CITIZENS, N.A.

as Documentation Agent



 





J.P. MORGAN SECURITIES LLC

as Sole Bookrunner and Sole Lead Arranger






 





 









 








Table Of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I Definitions
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. DEFINED TERMS
	 	 	1	 
	SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS
	 	 	21	 
	SECTION 1.03. TERMS GENERALLY
	 	 	21	 
	SECTION 1.04. ACCOUNTING TERMS; GAAP
	 	 	22	 
	SECTION 1.05. STATUS OF OBLIGATIONS
	 	 	22	 
	 
	 	 	 	 
	ARTICLE II The Credits
	 	 	22	 
	 
	 	 	 	 
	SECTION 2.01. COMMITMENTS
	 	 	22	 
	SECTION 2.02. LOANS AND BORROWINGS
	 	 	23	 
	SECTION 2.03. REQUESTS FOR REVOLVING BORROWINGS
	 	 	23	 
	SECTION 2.04. DETERMINATION OF DOLLAR AMOUNTS
	 	 	24	 
	SECTION 2.05. SWINGLINE LOANS
	 	 	25	 
	SECTION 2.06. LETTERS OF CREDIT
	 	 	26	 
	SECTION 2.07. FUNDING OF BORROWINGS
	 	 	30	 
	SECTION 2.08. INTEREST ELECTIONS
	 	 	30	 
	SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS
	 	 	32	 
	SECTION 2.10. REPAYMENT OF LOANS; EVIDENCE OF DEBT
	 	 	32	 
	SECTION 2.11. PREPAYMENT OF LOANS
	 	 	33	 
	SECTION 2.12. FEES
	 	 	34	 
	SECTION 2.13. INTEREST
	 	 	35	 
	SECTION 2.14. ALTERNATE RATE OF INTEREST
	 	 	36	 
	SECTION 2.15. INCREASED COSTS
	 	 	36	 
	SECTION 2.16. BREAK FUNDING PAYMENTS
	 	 	38	 
	SECTION 2.17. TAXES
	 	 	38	 
	SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS
	 	 	41	 
	SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS
	 	 	43	 
	SECTION 2.20. EXPANSION OPTION
	 	 	44	 
	SECTION 2.21. [INTENTIONALLY OMITTED]
	 	 	45	 
	SECTION 2.22. JUDGMENT CURRENCY
	 	 	45	 
	SECTION 2.23. DESIGNATION OF SUBSIDIARY BORROWERS
	 	 	46	 
	SECTION 2.24. DEFAULTING LENDERS
	 	 	46	 
	 
	 	 	 	 
	ARTICLE III Representations and Warranties
	 	 	48	 
	 
	 	 	 	 
	SECTION 3.01. ORGANIZATION; POWERS; SUBSIDIARIES
	 	 	48	 
	SECTION 3.02. AUTHORIZATION; ENFORCEABILITY
	 	 	48	 
	SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS
	 	 	48	 
	SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE
	 	 	48	 
	SECTION 3.05. PROPERTIES
	 	 	49	 
	SECTION 3.06. LITIGATION, ENVIRONMENTAL AND LABOR MATTERS
	 	 	49	 
	SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS
	 	 	49	 
	SECTION 3.08. INVESTMENT COMPANY STATUS
	 	 	49	 
	SECTION 3.09. TAXES
	 	 	50	 
	SECTION 3.10. ERISA
	 	 	50	 
	SECTION 3.11. DISCLOSURE
	 	 	50	 
	SECTION 3.12. FEDERAL RESERVE REGULATIONS
	 	 	50	 






 









 




Table Of Contents 

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 3.13. LIENS
	 	 	50	 
	SECTION 3.14. NO DEFAULT
	 	 	50	 
	SECTION 3.15. NO BURDENSOME RESTRICTIONS
	 	 	50	 
	SECTION 3.16. COMPLIANCE WITH SWISS NON-BANK RULES
	 	 	50	 
	SECTION 3.17. FINANCIAL ASSISTANCE
	 	 	50	 
	 
	 	 	 	 
	ARTICLE IV Conditions
	 	 	51	 
	 
	 	 	 	 
	SECTION 4.01. EFFECTIVE DATE
	 	 	51	 
	SECTION 4.02. EACH CREDIT EVENT
	 	 	52	 
	SECTION 4.03. DESIGNATION OF A SUBSIDIARY BORROWER
	 	 	52	 
	 
	 	 	 	 
	ARTICLE V Affirmative Covenants
	 	 	53	 
	 
	 	 	 	 
	SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION
	 	 	53	 
	SECTION 5.02. NOTICES OF MATERIAL EVENTS
	 	 	54	 
	SECTION 5.03. EXISTENCE; CONDUCT OF BUSINESS
	 	 	55	 
	SECTION 5.04. PAYMENT OF OBLIGATIONS
	 	 	55	 
	SECTION 5.05. MAINTENANCE OF PROPERTIES; INSURANCE
	 	 	55	 
	SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS
	 	 	55	 
	SECTION 5.07. COMPLIANCE WITH LAWS
	 	 	55	 
	SECTION 5.08. USE OF PROCEEDS
	 	 	56	 
	SECTION 5.09. GUARANTY
	 	 	56	 
	SECTION 5.10. COMPLIANCE WITH SWISS NON-BANK RULES
	 	 	56	 
	 
	 	 	 	 
	ARTICLE VI Negative Covenants
	 	 	56	 
	 
	 	 	 	 
	SECTION 6.01. INDEBTEDNESS
	 	 	56	 
	SECTION 6.02. LIENS
	 	 	57	 
	SECTION 6.03. FUNDAMENTAL CHANGES AND ASSET SALES
	 	 	58	 
	SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS
	 	 	59	 
	SECTION 6.05. SWAP AGREEMENTS
	 	 	59	 
	SECTION 6.06. TRANSACTIONS WITH AFFILIATES
	 	 	60	 
	SECTION 6.07. RESTRICTED PAYMENTS
	 	 	60	 
	SECTION 6.08. RESTRICTIVE AGREEMENTS
	 	 	60	 
	SECTION 6.09. SUBORDINATED INDEBTEDNESS AND AMENDMENTS TO SUBORDINATED INDEBTEDNESS DOCUMENTS
	 	 	60	 
	SECTION 6.10. SALE AND LEASEBACK TRANSACTIONS
	 	 	61	 
	SECTION 6.11. CAPITAL EXPENDITURES
	 	 	61	 
	SECTION 6.12. FINANCIAL COVENANTS
	 	 	62	 
	 
	 	 	 	 
	ARTICLE VII Events of Default
	 	 	62	 
	 
	 	 	 	 
	ARTICLE VIII The Administrative Agent
	 	 	64	 
	 
	 	 	 	 
	ARTICLE IX Miscellaneous
	 	 	66	 
	 
	 	 	 	 
	SECTION 9.01. NOTICES
	 	 	66	 
	SECTION 9.02. WAIVERS; AMENDMENTS
	 	 	67	 






2









 




Table Of Contents 

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER
	 	 	69	 
	SECTION 9.04. SUCCESSORS AND ASSIGNS
	 	 	70	 
	SECTION 9.05. SURVIVAL
	 	 	74	 
	SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS
	 	 	74	 
	SECTION 9.07. SEVERABILITY
	 	 	74	 
	SECTION 9.08. RIGHT OF SETOFF
	 	 	74	 
	SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS
	 	 	74	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	75	 
	SECTION 9.11. HEADINGS
	 	 	76	 
	SECTION 9.12. CONFIDENTIALITY
	 	 	76	 
	SECTION 9.13. USA PATRIOT ACT
	 	 	76	 
	SECTION 9.14. RELEASES OF GUARANTORS
	 	 	76	 
	SECTION 9.15. ATTORNEY REPRESENTATION
	 	 	77	 
	SECTION 9.16. INTEREST RATE LIMITATION
	 	 	77	 
	SECTION 9.17. NO ADVISORY OR FIDUCIARY RESPONSIBILITY
	 	 	77	 
	 
	 	 	 	 
	ARTICLE X Cross-Guarantee
	 	 	78	 
	 
	 	 	 	 
	SECTION 10.01. CROSS GUARANTEE
	 	 	78	 
	SECTION 10.02. SWISS LIMITATION LANGUAGE FOR SWISS BORROWERS
	 	 	79	 






3









 




Table Of Contents 

(continued)




	 	 	 	 	 	 	 

	 	 	 	 	Page	 
	SCHEDULES:	 	 
	 	 	 	 
	 	 	 
	 	 	 	 
	Schedule 2.01	 	— Commitments
	 	 	 	 
	Schedule 2.02	 	— Mandatory Cost
	 	 	 	 
	Schedule 3.01A	 	— Subsidiaries
	 	 	 	 
	Schedule 3.01B	 	— Options and Warrants
	 	 	 	 
	Schedule 6.01	 	— Existing Indebtedness
	 	 	 	 
	Schedule 6.02	 	— Existing Liens
	 	 	 	 
	 	 	 
	 	 	 	 
	EXHIBITS:	 	 
	 	 	 	 
	 	 	 
	 	 	 	 
	Exhibit A	 	— Form of Assignment and Assumption
	 	 	 	 
	Exhibit B-1	 	— Form of Opinion of Loan Parties’ U.S. Counsel
	 	 	 	 
	Exhibit B-2	 	— Form of Opinion of Loan Parties’ Bermuda Counsel
	 	 	 	 
	Exhibit B-3	 	— Form of Opinion of Loan Parties’ Dutch Counsel
	 	 	 	 
	Exhibit B-4	 	— Form of Opinion of Loan Parties’ Swiss Counsel
	 	 	 	 
	Exhibit B-5	 	— Form of Opinion of Loan Parties’ Australian Counsel
	 	 	 	 
	Exhibit B-6	 	— Form of Opinion of Loan Parties’ Nova Scotia Counsel
	 	 	 	 
	Exhibit C	 	— Form of Increasing Lender Supplement
	 	 	 	 
	Exhibit D	 	— Form of Augmenting Lender Supplement
	 	 	 	 
	Exhibit E	 	— List of Closing Documents
	 	 	 	 
	Exhibit F-1	 	— Form of Borrowing Subsidiary Agreement
	 	 	 	 
	Exhibit F-2	 	— Form of Borrowing Subsidiary Termination
	 	 	 	 
	Exhibit G	 	— Form of Guaranty
	 	 	 	 
	Exhibit H-1	 	— Form of U.S. Tax Certificate (Non-U.S. Lenders That Are Not Partnerships)
	 	 	 	 
	Exhibit H-2	 	— Form of U.S. Tax Certificate (Non-U.S. Lenders That Are Partnerships)
	 	 	 	 
	Exhibit H-3	 	— Form of U.S. Tax Certificate (Non-U.S. Participants That Are Not Partnerships)
	 	 	 	 
	Exhibit H-4	 	— Form of U.S. Tax Certificate (Non-U.S. Participants That Are Partnerships)
	 	 	 	 






4









 





          CREDIT AGREEMENT (this “Agreement”) dated as of October 21, 2011 among VISTAPRINT
LIMITED, VISTAPRINT SCHWEIZ GMBH, VISTAPRINT B.V., VISTAPRINT N.V., the SUBSIDIARY BORROWERS from
time to time party hereto, the LENDERS from time to time party hereto, JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, HSBC BANK USA, NATIONAL ASSOCIATION, as Syndication Agent and RBS
CITIZENS, N.A., as Documentation Agent.




          The parties hereto agree as follows:




ARTICLE I




Definitions



          SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:




          “ABR”, when used in reference to any Loan or Borrowing, refers to a Loan, or the Loans
comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base
Rate.




          “Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to the sum of (i) (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory
Reserve Rate plus, without duplication (ii) in the case of Loans by a Lender from its
office or branch in the United Kingdom or any Participating Member State, the Mandatory Cost.




          “Administrative Agent” means JPMorgan Chase Bank, N.A. (including its branches and
affiliates), in its capacity as administrative agent for the Lenders hereunder.




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




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




          “Aggregate Commitment” means the aggregate of the Commitments of all of the Lenders,
as reduced or increased from time to time pursuant to the terms and conditions hereof. As of the
Effective Date, the Aggregate Commitment is $250,000,000.




          “Agreed Currencies” means (i) Dollars, (ii) euro, (iii) Swiss Francs and (iv) any
other Foreign Currency that is (x) a lawful currency (other than Dollars) that is readily available
and freely transferable and convertible into Dollars, (y) available in the London interbank deposit
market and (z) agreed to by the Administrative Agent and each of the Lenders.




          “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if
such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided
that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate
appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such page) at
approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be
effective from and including the effective date






 









 







of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate,
respectively.




          “Applicable Percentage” means, with respect to any Lender, the percentage of the
Aggregate Commitment represented by such Lender’s Commitment; provided that, in the case of
Section 2.24 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the
percentage of the Aggregate Commitment (disregarding any Defaulting Lender’s Commitment)
represented by such Lender’s Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Commitments most recently in effect,
giving effect to any assignments and to any Lender’s status as a Defaulting Lender at the time of
determination.




          “Applicable Rate” means, for any day, with respect to any Eurocurrency Revolving Loan
or any ABR Revolving Loan or with respect to the commitment fees payable hereunder, as the case may
be, the applicable rate per annum set forth below under the caption “Eurocurrency Spread”, “ABR
Spread” or “Commitment Fee Rate”, as the case may be, based upon the Leverage Ratio applicable on
such date:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Eurocurrency	 	ABR	 	Commitment
	 	 	Leverage Ratio:	 	Spread	 	Spread	 	Fee Rate
	Category 1:
	 	≤ 1.50 to 1.00	 	 	1.25	%	 	 	0.25	%	 	 	0.175	%
	Category 2:
	 	> 1.50 to 1.00 but ≤ 2.50 to 1.00	 	 	1.375	%	 	 	0.375	%	 	 	0.20	%
	Category 3:
	 	> 2.50 to 1.00	 	 	1.50	%	 	 	0.50	%	 	 	0.225	%






     For purposes of the foregoing,




     (i) if at any time the Parent fails to deliver the Financials on or before the date the
Financials are due pursuant to Section 5.01, Category 3 shall be deemed applicable for the
period commencing three (3) Business Days after the required date of delivery and ending on
the date which is three (3) Business Days after the Financials are actually delivered, after
which the Category shall be determined in accordance with the table above as applicable;




     (ii) adjustments, if any, to the Category then in effect shall be effective three (3)
Business Days after the Administrative Agent has received the applicable Financials (it
being understood and agreed that each change in Category shall apply during the period
commencing on the effective date of such change and ending on the date immediately preceding
the effective date of the next such change); and




     (iii) notwithstanding the foregoing, Category 1 shall be deemed to be applicable until
the Administrative Agent’s receipt of the applicable Financials for the Parent’s first
fiscal quarter ending after the Effective Date (unless such Financials demonstrate that
Category 2 or 3 should have been applicable during such period, in which case such other
Category shall be deemed to be applicable during such period) and adjustments to the
Category then in effect shall thereafter be effected in accordance with the preceding
paragraphs.



          “Approved Fund” has the meaning assigned to such term in Section 9.04.







2









 








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




          “Augmenting Lender” has the meaning assigned to such term in Section 2.20.




          “Available Revolving Commitment” means, at any time with respect to any Lender, the
Commitment of such Lender then in effect minus the Revolving Credit Exposure of such Lender at such
time; it being understood and agreed that any Lender’s Swingline Exposure shall not be deemed to be
a component of the Revolving Credit Exposure for purposes of calculating the commitment fee under
Section 2.12(a).




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




          “Banking Services” means each and any of the following bank services provided to the
Parent or any Subsidiary by any Lender or any of its Affiliates: (a) credit cards for commercial
customers (including, without limitation, commercial credit cards and purchasing cards), (b) stored
value cards and (c) treasury management services (including, without limitation, controlled
disbursement, automated clearinghouse transactions, return items, overdrafts and interstate
depository network services).




          “Banking Services Agreement” means any agreement entered into by the Parent or any
Subsidiary in connection with Banking Services.




          “Banking Services Obligations” means any and all obligations of the Parent or any
Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and substitutions
therefor) in connection with Banking Services.




          “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, such Person has taken any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of
any ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.




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




          “Borrower” means the Company or any Subsidiary Borrower.




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







3









 








          “Borrowing Request” means a request by any Borrower for a Revolving Borrowing in
accordance with Section 2.03.




          “Borrowing Subsidiary Agreement” means a Borrowing Subsidiary Agreement substantially
in the form of Exhibit F-1.




          “Borrowing Subsidiary Termination” means a Borrowing Subsidiary Termination
substantially in the form of Exhibit F-2.




          “Burdensome Restrictions” means any consensual encumbrance or restriction of the type
described in clause (a) or (b) of Section 6.08.




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurocurrency Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in the relevant Agreed
Currency in the London interbank market or the principal financial center of such Agreed Currency
(and, if the Borrowings or LC Disbursements which are the subject of a borrowing, drawing, payment,
reimbursement or rate selection are denominated in euro, the term “Business Day” shall also
exclude any day on which the TARGET2 payment system is not open for the settlement of payments in
euro).




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




          “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity
Interests representing more than 50% of the aggregate ordinary voting power represented by the
issued and outstanding Equity Interests of the Parent or the Company; (b) occupation of a majority
of the seats (other than vacant seats) on the board of directors of the Parent or the Company by
Persons who were neither (i) nominated by the board of directors of the Parent or the Company, as
applicable, nor (ii) appointed by directors so nominated; (c) the acquisition of direct or indirect
Control of the Parent or the Company by any Person or group; (d) the occurrence of a change in
control, or other similar provision, as defined in any agreement or instrument evidencing any
Material Indebtedness (triggering a default or mandatory prepayment, which default or mandatory
prepayment has not been waived in writing); or (e) the Parent or the Company ceases to own,
directly or indirectly, and Control 100% (other than directors’ qualifying shares) of the ordinary
voting and economic power of any Borrower.




          “Change in Law” means the occurrence, after the date of this Agreement (or with
respect to any Lender, if later, the date on which such Lender becomes a Lender), 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,
rules, guideline, requirement or directive (whether or not having the force of law) by any
Governmental Authority; provided however, that notwithstanding anything herein to
the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines, requirements and directives thereunder, issued in connection therewith or in
implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor






4









 







or similar authority) or the United States or foreign regulatory authorities, in each case
pursuant to Basel III, shall in each case be deemed to be a “Change in Law” regardless of the date
enacted, adopted, issued or implemented.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.




          “Code” means the Internal Revenue Code of 1986.




          “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced or terminated from time to time pursuant
to Section 2.09, (b) increased from time to time pursuant to Section 2.20 and (c) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption or other documentation contemplated hereby pursuant to which such Lender
shall have assumed its Commitment, as applicable.




          “Company” means Vistaprint Limited, a Bermuda company.




          “Computation Date” is defined in Section 2.04.




          “Consolidated Capital Expenditures” means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a fixed or capital
asset on a consolidated balance sheet of the Parent and its Subsidiaries prepared in accordance
with GAAP.




          “Consolidated EBITDA” means Consolidated Net Income plus, to the extent deducted from
revenues in determining Consolidated Net Income, (i) Consolidated Interest Expense, (ii) expense
for income taxes paid or accrued, (iii) depreciation, (iv) amortization, (v) extraordinary or
non-recurring non-cash expenses or losses incurred other than in the ordinary course of business,
(vi) non-cash expenses related to share based compensation minus, to the extent included in
Consolidated Net Income, (1) interest income, (2) income tax credits and refunds (to the extent not
netted from tax expense), (3) any cash payments made during such period in respect of items
described in clauses (v) or (vi) above subsequent to the fiscal quarter in which the relevant
non-cash expenses or losses were incurred and (4) extraordinary, unusual or non-recurring income or
gains realized other than in the ordinary course of business, all calculated for the Parent and its
Subsidiaries in accordance with GAAP on a consolidated basis. For the purposes of calculating
Consolidated EBITDA for any period of four consecutive trailing fiscal quarters (each such period,
a “Reference Period”), (i) if at any time during such Reference Period the Parent or any
Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for such Reference
Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to
the property that is the subject of such Material Disposition for such Reference Period or
increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such
Reference Period, and (ii) if during such Reference Period the Parent or any Subsidiary shall have
made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated
after giving effect thereto on a Pro Forma Basis as if such Material Acquisition occurred on the
first day of such Reference Period. As used in this definition, “Material Acquisition”
means any acquisition of property or series of related acquisitions of property that (a)
constitutes (i) assets comprising all or substantially all or any significant portion of a business
or operating unit of a business, or (ii) all or substantially all of the common stock or other
Equity Interests of a Person, and (b) involves the payment of consideration by the Parent and its
Subsidiaries in excess of 10% of Consolidated Total Assets (determined by reference to the






5









 







most recent financial statements of the Parent delivered pursuant to Section 5.01(a) or
5.01(b) or, if prior to the date of the delivery of the first financial statements to be delivered
pursuant to such Section, the most recent financial statements referred to in Section 3.04(a)); and
“Material Disposition” means any sale, transfer or disposition of property or series of
related sales, transfers, or dispositions of property that yields gross proceeds to the Parent or
any of its Subsidiaries in excess of 10% of Consolidated Total Assets (determined by reference to
the most recent financial statements of the Parent delivered pursuant to Section 5.01(a) or 5.01(b)
or, if prior to the date of the delivery of the first financial statements to be delivered pursuant
to such Section, the most recent financial statements referred to in Section 3.04(a)).




          “Consolidated Interest Expense” means, with reference to any period, the interest
expense (including without limitation interest expense under Capital Lease Obligations that is
treated as interest in accordance with GAAP) of the Parent and its Subsidiaries calculated on a
consolidated basis for such period with respect to all outstanding Indebtedness of the Parent and
its Subsidiaries allocable to such period in accordance with GAAP (including, without limitation,
all commissions, discounts and other fees and charges owed with respect to letters of credit and
bankers acceptance financing and net costs under interest rate Swap Agreements to the extent such
net costs are allocable to such period in accordance with GAAP). In the event that the Parent or
any Subsidiary shall have completed a Material Acquisition or a Material Disposition since the
beginning of the relevant period, Consolidated Interest Expense shall be determined for such period
on a Pro Forma Basis as if such acquisition or disposition, and any related incurrence or repayment
of Indebtedness, had occurred at the beginning of such period.




          “Consolidated Net Income” means, with reference to any period, the net income (or
loss) of the Parent and its Subsidiaries calculated in accordance with GAAP on a consolidated basis
(without duplication) for such period; provided that there shall be excluded any income (or
loss) of any Person other than the Parent or a Subsidiary, but any such income so excluded may be
included in such period or any later period to the extent of any cash dividends or distributions
actually paid in the relevant period to the Parent or any wholly-owned Subsidiary of the Parent.




          “Consolidated Senior Indebtedness” means Consolidated Total Indebtedness other than
Subordinated Indebtedness of the Parent and its Subsidiaries.




          “Consolidated Total Assets” means, as of the date of any determination thereof, total
assets of the Parent and its Subsidiaries calculated in accordance with GAAP on a consolidated
basis as of such date.




          “Consolidated Total Indebtedness” means at any time the sum, without duplication, of
(a) the aggregate Indebtedness of the Parent and its Subsidiaries calculated on a consolidated
basis as of such time in accordance with GAAP, (b) the aggregate amount of Indebtedness of the
Parent and its Subsidiaries relating to the maximum drawing amount of all letters of credit
outstanding and bankers acceptances and (c) Indebtedness of the type referred to in clauses (a) or
(b) hereof of another Person guaranteed by the Parent or any of its Subsidiaries.




          “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. The terms “Controlling” and “Controlled” have
meanings correlative thereto.




          “Credit Event” means a Borrowing, the issuance of a Letter of Credit, an LC
Disbursement or any of the foregoing.




          “Credit Party” means the Administrative Agent, the Issuing Bank, the Swingline Lender
or any other Lender.







6









 








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




          “Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days
of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any
portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any
Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause
(i) above, such Lender notifies the Administrative Agent in writing that such failure is the result
of such Lender’s good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been satisfied, (b) has notified
the Company or any Credit Party in writing, or has made a public statement to the effect, that it
does not intend or expect to comply with any of its funding obligations under this Agreement
(unless such writing or public statement indicates that such position is based on such Lender’s
good faith determination that a condition precedent (specifically identified and including the
particular default, if any) to funding a loan under this Agreement cannot be satisfied) or
generally under other agreements in which it commits to extend credit, (c) has failed, within three
(3) Business Days after request by a Credit Party, acting in good faith, to provide a certification
in writing from an authorized officer of such Lender that it will comply with its obligations (and
is financially able to meet such obligations) to fund prospective Loans and participations in then
outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender
shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt
of such certification in form and substance satisfactory to it and the Administrative Agent, or (d)
has become the subject of a Bankruptcy Event.




          “Documentation Agent” means RBS Citizens, N.A. in its capacity as documentation agent
for the credit facility evidenced by this Agreement.




          “Dollar Amount” of any currency at any date shall mean (i) the amount of such currency
if such currency is Dollars or (ii) the equivalent in such currency of Dollars if such currency is
a Foreign Currency, calculated on the basis of the Exchange Rate for such currency, on or as of the
most recent Computation Date provided for in Section 2.04.




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




          “Dutch Subsidiary Borrower” means any Subsidiary Borrower that is organized under the
laws of the Netherlands.




          “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).




          “Eligible Subsidiary” means any Subsidiary that is approved from time to time by the
Lenders and the Administrative Agent.




          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.




          “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Parent or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental






7









 







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 shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any of the foregoing.




          “Equivalent Amount” of any currency with respect to any amount of Dollars at any date
shall mean the equivalent in such currency of such amount of Dollars, calculated on the basis of
the Exchange Rate for such other currency at 11:00 a.m., London time, on the date on or as of which
such amount is to be determined.




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




          “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Parent, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.




          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Parent or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Parent or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Parent or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Parent or
any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Parent
or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Parent or
any ERISA Affiliate of any notice, concerning the imposition upon the Parent or any of its ERISA
Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected
to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.




          “EU” means the European Union.




          “euro” and/or “EUR” means the single currency of the participating member
states of the EU.




          “Eurocurrency”, when used in reference to a currency means an Agreed Currency and when
used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such
Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.







8









 








          “Eurocurrency Payment Office” of the Administrative Agent shall mean, for each Foreign
Currency, the office, branch, affiliate or correspondent bank of the Administrative Agent for such
currency as specified from time to time by the Administrative Agent to the Company and each Lender.




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




          “Exchange Rate” means, on any day, with respect to any Foreign Currency, the rate at
which such Foreign Currency may be exchanged into Dollars, as set forth at approximately 11:00
a.m., Local Time, on such date on the Reuters World Currency Page for such Foreign Currency. In
the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate with
respect to such Foreign Currency shall be determined by reference to such other publicly available
service for displaying exchange rates as may be reasonably selected by the Administrative Agent or,
in the event no such service is selected, such Exchange Rate shall instead be calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative
Agent for such Foreign Currency on the London market at 11:00 a.m., Local Time, on such date for
the purchase of Dollars with such Foreign Currency, for delivery two Business Days later;
provided, that if at the time of any such determination, for any reason, no such spot rate
is being quoted, the Administrative Agent, after consultation with the Company, may use any
reasonable method it deems appropriate to determine such rate, and such determination shall be
conclusive absent manifest error.




          “Excluded Taxes” means, with respect to any payment made by any Loan Party under any
Loan Document, any of the following Taxes imposed on or with respect to a Recipient:




          (a) income or franchise Taxes imposed on (or measured by) net income by the United States of
America, or by the jurisdiction (or any political subdivisions thereof) under the laws of which
such Recipient is organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located or by any other jurisdiction in which
such Recipient has a present or former connection with such jurisdiction imposing the Tax (other
than a connection arising from such Recipient having executed, delivered, enforced, become a party
to, performed its obligations under, received payments under, received or perfected a security
interest under, or engaged in any other transaction pursuant to, or enforced, any Loan Document, or
sold or assigned an interest in any Loan Document);




          (b) any branch profits Taxes imposed by the United States of America or any similar Taxes
imposed by any other jurisdiction in which any Borrower is located;




          (c) any backup withholding tax that is required by the Code to be withheld from amounts
payable by a Lender that has failed to comply with Section 2.17(f)(ii)(A); and




          (d) in the case of a Non U.S. Lender (other than an assignee pursuant to a request by any
Borrower under Section 2.19(b)), any U.S. Federal withholding Taxes resulting from any law in
effect (including FATCA) on the date such Non U.S. Lender becomes a party to this Agreement (or
designates a new lending office) or is attributable to such Non U.S. Lender’s failure to comply
with Section 2.17(f), except to the extent that such Non U.S. Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding Taxes pursuant to Section 2.17(a).




          “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this
Agreement, and any regulations or official interpretations thereof.







9









 








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




          “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Parent or the Company, as the context may require.




          “Financials” means the annual or quarterly financial statements, and accompanying
certificates and other documents, of the Parent and its Subsidiaries required to be delivered
pursuant to Section 5.01(a) or 5.01(b).




          “Foreign Currencies” means Agreed Currencies other than Dollars.




          “Foreign Currency LC Exposure” means, at any time, the sum of (a) the Dollar Amount of
the aggregate undrawn and unexpired amount of all outstanding Foreign Currency Letters of Credit at
such time plus (b) the aggregate principal Dollar Amount of all LC Disbursements in respect of
Foreign Currency Letters of Credit that have not yet been reimbursed at such time.




          “Foreign Currency Letter of Credit” means a Letter of Credit denominated in a Foreign
Currency.




          “Foreign Currency Sublimit” means $50,000,000.




          “FSA” means the Dutch Financial Supervision Act (Wet op het financieel toezicht), as
amended from time to time




          “GAAP” means generally accepted accounting principles in the United States of America.




          “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank) and any group or body charged with setting financial accounting or
regulatory capital rules or standards (including, without limitation, the Financial Accounting
Standards Board, the Bank for International Settlements or the Basel Committee on Banking
Supervision or any successor or similar authority to any of the foregoing).




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or






10









 







any other financial statement condition or liquidity of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term “Guarantee” shall not include endorsements for
collection or deposit in the ordinary course of business.




          “Guarantors” means, collectively, the Parent and the Subsidiary Guarantors.




          “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.




          “Increasing Lender” has the meaning assigned to such term in Section 2.20.




          “Incremental Term Loan” has the meaning assigned to such term in Section 2.20.




          “Incremental Term Loan Amendment” has the meaning assigned to such term in Section
2.20.




          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances, and (k) all obligations of such Person under Sale and Leaseback
Transactions. The Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the extent such Person is
liable therefor as a result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such Person is not liable
therefor.




          “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by any Loan Party under any Loan Document and (b) Other Taxes.




          “Initial Subsidiary Borrowers” has the meaning assigned to such term in the definition
of Subsidiary Borrower.




          “Information Memorandum” means the Confidential Information Memorandum dated
September, 2011 relating to the Company and the Transactions.




          “Interest Coverage Ratio” has the meaning assigned to such term in Section 6.12(b).




          “Interest Election Request” means a request by the applicable Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.08.







11









 








          “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December and the Maturity Date, (b) with
respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period
of more than three months’ duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months’ duration after the first day of such Interest Period and the
Maturity Date and (c) with respect to any Swingline Loan, the day that such Loan is required to be
repaid and the Maturity Date.




          “Interest Period” means with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six (or, if acceptable to each Lender, nine or twelve)
months thereafter, as the applicable Borrower (or the Company on behalf of the applicable Borrower)
may elect; provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in
the case of a Eurocurrency Borrowing only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period pertaining to a Eurocurrency Borrowing that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and, in the case of a Revolving Borrowing,
thereafter shall be the effective date of the most recent conversion or continuation of such
Borrowing.




          “IRS” means the United States Internal Revenue Service.




          “Issuing Bank” means JPMorgan Chase Bank, N.A., in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.06(i).
The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.




          “LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).




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




          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn Dollar Amount
of all outstanding Letters of Credit at such time plus (b) the aggregate Dollar Amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Company at such time. The
LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure
at such time.




          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment
and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline
Lender.




          “Letter of Credit” means any letter of credit issued pursuant to this Agreement.




          “Leverage Ratio” has the meaning assigned to such term in Section 6.12(a).







12









 








          “LIBO Rate” means, with respect to any Eurocurrency Borrowing for any Interest Period,
the rate appearing on, in the case of Dollars, Reuters Screen LIBOR01 Page and, in the case of any
Foreign Currency, the appropriate page of such service which displays British Bankers Association
Interest Settlement Rates for deposits in such Foreign Currency (or, in each case, on any successor
or substitute page of such service, or any successor to or substitute for such service, providing
rate quotations comparable to those currently provided on such page of such service, as determined
by the Administrative Agent from time to time for purposes of providing quotations of interest
rates applicable to deposits in the relevant Agreed Currency in the London interbank market) at
approximately 11:00 a.m., London time, two (2) Business Days prior to (or, in the case of Loans
denominated in Pounds Sterling, on the day of) the commencement of such Interest Period, as the
rate for deposits in the relevant Agreed Currency with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for any reason, then the
“LIBO Rate” with respect to such Eurocurrency Borrowing for such Interest Period shall be
the rate at which deposits in the relevant Agreed Currency in an Equivalent Amount of $5,000,000
and for a maturity comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two (2) Business Days prior to (or, in the case of Loans
denominated in Pounds Sterling, on the day of) the commencement of such Interest Period.




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




          “Loan Documents” means this Agreement, each Borrowing Subsidiary Agreement, each
Borrowing Subsidiary Termination, the Subsidiary Guaranty, any promissory notes issued pursuant to
Section 2.10(e), any Letter of Credit applications and any and all other agreements, instruments,
documents and certificates identified in Section 4.01 executed and delivered to, or in favor of,
the Administrative Agent or any Lenders and including all other pledges, powers of attorney,
consents, assignments, contracts, notices, letter of credit agreements and all other written matter
whether heretofore, now or hereafter executed by or on behalf of any Loan Party, or any employee of
any Loan Party, and delivered to the Administrative Agent or any Lender in connection with this
Agreement or the transactions contemplated hereby. Any reference in this Agreement or any other
Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and
all amendments, restatements, supplements or other modifications thereto, and shall refer to this
Agreement or such Loan Document as the same may be in effect at any and all times such reference
becomes operative.




          “Loan Parties” means, collectively, the Borrowers and the Guarantors.




          “Loans” means the loans made by the Lenders to the Borrowers pursuant to this
Agreement.




          “Local Time” means (i) New York City time in the case of a Loan, Borrowing or LC
Disbursement denominated in Dollars and (ii) local time in the case of a Loan, Borrowing or LC
Disbursement denominated in a Foreign Currency (it being understood that such local time shall mean
London, England time unless otherwise notified by the Administrative Agent).




          “Mandatory Cost” is described in Schedule 2.02.







13









 








          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations or condition (financial or otherwise) of the Parent and the Subsidiaries taken as a
whole, (b) the ability of any Borrower or any Guarantor to perform any of its obligations under the
Loan Documents when due or (c) the validity or enforceability of this Agreement or any and all
other Loan Documents or the rights or remedies of the Administrative Agent and the Lenders
thereunder.




          “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Parent
and its Subsidiaries in an aggregate principal amount exceeding $25,000,000. For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of the Parent or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Parent or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.




          “Material Subsidiary” means each Subsidiary (i) which, as of the most recent fiscal
quarter of the Parent, for the period of four consecutive fiscal quarters then ended, for which
financial statements have been delivered pursuant to Section 5.01, contributed greater than ten
percent (10%) of Consolidated EBITDA for such period or (ii) which contributed greater than ten
percent (10%) of Consolidated Total Assets as of such date; provided that, if at any time
the aggregate amount of Consolidated EBITDA or Consolidated Total Assets attributable to all that
are not Material Subsidiaries exceeds twenty percent (20%) of Consolidated EBITDA for any such
period or twenty percent (20%) of Consolidated Total Assets as of the end of any such fiscal
quarter, the Company (or, in the event the Company has failed to do so within ten days, the
Administrative Agent) shall designate sufficient Subsidiaries as “Material Subsidiaries” to
eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement
constitute Material Subsidiaries.




          “Maturity Date” means October 21, 2016.




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




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




          “Non-U.S. Lender” means a Lender that is not a U.S. Person.




          “Obligations” means all unpaid principal of and accrued and unpaid interest on the
Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities
and other obligations and indebtedness (including interest and fees accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed
or allowable in such proceeding), obligations and liabilities of any of the Parent and its
Subsidiaries to any of the Lenders, the Administrative Agent, the Issuing Bank or any indemnified
party, individually or collectively, existing on the Effective Date or arising thereafter, direct
or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Agreement or any of the other Loan Documents or to the Lenders or any of their
Affiliates under any Swap Agreement or any Banking Services Agreement or in respect of any of the
Loans made or reimbursement or other obligations incurred or any of the Letters of Credit or other
instruments at any time evidencing any thereof.




          “Obligors” means, collectively, the Parent and the Borrowers.







14









 








          “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the jurisdiction imposing such
Taxes (other than a connection arising from such Recipient having executed, delivered, enforced,
become a party to, performed its obligations under, received payments under, received or perfected
a security interest under, or engaged in any other transaction pursuant to, or enforced, any Loan
Document, or sold or assigned an interest in any Loan Document).




          “Other Taxes” means any present or future stamp, court, documentary, intangible,
recording, filing or similar excise or property Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, or from the registration,
receipt or perfection of a security interest under, or otherwise with respect to, any Loan
Document, except any such Taxes that are Other Connection Taxes imposed with respect to an
assignment (other than an assignment under Section 2.19(b)).




          “Overnight Foreign Currency Rate” means, for any amount payable in a Foreign Currency,
the rate of interest per annum as determined by the Administrative Agent at which overnight or
weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three
(3) Business Days, then for such other period of time as the Administrative Agent may elect) for
delivery in immediately available and freely transferable funds would be offered by the
Administrative Agent to major banks in the interbank market upon request of such major banks for
the relevant currency as determined above and in an amount comparable to the unpaid principal
amount of the related Credit Event, plus any taxes, levies, imposts, duties, deductions, charges or
withholdings imposed upon, or charged to, the Administrative Agent by any relevant correspondent
bank in respect of such amount in such relevant currency.




          “Parent” means Vistaprint N.V., a public limited company organized under the laws of
the Netherlands, with its statutory seat in Venlo, the Netherlands.




          “Participant” has the meaning assigned to such term in Section 9.04.




          “Participant Register” has the meaning assigned to such term in Section 9.04(c).




          “Participating Member State” means any member state of the European Union that adopts
or has adopted the euro as its lawful currency in accordance with legislation of the European Union
relating to economic and monetary union.




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




          “Permitted Acquisition” means any acquisition (whether by purchase, merger,
consolidation or otherwise) or series of related acquisitions by the Parent or any Subsidiary of
(i) all or substantially all, or a significant portion of, the assets of or (ii) all or
substantially all the Equity Interests in, a Person or division or line of business of a Person,
if, at the time of and immediately after giving effect thereto, (a) no Default has occurred and is
continuing or would arise after giving effect thereto, (b) such Person or division or line of
business is engaged in the same or a similar line of business as the Parent and the Subsidiaries or
business reasonably related thereto, (c) all actions required to be taken with respect to such
acquired or newly formed Subsidiary under Sections 5.09 and 5.10 shall have been taken, (d) the
Parent and the Subsidiaries are in compliance, on a pro forma basis reasonably acceptable to the
Administrative Agent after giving effect to such acquisition (but without giving effect to any
synergies or cost savings), with the covenants contained in Section 6.12 recomputed as of the last
day of the most recently ended fiscal quarter of the Parent for which financial statements are
available, as if such






15









 







acquisition (and any related incurrence or repayment of Indebtedness, with any new
Indebtedness being deemed to be amortized over the applicable testing period in accordance with its
terms) had occurred on the first day of each relevant period for testing such compliance and, if
the aggregate consideration paid in respect of such acquisition exceeds $50,000,000, the Parent
shall have delivered to the Administrative Agent a certificate of a Financial Officer of the Parent
to such effect, together with all relevant financial information, statements and projections
requested by the Administrative Agent, (e) in the case of an acquisition or merger involving the
Parent or a Subsidiary, the Parent or such Subsidiary (or another Person that merges or
consolidates with such Subsidiary and that, immediately after the consummation of such merger or
consolidation, becomes a Subsidiary) is the surviving entity of such merger and/or consolidation
and (f) the aggregate cash consideration paid in respect of such acquisitions, when taken together
with the aggregate cash consideration paid in respect of all other acquisitions, does not exceed
$25,000,000 during any fiscal year of the Parent (provided, however, that the
aggregate cash consideration paid in respect of any such acquisitions shall be permitted in an
aggregate amount not to exceed $150,000,000 for each such acquisition so long as the Total Leverage
Ratio does not exceed 2.25 to 1.00 immediately after giving effect to such acquisition on a Pro
Forma Basis).




          “Permitted Corporate Reorganization” means a reorganization of the corporate structure
of the Parent and its Subsidiaries to the extent (i) approved by the Administrative Agent (such
approval not to be unreasonably withheld or delayed) and (ii) such reorganization does not have a
material adverse effect on the credit support for the Transactions and on the credit profile of the
Company and the Guarantors taken as a whole.




          “Permitted Encumbrances” means:




          (a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance
with Section 5.04;




          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are not
overdue by more than thirty (30) days or are being contested in compliance with Section 5.04;




          (c) pledges and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or regulations;




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




          (e) judgment Liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII;




          (f) any netting or set-off arrangement entered into by any Loan Party in the ordinary course
of its banking arrangements for the purpose of netting debit and credit balances;




          (g) any Lien arising under clause 24 and 25 of the general terms and conditions (algemene
voorwaarden) of the Dutch Banker’s Association (Nederlandse Vereniging van Banken) or any similar
term applied by a Dutch bank; and




          (h) easements, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary






16









 







obligations and do not materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Parent or any Subsidiary;



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




          “Permitted Investments” means investments permitted to be made in accordance with the
investment policy of the Parent, as such policy is in effect, and as disclosed to the
Administrative Agent, prior to the Effective Date and as such policy may be amended, restated,
supplemented or otherwise modified from time to time with the consent of the Administrative Agent.




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




          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Parent or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Pounds Sterling” means the lawful currency of the United Kingdom.




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




          “Pro Forma Basis” means, with respect to any event, that the Parent is in compliance
on a pro forma basis with the applicable covenant, calculation or requirement
herein recomputed as if the event with respect to which compliance on a Pro Forma Basis is being
tested had occurred on the first day of the four fiscal quarter period most recently ended on or
prior to such date for which financial statements have been delivered pursuant to Section 5.01.




          “Qualifying Bank” means any person or entity acting on its own account which is
licensed as a bank by the banking laws in force in its jurisdiction of incorporation and any branch
of a legal entity, which is licensed as a bank by the banking laws in force in the jurisdiction
where such branch is situated, and which, in each case, exercises as its main purpose a true
banking activity, having bank personnel, premises, communication devices of its own and authority
of decision making, all within the meaning of the Swiss Guidelines as issued and as amended from
time to time by the Swiss Federal Tax Administration (SFTA).




          “Recipient” means, as applicable, (a) the Administrative Agent, (b) any Lender and (c)
the Issuing Bank.




          “Register” has the meaning set forth in Section 9.04.




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




          “Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time.







17









 








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




          “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.




          “Revolving Loan” means a Loan made pursuant to Section 2.01.




          “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services
LLC business.




          “Sale and Leaseback Transaction” means any sale or other transfer of any property or
asset by any Person with the intent to lease such property or asset as lessee.




          “SEC” means the United States Securities and Exchange Commission.




          “Senior Leverage Ratio” has the meaning set forth in Section 6.12(b).




          “Service of Process Agent” means Corporation Service Company, 1180 Avenue of the
Americas, Suite 210, New York, New York 10036.




          “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve, liquid asset, fees or similar requirements (including any marginal, special,
emergency or supplemental reserves or other requirements) established by any central bank, monetary
authority, the Board, the Financial Services Authority, the European Central Bank or other
Governmental Authority for any category of deposits or liabilities customarily used to fund loans
in the applicable currency, expressed in the case of each such requirement as a decimal. Such
reserve, liquid asset, fees or similar requirements shall, in the case of Dollar denominated Loans,
include those imposed pursuant to Regulation D of the Board. Eurocurrency Loans shall be deemed to
be subject to such reserve, liquid asset, fee or similar requirements without benefit of or credit
for proration, exemptions or offsets that may be available from time to time to any Lender under
any applicable law, rule or regulation, including Regulation D of the Board. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any change in any reserve,
liquid asset or similar requirement.




          “Subordinated Indebtedness” means any Indebtedness of the Parent or any Subsidiary the
payment of which is subordinated to payment of the obligations under the Loan Documents.




          “Subordinated Indebtedness Documents” means any document, agreement or instrument
evidencing any Subordinated Indebtedness or entered into in connection with any Subordinated
Indebtedness.




          “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other






18









 







corporation, limited liability company, partnership, association or other entity (a) of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, Controlled or held, or (b) that is, as of such
date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.




          “Subsidiary” means any subsidiary of the Parent.




          “Subsidiary Borrower” means (i) Vistaprint Schweiz GmbH, a corporation incorporated
under the laws of Switzerland, (ii) Vistaprint B.V., a private limited liability company organized
under the laws of the Netherlands, with its statutory seat in Venlo, the Netherlands (collectively,
the “Initial Subsidiary Borrowers”), and (iii) any other Eligible Subsidiary that becomes a
Subsidiary Borrower pursuant to Section 2.23, in each case, provided that such Subsidiary Borrower
has not ceased to be a Subsidiary Borrower pursuant to such Section 2.23.




          “Subsidiary Guarantor” means each Material Subsidiary that is party to the Guaranty.
The Subsidiary Guarantors on the Effective Date are identified as such in Schedule 3.01A
hereto.




          “Subsidiary Guaranty” means that certain Guaranty dated as of the Effective Date in
the form of Exhibit G (including any and all supplements thereto) and executed by each
Subsidiary Guarantor party thereto and any other guaranty agreements as are requested by the
Administrative Agent and its counsel, in each case as amended, restated, supplemented or otherwise
modified from time to time.




          “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Parent or the Subsidiaries shall be a
Swap Agreement.




          “Swap Obligations” means any and all obligations of the Parent or any Subsidiary,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
(a) any and all Swap Agreements permitted hereunder with a Lender or an Affiliate of a Lender, and
(b) any and all cancellations, buy backs, reversals, terminations or assignments of any such Swap
Agreement transaction.




          “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.




          “Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.




          “Swingline Loan” means a Loan made pursuant to Section 2.05.




          “Swiss Borrower” means Vistaprint Schweiz GmbH and any other Borrower incorporated in
Switzerland and/or having its registered office in Switzerland and/or qualifying as a Swiss
resident pursuant to Article 9 of the Swiss Federal Withholding Tax Act and/or Article 4 of the
Swiss Federal Stamp Tax Act..







19









 








          “Swiss Guidelines” means, together, the guideline “Interbank Loans” of 22 September
1986 (S- 02.123) (Merkblatt “Verrechnungssteuer auf Zinsen von Bankguthaben, deren Gläubiger Banken
sind (Interbankguthaben)” vom 22. September 1986), the guideline “Syndicated Loans” of January 2000
(S-02.128) (Merkblatt “Steuerliche Behandlung von Konsortialdarlehen, Schuldscheindarlehen,
Wechseln und Unterbeteiligungen” vom Januar 2000), the guideline S-02.130.1 in relation to money
market instruments and book claims of April 1999 (Merkblatt vom April 1999 betreffend
Geldmarktpapiere und Buchforderungen inländischer Schuldner), the guideline “Bonds” of April 1999
(S-02.122.1) (Merkblatt “Obligationen” vom April 1999), the circular letter No. 34 “Customer Credit
Balances” of 26 July 2011 (1-034-V-2011) (Kreisschreiben Nr. 34 ,,Kundenguthaben” vom 26. Juli
2011), the circular letter No. 15 of 7 February 2007 (1-015-DVS-2007) in relation to bonds and
derivative financial instruments as subject matter of taxation of Swiss federal income tax, Swiss
Federal Withholding Tax and Swiss Federal Stamp Taxes (Kreisschreiben Nr. 15 “Obligationen und
derivative Finanzinstrumente als Gegenstand der direkten Bundessteuer, der Verrechnungssteuer und
der Stempelabgaben” vom 7. February 2007); all as issued, and as amended from time to time, by the
Swiss Federal Tax Administration (SFTA).




          “Swiss Federal Stamp Tax” means the Taxes levied pursuant to the Swiss Federal Stamp
Tax Act.




          “Swiss Federal Stamp Tax Act” means the Swiss Federal Stamp Tax Act of 27 June 1973
(Bundesgesetz über die Stempelabgaben vom 27. Juni 1973); together with the related ordinances,
regulations and guidelines, all as amended and applicable from time to time.




          “Swiss Federal Withholding Tax” means the Taxes levied pursuant to the Swiss Federal
Withholding Tax Act.




          “Swiss Federal Withholding Tax Act” means the Swiss Federal Withholding Tax Act of 13
October 1965 (Bundesgesetz über die Verrechnungssteuer vom 13. Oktober 1965); together with the
related ordinances, regulations and guidelines, all as amended and applicable from time to time.




          “Swiss Non-Bank Rules” means the Swiss Ten Non-Bank Rule and the Swiss Twenty Non-Bank
Rule.




          “Swiss Subsidiary Guarantor” means any other Subsidiary Guarantor incorporated
in Switzerland and/or having its registered office in Switzerland.




          “Swiss Ten Non-Bank Rule” means the rule that the aggregate number of creditors
(within the meaning of the Swiss Guidelines) under this Agreement which are not Qualifying Banks
must not, at any time, exceed ten (10).




          “Swiss Twenty Non-Bank Rule” means the rule that (without duplication) the aggregate
number of creditors (including the Lenders), other than Qualifying Banks, of the Swiss Borrower
under all outstanding debts relevant for classification as debenture (Kassenobligation) (including
debt arising under this Agreement and intra-group loans (if and to the extent intra-group loans are
not exempt in accordance with the ordinance of the Swiss Federal Council of 18 June 2010 amending
the Swiss Federal Ordinance on withholding tax and the Swiss Federal Ordinance on stamp duties with
effect as of 1 August 2010), loans, facilities and/or private placements (including under this
Agreement) must not, at any time, exceed twenty (20); in each case in accordance with the meaning
of the Swiss Guidelines.




          “Syndication Agent” means HSBC Bank USA, National Association in its capacity as
syndication agent for the credit facility evidenced by this Agreement.







20









 








          “TARGET2” means the Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET2) payment system (or, if such payment system ceases to be operative, such other
payment system (if any) reasonably determined by the Administrative Agent to be a suitable
replacement) for the settlement of payments in euro.




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




          “Transactions” means the execution, delivery and performance by the Loan Parties of
this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions,
the use of the proceeds thereof and the issuance of Letters of Credit hereunder.




          “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.




          “U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)
of the Code.




          “U.S. Tax Certificate” has the meaning assigned to such term in Section
2.17(f)(ii)(D)(2).




          “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




          “Withholding Agent” means any Loan Party and/or the Administrative Agent.




          SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a “Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”)
or by Class and Type (e.g., a “Eurocurrency Revolving Loan”). Borrowings also may
be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type
(e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a
“Eurocurrency Revolving Borrowing”).




          SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to
have the same meaning and effect as the word “shall”. The word “law” shall be construed as
referring to all statutes, rules, regulations, codes and other laws (including official rulings and
interpretations thereunder having the force of law or with which affected Persons customarily
comply), and all judgments, orders and decrees, of all Governmental Authorities. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, restatements, supplements or modifications set forth herein), (b)
any definition of or reference to any statute, rule or regulation shall be construed as referring
thereto as from time to time amended, supplemented or otherwise modified (including by succession
of comparable successor laws), (c) any reference herein to any Person shall be construed to include
such Person’s successors and assigns (subject to any restrictions on assignment set forth herein)
and, in the case of any Governmental Authority, any other Governmental Authority that shall have
succeeded to any or all functions thereof, (d) the words






21









 







“herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer
to this Agreement in its entirety and not to any particular provision hereof, (e) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (f) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.




          SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests an amendment to
any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP
or in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Company that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any
other provision contained herein, all terms of an accounting or financial nature used herein shall
be construed, and all computations of amounts and ratios referred to herein shall be made (i)
without giving effect to any election under Accounting Standards Codification 825-10-25 (or any
other Accounting Standards Codification or Financial Accounting Standard having a similar result or
effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair
value”, as defined therein and (ii) without giving effect to any treatment of Indebtedness in
respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any
other Accounting Standards Codification or Financial Accounting Standard having a similar result or
effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and
such Indebtedness shall at all times be valued at the full stated principal amount thereof.




          SECTION 1.05. Status of Obligations. In the event that the Company or any other Loan Party shall at any time issue or have
outstanding any Subordinated Indebtedness, the Company shall take or cause such other Loan Party to
take all such actions as shall be necessary to cause the Obligations to constitute senior
indebtedness (however denominated) in respect of such Subordinated Indebtedness and to enable the
Administrative Agent and the Lenders to have and exercise any payment blockage or other remedies
available or potentially available to holders of senior indebtedness under the terms of such
Subordinated Indebtedness. Without limiting the foregoing, the Obligations are hereby designated
as “senior indebtedness” and as “designated senior indebtedness” and words of similar import under
and in respect of any indenture or other agreement or instrument under which such Subordinated
Indebtedness is outstanding and are further given all such other designations as shall be required
under the terms of any such Subordinated Indebtedness in order that the Lenders may have and
exercise any payment blockage or other remedies available or potentially available to holders of
senior indebtedness under the terms of such Subordinated Indebtedness.




ARTICLE II




The Credits



          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each Lender agrees to make Revolving
Loans to the Borrowers in Agreed Currencies from time to time during the Availability Period in an
aggregate principal amount that will not result in (a) subject to Sections 2.04 and 2.11(b), the
Dollar Amount of such Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment, (b)
subject to Sections 2.04 and 2.11(b), the sum of the Dollar Amount of the total






22









 







Revolving Credit Exposures exceeding the Aggregate Commitment or (c) subject to Sections 2.04
and 2.11(b), the Dollar Amount of the total outstanding Revolving Loans and LC Exposure, in each
case denominated in Foreign Currencies, exceeding the Foreign Currency Sublimit. Within the
foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may
borrow, prepay and reborrow Revolving Loans.




          SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan (other than a Swingline Loan) shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans
as required. Any Swingline Loan shall be made in accordance with the procedures set forth in
Section 2.05.





     (b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of
ABR Loans or Eurocurrency Loans as the relevant Borrower may request in accordance herewith;
provided that each ABR Loan shall only be made in Dollars. Each Swingline Loan
shall be an ABR Loan. Each Lender at its option may make any Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an
Affiliate, the provisions of Sections 2.14, 2.15, 2.16 and 2.17 shall apply to such
Affiliate to the same extent as to such Lender); provided that any exercise of such
option shall not affect the obligation of the relevant Borrower to repay such Loan in
accordance with the terms of this Agreement.




     (c) At the commencement of each Interest Period for any Eurocurrency Revolving
Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of
$500,000 (or, if such Borrowing is denominated in a Foreign Currency, 500,000 units of such
currency) and not less than $1,000,000 (or, if such Borrowing is denominated in a Foreign
Currency, 1,000,000 units of such currency). At the time that each ABR Revolving Borrowing
is made, such Borrowing shall be in an aggregate amount that is an integral multiple of
$250,000 and not less than $1,000,000; provided that an ABR Revolving Borrowing may
be in an aggregate amount that is equal to the entire unused balance of the Aggregate
Commitment or that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e). Each Swingline Loan shall be in an amount that is an
integral multiple of $250,000 and not less than $1,000,000. Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall not at
any time be more than a total of ten (10) Eurocurrency Revolving Borrowings outstanding.




     (d) Notwithstanding any other provision of this Agreement, no Borrower shall be
entitled to request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity Date.




     (e) The initial borrowing from any Lender to any Dutch Subsidiary Borrower shall be at
least €50,000 (or its equivalent in another currency) or any other amount that will from
time to time be applicable under section 3(2) under a and/or b of the Dutch Decree on
Definitions Wft (Besluit definitiebepalingen Wft), or, if it is less, that Lender shall
confirm in writing to that Dutch Subsidiary Borrower that it is a professional market party
within the meaning of the FSA.



          SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing, the applicable Borrower, or the Company on behalf of the
applicable Borrower, shall notify the Administrative Agent of such request (a) by irrevocable
written notice (via a written Borrowing Request in a form approved by the Administrative Agent and
signed by the applicable Borrower, or the Company






23









 







on behalf of the applicable Borrower, promptly followed by telephonic confirmation of such
request) in the case of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time, three (3)
Business Days (in the case of a Eurocurrency Borrowing denominated in Dollars) or by irrevocable
written notice (via a written Borrowing Request in a form approved by the Administrative Agent and
signed by such Borrower, or the Company on its behalf) not later than four (4) Business Days (in
the case of a Eurocurrency Borrowing denominated in a Foreign Currency), in each case before the
date of the proposed Borrowing or (b) by telephone in the case of an ABR Borrowing, not later than
11:00 a.m., New York City time, one (1) Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.06(e) may be given not later than 10:00 a.m., New
York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the applicable Borrower, or the Company on behalf of the applicable Borrower. Each
such telephonic and written Borrowing Request shall specify the following information in compliance
with Section 2.02:





     (i) the aggregate amount of the requested Borrowing;




     (ii) the date of such Borrowing, which shall be a Business Day;




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;




     (iv) in the case of a Eurocurrency Borrowing, the Agreed Currency and initial
Interest Period to be applicable thereto, which shall be a period contemplated by
the definition of the term “Interest Period”; and




     (v) the location and number of the applicable Borrower’s account to which funds
are to be disbursed, which shall comply with the requirements of Section 2.07.


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




          SECTION 2.04. Determination of Dollar Amounts. The Administrative Agent will determine the Dollar Amount of:





     (a) each Eurocurrency Borrowing as of the date two (2) Business Days prior to the date
of such Borrowing or, if applicable, the date of conversion/continuation of any Borrowing as
a Eurocurrency Borrowing,




     (b) the LC Exposure as of the date of each request for the issuance, amendment, renewal
or extension of any Letter of Credit, and




     (c) all outstanding Credit Events on and as of the last Business Day of each calendar
quarter and, during the continuation of an Event of Default, on any other Business Day
elected by the Administrative Agent in its discretion or upon instruction by the Required
Lenders.



24









 




Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the
preceding clauses (a), (b) and (c) is herein described as a “Computation Date” with respect to each
Credit Event for which a Dollar Amount is determined on or as of such day.




          SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to
make Swingline Loans in Dollars to the Company from time to time during the Availability Period, in
an aggregate principal amount at any time outstanding that will not result in (i) the aggregate
principal amount of outstanding Swingline Loans exceeding $25,000,000 or (ii) the Dollar Amount of
the total Revolving Credit Exposures exceeding the Aggregate Commitment; provided that the
Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth
herein, the Company may borrow, prepay and reborrow Swingline Loans.





     (b) To request a Swingline Loan, the Company shall notify the Administrative Agent of
such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City
time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day) and amount of the requested
Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any
such notice received from the Company. The Swingline Lender shall make each Swingline Loan
available to the Company by means of a credit to the general deposit account of the Company
with the Swingline Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance to the
Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline
Loan.




     (c) The Swingline Lender may by written notice given to the Administrative Agent not
later than 10:00 a.m., New York City time, on any Business Day require the Lenders to
acquire participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which
Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable
Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable
Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall
apply, mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by
it from the Lenders. The Administrative Agent shall notify the Company of any
participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lender. Any amounts received by the Swingline Lender from the Company (or
other party on behalf of the Company) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Lenders that shall have made
their payments pursuant to this paragraph and to the Swingline Lender, as their interests
may appear; provided that any such



25









 







payment so remitted shall be repaid to the Swingline Lender or to the Administrative
Agent, as applicable, if and to the extent such payment is required to be refunded to the
Company for any reason. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Company of any default in the payment thereof.



          SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and conditions set forth herein, the Company may
request the issuance of Letters of Credit denominated in Agreed Currencies for its own account or
for the account of any Subsidiary, in a form reasonably acceptable to the Administrative Agent and
the Issuing Bank, at any time and from time to time during the Availability Period. In the event
of any inconsistency between the terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other agreement submitted by the Company
to, or entered into by the Company with, the Issuing Bank relating to any Letter of Credit, the
terms and conditions of this Agreement shall control.





     (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Company shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting the
issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed
or extended, and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire (which shall
comply with paragraph (c) of this Section), the amount of such Letter of Credit, the Agreed
Currency applicable thereto, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter of Credit.
If requested by the Issuing Bank, the Company also shall submit a letter of credit
application on the Issuing Bank’s standard form in connection with any request for a Letter
of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and
upon issuance, amendment, renewal or extension of each Letter of Credit the Company shall be
deemed to represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) subject to Sections 2.04 and 2.11(b), the Dollar Amount of the LC
Exposure shall not exceed $25,000,000, (ii) subject to Sections 2.04 and 2.11(b), the sum of
the Dollar Amount of the total Revolving Credit Exposures shall not exceed the Aggregate
Commitment and (iii) subject to Sections 2.04 and 2.11(b), the Dollar Amount of the total
outstanding Revolving Loans and LC Exposure, in each case denominated in Foreign Currencies,
shall not exceed the Foreign Currency Sublimit.




     (c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the issuance of
such Letter of Credit (or, in the case of any renewal or extension thereof, one year after
such renewal or extension); provided that any such Letter of Credit may provide for the
automatic renewal thereof for additional one-year periods subject to customary non-renewal
provisions (which shall in no event extend beyond the date referred to in the following
clause (ii)) and (ii) the date that is five (5) Business Days prior to the Maturity Date.




     (d) Participations. By the issuance of a Letter of Credit (or an amendment to
a Letter of Credit increasing the amount thereof) and without any further action on the part
of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each
Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender’s Applicable Percentage of the aggregate Dollar Amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and



26









 







unconditionally agrees to pay to the Administrative Agent, for the account of the
Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by the
Issuing Bank and not reimbursed by the Company on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the Company for
any reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of
a Default or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.




     (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Company shall reimburse such LC Disbursement by paying to
the Administrative Agent in Dollars the Dollar Amount equal to such LC Disbursement,
calculated as of the date the Issuing Bank made such LC Disbursement (or if the Issuing Bank
shall so elect in its sole discretion by notice to the Company, in such other Agreed
Currency which was paid by the Issuing Bank pursuant to such LC Disbursement in an amount
equal to such LC Disbursement) not later than 12:00 noon, Local Time, on the Business Day
immediately following the date that such LC Disbursement is made, if the Company shall have
received notice of such LC Disbursement prior to 10:00 a.m., Local Time, on such date, or,
if such notice has not been received by the Company prior to such time on such date, then
not later than 12:00 noon, Local Time, on the Business Day immediately following the day
that the Company receives such notice, if such notice is not received prior to such time on
the day of receipt; provided that, if such LC Disbursement is not less than the
Dollar Amount of $1,000,000, the Company may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 or 2.05 that such payment be financed
with an ABR Revolving Borrowing or Swingline Loan in an equivalent Dollar Amount of such LC
Disbursement and, to the extent so financed, the Company’s obligation to make such payment
shall be discharged and replaced by the resulting ABR Revolving Borrowing or Swingline Loan.
If the Company fails to make such payment when due, the Administrative Agent shall notify
each Lender of the applicable LC Disbursement, the payment then due from the Company in
respect thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt
of such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage
of the payment then due from the Company, in the same manner as provided in Section 2.07
with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative Agent
shall promptly pay to the Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from the Company
pursuant to this paragraph, the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing
Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline
Loan as contemplated above) shall not constitute a Loan and shall not relieve the Company of
its obligation to reimburse such LC Disbursement. If the Company’s reimbursement of, or
obligation to reimburse, any amounts in any Foreign Currency would subject the
Administrative Agent, the Issuing Bank or any Lender to any stamp duty, ad valorem charge or
similar tax that would not be payable if such reimbursement were made or required to be made
in Dollars, the Company shall, at its option, either (x) pay the amount of any such tax
requested by the Administrative Agent, the Issuing Bank or the relevant Lender or (y)
reimburse each LC Disbursement made in such Foreign Currency in Dollars, in an amount equal
to the Equivalent



27









 







Amount, calculated using the applicable Exchange Rates, on the date such LC
Disbursement is made, of such LC Disbursement.




     (f) Obligations Absolute. The Company’s obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply with the terms
of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff against, the
Company’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay
in transmission or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing thereunder), any
error in interpretation of technical terms or any consequence arising from causes beyond the
control of the Issuing Bank; provided that the foregoing shall not be construed to
excuse the Issuing Bank from liability to the Company to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby waived by the
Company to the extent permitted by applicable law) suffered by the Company that are caused
by the Issuing Bank’s failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful misconduct on the
part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary, or refuse to
accept and make payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.




     (g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the
Company by telephone (confirmed by telecopy) of such demand for payment and whether the
Issuing Bank has made or will make an LC Disbursement thereunder; provided that any
failure to give or delay in giving such notice shall not relieve the Company of its
obligation to reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.




     (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Company shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the Company
reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Loans (or in the case such LC Disbursement is denominated in a Foreign Currency, at the



28









 







Overnight Foreign Currency Rate for such Agreed Currency plus the then
effective Applicable Rate with respect to Eurocurrency Revolving Loans); provided
that, if the Company fails to reimburse such LC Disbursement when due pursuant to paragraph
(e) of this Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that interest accrued on and
after the date of payment by any Lender pursuant to paragraph (e) of this Section to
reimburse the Issuing Bank shall be for the account of such Lender to the extent of such
payment.




     (i) Replacement of Issuing Bank. The Issuing Bank may be replaced at any time
by written agreement among the Company, the Administrative Agent, the replaced Issuing Bank
and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any
such replacement of the Issuing Bank. At the time any such replacement shall become
effective, the Company shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.12(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such
successor or to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit then outstanding and issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.




     (j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Company receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated,
Lenders with LC Exposure representing greater than 50% of the total LC Exposure) demanding
the deposit of cash collateral pursuant to this paragraph, the Company shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders (the “LC Collateral Account”), an amount in cash equal to
105% of the Dollar Amount of the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that (i) the portions of such amount attributable to
undrawn Foreign Currency Letters of Credit or LC Disbursements in a Foreign Currency that
the Company is not late in reimbursing shall be deposited in the applicable Foreign
Currencies in the actual amounts of such undrawn Letters of Credit and LC Disbursements and
(ii) the obligation to deposit such cash collateral shall become effective immediately, and
such deposit shall become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the Company described in
clause (h) or (i) of Article VII. For the purposes of this paragraph, the Foreign Currency
LC Exposure shall be calculated using the applicable Exchange Rate on the date notice
demanding cash collateralization is delivered to the Company. The Company also shall
deposit cash collateral pursuant to this paragraph as and to the extent required by Section
2.11(b). Such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the Obligations. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments shall be made
at the option and sole discretion of the Administrative Agent and at the Company’s risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has
not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of
the reimbursement obligations of the Company for the LC Exposure at such time or, if the
maturity of the Loans has



29









 







been accelerated (but subject to the consent of Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other Obligations. If the Company is required to provide
an amount of cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to the Company within
three (3) Business Days after all Events of Default have been cured or waived.



               SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds (i) in the case of Loans denominated in
Dollars, by 12:00 noon, New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders and (ii) in the case of each
Loan denominated in a Foreign Currency, by 12:00 noon, Local Time, in the city of the
Administrative Agent’s Eurocurrency Payment Office for such currency and Borrower and at such
Eurocurrency Payment Office for such currency and Borrower; provided that Swingline Loans
shall be made as provided in Section 2.05. The Administrative Agent will make such Loans available
to the relevant Borrower by promptly crediting the amounts so received, in like funds, to (x) an
account of the Company designated by the Company in the applicable Borrowing Request, in the case
of Loans denominated in Dollars and (y) an account of such Borrower in the relevant jurisdiction
and designated by such Borrower in the applicable Borrowing Request, in the case of Loans
denominated in a Foreign Currency; provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be remitted by the
Administrative Agent to the Issuing Bank.





     (b) Unless the Administrative Agent shall have received notice from a Lender prior to
the proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such assumption, make available to
the relevant Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and such Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to such Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation (including without
limitation the Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign
Currency) or (ii) in the case of such Borrower, the interest rate applicable to ABR Loans.
If such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.



               SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the relevant Borrower may
elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case
of a Eurocurrency Revolving Borrowing, may elect Interest Periods therefor, all as provided in this
Section. A Borrower may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings, which may not be
converted or continued.







30









 









     (b) To make an election pursuant to this Section, a Borrower, or the Company on its
behalf, shall notify the Administrative Agent of such election (by telephone or irrevocable
written notice in the case of a Borrowing denominated in Dollars or by irrevocable written
notice (via an Interest Election Request in a form approved by the Administrative Agent and
signed by such Borrower, or the Company on its behalf) in the case of a Borrowing
denominated in a Foreign Currency) by the time that a Borrowing Request would be required
under Section 2.03 if such Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written Interest Election Request
in a form approved by the Administrative Agent and signed by the relevant Borrower, or the
Company on its behalf. Notwithstanding any contrary provision herein, this Section shall
not be construed to permit any Borrower to (i) change the currency of any Borrowing, (ii)
elect an Interest Period for Eurocurrency Loans that does not comply with Section 2.02(d) or
(iii) convert any Borrowing to a Borrowing of a Type not available under such Borrowing.




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




     (i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and




     (iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest
Period and Agreed Currency to be applicable thereto after giving effect to such
election, which Interest Period shall be a period contemplated by the definition of
the term “Interest Period”.


If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an
Interest Period, then the applicable Borrower shall be deemed to have selected an Interest Period
of one month’s duration.





     (d) Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender’s portion of each
resulting Borrowing.




     (e) If the relevant Borrower fails to deliver a timely Interest Election Request with
respect to a Eurocurrency Revolving Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of
such Interest Period (i) in the case of a Borrowing denominated in Dollars, such Borrowing
shall be converted to an ABR Borrowing and (ii) in the case of a Borrowing denominated in a
Foreign Currency in respect of which the applicable Borrower shall have failed to deliver an
Interest Election Request prior to the third (3rd) Business Day preceding the end
of such Interest Period, such Borrowing



31









 







shall automatically continue as a Eurocurrency Borrowing in the same Agreed Currency
with an Interest Period of one month unless such Eurocurrency Borrowing is or was repaid in
accordance with Section 2.11. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Company, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing denominated in Dollars may be converted to
or continued as a Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency Revolving
Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of the
interest period applicable thereto and (iii) unless repaid, each Eurocurrency Revolving
Borrowing denominated in a Foreign Currency shall automatically be continued as a
Eurocurrency Borrowing with an Interest Period of one month.



          SECTION 2.09. Termination and Reduction of Commitments. (a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.





     (b) The Company may at any time terminate, or from time to time reduce, the
Commitments; provided that (i) each reduction of the Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Company shall not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.11, the Dollar Amount of the
sum of the Revolving Credit Exposures would exceed the Aggregate Commitment.




     (c) The Company shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section at least three (3) Business Days
prior to the effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each notice delivered by the
Company pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Commitments delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case such notice may
be revoked by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or reduction
of the Commitments shall be permanent. Each reduction of the Commitments shall be made
ratably among the Lenders in accordance with their respective Commitments.



          SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each Revolving Loan made to such
Borrower on the Maturity Date in the currency of such Loan and (ii) in the case of the Company, to
the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the
Maturity Date and the first date after such Swingline Loan is made that is the 15th or
last day of a calendar month and is at least two (2) Business Days after such Swingline Loan is
made; provided that on each date that a Revolving Borrowing is made, the Company shall
repay all Swingline Loans then outstanding.





     (b) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of each Borrower to such Lender resulting from each
Loan made by such Lender, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.




     (c) The Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class, Agreed Currency and Type thereof and the



32









 







Interest Period applicable thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from each Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder for the account
of the Lenders and each Lender’s share thereof.




     (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of
this Section shall be prima facie evidence of the existence and amounts of
the obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of any Borrower to repay the Loans in accordance with the terms of
this Agreement.




     (e) Any Lender may request that Loans made by it to any Borrower be evidenced by a
promissory note. In such event, the relevant Borrower shall prepare, execute and deliver to
such Lender a promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order of the payee
named therein (or, if any such promissory note is a registered note, to such payee and its
registered assigns).



          SECTION 2.11. Prepayment of Loans.





     (a) Any Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in accordance with the provisions of
this Section 2.11(a). The applicable Borrower, or the Company on behalf of the applicable
Borrower, shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurocurrency Revolving Borrowing, not later
than 11:00 a.m., Local Time, three (3) Business Days (in the case of a Eurocurrency
Borrowing denominated in Dollars) or four (4) Business Days (in the case of a Eurocurrency
Borrowing denominated in a Foreign Currency), in each case before the date of prepayment,
(ii) in the case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one (1) Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date
of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date
and the principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a conditional
notice of termination of the Commitments as contemplated by Section 2.09, then such notice
of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.09. Promptly following receipt of any such notice relating to a Revolving
Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted
in the case of an advance of a Revolving Borrowing of the same Type as provided in Section
2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest
to the extent required by Section 2.13 and (ii) break funding payments pursuant to Section
2.16.




     (b) If at any time, (i) other than as a result of fluctuations in currency exchange
rates, (A) the sum of the aggregate principal Dollar Amount of all of the Revolving Credit
Exposures (calculated, with respect to those Credit Events denominated in Foreign
Currencies, as of the most recent Computation Date with respect to each such Credit Event)
exceeds the Aggregate Commitment or (B) the sum of the aggregate principal Dollar Amount of
all of the outstanding



33









 







Revolving Credit Exposures denominated in Foreign Currencies (the “Foreign Currency
Exposure”) (so calculated), as of the most recent Computation Date with respect to each
such Credit Event, exceeds the Foreign Currency Sublimit or (ii) solely as a result of
fluctuations in currency exchange rates, (A) the sum of the aggregate principal Dollar
Amount of all of the Revolving Credit Exposures (so calculated) exceeds 105% of the
Aggregate Commitment or (B) the Foreign Currency Exposure, as of the most recent Computation
Date with respect to each such Credit Event, exceeds 105% of the Foreign Currency Sublimit,
the Borrowers shall in each case immediately repay Borrowings or cash collateralize LC
Exposure in an account with the Administrative Agent pursuant to Section 2.06(j), as
applicable, in an aggregate principal amount sufficient to cause (x) the aggregate Dollar
Amount of all Revolving Credit Exposures (so calculated) to be less than or equal to the
Aggregate Commitment and (y) the Foreign Currency Exposure to be less than or equal to the
Foreign Currency Sublimit, as applicable.



          SECTION 2.12. Fees. (a) The Company agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee, which shall accrue at the Applicable Rate on the daily Available Revolving
Commitment of such Lender during the period from and including the Effective Date to but excluding
the date on which such Commitment terminates; provided that, if such Lender continues to
have any Revolving Credit Exposure after its Commitment terminates, then such commitment fee shall
continue to accrue on the daily amount of such Lender’s Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued commitment fees shall be payable in
arrears on the last day of March, June, September and December of each year and on the date on
which the Commitments terminate, commencing on the first such date to occur after the date hereof;
provided that any commitment fees accruing after the date on which the Commitments
terminate shall be payable on demand. All commitment fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).





     (b) The Company agrees to pay (i) to the Administrative Agent for the account of each
Lender a participation fee with respect to its participations in Letters of Credit, which
shall accrue at the same Applicable Rate used to determine the interest rate applicable to
Eurocurrency Revolving Loans on the average daily Dollar Amount of such Lender’s LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Effective Date to but excluding the later of the date on which
such Lender’s Commitment terminates and the date on which such Lender ceases to have any LC
Exposure and (ii) to the Issuing Bank for its own account a fronting fee, which shall accrue
at the rate of 0.125% per annum on the average daily Dollar Amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable
to Letters of Credit issued by the Issuing Bank during the period from and including the
Effective Date to but excluding the later of the date of termination of the Commitments and
the date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s standard
fees and commissions with respect to the issuance, amendment, cancellation, negotiation,
transfer, presentment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Unless otherwise specified above, participation fees and fronting fees
accrued through and including the last day of March, June, September and December of each
year shall be payable on the third (3rd) Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided that
all such fees shall be payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall be payable on demand.
Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable
within ten (10) days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). Participation fees and
fronting fees in respect



34









 







of Letters of Credit denominated in Dollars shall be paid in Dollars, and participation
fees and fronting fees in respect of Letters of Credit denominated in a Foreign Currency
shall be paid in such Foreign Currency.




     (c) The Company agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the Company and the
Administrative Agent.




     (d) All fees payable hereunder shall be paid on the dates due, in Dollars (except as
otherwise expressly provided in this Section 2.12) and immediately available funds, to the
Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the Lenders. Fees
paid shall not be refundable under any circumstances.



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





     (b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate.




     (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any
fee or other amount payable by any Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Loans as provided in paragraph (a) of this Section.




     (d) Accrued interest on each Revolving Loan shall be payable in arrears on each
Interest Payment Date for such Revolving Loan and upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other
than a prepayment of an ABR Revolving Loan prior to the end of the Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on the date of
such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency
Revolving Loan prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion.




     (e) All interest hereunder shall be computed on the basis of a year of 360 days, except
that interest (i) computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and (ii) for Borrowings denominated in Pounds Sterling
shall be computed on the basis of a year of 365 days, and in each case shall be payable for
the actual number of days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest error.




     (f) The interest rates provided for in this Agreement, including this Section 2.13 are
minimum interest rates. When entering into this Agreement, the parties have assumed that the
interest payable at the rates set out in this Section or in other Sections of this Agreement
is not and will not become subject to the Swiss Federal Withholding Tax. Notwithstanding
that the



35









 







parties do not anticipate that any payment of interest will be subject to the Swiss
Federal Withholding Tax, they agree that, in the event that the Swiss Federal Withholding
Tax should be imposed on interest payments, the payment of interest due by the Swiss
Borrower shall, in line with and subject to Section 2.17, including the limitations therein,
be increased to an amount which (after making any deduction of the Non-Refundable Portion
(as defined below) of the Swiss Federal Withholding Tax) results in a payment to each Lender
entitled to such payment of an amount equal to the payment which would have been due had no
deduction of Swiss Federal Withholding Tax been required. For this purpose, the Swiss
Federal Withholding Tax shall be calculated on the full grossed-up interest amount. For the
purposes of this Section, “Non-Refundable Portion” shall mean Swiss Federal Withholding Tax
at the standard rate (being, as at the date hereof, 35%) unless a tax ruling issued by the
Swiss Federal Tax Administration (SFTA) confirms that, in relation to a specific Lender
based on an applicable double tax treaty, the Non-Refundable Portion is a specified lower
rate in which case such lower rate shall be applied in relation to such Lender. The Swiss
Borrower shall provide to the Administrative Agent the documents required by law or
applicable double taxation treaties for the Lenders to claim a refund of any Swiss Federal
Withholding Tax so deducted. Section 2.17(f) applies equally to this Section 2.13(f).



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





     (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or




     (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or
its Loan) included in such Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the applicable Borrower and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the applicable Borrower and the Lenders that the circumstances giving rise to such notice
no longer exist, (i) any Interest Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective and, unless repaid, (A) in the case of a Eurocurrency Borrowing denominated in Dollars,
such Borrowing shall be made as an ABR Borrowing and (B) in the case of a Eurocurrency Borrowing
denominated in a Foreign Currency, such Eurocurrency Borrowing shall be repaid on the last day of
the then current Interest Period applicable thereto and (ii) if any Borrowing Request requests a
Eurocurrency Revolving Borrowing in Dollars, such Borrowing shall be made as an ABR Borrowing (and
if any Borrowing Request requests a Eurocurrency Revolving Borrowing denominated in a Foreign
Currency, such Borrowing Request shall be ineffective); provided that if the circumstances
giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings
shall be permitted.




          SECTION 2.15. Increased Costs. (a) If any Change in Law shall:





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



36









 






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




     (iii) subject any Recipient to any Taxes on its loans, loan principal, letters
of credit, commitments, or other obligations, or its deposits, reserves, other
liabilities or capital attributable thereto (other than (A) Indemnified Taxes, (B)
Excluded Taxes and (C) Other Connection Taxes on gross or net income, profits or
revenue (including value-added or similar Taxes));


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Loan or of maintaining its obligation to make any such Loan (including, without
limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a
Borrowing denominated in any other Agreed Currency) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit (including, without
limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a
Borrowing denominated in any other Agreed Currency) or to reduce the amount of any sum received or
receivable by such Lender or the Issuing Bank hereunder, whether of principal, interest or
otherwise (including, without limitation, pursuant to any conversion of any Borrowing denominated
in an Agreed Currency into a Borrowing denominated in any other Agreed Currency), then the
applicable Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may
be, for such additional costs incurred or reduction suffered.





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




     (c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the
Company and shall be conclusive absent manifest error. The Company shall pay, or cause the
other Borrowers to pay, such Lender or the Issuing Bank, as the case may be, the amount
shown as due on any such certificate within ten (10) days after receipt thereof.




     (d) Failure or delay on the part of any Lender or the Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the
Issuing Bank’s right to demand such compensation; provided that the Company shall
not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date that such Lender
or the Issuing Bank, as the case may be, notifies the Company of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s
intention to claim



37









 







compensation therefor; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect thereof.



          SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal of any Eurocurrency Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an Event of Default or
as a result of any prepayment pursuant to Section 2.11), (b) the conversion of any Eurocurrency
Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(a)
and is revoked in accordance therewith) or (d) the assignment of any Eurocurrency Loan other than
on the last day of the Interest Period applicable thereto as a result of a request by the Company
pursuant to Section 2.19, then, in any such event, the Borrowers shall compensate each Lender for
the loss, cost and expense attributable to such event. Such loss, cost or expense to any Lender
shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period therefor (or, in
the case of a failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would bid were it to bid,
at the commencement of such period, for deposits in the relevant currency of a comparable amount
and period from other banks in the eurocurrency market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be
delivered to the applicable Borrower and shall be conclusive absent manifest error. The applicable
Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days
after receipt thereof.




          SECTION 2.17. Taxes. (a) Withholding of Taxes; Gross-Up. Each payment by any Loan Party under any Loan
Document shall be made without withholding for any Taxes, unless such withholding is required by
any law. If any Withholding Agent determines, in its sole discretion exercised in good faith, that
it is so required to withhold Taxes, then such Withholding Agent may so withhold and shall timely
pay the full amount of withheld Taxes to the relevant Governmental Authority in accordance with
applicable law. If such Taxes are Indemnified Taxes, then the amount payable by such Loan Party
shall be increased as necessary so that, net of such withholding (including such withholding
applicable to additional amounts payable under this Section), the applicable Recipient receives the
amount it would have received had no such withholding been made.





     (b) Payment of Other Taxes by the Borrowers. The relevant Borrower shall
timely pay any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.




     (c) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes by any Loan Party to a Governmental Authority, such Loan Party shall
deliver to the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return reporting such
payment or other evidence of such payment reasonably satisfactory to the Administrative
Agent.




     (d) Indemnification by the Borrowers. The relevant Borrower shall indemnify
each Recipient for any Indemnified Taxes that are paid or payable by such Recipient in
connection with any Loan Document (including amounts paid or payable under this Section
2.17(d)) and any reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The



38









 







indemnity under this Section 2.17(d) shall be paid within ten (10) days after the
Recipient delivers to the relevant Borrower a certificate stating the amount of any
Indemnified Taxes so paid or payable by such Recipient and describing the basis for the
indemnification claim. Such certificate shall be conclusive of the amount so paid or
payable absent manifest error. Such Recipient shall deliver a copy of such certificate to
the Administrative Agent.




     (e) Indemnification by the Lenders. Each Lender shall severally indemnify the
Administrative Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the
extent that any Loan Party has not already indemnified the Administrative Agent for such
Indemnified Taxes and without limiting the obligation of the Loan Parties to do so)
attributable to such Lender that are paid or payable by the Administrative Agent or the
applicable Loan Party (as applicable) in connection with any Loan Document and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. The
indemnity under this Section 2.17(e) shall be paid within ten (10) days after the
Administrative Agent delivers to the applicable Lender a certificate stating the amount of
Taxes so paid or payable by the Administrative Agent. Such certificate shall be conclusive
of the amount so paid or payable absent manifest error.




     (f) Status of Lenders. (i) Any Recipient that is entitled to an exemption
from, or reduction of, any applicable withholding Tax with respect to any payments under any
Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or
times reasonably requested by the Borrowers or the Administrative Agent, such properly
completed and executed documentation reasonably requested by the Company or the
Administrative Agent as will permit such payments to be made without, or at a reduced rate
of, withholding. In addition, any Recipient, if requested by the Borrowers or the
Administrative Agent, shall deliver such other documentation prescribed by law or reasonably
requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the
Administrative Agent to determine whether or not such Recipient is subject to any
withholding (including backup withholding) or information reporting requirements.
Notwithstanding anything to the contrary in the preceding two sentences, the completion,
execution and submission of such documentation (other than such documentation set forth in
Section 2.17(f)(ii)(A) through (E) below, which, for the avoidance of doubt, includes any
successor form) shall not be required if in the Recipient’s judgment such completion,
execution or submission would subject such Recipient to any material unreimbursed cost or
expense or would materially prejudice the legal or commercial position of such Recipient.
Upon the reasonable request of any Borrower or the Administrative Agent, any Recipient shall
update any form or certification previously delivered pursuant to this Section 2.17(f). If
any form or certification previously delivered pursuant to this Section expires or becomes
obsolete or inaccurate in any respect with respect to a Recipient, such Recipient shall
promptly (and in any event within ten (10) days after such expiration, obsolescence or
inaccuracy) notify the Company and the Administrative Agent in writing of such expiration,
obsolescence or inaccuracy and update the form or certification if it is legally eligible to
do so.




     (ii) Without limiting the generality of the foregoing, if any Borrower is a U.S.
Person, any Lender with respect to such Borrower shall, if it is legally eligible to
do so, deliver to such Borrower and the Administrative Agent (in such number of
copies reasonably requested by such Borrower and the Administrative Agent) on or
prior to the date on which such Lender becomes a party hereto, duly completed and
executed copies of whichever of the following is applicable:




     (A) in the case of a Lender that is a U.S. Person, IRS Form W-9
certifying that such Lender is exempt from U.S. Federal backup withholding
tax;



39









 






     (B) in the case of a Non-U.S. Lender claiming the benefits of an income
tax treaty to which the United States is a party (1) with respect to
payments of interest under any Loan Document, IRS Form W-8BEN establishing
an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to
the “interest” or similar article of such tax treaty and (2) with respect to
any other applicable payments under any Loan Document, IRS Form W-8BEN
establishing an exemption from, or reduction of, U.S. Federal withholding
Tax pursuant to the “business profits” or “other income” or similar article
of such tax treaty;




     (C) in the case of a Non-U.S. Lender for whom payments under any Loan
Document constitute income that is effectively connected with such Lender’s
conduct of a trade or business in the United States, IRS Form W-8ECI;




     (D) in the case of a Non-U.S. Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Code both (1)
IRS Form W-8BEN and (2) a certificate substantially in the form of
Exhibit H-1, H-2, H-3 or H-4, as applicable
(a “U.S. Tax Certificate”) to the effect that such Lender is not (a)
a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10
percent shareholder” of any Loan Party within the meaning of Section
881(c)(3)(B) of the Code, (c) a “controlled foreign corporation” described
in Section 881(c)(3)(C) of the Code and (d) conducting a trade or business
in the United States with which the relevant interest payments are
effectively connected;




     (E) in the case of a Non-U.S. Lender that is not the beneficial owner
of payments made under this Agreement (including a partnership or a
participating Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the
relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this
paragraph (f)(ii) that would be required of each such beneficial owner or
partner of such partnership if such beneficial owner or partner were a
Lender; provided, however, that if the Lender is a partnership and one or
more of its partners are claiming the exemption for portfolio interest under
Section 881(c) of the Code, such Lender may provide a U.S. Tax Certificate
on behalf of such partners; or




     (F) any other form prescribed by law as a basis for claiming exemption
from, or a reduction of, U.S. Federal withholding Tax together with such
supplementary documentation necessary to enable such Borrower or the
Administrative Agent to determine the amount of Tax (if any) required by law
to be withheld.




     (iii) If a payment made to a Lender under any Loan Document would be subject to
U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply
with the applicable reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to
the Withholding Agent, at the time or times prescribed by law and at such time or
times reasonably requested by the Withholding Agent, such documentation prescribed
by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code)
and such additional documentation reasonably requested by the Withholding Agent as
may be necessary for the Withholding Agent to comply with its obligations under
FATCA, to determine that such Lender has or has not complied with such Lender’s
obligations under FATCA and, as necessary, to determine the amount to deduct and
withhold from such



40









 







payment. Solely for purposes of this Section 2.17(f)(iii), “FATCA” shall
include any amendments made to FATCA after the date of this Agreement.




     (g) Treatment of Certain Refunds. If any party determines, in its sole
discretion exercised in good faith, that it has received a refund of any Taxes as to which
it has been indemnified pursuant to this Section 2.17 (including additional amounts paid
pursuant to this Section 2.17), it shall pay to the indemnifying party an amount equal to
such refund (but only to the extent of indemnity payments made under this Section with
respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses
(including any Taxes) of such indemnified party and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to such
indemnified party the amount paid to such indemnifying party pursuant to the previous
sentence (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event such indemnified party is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this Section 2.17(g),
in no event will any indemnified party be required to pay any amount to any indemnifying
party pursuant to this Section 2.17(g) if such payment would place such indemnified party in
a less favorable position (on a net after-Tax basis) than such indemnified party would have
been in if the indemnification payments or additional amounts giving rise to such refund had
never been paid. This Section 2.17(g) shall not be construed to require any indemnified
party to make available its Tax returns (or any other information relating to its Taxes
which it deems confidential) to the indemnifying party or any other Person.




     (h) Issuing Bank. For purposes of Section 2.17(e), the term “Lender” includes
the Issuing Bank.




     (i) Compliance with Swiss Non-Bank Rules. Each Lender confirms that it is a
Qualifying Bank or, if not, a single (1) person only for the purpose of the Swiss Non-Bank
Rules and any other Person that shall become a Lender or a Participant pursuant to Section
9.04 shall be deemed to have confirmed that it is a Qualifying Bank or, if not, a single (1)
person only for the purpose of Swiss Non-Bank Rules. The Swiss Borrower may request a Lender
to confirm (i) whether or not it is (and each of its Participants are) a Qualifying Bank or
(ii) whether it (or any of its Participants) does count as a single (1) person for purposes
of the Swiss Non-Bank Rules, if it reasonably believes that that Lender’s status has changed
during the term of this Agreement.



          SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.





     (a) Each Borrower shall make each payment required to be made by it hereunder (whether
of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable
under Section 2.15, 2.16 or 2.17, or otherwise) prior to (i) in the case of payments
denominated in Dollars by the Company, 12:00 noon, New York City time and (ii) in the case
of payments denominated in a Foreign Currency or by a Subsidiary Borrower, 12:00 noon, Local
Time, in the city of the Administrative Agent’s Eurocurrency Payment Office for such
currency, in each case on the date when due, in immediately available funds, without set-off
or counterclaim. Any amounts received after such time on any date may, in the discretion of
the Administrative Agent, be deemed to have been received on the next succeeding Business
Day for purposes of calculating interest thereon. All such payments shall be made (i) in
the same currency in which the applicable Credit Event was made (or where such currency has
been converted to euro, in euro) and (ii) to the Administrative Agent at its offices at 10
South Dearborn Street, Chicago, Illinois 60603 or, in the case of a Credit Event denominated
in a Foreign Currency or to a Subsidiary Borrower, the Administrative Agent’s Eurocurrency
Payment Office



41









 







for such currency, except payments to be made directly to the Issuing Bank or Swingline
Lender as expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments denominated in the same currency
received by it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon shall be payable for the
period of such extension. Notwithstanding the foregoing provisions of this Section, if,
after the making of any Credit Event in any Foreign Currency, currency control or exchange
regulations are imposed in the country which issues such currency with the result that the
type of currency in which the Credit Event was made (the “Original Currency”) no
longer exists or any Borrower is not able to make payment to the Administrative Agent for
the account of the Lenders in such Original Currency, then all payments to be made by such
Borrower hereunder in such currency shall instead be made when due in Dollars in an amount
equal to the Dollar Amount (as of the date of repayment) of such payment due, it being the
intention of the parties hereto that the Borrowers take all risks of the imposition of any
such currency control or exchange regulations.




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




     (c) At the election of the Administrative Agent, all payments of principal, interest,
LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all
reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under
the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made
following a request by a Borrower (or the Company on behalf of a Borrower) pursuant to
Section 2.03 or a deemed request as provided in this Section or may be deducted from any
deposit account of such Borrower maintained with the Administrative Agent. Each Borrower
hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the
purpose of paying each payment of principal, interest and fees as it becomes due hereunder
or any other amount due under the Loan Documents and agrees that all such amounts charged
shall constitute Loans (including Swingline Loans) and that all such Borrowings shall be
deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and
(ii) the Administrative Agent to charge any deposit account of the relevant Borrower
maintained with the Administrative Agent for each payment of principal, interest and fees as
it becomes due hereunder or any other amount due under the Loan Documents.




     (d) If any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of its Revolving
Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and
participations in LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Revolving Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the extent
necessary so that the benefit



42









 







of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Revolving Loans
and participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving rise thereto
is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provisions of this paragraph shall
not be construed to apply to any payment made by any Borrower pursuant to and in accordance
with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements and Swingline Loans to any assignee or participant, other
than to the Company or any Subsidiary or Affiliate thereof (as to which the provisions of
this paragraph shall apply). Each Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such Borrower
rights of set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of such Borrower in the amount of such participation.




     (e) Unless the Administrative Agent shall have received notice from the relevant
Borrower prior to the date on which any payment is due to the Administrative Agent for the
account of the Lenders or the Issuing Bank hereunder that such Borrower will not make such
payment, the Administrative Agent may assume that such Borrower has made such payment on
such date in accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if such
Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as
the case may be, severally agrees to repay to the Administrative Agent forthwith on demand
the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day
from and including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and
a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation (including without limitation the Overnight Foreign Currency Rate in
the case of Loans denominated in a Foreign Currency).




     (f) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any
amounts thereafter received by the Administrative Agent for the account of such Lender and
for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Bank to
satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations
are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral
for, and application to, any future funding obligations of such Lender under such Sections;
in the case of each of (i) and (ii) above, in any order as determined by the Administrative
Agent in its discretion.



          SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.15, or if any Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.13(f) or Section 2.17, then such Lender shall use reasonable efforts
to designate a different lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.13(f), 2.15 or 2.17, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Company hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.







43









 









     (b) If (i) any Lender requests compensation under Section 2.15, (ii) any Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.13(f) or Section 2.17 or (iii) any Lender
becomes a Defaulting Lender, then the Company may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under the Loan Documents to an
assignee that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Company shall have received
the prior written consent of the Administrative Agent (and if a Commitment is being
assigned, the Issuing Bank), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding principal of its
Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Company (in the case of
all other amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to Section 2.13(f)
or Section 2.17, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Company to require such assignment and delegation cease to apply.



          SECTION 2.20. Expansion Option. The Company may from time to time elect to increase the Commitments or enter into one or
more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum
increments of $25,000,000 so long as, after giving effect thereto, the aggregate amount of such
increases and all such Incremental Term Loans does not exceed $150,000,000. The Company may
arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so
agreeing to an increase in its Commitment, or to participate in such Incremental Term Loans, an
“Increasing Lender”), or by one or more new banks, financial institutions or other entities
(each such new bank, financial institution or other entity, an “Augmenting Lender”;
provided that none of the Parent or any of its Subsidiaries or Affiliates or a natural
person may be an Augmenting Lender), to increase their existing Commitments, or to participate in
such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i)
each Augmenting Lender, shall be subject to the approval of the Company and the Administrative
Agent and (ii) (x) in the case of an Increasing Lender, the Company and such Increasing Lender
execute an agreement substantially in the form of Exhibit C hereto, and (y) in the case of
an Augmenting Lender, the Company and such Augmenting Lender execute an agreement substantially in
the form of Exhibit D hereto. No consent of any Lender (other than the Lenders
participating in the increase or any Incremental Term Loan) shall be required for any increase in
Commitments or Incremental Term Loan pursuant to this Section 2.20. Increases and new Commitments
and Incremental Term Loans created pursuant to this Section 2.20 shall become effective on the date
agreed by the Company, the Administrative Agent and the relevant Increasing Lenders or Augmenting
Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the
foregoing, no increase in the Commitments (or in the Commitment of any Lender) or tranche of
Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date
of the effectiveness of such increase or Incremental Term Loans, (A) the conditions set forth in
paragraphs (a) and (b) of Section 4.02 shall be satisfied or waived by the Required Lenders and the
Administrative Agent shall have received a certificate to that effect dated such date and executed
by a Financial Officer of the Parent and (B) the Parent shall be in compliance (on a Pro
Forma Basis reasonably acceptable to the Administrative Agent) with the covenants contained
in Section 6.12 and (ii) the Administrative Agent shall have received documents consistent with
those delivered on the Effective Date as to the corporate power and authority of the Borrowers to
borrow hereunder after giving effect to such increase. On the effective date of any increase in
the Commitments or any Incremental Term Loans being made, (i) each






44









 







relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in
immediately available funds as the Administrative Agent shall determine, for the benefit of the
other Lenders, as being required in order to cause, after giving effect to such increase and the
use of such amounts to make payments to such other Lenders, each Lender’s portion of the
outstanding Revolving Loans of all the Lenders to equal its Applicable Percentage of such
outstanding Revolving Loans, and (ii) except in the case of any Incremental Term Loans, the
Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the
date of any increase in the Commitments (with such reborrowing to consist of the Types of Revolving
Loans, with related Interest Periods if applicable, specified in a notice delivered by the
applicable Borrower, or the Company on behalf of the applicable Borrower, in accordance with the
requirements of Section 2.03). The deemed payments made pursuant to clause (ii) of the immediately
preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid
and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the Borrowers
pursuant to the provisions of Section 2.16 if the deemed payment occurs other than on the last day
of the related Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of
payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have
amortization prior to such date) and (c) shall be treated substantially the same as (and in any
event no more favorably than) the Revolving Loans; provided that (i) the terms and
conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may
provide for material additional or different financial or other covenants or prepayment
requirements applicable only during periods after the Maturity Date and (ii) the Incremental Term
Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made
hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of
this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each
Increasing Lender participating in such tranche, each Augmenting Lender participating in such
tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without
the consent of any other Lenders, effect such amendments to this Agreement and the other Loan
Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative
Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.20 shall
constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its
Commitment hereunder, or provide Incremental Term Loans, at any time.




          SECTION 2.21. [Intentionally Omitted].




          SECTION 2.22. Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due
from any Borrower hereunder in the currency expressed to be payable herein (the “specified
currency”) into another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the specified currency with such other
currency at the Administrative Agent’s main New York City office on the Business Day preceding that
on which final, non-appealable judgment is given. The obligations of each Borrower in respect of
any sum due to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment
in a currency other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Administrative Agent (as the case may be) of
any sum adjudged to be so due in such other currency such Lender or the Administrative Agent (as
the case may be) may in accordance with normal, reasonable banking procedures purchase the
specified currency with such other currency. If the amount of the specified currency so purchased
is less than the sum originally due to such Lender or the Administrative Agent, as the case may be,
in the specified currency, each Borrower agrees, to the fullest extent that it may effectively do
so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount of the specified
currency so purchased exceeds (a) the sum originally due to any Lender or the Administrative Agent,
as the case may be, in the specified currency






45









 







and (b) any amounts shared with other Lenders as a
result of allocations of such excess as a disproportionate payment to such Lender under Section 2.18, such Lender or the Administrative
Agent, as the case may be, agrees to remit such excess to such Borrower.




          SECTION 2.23. Designation of Subsidiary Borrowers. On the Effective Date, and subject to the satisfaction of the applicable conditions in
Article IV hereto, the Initial Subsidiary Borrowers shall become Subsidiary Borrowers party to this
Agreement until the Company shall have executed and delivered to the Administrative Agent a
Borrowing Subsidiary Termination with respect to any such Subsidiary, whereupon such Subsidiary
shall cease to be a Subsidiary Borrower and a party to this Agreement. After the Effective Date,
the Company may at any time and from time to time designate any Eligible Subsidiary as a Subsidiary
Borrower by delivery to the Administrative Agent of a Borrowing Subsidiary Agreement executed by
such Subsidiary and the Company and the satisfaction of the other conditions precedent set forth in
Section 4.03, and upon such delivery and satisfaction such Subsidiary shall for all purposes of
this Agreement be a Subsidiary Borrower and a party to this Agreement until the Company shall have
executed and delivered to the Administrative Agent a Borrowing Subsidiary Termination with respect
to such Subsidiary, whereupon such Subsidiary shall cease to be a Subsidiary Borrower and a party
to this Agreement. Notwithstanding the preceding sentence, no Borrowing Subsidiary Termination
will become effective as to any Subsidiary Borrower at a time when any principal of or interest on
any Loan to such Borrower shall be outstanding hereunder, provided that such Borrowing
Subsidiary Termination shall be effective to terminate the right of such Subsidiary Borrower to
make further Borrowings under this Agreement. As soon as practicable upon receipt of a Borrowing
Subsidiary Agreement, the Administrative Agent shall furnish a copy thereof to each Lender.




          SECTION 2.24. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:





     (a) fees shall cease to accrue on the unfunded portion of the Commitment of such
Defaulting Lender pursuant to Section 2.12(a);




     (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be
included in determining whether the Required Lenders have taken or may take any action
hereunder (including any consent to any amendment, waiver or other modification pursuant to
Section 9.02); provided, that this clause (b) shall not apply to the vote of a
Defaulting Lender in the case of an amendment, waiver or other modification requiring the
consent of such Lender or each Lender affected thereby;




     (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a
Defaulting Lender then:




     (i) all or any part of the Swingline Exposure and LC Exposure of such
Defaulting Lender shall be reallocated among the non-Defaulting Lenders in
accordance with their respective Applicable Percentages but only to the extent the
sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting
Lender’s Swingline Exposure and LC Exposure does not exceed the total of all
non-Defaulting Lenders’ Commitments;




     (ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Company shall within one (1) Business Day following
notice by the Administrative Agent (x) first, prepay such Swingline Exposure
and (y) second, cash collateralize for the benefit of the Issuing Bank only
the Borrowers’ obligations



46









 







corresponding to such Defaulting Lender’s LC Exposure
(after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures
set forth in Section 2.06(j) for so long as such LC Exposure is outstanding;




     (iii) if the Company cash collateralizes any portion of such Defaulting
Lender’s LC Exposure pursuant to clause (ii) above, the Borrowers shall not be
required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with
respect to such Defaulting Lender’s LC Exposure during the period such Defaulting
Lender’s LC Exposure is cash collateralized;




     (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant
to clause (i) above, then the fees payable to the Lenders pursuant to Section
2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting
Lenders’ Applicable Percentages; and




     (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then,
without prejudice to any rights or remedies of the Issuing Bank or any other Lender
hereunder, all letter of credit fees payable under Section 2.12(b) with respect to
such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until and
to the extent that such LC Exposure is reallocated and/or cash collateralized; and




     (d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be
required to fund any Swingline Loan and the Issuing Bank shall not be required to issue,
amend or increase any Letter of Credit, unless it is satisfied that the related exposure and
the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments
of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in
accordance with Section 2.24(c), and participating interests in any such newly made
Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among
non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting
Lender shall not participate therein).



     If (i) a Bankruptcy Event with respect to any Person of which any Lender is, directly or
indirectly, a subsidiary shall occur following the date hereof and for so long as such event shall
continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender
has defaulted in fulfilling its obligations under one or more other agreements in which such Lender
commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and
the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the
Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with
the Company or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case
may be, to defease any risk to it in respect of such Lender hereunder.



     In the event that the Administrative Agent, the Company, the Swingline Lender and the Issuing
Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall
be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender
shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the
Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans
in accordance with its Applicable Percentage.




47












 





ARTICLE III




Representations and Warranties



          The Parent and each Borrower represents and warrants to the Lenders that:




          SECTION 3.01. Organization; Powers; Subsidiaries. Each of the
Parent and its Subsidiaries is duly organized, validly existing and in good
standing (to the extent such concept is applicable in the relevant jurisdiction) under the laws of
the jurisdiction of its organization, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, is qualified to do
business in, and is in good standing (to the extent such concept is applicable) in, every
jurisdiction where such qualification is required. Schedule 3.01A hereto (as supplemented
from time to time) identifies each Subsidiary, noting whether such Subsidiary is a Material
Subsidiary, the jurisdiction of its incorporation or organization, as the case may be, the
percentage of issued and outstanding shares of each class of its capital stock or other equity
interests owned by the Parent and the other Subsidiaries and, if such percentage is not 100%
(excluding directors’ qualifying shares as required by law), a description of each class issued and
outstanding. All of the outstanding shares of capital stock and other equity interests of each
Subsidiary are validly issued and outstanding and fully paid and nonassessable and all such shares
and other equity interests indicated on Schedule 3.01A as owned by the Parent or another
Subsidiary are owned, beneficially and of record, by the Parent or any Subsidiary free and clear of
all Liens. Except as described on Schedule 3.01B hereto, there are no outstanding
commitments or other obligations of the Parent or any Subsidiary to issue, and no options, warrants
or other rights of any Person to acquire, any shares of any class of capital stock or other equity
interests of the Parent or any Subsidiary.




          SECTION 3.02. Authorization; Enforceability. The Transactions are within each Loan Party’s organizational powers and have been duly
authorized by all necessary organizational actions and, if required, actions by equity holders.
The Loan Documents to which each Loan Party is a party have been duly executed and delivered by
such Loan Party and constitute a legal, valid and binding obligation of such Loan Party,
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.




          SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except such as have been obtained or made
and are in full force and effect, (b) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of the Parent or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Parent or any of its Subsidiaries or its
assets, or give rise to a right thereunder to require any payment to be made by the Parent or any
of its Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset
of the Parent or any of its Subsidiaries.




          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Parent has heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows as of and for the fiscal year ended June
30, 2011 reported on by Ernst & Young LLP, independent public accountants. Such financial
statements present fairly, in all material respects, the financial position and results of
operations and cash flows of the Parent and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP.




48









 






     (b) Since June 30, 2011, there has been no material adverse change in the business,
assets, operations or condition (financial or otherwise) of the Parent and its Subsidiaries,
taken as a whole.



          SECTION 3.05. Properties. (a) Each of the Parent and its Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property material to its business, except for minor defects in title
that do not interfere with its ability to conduct its business as currently conducted or to utilize
such properties for their intended purposes.





     (b) Each of the Parent and its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property material to its
business, and to the knowledge of the Parent and its Subsidiaries, the use thereof by the
Parent and its Subsidiaries does not infringe upon the rights of any other Person, except
for any such infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.



          SECTION 3.06. Litigation, Environmental and Labor Matters. (a) There are no actions, suits, proceedings or investigations by or before any arbitrator
or Governmental Authority pending against or, to the knowledge of any Borrower, threatened against
or affecting the Parent or any of its Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that
involve this Agreement or the Transactions.





     (b) Except with respect to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, neither the Parent
nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.




     (c) There are no strikes, lockouts or slowdowns against the Parent or any of its
Subsidiaries pending or, to their knowledge, threatened. The hours worked by and payments
made to employees of the Parent and its Subsidiaries have not been in violation of the Fair
Labor Standards Act or any other applicable Federal, state, local or foreign law relating to
such matters. All material payments due from the Parent or any of its Subsidiaries, or for
which any claim may be made against the Parent or any of its Subsidiaries, on account of
wages and employee health and welfare insurance and other benefits, have been paid or
accrued as liabilities on the books of the Parent or such Subsidiary. The consummation of
the Transactions will not give rise to any right of termination or right of renegotiation on
the part of any union under any collective bargaining agreement under which the Parent or
any of its Subsidiaries is bound.



          SECTION 3.07. Compliance with Laws and Agreements. Each of the Parent and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where the failure to do
so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.




          SECTION 3.08. Investment Company Status. Neither the Parent nor any of its Subsidiaries is an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940.







49









 








          SECTION 3.09. Taxes. Each of the Parent and its Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Parent or such Subsidiary, as applicable, has set aside
on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably
be expected to result in a Material Adverse Effect.




          SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.11. Disclosure. The Company has disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which it, the Parent or any other Subsidiary 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. Neither the Information Memorandum nor any of the other reports,
financial statements, certificates or other information furnished by or on behalf of the Parent,
the Company or any Subsidiary to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (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,
each of the Parent and the Borrowers represent only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time.




          SECTION 3.12. Federal Reserve Regulations. No part of the proceeds of any Loan have been used or will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.




          SECTION 3.13. Liens. There are no Liens on any of the real or personal properties of the Parent or any
Subsidiary except for Liens permitted by Section 6.02.




          SECTION 3.14. No Default. No Default or Event of Default has occurred and is continuing.


          SECTION 3.15. No Burdensome Restrictions. No Borrower is subject to any Burdensome Restrictions except Burdensome Restrictions
permitted under Section 6.08.




          SECTION 3.16. Compliance with Swiss Non-Bank Rules.





     (a) The Swiss Borrower is compliant with the Swiss Non-Bank Rules; provided however
that the Swiss Borrower shall not be in breach of this Section 3.16 if such number of
creditors (which are not Qualifying Banks) is exceeded solely by reason of a breach by one
or more Lenders of a confirmation contained in Section 2.17(i) or a failure by one or more
Lenders to comply with their obligations and transfer restrictions in Section 9.04.




     (b) For the purposes of paragraph (a) above, the Swiss Borrower shall assume that the
aggregate number of Lenders which are not Swiss Qualifying Banks is five (5).



          SECTION 3.17. Financial Assistance. In respect of each Loan Party, the execution of the Loan Documents and the performance of
the transaction contemplated thereby do not involve the giving of any financial assistance by any
such Loan Party to a third party in connection with the






50









 







acquisition of
shares in its capital or that of its parent company that is not permitted under any relevant
law or regulation.




ARTICLE IV




Conditions



          SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of
Credit hereunder shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.02):





     (a) The Administrative Agent (or its counsel) shall have received (i) from each party
hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B)
written evidence satisfactory to the Administrative Agent (which may include telecopy or
electronic transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement and (ii) duly executed copies of the Loan Documents
and such other legal opinions, certificates, documents, instruments and agreements in
respect of the Loan Parties as the Administrative Agent shall reasonably request in
connection with the Transactions, all in form and substance satisfactory to the Company and
Administrative Agent and its counsel and as further described in the list of closing
documents attached as Exhibit E.




     (b) The Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of each of (i)
Goodwin Procter LLP, U.S. counsel for the Loan Parties, substantially in the form of
Exhibit B-1, (ii) Appleby, Bermuda counsel for the Loan Parties, substantially in
the form of Exhibit B-2, (iii) Stibbe, Dutch counsel for the Loan Parties,
substantially in the form of Exhibit B-3, (iv) Baker & McKenzie Zurich, Swiss
counsel for the Loan Parties, substantially in the form of Exhibit B-4, (v) Clayton
Utz, Australian counsel for the Loan Parties, substantially in the form of Exhibit
B-5 and (vi) Stewart McKelvey Stirling Scales, Nova Scotia counsel for the Loan Parties,
substantially in the form of Exhibit B-6, and in each case covering such other
matters relating to the Loan Parties, the Loan Documents or the Transactions as the
Administrative Agent shall reasonably request. The Company hereby requests such counsel to
deliver such opinion.




     (c) The Lenders shall have received (i) audited consolidated financial statements of
the Parent for the two most recent fiscal years ended prior to the Effective Date as to
which such financial statements are available, (ii) unaudited interim consolidated
financial statements of the Parent for each quarterly period ended subsequent to the date of
the latest financial statements delivered pursuant to clause (i) of this paragraph as to
which such financial statements are publicly available and (iii) financial statement
projections through and including the Parent’s 2016 fiscal year, together with such
information as the Administrative Agent and the Lenders shall reasonably request (including,
without limitation, a detailed description of the assumptions used in preparing such
projections).




     (d) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the initial Loan Parties, the authorization of the
Transactions and any other legal matters relating to such Loan Parties, the Loan Documents
or the Transactions, all in form and substance satisfactory to the Administrative Agent and
its counsel and as further described in the list of closing documents attached as
Exhibit E.



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     (e) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of the Company,
confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section
4.02.




     (f) The Administrative Agent shall have received evidence reasonably satisfactory to it
that any credit facility currently in effect for the Parent and its Subsidiaries and not
described on Schedule 6.01 hereto shall have been terminated and cancelled and all
indebtedness thereunder shall have been fully repaid (except to the extent being so repaid
with the initial Revolving Loans) and any and all liens thereunder shall have been
terminated.




     (g) The Administrative Agent shall have received evidence reasonably satisfactory to it
that all governmental and third party approvals necessary in connection with the
Transactions and the continuing operations of the Parent and its Subsidiaries have been
obtained and are in full force and effect.




     (h) The Administrative Agent shall have received a letter from the Service of Process
Agent, presently located at 111 Eighth Avenue, New York, New York, 10011, confirming its
consent to its appointment by the Parent and each Subsidiary as their agent to receive
service of process as specified in this Agreement and that such consent is in full force and
effect and applies to this Agreement in all respects.




     (i) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement
or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company
hereunder.


The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such
notice shall be conclusive and binding.




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





     (a) The representations and warranties of each of the Parent and the Borrowers set
forth in this Agreement shall be true and correct in all material respects on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable.




     (b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default or Event of Default shall have occurred and be continuing.


Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by each of the Parent and the Borrowers on the
date thereof as to the matters specified in paragraphs (a) and (b) of this Section.




          SECTION 4.03. Designation of a Subsidiary Borrower. The designation of a Subsidiary Borrower is subject to the condition precedent that the
Company or such proposed Subsidiary Borrower shall have furnished or caused to be furnished to the
Administrative Agent:




52









 






     (a) Copies, certified by the Secretary or Assistant Secretary of such Subsidiary, of
its Board of Directors’ resolutions (and resolutions of other bodies, if any are deemed
necessary by counsel for the Administrative Agent) approving the Borrowing Subsidiary
Agreement and any other Loan Documents to which such Subsidiary is becoming a party and such
documents and certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of such Subsidiary;




     (b) An incumbency certificate, executed by the Secretary or Assistant Secretary of such
Subsidiary, which shall identify by name and title and bear the signature of the officers of
such Subsidiary authorized to request Borrowings hereunder and sign the Borrowing Subsidiary
Agreement and the other Loan Documents to which such Subsidiary is becoming a party, upon
which certificate the Administrative Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Company or such Subsidiary;




     (c) Opinions of counsel to such Subsidiary, in form and substance reasonably
satisfactory to the Administrative Agent and its counsel, with respect to the laws of its
jurisdiction of organization and such other matters as are reasonably requested by counsel
to the Administrative Agent and addressed to the Administrative Agent and the Lenders; and




     (d) Any promissory notes requested by any Lender, and any other instruments and
documents reasonably requested by the Administrative Agent.



ARTICLE V




Affirmative Covenants



          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Parent
and each Borrower covenants and agrees with the Lenders that:



          SECTION 5.01. Financial Statements and Other Information. The Parent or the Company, as applicable, will furnish to the Administrative Agent and each
Lender:





     (a) within ninety (90) days after the end of each fiscal year of the Parent (or, if
earlier, by the date that the Annual Report on Form 10-K of the Parent for such fiscal year
would be required to be filed under the rules and regulations of the SEC, giving effect to
any automatic extension available thereunder for the filing of such form), its audited
consolidated balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by Ernst & Young LLP{ or
other independent public accountants of recognized national standing (without a “going
concern” or like qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of operations of the
Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;




     (b) within forty-five (45) days after the end of each of the first three fiscal
quarters of each fiscal year of the Parent (or, if earlier, by the date that the Quarterly
Report on Form 10-Q of the Parent for such fiscal quarter would be required to be filed
under the rules and regulations of the SEC, giving effect to any automatic extension
available thereunder for the filing of such



53









 







form), its consolidated balance sheet and related statements of operations and cash
flows as of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of operations of the
Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes;




     (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Parent or the Company, as applicable, (i)
certifying as to whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably detailed calculations demonstrating compliance with Section 6.12
and (iii) stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section 3.04 and, if any
such change has occurred, specifying the effect of such change on the financial statements
accompanying such certificate;




     (d) [intentionally omitted];




     (e) as soon as available, but in any event not more than sixty (60) days after the end
of each fiscal year of the Parent, a copy of the plan and forecast (including a projected
consolidated balance sheet, income statement and cash flow statement) of the Parent for each
month of the upcoming fiscal year in form reasonably satisfactory to the Administrative
Agent;




     (f) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Parent or any Subsidiary with the
SEC, or any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the Parent to its
shareholders generally, as the case may be; and




     (g) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Parent or any Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.




Documents required to be delivered pursuant to clauses (a) and (b) of this Section 5.01 may
be delivered electronically and if so delivered, shall be deemed to have been delivered on
the date on which such documents are filed for public availability on the SEC’s Electronic
Data Gathering and Retrieval System; provided that the Company or the Parent shall
notify (which may be by facsimile or electronic mail) the Administrative Agent of the filing
of any such documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein,
in every instance the Parent or the Company, as applicable, shall be required to provide
copies of the compliance certificates required by clause (c) of this Section 5.01 to the
Administrative Agent.



          SECTION 5.02. Notices of Material Events. The Company will furnish to the Administrative Agent and each Lender prompt written notice
of the following:





     (a) the occurrence of any Default;



54









 






     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Company or any Affiliate
thereof that, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;




     (c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in a Material Adverse
Effect; and




     (d) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.


Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Company setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.




          SECTION 5.03. Existence; Conduct of Business. The Parent will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal existence and the
rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations and
intellectual property rights material to the conduct of its business, and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is conducted;
provided that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03.




          SECTION 5.04. Payment of Obligations. The Parent will, and will cause each of its Subsidiaries to, pay its obligations, including
Tax liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall
become delinquent or in default, except where (a) the validity or amount thereof is being contested
in good faith by appropriate proceedings, (b) the Parent or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make
payment pending such contest could not reasonably be expected to result in a Material Adverse
Effect.




          SECTION 5.05. Maintenance of Properties; Insurance. The Parent will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and condition, ordinary wear
and tear excepted, and (b) maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are customarily maintained by companies engaged
in the same or similar businesses operating in the same or similar locations.




          SECTION 5.06. Books and Records; Inspection Rights. The Parent will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries in conformity with GAAP and applicable law are
made of all material financial dealings and transactions in relation to its business and
activities. The Parent will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records, and
to discuss its affairs, finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested. The Parent acknowledges that the
Administrative Agent, after exercising its rights of inspection, may prepare and distribute to the
Lenders certain reports pertaining to the Parent and its Subsidiaries’ assets for internal use by
the Administrative Agent and the Lenders.




          SECTION 5.07. Compliance with Laws. The Parent will, and will cause each of its Subsidiaries to comply with all laws, rules,
regulations and orders of any Governmental Authority




55









 




applicable to it or its property (including without limitation Environmental Laws), except
where the failure to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.




          SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only to finance the working capital needs, and for
general corporate purposes, of the Parent and its Subsidiaries in the ordinary course of business,
including acquisitions and repurchases of Equity Interests, in each case to the extent permitted
under this Agreement. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.




          SECTION 5.09. Guaranty. As promptly as possible but in any event within thirty (30) days (or such later date as may
be agreed upon by the Administrative Agent) after any Person becomes a Subsidiary or any Subsidiary
qualifies independently as, or is designated by the Company or the Administrative Agent as, a
Subsidiary Guarantor pursuant to the definition of “Material Subsidiary”, the Company shall provide
the Administrative Agent with written notice thereof setting forth information in reasonable detail
describing the material assets of such Person and shall cause each such Subsidiary which also
qualifies as a Material Subsidiary to deliver to the Administrative Agent a joinder to the Guaranty
(in the form contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the
terms and provisions thereof, such Guaranty to be accompanied by appropriate corporate resolutions,
other corporate documentation and legal opinions in form and substance reasonably satisfactory to
the Administrative Agent and its counsel.




          SECTION 5.10. Compliance with Swiss Non-Bank Rules.





     (a) The Swiss Borrower shall be compliant with the Swiss Non-Bank Rules; provided
however that the Swiss Borrower shall not be in breach of this Section 5.10 if such number
of creditors (which are not Qualifying Banks) is exceeded solely by reason of a breach by
one or more Lenders of a confirmation contained in Section 2.17(i) or a failure by one or
more Lenders to comply with their obligations and transfer restrictions in Section 9.04.




     (b) For the purposes of paragraph (a) above, the Swiss Borrower shall assume that the
aggregate number of Lenders which are not Qualifying Banks is five (5).



ARTICLE VI




Negative Covenants



          Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, the Parent and each Borrower
covenants and agrees with the Lenders that:




          SECTION 6.01. Indebtedness. The Parent will not, and will not permit any Subsidiary to, create, incur, assume or permit
to exist any Indebtedness, except:





     (a) the Obligations;




     (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness with Indebtedness of a
similar type that does not increase the outstanding principal amount thereof;



56









 






     (c) Indebtedness of the Parent to any Subsidiary and of any Subsidiary to the Parent or
any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a
Loan Party to any Loan Party shall be subject to the limitations set forth in Section
6.04(d);




     (d) Guarantees by the Parent of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Parent or any other Subsidiary;




     (e) Indebtedness of the Parent or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (i) such Indebtedness is
incurred prior to or within ninety (90) days after such acquisition or the completion of
such construction or improvement and (ii) the aggregate principal amount of Indebtedness
permitted by this clause (e) shall not exceed $25,000,000 at any time outstanding;




     (f) Indebtedness of the Parent or any Subsidiary as an account party in respect of
trade letters of credit;




     (g) Indebtedness of the Parent or any Subsidiary secured by a Lien on any asset of the
Parent or any Subsidiary; provided that the aggregate outstanding principal amount
of Indebtedness permitted by this clause (g) shall not in the aggregate exceed $50,000,000
at any time; and




     (h) unsecured Indebtedness in an aggregate principal amount not exceeding $250,000,000
at any time outstanding.



          SECTION 6.02. Liens. The Parent will not, and will not permit any Subsidiary to, create, incur, assume or permit
to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of any thereof, except:





     (a) any Lien on any property or asset of the Parent or any Subsidiary existing on the
date hereof and set forth in Schedule 6.02; provided that (i) such Lien
shall not apply to any other property or asset of the Parent or any Subsidiary and (ii) such
Lien shall secure only those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount
thereof;




     (b) any Lien existing on any property or asset prior to the acquisition thereof by the
Parent or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Parent or any Subsidiary and (iii)
such Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be, and
extensions, renewals and replacements thereof that do not increase the outstanding principal
amount thereof;




     (c) Liens on fixed or capital assets acquired, constructed or improved by the Parent or
any Subsidiary; provided that (i) such security interests secure Indebtedness
permitted by



57









 







clause (e) of Section 6.01, (ii) such security interests and the Indebtedness secured
thereby are incurred prior to or within ninety (90) days after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness secured thereby does
not exceed the cost of acquiring, constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other property or assets of the Parent
or any Subsidiary;




     (d) Permitted Encumbrances; and




     (e) Liens on assets of the Parent and its Subsidiaries not otherwise permitted above so
long as the aggregate principal amount of the Indebtedness and other obligations subject to
such Liens does not at any time exceed $50,000,000.



          SECTION 6.03. Fundamental Changes and Asset Sales. (a) The Parent will not, and will not permit any Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) any of
its assets, (including pursuant to a Sale and Leaseback Transaction), or any of the Equity
Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing:





     (i) any Person (other than the Company) may merge into the Parent in a
transaction in which the Parent is the surviving corporation;




     (ii) any Subsidiary (other than the Company) may merge into a Loan Party in a
transaction in which the surviving entity is such Loan Party (provided that any such
merger involving the Parent must result in the Parent as the surviving entity);




     (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its
assets to a Loan Party;




     (iv) the Parent and its Subsidiaries may (A) sell inventory in the ordinary
course of business, (B) effect sales, trade-ins or dispositions of used equipment
for value in the ordinary course of business consistent with past practice, (C)
enter into licenses of technology in the ordinary course of business, and (D) make
any other sales, transfers, leases or dispositions that, together with all other
property of the Parent and its Subsidiaries previously leased, sold or disposed of
as permitted by this clause (D) during any fiscal year of the Parent, does not
exceed $50,000,000;




     (v) any Subsidiary that is not a Loan Party may liquidate or dissolve if the
Parent determines in good faith that such liquidation or dissolution is in the best
interests of the Parent and is not materially disadvantageous to the Lenders; and




     (vi) the Parent and its Subsidiaries may consummate the Permitted Corporate
Reorganization.




     (b) The Parent will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Parent
and its Subsidiaries on the date of execution of this Agreement and businesses reasonably
related thereto.




     (c) The Parent will not, nor will it permit any of its Subsidiaries to, change its
fiscal year from the basis in effect on the Effective Date.



58









 





          SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The Parent will not, and will not
permit any of its Subsidiaries to, purchase, hold or
acquire (including pursuant to any merger or consolidation with any Person that was not a wholly
owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of,
or make or permit to exist any investment or any other interest in, any other Person, or purchase
or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of
any other Person constituting a business unit, except:





     (a) Permitted Investments;




     (b) Permitted Acquisitions;




     (c) investments by the Parent and its Subsidiaries existing on the date hereof in the
capital stock of its Subsidiaries;




     (d) investments, loans or advances made by the Parent in or to any Subsidiary and made
by any Subsidiary in or to the Parent or any other Subsidiary (provided that not more than
an aggregate amount of $150,000,000 in investments, loans or advances or capital
contributions may be made and remain outstanding, at any time, by Loan Parties to
Subsidiaries which are not Loan Parties);




     (e) Guarantees constituting Indebtedness permitted by Section 6.01;




     (f) the Permitted Corporate Reorganization;




     (g) investments in joint ventures or other minority interests in a business or line of
business permitted with respect to the Loan Parties and the Subsidiaries under this
Agreement; provided that the aggregate outstanding amount of all such investments in
joint ventures and minority interests pursuant to this clause (g) does not exceed
$100,000,000 in the aggregate;




     (h) any Section 403-Declaration in relation to a Loan Party or any residual liability
under such declaration arising pursuant to section 2:404(2) of the Dutch Civil Code;




     (i) any joint and several liability arising as a result of (the establishment) of a
fiscal unity (fiscale eenheid) between the Loan Parties incorporated in the Netherlands or
its equivalent in any other relevant jurisdiction; and




     (j) any other investment, loan or advance (other than acquisitions) so long as the
aggregate amount of all such investments, loans and advances does not exceed $50,000,000
during the term of this Agreement.



          SECTION 6.05. Swap Agreements. The Parent will not, and will not permit any of its Subsidiaries to, enter into any Swap
Agreement, except (a) Swap Agreements entered into to hedge or mitigate risks to which the Parent
or any Subsidiary has actual exposure (other than those in respect of Equity Interests of the
Parent or any of its Subsidiaries), and (b) Swap Agreements entered into in order to effectively
cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to
another floating rate or otherwise) with respect to any interest-bearing liability or investment of
the Parent or any Subsidiary.







59









 








          SECTION 6.06. Transactions with Affiliates. The Parent will not, and will not permit any of its Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except
(a) in the ordinary course of business at prices and on terms and conditions not less favorable to
the Parent or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties, (b) transactions between or among the Parent and its wholly owned Subsidiaries not
involving any other Affiliate and (c) any Restricted Payment permitted by Section 6.07.




          SECTION 6.07. Restricted Payments. The Parent will not, and will not permit any of its Subsidiaries to, declare or make, or
agree to pay or make, directly or indirectly, any Restricted Payment, except (a) the Parent may
declare and pay dividends with respect to its Equity Interests payable solely in additional shares
of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their
Equity Interests, (c) the Parent may make Restricted Payments pursuant to and in accordance with
stock option plans or other benefit plans for management or employees of the Parent and its
Subsidiaries, (d) the Parent and its Subsidiaries may make Restricted Payments in an aggregate
amount not to exceed $25,000,000 during any fiscal year of the Parent and (e) the Parent and its
Subsidiaries may make any other Restricted Payment so long as no Default or Event of Default has
occurred and is continuing prior to making such Restricted Payment or would arise after giving
effect (including giving effect on a Pro Forma Basis) thereto and the aggregate amount of all such
Restricted Payments during the term of this Agreement does not exceed $400,000,000,
provided, that, notwithstanding the foregoing, the aggregate amount of all such Restricted
Payments made pursuant to clause (e) shall not exceed $50,000,000 for any fiscal year of the Parent
if the Total Leverage Ratio is equal to or greater than 2.25 to 1.00 after giving effect (including
giving effect on a Pro Forma Basis) to any such Restricted Payment.




          SECTION 6.08. Restrictive Agreements. The Parent will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Parent or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to holders of its Equity Interests
or to make or repay loans or advances to the Parent or any other Subsidiary or to Guarantee
Indebtedness of the Parent or any other Subsidiary; provided that (i) the foregoing shall
not apply to restrictions and conditions imposed by law or by any Loan Document, (ii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iii) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to
the property or assets securing such Indebtedness and (iv) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the assignment thereof.




          SECTION 6.09. Subordinated Indebtedness and Amendments to Subordinated Indebtedness
Documents. The Parent will not, and will not permit any Subsidiary to, directly or indirectly
voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire,
any Subordinated Indebtedness or any Indebtedness from time to time outstanding under the
Subordinated Indebtedness Documents. Furthermore, the Parent will not, and will not permit any
Subsidiary to, amend the Subordinated Indebtedness Documents or any document, agreement or
instrument evidencing any Indebtedness incurred pursuant to the Subordinated Indebtedness Documents
(or any replacements, substitutions, extensions or renewals thereof) or pursuant to which such
Indebtedness is issued where such amendment, modification or supplement provides for the following
or which has any of the following effects:




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     (a) increases the overall principal amount of any such Indebtedness or increases the
amount of any single scheduled installment of principal or interest;




     (b) shortens or accelerates the date upon which any installment of principal or
interest becomes due or adds any additional mandatory redemption provisions;




     (c) shortens the final maturity date of such Indebtedness or otherwise accelerates the
amortization schedule with respect to such Indebtedness;




     (d) increases the rate of interest accruing on such Indebtedness;




     (e) provides for the payment of additional fees or increases existing fees;




     (f) amends or modifies any financial or negative covenant (or covenant which prohibits
or restricts the Parent or any Subsidiary from taking certain actions) in a manner which is
more onerous or more restrictive in any material respect to the Parent or such Subsidiary or
which is otherwise materially adverse to the Parent, any Subsidiary and/or the Lenders or,
in the case of any such covenant, which places material additional restrictions on the
Parent or such Subsidiary or which requires the Parent or such Subsidiary to comply with
more restrictive financial ratios or which requires the Parent to better its financial
performance, in each case from that set forth in the existing applicable covenants in the
Subordinated Indebtedness Documents or the applicable covenants in this Agreement; or




     (g) amends, modifies or adds any affirmative covenant in a manner which (i) when taken
as a whole, is materially adverse to the Parent, any Subsidiary and/or the Lenders or (ii)
is more onerous than the existing applicable covenant in the Subordinated Indebtedness
Documents or the applicable covenant in this Agreement.



          SECTION 6.10. Sale and Leaseback Transactions. The Parent shall not, nor shall it permit any Subsidiary to, enter into any Sale and
Leaseback Transaction, other than Sale and Leaseback Transactions in respect of which the net cash
proceeds received in connection therewith does not exceed $75,000,000 in the aggregate during any
fiscal year of the Parent, determined on a consolidated basis for the Parent and its Subsidiaries.




          SECTION 6.11. Capital Expenditures.





     (a) The Company will not, nor will it permit any Subsidiary to, expend, or be committed
to expend, in excess of the amount set forth below (in the aggregate) for Consolidated
Capital Expenditures during any fiscal year of the Company set forth below opposite such
amount:



	 	 	 
	Maximum Capital Expenditure	 	Fiscal Year Ending
	$120,000,000
	 	June 30, 2012
	$170,000,000
	 	June 30, 2013
	$140,000,000
	 	June 30, 2014
	$140,000,000
	 	June 30, 2015
	$140,000,000
	 	June 30, 2016






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     (b) The amount of any Consolidated Capital Expenditures permitted to be made in respect
of any fiscal year shall be increased by the unused amount of Consolidated Capital
Expenditures that were permitted to be made during the immediately preceding fiscal year
pursuant to Section 6.11(a), without giving effect to any carryover amount. Consolidated
Capital Expenditures in any fiscal year shall be deemed to use first, the amount for such
fiscal year set forth in Section 6.11(a) and, second, any amount carried forward to such
fiscal year pursuant to this Section 6.11(b).



          SECTION 6.12. Financial Covenants.




     (a) Maximum Leverage Ratio. The Parent will not permit the ratio (the
“Leverage Ratio”), determined as of the end of each of its fiscal quarters ending on
and after September 30, 2011, of (i) Consolidated Total Indebtedness to (ii) Consolidated
EBITDA for the period of four (4) consecutive fiscal quarters ending with the end of such
fiscal quarter, all calculated for the Parent and its Subsidiaries on a consolidated basis,
to be greater than 3.50 to 1.00.




     (b) Maximum Senior Leverage Ratio. The Parent will not permit the ratio (the
“Senior Leverage Ratio”), determined as of the end of each of its fiscal quarters
ending on and after September 30, 2011, of (i) Consolidated Senior Indebtedness to (ii)
Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending with the
end of such fiscal quarter, all calculated for the Parent and its Subsidiaries on a
consolidated basis, to be greater than 2.75 to 1.00.




     (c) Minimum Interest Coverage Ratio. The Parent will not permit the ratio (the
“Interest Coverage Ratio”), determined as of the end of each of its fiscal quarters
ending on and after September 30, 2011, of (i) Consolidated EBITDA to (ii) Consolidated
Interest Expense, in each case for the period of four (4) consecutive fiscal quarters ending
with the end of such fiscal quarter, all calculated for the Parent and its Subsidiaries on a
consolidated basis, to be less than 3.00 to 1.00.



ARTICLE VII




Events of Default




     If any of the following events (“Events of Default”) shall occur:




     (a) any Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;




     (b) any Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable under this
Agreement or any other Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of three (3) Business Days;




     (c) any representation or warranty made or deemed made by or on behalf of the Parent,
any Borrower or any Subsidiary, as applicable, in or in connection with this Agreement or
any other Loan Document or any amendment or modification hereof or thereof or waiver



62









 







hereunder or thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or any other Loan
Document or any amendment or modification thereof or waiver thereunder, shall prove to have
been incorrect when made or deemed made;




     (d) the Parent or any Borrower, as applicable, shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with respect to Parent or
any Borrower’s existence), 5.08, 5.09 or 5.10, in Article VI or in Article X;




     (e) the Parent, any Borrower or any Subsidiary Guarantor, as applicable, shall fail to
observe or perform any covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (d) of this Article) or any other Loan Document,
and such failure shall continue unremedied for a period of thirty (30) days after notice
thereof from the Administrative Agent to the Company (which notice will be given at the
request of any Lender);




     (f) the Parent or any Subsidiary shall fail to make any payment (whether of principal
or interest and regardless of amount) in respect of any Material Indebtedness, when and as
the same shall become due and payable;




     (g) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;




     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Parent or
any Subsidiary or its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Parent or any Subsidiary or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue undismissed for
sixty (60) days or an order or decree approving or ordering any of the foregoing shall be
entered;




     (i) the Parent or any Subsidiary shall (i) voluntarily commence any proceeding or file
any petition seeking liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii)
consent to the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Parent or any Subsidiary or for a substantial part of its assets, (iv) file
an answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;




     (j) the Parent or any Subsidiary shall become unable, admit in writing its inability or
fail generally to pay its debts as they become due;




     (k) one or more judgments for the payment of money in an aggregate amount in excess of
$25,000,000 shall be rendered against the Parent, any Subsidiary or any combination



63









 







thereof and the same shall remain undischarged for a period of thirty (30) consecutive
days during which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the Parent or any
Subsidiary to enforce any such judgment;




     (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;




     (m) a Change in Control shall occur;




     (n) the occurrence of any “default”, as defined in any Loan Document (other than this
Agreement) or the breach of any of the terms or provisions of any Loan Document (other than
this Agreement), which default or breach continues beyond any period of grace therein
provided;




     (o) any material provision of any Loan Document for any reason ceases to be valid,
binding and enforceable in accordance with its terms (or the Parent or any Subsidiary shall
challenge the enforceability of any Loan Document or shall assert in writing, or engage in
any action or inaction based on any such assertion, that any provision of any of the Loan
Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance
with its terms); or


then, and in every such event (other than an event with respect to the Parent or any Borrower
described in clause (h) or (i) of this Article), and at any time thereafter during the continuance
of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the Company, take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately,
and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other Obligations of the Borrowers accrued hereunder and
under the other Loan Documents, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; and
in case of any event with respect to the Parent or any Borrower described in clause (h) or (i) of
this Article, the Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other Obligations accrued
hereunder and under the other Loan Documents, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrowers. Upon the occurrence and during the continuance of an Event of Default, the
Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and
remedies provided to the Administrative Agent under the Loan Documents or at law or equity.




ARTICLE VIII




The Administrative Agent



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







64









 








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




          The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to the Parent or any of its Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent
shall not be liable for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by the Company or a
Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document delivered hereunder or in
connection with any Loan Document, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in Article IV or
elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.




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




          The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent.




          Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Company. Upon any such resignation, the Required Lenders shall have the
right, in




65









 




consultation with the Company, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. The fees payable by any Borrower to
a successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between such Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while it was acting
as Administrative Agent.




          Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.




          None of the Lenders, if any, identified in this Agreement as a Syndication Agent Documentation
Agent shall have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none
of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each
Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their
respective capacities as Syndication Agent or Documentation Agent, as applicable, as it makes with
respect to the Administrative Agent in the preceding paragraph.




          The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right
on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after
the date such principal or interest has become due and payable pursuant to the terms of this
Agreement.




ARTICLE IX




Miscellaneous



          SECTION 9.01. Notices. (a) Except in the case of notices and other communications expressly permitted to be given
by telephone (and subject to paragraph (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed
by certified or registered mail or sent by telecopy, as follows:





     (i) if to any Borrower or the Parent, to it c/o Vistaprint USA, Incorporated,
95 Hayden Avenue, Lexington, MA 02421 USA, Attention of Jonathan Chevalier, Treasury
Manager (Telecopy No. (781) 652-6098; Telephone No. (781) 652-6771), with a copy to,
in the case of a notice of Default, General Counsel (Telecopy No. (781) 652-6092;
Telephone No. (781) 652-6541);



66









 






     (ii) if to the Administrative Agent, (A) in the case of Borrowings denominated
in Dollars, to JPMorgan Chase Bank, N.A., 10 South Dearborn, Floor 7, Chicago,
Illinois 60603, Attention of Brian Larson (Telecopy No. (888) 303-9732) and (B) in
the case of Borrowings denominated in Foreign Currencies, to J.P. Morgan Europe
Limited, 125 London Wall, London EC2Y 5AJ, Attention of Manager Loan Agency
(Telecopy No. 44 207 777 2360), and in each case with a copy to JPMorgan Chase Bank,
N.A., 12 Corporate Woods Boulevard, Albany, New York 12211, Attention of Scott
McNamara (Telecopy No. (518) 433-0295);




     (iii) if to the Issuing Bank, to it at JPMorgan Chase Bank, N.A., 10 South
Dearborn, Floor 7, Chicago, Illinois 60603, Attention of Brian Larson (Telecopy No.
(888) 303-9732);




     (iv) if to the Swingline Lender, to it at JPMorgan Chase Bank, N.A., 10 South
Dearborn, Floor 7, Chicago, Illinois 60603, Attention of Brian Larson (Telecopy No.
(888) 303-9732); and




     (v) if to any other Lender, to it at its address (or telecopy number) set forth
in its Administrative Questionnaire.




     (b) Notices and other communications to the Lenders hereunder may be delivered or
furnished by electronic communications pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices pursuant to
Article II unless otherwise agreed by the Administrative Agent and the applicable
Lender. The Administrative Agent or the Company may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited
to particular notices or communications.




     (c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement
shall be deemed to have been given on the date of receipt.



          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by any Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of
a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.





     (b) Except as provided in Section 2.20 with respect to an Incremental Term Loan
Amendment, neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into by the
Borrowers



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and the Required Lenders or by the Borrowers and the Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall (i) increase
the Commitment of any Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender directly
affected thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender directly affected
thereby, (iv) change Section 2.18(b) or (d) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each Lender, (v) change
any of the provisions of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender (it being understood that, solely with the
consent of the parties prescribed by Section 2.20 to be parties to an Incremental Term Loan
Amendment, Incremental Term Loans may be included in the determination of Required Lenders
on substantially the same basis as the Commitments and the Revolving Loans are included on
the Effective Date) or (vi) release the Parent or all or substantially all of the Subsidiary
Guarantors from their obligations under Article X or the Guaranty without the written
consent of each Lender; provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent, the Issuing
Bank or the Swingline Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be.




     (c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be
amended (or amended and restated) with the written consent of the Required Lenders, the
Administrative Agent and the Borrowers to each relevant Loan Document (x) to add one or more
credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term
Loan Amendment) to this Agreement and to permit extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof to share ratably
in the benefits of this Agreement and the other Loan Documents with the Revolving Loans,
Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to
include appropriately the Lenders holding such credit facilities in any determination of the
Required Lenders and Lenders.




     (d) If, in connection with any proposed amendment, waiver or consent requiring the
consent of “each Lender” or “each Lender directly affected thereby,” the consent of the
Required Lenders is obtained, but the consent of other necessary Lenders is not obtained
(any such Lender whose consent is necessary but not obtained being referred to herein as a
“Non-Consenting Lender”), then the Company may elect to replace a Non-Consenting
Lender as a Lender party to this Agreement, provided that, concurrently with such
replacement, (i) another bank or other entity which is reasonably satisfactory to the
Company and the Administrative Agent shall agree, as of such date, to purchase for cash the
Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and
Assumption and to become a Lender for all purposes under this Agreement and to assume all
obligations of the Non-Consenting Lender to be terminated as of such date and to comply with
the requirements of clause (b) of Section 9.04, and (ii) each Borrower shall pay to such
Non-Consenting Lender in same day funds on the day of such replacement (1) all interest,
fees and other amounts then accrued but unpaid to such Non-Consenting Lender by such
Borrower hereunder to and including the date of termination, including without limitation
payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount,
if any, equal to the payment which would have been due to such



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Lender on the day of such replacement under Section 2.16 had the Loans of such
Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.




     (e) Notwithstanding anything to the contrary herein the Administrative Agent may, with
the consent of the Borrowers only, amend, modify or supplement this Agreement or any of the
other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.



          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Company shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable documented out-of-pocket fees,
charges and disbursements of one primary counsel and one local counsel in each applicable foreign
jurisdiction for the Administrative Agent, in connection with the syndication and distribution
(including, without limitation, via the internet or through a service such as Intralinks) of the
credit facilities provided for herein, the preparation and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all reasonable out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank
or any Lender, including the reasonable documented out-of-pocket fees, charges and disbursements of
any counsel for the Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement and any other Loan
Document, including its rights under this Section, or in connection with the Loans made or Letters
of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.





     (b) The Company shall indemnify the Administrative Agent, the Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the execution or
delivery of any Loan Document or any agreement or instrument contemplated thereby, the
performance by the parties hereto of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby, (ii) any
Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the
Issuing Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by the Parent or any of its Subsidiaries, or any
Environmental Liability related in any way to the Parent 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 the Parent or any of its Subsidiaries, 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 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. This Section 9.03(b) shall not apply with respect to Taxes other than any
Taxes that represent losses or damages arising from any non-Tax claim.




     (c) To the extent that the Company fails to pay any amount required to be paid by it to
the Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or



69









 







(b) of this Section, each Lender severally agrees to pay to the Administrative Agent, the
Issuing Bank or the Swingline Lender, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount (it being understood that the Company’s failure to
pay any such amount shall not relieve the Company of any default in the payment thereof);
provided that the unreimbursed expense or indemnified loss, claim, damage, liability
or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Issuing Bank or the Swingline Lender in its capacity as such.




     (d) To the extent permitted by applicable law, neither the Parent nor any Borrower
shall assert, and the Parent and each Borrower hereby waive, any claim against any
Indemnitee (i) for any damages arising from the use by others of information or other
materials obtained through telecommunications, electronic or other information transmission
systems (including the Internet), or (ii) 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 or thereby, the Transactions, any Loan or Letter
of Credit or the use of the proceeds thereof.




     (e) All amounts due under this Section shall be payable not later than thirty (30) days
after written demand therefor.



          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) neither the Parent
nor any Borrower may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment or transfer by the
Parent or any Borrower without such consent shall be null and void) and (ii) no Lender may assign
or otherwise transfer its rights or obligations hereunder except in accordance with this Section.
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 (including
any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.





     (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the time owing to
it) with the prior written consent (such consent not to be unreasonably withheld or delayed)
of:




     (A) the Company (provided that the Company shall be deemed to have
consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within ten (10) Business Days after
having received notice thereof); provided, further, that no
consent of the Company shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if an Event of Default has
occurred and is continuing, any other assignee;




     (B) the Administrative Agent; and




     (C) the Issuing Bank.



70









 






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




     (A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender’s Commitment or Loans of any Class, the amount of
the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 unless each of the Company and the
Administrative Agent otherwise consent, provided that no such
consent of the Company shall be required if an Event of Default has occurred
and is continuing;




     (B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations
under this Agreement, provided that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender’s rights and obligations in respect of one Class of Commitments or
Loans;




     (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500, such fee to be paid by either the
assigning Lender or the assignee Lender or shared between such Lenders; and




     (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level
information (which may contain material non-public information about the
Company and its affiliates and their Related Parties or their respective
securities) will be made available and who may receive such information in
accordance with the assignee’s compliance procedures and applicable laws,
including Federal and state securities laws;




     (E) other than assignments to an existing Lender, assignments to
Lenders that will acquire a position of the Obligations of a Dutch
Subsidiary Borrower shall be at least €50,000 (or its equivalent in another
currency) or any other amount that will from time to time be applicable
under section 3(2) under a and/or b of the Dutch Decree on Definitions Wft
(Besluit definitiebepalingen Wft), or, if it is less, such new Lender (as
the case may be) shall confirm in writing to that Dutch Subsidiary Borrower
that it is a professional market party within the meaning of the FSA;




     (F) the prior written consent of each Swiss Borrower, if the assignee
is not a Qualifying Bank (such consent not to be unreasonably withheld or
delayed); provided, however, that the Swiss Borrowers do not
need to consent to an assignment that would be in violation of the Swiss
Non-Bank Rules; and




     (G) no assignment shall be made (x) to the Parent or any of the
Parent’s Affiliates or Subsidiaries or (y) to a natural person.



     For the purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:



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          “Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.





     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 9.04 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance
with paragraph (c) of this Section.




     (iv) The Administrative Agent, acting for this purpose as an agent of each
Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the Loans
and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive
absent manifest error, and the Borrowers, the Administrative Agent, the Issuing Bank
and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be available
for inspection by the Company, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice. Notwithstanding anything
to the contrary contained in this Agreement, the Loans are registered obligations,
the right, title and interest of the Lenders and its assignees in and to such Loans
shall be transferable only upon notation of such transfer in the Register and no
assignment thereof shall be effective until recorded therein. This Section shall be
construed so that the Loans are at all times maintained in “registered form” within
the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related
regulations (and any successor provisions).




     (v) Upon its receipt of a duly completed Assignment and Assumption executed by
an assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the
assigning Lender or the assignee shall have failed to make any payment required to
be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or
9.03(c), the Administrative Agent shall have no obligation to accept such Assignment
and Assumption and record the information therein in the Register unless and until
such payment shall have been made in full, together with all accrued interest
thereon. No assignment shall be effective for



72









 







purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.




     (c) Any Lender may, without the consent of the Parent or any Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell participations to one
or more banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender’s obligations
under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations; (C) the Parent, the
Borrowers, the Administrative Agent, the Issuing Bank and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement; and (D) each Participant shall be a Qualifying Bank or, if
not, the prior written consent of each Swiss Borrower has been obtained (such consent not to
be unreasonably withheld or delayed; provided that no Swiss Borrower shall consent to a
participation that would be in violation of the Swiss Non-Bank Rules). Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. The Parent and each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to
the requirements and limitations therein, including the requirements under Section 2.17(f)
(it being understood that the documentation required under Section 2.17(f) shall be
delivered to the participating Lender)) to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that
such Participant (A) agrees to be subject to the provisions of Sections 2.18 and 2.19 as if
it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to
receive any greater payment under Sections 2.15 or 2.17, with respect to any participation,
than its participating Lender would have been entitled to receive, except to the extent such
entitlement to receive a greater payment results from a Change in Law that occurs after the
Participant acquired the applicable participation. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.18(d) as though it were
a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a
non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and
address of each Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations under this Agreement (the
“Participant Register”); provided that no Lender shall have any obligation
to disclose all or any portion of the Participant Register to any Person (including the
identity of any Participant or any information relating to a Participant’s interest in any
Commitments, Loans, Letters of Credit or its other obligations under this Agreement) except
to the extent that such disclosure is necessary to establish that such Commitment, Loan,
Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the
United States Treasury Regulations. The entries in the Participant Register shall be
conclusive absent manifest error, and such Lender shall treat each person whose name is
recorded in the Participant Register as the owner of such participation for all purposes of
this Agreement notwithstanding any notice to the contrary.




     (d) Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a security interest;
provided that no



73









 







such pledge or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.



          SECTION 9.05. Survival. All covenants, agreements, representations and warranties made by the Loan Parties in the
Loan Documents and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon
by the other parties hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made
by any such other party or on its behalf and notwithstanding that the Administrative Agent, the
Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or
any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments
or the termination of this Agreement or any other Loan Document or any provision hereof or thereof.




          SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement, the other Loan Documents and any
separate letter agreements with respect to fees payable to the Administrative Agent constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by facsimile or other electronic imaging shall be effective as delivery of a
manually executed counterpart of this Agreement.




          SECTION 9.07. Severability. Any provision of any Loan Document held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and enforceability of the
remaining provisions thereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.




          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final and in whatever currency denominated) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the Parent, any Borrower
or any Subsidiary Guarantor against any of and all of the Obligations held by such Lender,
irrespective of whether or not such Lender shall have made any demand under the Loan Documents and
although such obligations may be unmatured. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff) which such Lender may
have.




          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement shall be construed in accordance with and governed by the law of the
State of New York.




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




     (c) The Parent and each Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any other Loan Document in any court referred to in paragraph
(b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.




     (d) Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.01. Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process in any other
manner permitted by law.




     (e) The Parent and each Borrower hereby irrevocably designates, appoints and empowers
the Service of Process Agent, with offices on the date hereof at 111 Eighth Avenue, New
York, New York 10011, as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property, service of any and all
legal process, summons, notices and documents which may be served in any such action or
proceeding. If for any reason such designee, appointee and agent shall cease to be
available to act as such, The Parent and each Borrower agree to designate a new designee,
appointee and agent in New York City on the terms and for the purposes of this provision
reasonably satisfactory to the Administrative Agent under this Agreement. Each Obligor
irrevocably waives, to the fullest extent permitted by law, all claim of error by reason of
any such service in such manner and agrees that such service shall be deemed in every
respect effective service of process upon such Obligor in any such suit, action or
proceeding and shall, to the fullest extent permitted by law, be taken and held to be valid
and personal service upon and personal delivery to such Obligor. To the extent any Obligor
has or hereafter may acquire any immunity from jurisdiction of any court or from any legal
process (whether from service or notice, attachment prior to judgment, attachment in aid of
execution of a judgment, execution or otherwise), each Obligor hereby irrevocably waives
such immunity in respect of its obligations under the Loan Documents.



          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON




75









 




CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




          SECTION 9.11. Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.




          SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal
counsel and other advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory authority (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 to this Agreement, (e) in connection with the exercise of any remedies under
this Agreement or any other Loan Document or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(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 any Borrower and its obligations, (g)
with the consent of the Company or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Company. For the purposes of this Section, “Information” means all information
received from the Parent relating to the Parent or its business, other than any such information
that is available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Parent; provided that, in the case of information received
from the Parent after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.




          SECTION 9.13. USA PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby notifies each Loan Party
that pursuant to the requirements of the Act, it is required to obtain, verify and record
information that identifies such Loan Party, which information includes the name and address of
such Loan Party and other information that will allow such Lender to identify such Loan Party in
accordance with the Act.




          SECTION 9.14. Releases of Guarantors.





     (a) A Subsidiary Guarantor shall automatically be released from its obligations under
the Guaranty upon the consummation of any transaction permitted by this Agreement as a
result of which such Subsidiary Guarantor ceases to be a Subsidiary; provided that,
if so required by this Agreement, the Required Lenders shall have consented to such
transaction and the terms of



76









 







such consent shall not have provided otherwise. In connection with any termination or
release pursuant to this Section, the Administrative Agent shall (and is hereby irrevocably
authorized by each Lender to) execute and deliver to any Loan Party, at such Loan Party’s
expense, all documents that such Loan Party shall reasonably request to evidence such
termination or release. Any execution and delivery of documents pursuant to this Section
shall be without recourse to or warranty by the Administrative Agent.




     (b) Further, the Administrative Agent may (and is hereby irrevocably authorized by each
Lender to), upon the request of the Company, release any Subsidiary Guarantor from its
obligations under the Guaranty if such Subsidiary Guarantor is no longer a Material
Subsidiary.




     (c) At such time as the principal and interest on the Loans, all LC Disbursements, the
fees, expenses and other amounts payable under the Loan Documents and the other Obligations
(other than obligations under any Swap Agreement or any Banking Services Agreement, and
other Obligations expressly stated to survive such payment and termination) shall have been
paid in full, the Commitments shall have been terminated and no Letters of Credit shall be
outstanding, the Guaranty and all obligations (other than those expressly stated to survive
such termination) of each Guarantor thereunder shall automatically terminate, all without
delivery of any instrument or performance of any act by any Person.



          SECTION 9.15. Attorney Representation. If the Parent or a Dutch Subsidiary Borrower is represented by an attorney in connection
with the signing and/or execution of the Agreement and/or any other Loan Document it is hereby
expressly acknowledged and accepted by the parties to the Agreement and/or any other Loan Document
that the existence and extent of the attorney’s authority and the effects of the attorney’s
exercise or purported exercise of his or her authority shall be governed by the laws of the
Netherlands.




          SECTION 9.16. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate
applicable to any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of
interest payable in respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor)
until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.




          SECTION 9.17. No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document),
the Parent and each Borrower acknowledges and agrees that: (i) (A) the arranging and other services
regarding this Agreement provided by the Lenders are arm’s-length commercial transactions between
the Parent and such Borrower and its Affiliates, on the one hand, and the Lenders, on the other
hand, (B) the Parent and such Borrower has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate, and (C) the Parent and such Borrower is capable
of evaluating, and understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii) (A) each of the Lenders is and has been
acting solely as a principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Parent or
such




77









 




Borrower or any of its Affiliates, or any other Person and (B) no Lender has any obligation to
the Parent or such Borrower or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan Documents; and
(iii) each of the Lenders and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Parent and such Borrower and its
Affiliates, and no Lender has any obligation to disclose any of such interests to the Parent or
such Borrower or its Affiliates. To the fullest extent permitted by law, the Parent and each
Borrower hereby waives and releases any claims that it may have against each of the Lenders with
respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect
of any transaction contemplated hereby.




ARTICLE X




Cross-Guarantee



          SECTION 10.01. Cross Guarantee.





     (a) In order to induce the Lenders to extend credit to each Borrower hereunder, each
Obligor hereby irrevocably and unconditionally guarantees, as a primary obligor and not
merely as a surety, the payment when and as due of the Obligations of such other Obligor.
Each Obligor further agrees that the due and punctual payment of such Obligations may be
extended or renewed, in whole or in part, without notice to or further assent from it, and
that it will remain bound upon its guarantee hereunder notwithstanding any such extension or
renewal of any such Obligation.




     (b) Each Obligor waives presentment to, demand of payment from and protest to any
Obligor of any of the Obligations, and also waives notice of acceptance of its obligations
and notice of protest for nonpayment. The obligations of each Obligor hereunder shall not
be affected by (a) the failure of the Administrative Agent, the Issuing Bank or any Lender
to assert any claim or demand or to enforce any right or remedy against any Obligor under
the provisions of this Agreement, any other Loan Document or otherwise; (b) any extension or
renewal of any of the Obligations; (c) any rescission, waiver, amendment or modification of,
or release from, any of the terms or provisions of this Agreement, or any other Loan
Document or agreement; (d) any default, failure or delay, willful or otherwise, in the
performance of any of the Obligations; (e) the failure of the Administrative Agent to take
any steps to perfect and maintain any security interest in, or to preserve any rights to,
any security or collateral for the Obligations, if any; (f) any change in the corporate,
partnership or other existence, structure or ownership of any Obligor or any other guarantor
of any of the Obligations; (g) the enforceability or validity of the Obligations or any part
thereof or the genuineness, enforceability or validity of any agreement relating thereto or
with respect to any collateral securing the Obligations or any part thereof, or any other
invalidity or unenforceability relating to or against any Obligor or any other guarantor of
any of the Obligations, for any reason related to this Agreement, any Swap Agreement, any
other Loan Document, or any provision of applicable law, decree, order or regulation of any
jurisdiction purporting to prohibit the payment by such Obligor or any other guarantor of
the Obligations, of any of the Obligations or otherwise affecting any term of any of the
Obligations; or (h) any other act, omission or delay to do any other act which may or might
in any manner or to any extent vary the risk of such Obligor or otherwise operate as a
discharge of a guarantor as a matter of law or equity or which would impair or eliminate any
right of such Obligor to subrogation.




     (c) Each Obligor further agrees that its agreement hereunder constitutes a guarantee of
payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the
accrual or collection of any of the Obligations or operated as a discharge thereof) and not
merely



78









 







of collection, and waives any right to require that any resort be had by the
Administrative Agent, the Issuing Bank or any Lender to any balance of any deposit account
or credit on the books of the Administrative Agent, the Issuing Bank or any Lender in favor
of any Obligor or any other Person.




     (d) The obligations of each Obligor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the
invalidity, illegality or unenforceability of any of the Obligations, any impossibility in
the performance of any of the Obligations or otherwise.




     (e) Each Obligor further agrees that its obligations hereunder shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation is rescinded or must otherwise be restored by the Administrative Agent,
the Issuing Bank or any Lender upon the bankruptcy or reorganization of any Obligor or
otherwise.




     (f) In furtherance of the foregoing and not in limitation of any other right which the
Administrative Agent, the Issuing Bank or any Lender may have at law or in equity against
any Obligor by virtue hereof, upon the failure of any other Obligor to pay any Obligation
when and as the same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, each Obligor hereby promises to and will, upon receipt of written
demand by the Administrative Agent, the Issuing Bank or any Lender, forthwith pay, or cause
to be paid, to the Administrative Agent, the Issuing Bank or any Lender in cash an amount
equal to the unpaid principal amount of such Obligations then due, together with accrued and
unpaid interest thereon. Each Obligor further agrees that if payment in respect of any
Obligation shall be due in a currency other than Dollars and/or at a place of payment other
than New York, Chicago or any other Eurocurrency Payment Office and if, by reason of any
Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance
or other event, payment of such Obligation in such currency or at such place of payment
shall be impossible or, in the reasonable judgment of the Administrative Agent, the Issuing
Bank or any Lender, disadvantageous to the Administrative Agent, the Issuing Bank or any
Lender in any material respect, then, at the election of the Administrative Agent, such
Obligor shall make payment of such Obligation in Dollars (based upon the applicable
Equivalent Amount in effect on the date of payment) and/or in New York, Chicago or such
other Eurocurrency Payment Office as is designated by the Administrative Agent and, as a
separate and independent obligation, shall indemnify the Administrative Agent, the Issuing
Bank and any Lender against any losses or reasonable out-of-pocket expenses that it shall
sustain as a result of such alternative payment.




     (g) Upon payment by any Obligor of any sums as provided above, all rights of such
Obligor against any Obligor arising as a result thereof by way of right of subrogation or
otherwise shall in all respects be subordinated and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations owed by such Obligor to the
Administrative Agent, the Issuing Bank and the Lenders.




     (h) Nothing shall discharge or satisfy the liability of any Obligor hereunder except
the full performance and payment in cash of the Obligations.



          SECTION 10.02. Swiss Limitation Language for Swiss Borrowers.





     (a) If and to the extent that a payment in fulfilling the joint and several liabilities
under this article of any Swiss Borrower would, at the time payment is due, under Swiss law
and



79









 







practice (inter alia, prohibiting capital repayments or restricting profit
distributions) not be permitted, in particular if and to the extent that such Swiss Borrower
guarantees obligations other than obligations of one of its subsidiaries (i.e. obligations
of its direct or indirect parent companies (up-stream guarantee) or sister companies
(cross-stream guarantee)) (“Restricted Obligations”), then such obligations and
payment amount shall from time to time be limited to the amount of the freely disposable
equity in accordance with Swiss law; provided that such limited amount shall at no
time be less than such Swiss Borrower’s profits and reserves available for the distribution
as dividends (being the balance sheet profits and any reserves available for this purpose,
in each case in accordance with art. 675(2) and art. 671(1) and (2), no. 3, of the Swiss
Federal Code of Obligations) at the time or times payment under or pursuant to this article
is requested from such Swiss Borrower, and further provided that such limitation (as may
apply from time to time or not) shall not (generally or definitively) free such Swiss
Borrower from payment obligations hereunder in excess thereof, but merely postpone the
payment date therefor until such times as payment is again permitted notwithstanding such
limitation. Any and all indemnities and guarantees contained in the Loan Documents
including, in particular, Section 18(A)(iv) of Exhibit G (the Guaranty) shall be
construed in a manner consistent with the provisos herein contained.




     (b) In respect of Restricted Obligations, each Swiss Borrower shall:




     (i) if and to the extent required by applicable law in force at the relevant
time:




          (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory
tax (Verrechnungssteuer; Swiss Withholding Tax) at the rate of 35% (or such other
rate as in force from time to time) from any payment made by it in respect of
Restricted Obligations;




          (B) pay any such deduction to the Swiss Federal Tax Administration; and




          (C) notify (or ensure that the Company notifies) the Administrative Agent that
such a deduction has been made and provide the Administrative Agent with evidence
that such a deduction has been paid to the Swiss Federal Tax Administration, all in
accordance with Section 18(A)(i) of Exhibit G (the Guaranty); and




     (ii) to the extent such a deduction is made, not be obliged to either gross-up
in accordance with Section 18(A)(i) of Exhibit G (the Guaranty) or indemnify each
Recipient in accordance with Section 18(A)(iv) of Exhibit G (the Guaranty)
in relation to any such payment made by it in respect of Restricted Obligations
unless grossing-up is permitted under the laws of Switzerland then in force.




     (c) If and to the extent requested by the Administrative Agent and if and to the extent
this is from time to time required under Swiss law (restricting profit distributions), in
order to allow the Administrative Agent to obtain a maximum benefit under the joint and
several liabilities under this article, each Swiss Borrower undertakes to promptly implement
all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it
to promptly make the requested payment(s) hereunder from time to time, including the
following:




     (i) preparation of an up-to-date audited balance sheet of such Swiss Borrower;



80









 






     (ii) confirmation of the auditors of such Swiss Borrower that the relevant
amount represents the maximum freely distributable profits;




     (iii) approval by a shareholder’s or a quotaholders’ meeting (as applicable) of
such Swiss Borrower of the resulting profit distribution; and




     (d) all such other measures necessary or useful to allow such Swiss Borrower to make
the payments agreed hereunder with a minimum of limitations.



[Signature Pages Follow]




81









 





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



	 	 	 	 	 
	 	VISTAPRINT LIMITED,

as the Company

 	 
	 	By  	/s/ Dawn Antoine
 	 
	 	 	Name:  	Dawn Antoine 	 
	 	 	Title:  	Secretary 	 
	 
	 	VISTAPRINT N.V.,

as the Parent

 	 
	 	By  	/s/ Ernst J. Teunissen
 	 
	 	 	Name:  	Ernst J. Teunissen 	 
	 	 	Title:  	Chief Financial Officer and Managing Director 	 
	 
	 	VISTAPRINT SCHWEIZ GMBH,

as a Borrower

 	 
	 	By  	/s/ Ernst J. Teunissen
 	 
	 	 	Name:  	Ernst J. Teunissen 	 
	 	 	Title:  	Managing Director 	 
	 
	 	VISTAPRINT B.V.,

as a Borrower

 	 
	 	By  	/s/ Ernst J. Teunissen
 	 
	 	 	Name:  	Ernst J. Teunissen 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page to Credit Agreement

Vistaprint Limited et al





 









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., individually as a 

Lender,
as the Swingline Lender, as the Issuing Bank 

and as
Administrative Agent

 	 
	 	By  	/s/ Scott McNamara
 	 
	 	 	Name:  	Scott McNamara 	 
	 	 	Title:  	Vice President 	 
	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION, 

individually as
a Lender and as Syndication Agent

 	 
	 	By  	/s/ Manuel Burgueño
 	 
	 	 	Name:  	Manuel Burgueño 	 
	 	 	Title:  	Vice President 	 
	 
	 	RBS CITIZENS, N.A., individually as a Lender and as

Documentation Agent

 	 
	 	By  	/s/ Stephen F. O’Sullivan
 	 
	 	 	Name:  	Stephen F. O’Sullivan 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	THE HUNTINGTON NATIONAL BANK, as a Lender

 	 
	 	By  	/s/ Chad A. Lowe
 	 
	 	 	Name:  	Chad A. Lowe 	 
	 	 	Title:  	Vice President 	 
	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By  	/s/ Robert M. Martin
 	 
	 	 	Name:  	Robert M. Martin 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	SOVEREIGN BANK, as a Lender

 	 
	 	By  	/s/ A. Neil Sweeny
 	 
	 	 	Name:  	A. Neil Sweeny 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Credit Agreement

Vistaprint Limited et al





 









 





	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA, as a Lender

 	 
	 	By  	/s/ Mark Walton
 	 
	 	 	Name:  	Mark Walton 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	[OTHER AGENTS AND LENDERS TO COME],

 	 
	 	 	 
	 	 	 
	 	 	 
	 



Signature Page to Credit Agreement

Vistaprint Limited et al




 









 








SCHEDULE 2.01




COMMITMENTS



	 	 	 	 	 
	LENDER	 	COMMITMENT
	JPMORGAN CHASE BANK, N.A.
	 	$	62,500,000	 
	HSBC BANK USA, NATIONAL ASSOCIATION
	 	$	50,000,000	 
	RBS CITIZENS, N.A.
	 	$	47,500,000	 
	THE HUNTINGTON NATIONAL BANK
	 	$	25,000,000	 
	PNC BANK, NATIONAL ASSOCIATION
	 	$	25,000,000	 
	SOVEREIGN BANK
	 	$	25,000,000	 
	GOLDMAN SACHS BANK USA
	 	$	15,000,000	 
	AGGREGATE COMMITMENT
	 	$	250,000,000	 











 









 








SCHEDULE 2.02




MANDATORY COST




	1.	 	The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank.
	 
	2.	 	On the first day of each Interest Period (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Associated Costs
Rate”) for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Administrative Agent as a weighted average of the Lenders’
Associated Costs Rates (weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per annum.
	 
	3.	 	The Associated Costs Rate for any Lender lending from a Facility Office in a Participating
Member State will be the percentage notified by that Lender to the Administrative Agent. This
percentage will be certified by that Lender in its notice to the Administrative Agent to be
its reasonable determination of the cost (expressed as a percentage of that Lender’s
participation in all Loans made from that Facility Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of loans made from that Facility
Office.
	 
	4.	 	The Associated Costs Rate for any Lender lending from a Facility Office in the United Kingdom
will be calculated by the Administrative Agent as follows:






				
	 	E x 0.01
300	 	per cent. per annum.






	 	 	Where:






	 	A	 	is the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.
	 
	 	B	 	is the percentage rate of interest (excluding the Applicable Rate and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest
specified in Section 2.13(c)) payable for the relevant Interest Period on the Loan.
	 
	 	C	 	is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England.
	 
	 	D	 	is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.
	 
	 	E	 	is designed to compensate Lenders for amounts payable under the Fees Rules and
is calculated by the Administrative Agent as being the average of the most recent rates
of charge supplied by the Reference Banks to the Administrative Agent pursuant to
paragraph 7 below and expressed in pounds per £1,000,000.





 









 






	5.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings given to them
from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
	 
	 	(b)	 	“Facility Office” means the office or offices notified by a Lender to the
Administrative Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days’ written notice) as the office
or offices through which it will perform its obligations under this Agreement.
	 
	 	(c)	 	“Fees Rules” means the rules on periodic fees contained in the Financial
Services Authority Fees Manual or such other law or regulation as may be in force from
time to time in respect of the payment of fees for the acceptance of deposits;
	 
	 	(d)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate);
	 
	 	(e)	 	“Participating Member State” means any member state of the European Union that
adopts or has adopted the euro as its lawful currency in accordance with legislation of
the European Union relating to economic and monetary union.
	 
	 	(f)	 	“Reference Banks” means, in relation to Mandatory Cost, the principal London
offices of JPMorgan Chase Bank, N.A.
	 
	 	(g)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.
	 
	 	(h)	 	“Unpaid Sum” means any sum due and payable but unpaid by any Borrower under the
Loan Documents.






	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A
negative result obtained by subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal places.
	 
	7.	 	If requested by the Administrative Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Administrative Agent, the
rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to
the Fees Rules in respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of that Reference Bank.
	 
	8.	 	Each Lender shall supply any information required by the Administrative Agent for the purpose
of calculating its Associated Costs Rate. In particular, but without limitation, each Lender
shall supply the following information on or prior to the date on which it becomes a Lender:






	 	(a)	 	the jurisdiction of its Facility Office; and




2









 






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




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





	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the Administrative Agent
based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the Administrative Agent to the contrary, each
Lender’s obligations in relation to cash ratio deposits and Special Deposits are the same as
those of a typical bank from its jurisdiction of incorporation with a Facility Office in the
same jurisdiction as its Facility Office.
	 
	10.	 	The Administrative Agent shall have no liability to any person if such determination results
in an Associated Costs Rate which over or under compensates any Lender and shall be entitled
to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs
3, 7 and 8 above is true and correct in all respects.
	 
	11.	 	The Administrative Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Associated Costs Rate for each Lender based
on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7
and 8 above.
	 
	12.	 	Any determination by the Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Associated Costs Rate or any amount payable to a Lender shall,
in the absence of manifest error, be conclusive and binding on all parties hereto.
	 
	13.	 	The Administrative Agent may from time to time, after consultation with the Company and the
relevant Lenders, determine and notify to all parties hereto any amendments which are required
to be made to this Schedule 2.02 in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other authority which replaces
all or any of its functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all parties hereto.





3









 





EXHIBIT A




ASSIGNMENT AND ASSUMPTION



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




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




	 	 	 

	1. Assignor:

	 	________________
	 
	 	 
	2. Assignee:

	 	________________

[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 
	3. Borrowers:

	 	Vistaprint Limited and certain Subsidiary Borrowers
	 
	 	 
	4. Administrative Agent:

	 	JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement
	 
	 	 
	5. Credit Agreement:

	 	The Credit Agreement dated as of October 21, 2011 among Vistaprint Limited, Vistaprint N.V., the
Subsidiary Borrowers from time to time parties thereto, the Lenders parties thereto, JPMorgan
Chase Bank, N.A., as Administrative Agent, and the other agents parties thereto








 




			
	1	 	Select as applicable.




 









 









			
	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 
	Aggregate Amount of	 	 	 	 	 	 
	Commitment/Loans for all	 	Amount of Commitment/Loans	 	 	Percentage Assigned of	 
	Lenders	 	Assigned	 	 	Commitment/Loans2	 
	$
	 	$	 	 	 	 	%	 
	$
	 	$	 	 	 	 	%	 
	$
	 	$	 	 	 	 	%	 





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



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




	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 
	 	ASSIGNEE




[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 


Consented to and Accepted:




JPMORGAN CHASE BANK, N.A., as 

Administrative
Agent and Issuing Bank




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Title:
	 	 





[Consented to:]3




VISTAPRINT LIMITED [or each Swiss Borrower if

the assignee is not a Qualifying Bank]




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Title:
	 	 








 




			
	2	 	Set forth, so at least 9 decimals, as
percentage of the Commitment/Loans of all Lenders thereunder.
	 
	3	 	To be added only if the consent of the
Company or of each Swiss Borrower (Section 9.04(b)(ii)(F) and Section 9.04(c))
is required by the terms of the Credit Agreement.





2









 





ANNEX I




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




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




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a Non-U.S.
Lender, attached to the Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.




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




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




 









 





EXHIBIT B-1




OPINION OF U.S. COUNSEL FOR THE LOAN PARTIES



Attached








 









 








EXHIBIT B-2




OPINION OF BERMUDA COUNSEL FOR THE LOAN PARTIES



Attached



 









 





EXHIBIT B-3




OPINION OF DUTCH COUNSEL FOR THE LOAN PARTIES



Attached



 









 





EXHIBIT B-4




OPINION OF SWISS COUNSEL FOR THE LOAN PARTIES



Attached








 









 








EXHIBIT C

FORM OF INCREASING LENDER SUPPLEMENT




     INCREASING LENDER SUPPLEMENT, dated __________, 20___ (this “Supplement”), by and
among each of the signatories hereto, to the Credit Agreement, dated as of October 21, 2011 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Vistaprint Limited (the “Company”), Vistaprint N.V., the Subsidiary
Borrowers from time to time party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A.,
as administrative agent (in such capacity, the “Administrative Agent”).



WITNESSETH




          WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the Company has the right,
subject to the terms and conditions thereof, to effectuate from time to time an increase in the
Aggregate Commitment and/or one or more tranches of Incremental Term Loans under the Credit
Agreement by requesting one or more Lenders to increase the amount of its Commitment and/or to
participate in such a tranche;




          WHEREAS, the Company has given notice to the Administrative Agent of its intention to
[increase the Aggregate Commitment] [and] [enter into a tranche of Incremental Term Loans] pursuant
to such Section 2.20; and




          WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the undersigned Increasing
Lender now desires to [increase the amount of its Commitment] [and] [participate in a tranche of
Incremental Term Loans] under the Credit Agreement by executing and delivering to the Company and
the Administrative Agent this Supplement;




          NOW, THEREFORE, each of the parties hereto hereby agrees as follows:




          1. The undersigned Increasing Lender agrees, subject to the terms and conditions of the Credit
Agreement, that on the date of this Supplement it shall [have its Commitment increased by
$[__________], thereby making the aggregate amount of its total Commitments equal to $[__________]]
[and] [participate in a tranche of Incremental Term Loans with a commitment amount equal to
$[__________] with respect thereto].




          2. The Company hereby represents and warrants that no Default or Event of Default has occurred
and is continuing on and as of the date hereof.




          3. Terms defined in the Credit Agreement shall have their defined meanings when used herein.




          4. This Supplement shall be governed by, and construed in accordance with, the laws of the
State of New York.




          5. This Supplement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same document.







 









 








          IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and
delivered by a duly authorized officer on the date first above written.




	 	 	 	 	 
	 	[INSERT NAME OF INCREASING LENDER]

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



Accepted and agreed to as of the date first

written above:



VISTAPRINT LIMITED




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 





Acknowledged as of the date first written
above:




JPMORGAN CHASE BANK, N.A.

as Administrative Agent




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 











2









 








EXHIBIT D




FORM OF AUGMENTING LENDER SUPPLEMENT



          AUGMENTING LENDER SUPPLEMENT, dated __________, 20___ (this “Supplement”), to the
Credit Agreement, dated as of October 21, 2011 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among Vistaprint Limited (the
“Company”), Vistaprint N.V., the Subsidiary Borrowers from time to time party thereto, the
Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the
“Administrative Agent”).




WITNESSETH




          WHEREAS, the Credit Agreement provides in Section 2.20 thereof that any bank,
financial institution or other entity may [extend Commitments] [and] [participate in tranches of
Incremental Term Loans] under the Credit Agreement subject to the approval of the Company and the
Administrative Agent, by executing and delivering to the Company and the Administrative Agent a
supplement to the Credit Agreement in substantially the form of this Supplement; and




          WHEREAS, the undersigned Augmenting Lender was not an original party to the Credit Agreement
but now desires to become a party thereto;




          NOW, THEREFORE, each of the parties hereto hereby agrees as follows:




          1. The undersigned Augmenting Lender agrees to be bound by the provisions of the Credit
Agreement and agrees that it shall, on the date of this Supplement, become a Lender for all
purposes of the Credit Agreement to the same extent as if originally a party thereto, with a
[Commitment with respect to Revolving Loans of $[__________]] [and] [a commitment with respect to
Incremental Term Loans of $[__________]].




          2. The undersigned Augmenting Lender (a) represents and warrants that it is legally
authorized to enter into this Supplement; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements delivered pursuant to
Section 5.01 thereof, as applicable, and has reviewed such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to enter into this
Supplement; (c) agrees that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking action under the
Credit Agreement or any other instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound
by the provisions of the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be performed by it as a
Lender.




          3. The undersigned’s address for notices for the purposes of the Credit Agreement is as
follows:



[___________]







 









 








          4. The Company hereby represents and warrants that no Default or Event of Default has
occurred and is continuing on and as of the date hereof.




          5. Terms defined in the Credit Agreement shall have their defined meanings when used herein.




          6. This Supplement shall be governed by, and construed in accordance with, the laws of the
State of New York.




          7. This Supplement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same document.




[remainder of this page intentionally left blank]






2









 








     IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and
delivered by a duly authorized officer on the date first above written.



	 	 	 	 	 
	 	[INSERT NAME OF AUGMENTING LENDER]

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 


Accepted and agreed to as of the date first written above:



VISTAPRINT LIMITED




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 





Acknowledged as of the date first written
above:




JPMORGAN CHASE BANK, N.A.

as Administrative Agent




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 







3











 





EXHIBIT E




LIST OF CLOSING DOCUMENTS



VISTAPRINT LIMITED,

VISTAPRINT N.V.,

and

CERTAIN SUBSIDIARY BORROWERS



CREDIT FACILITIES



October 21, 2011



LIST OF CLOSING DOCUMENTS1



A. LOAN DOCUMENTS




	1.	 	Credit Agreement (the “Credit Agreement”) by and among Vistaprint Limited, a Bermuda
company (the “Company”), Vistaprint N.V., the Subsidiary Borrowers from time to time
parties thereto (collectively with the Company, the “Borrowers”), the institutions
from time to time parties thereto as Lenders (the “Lenders”) and JPMorgan Chase Bank,
N.A., in its capacity as Administrative Agent for itself and the other Lenders (the
“Administrative Agent”), evidencing a revolving credit facility to the Borrowers from
the Lenders in an initial aggregate principal amount of $250,000,000.





SCHEDULES




	 	 	 	 	 

	Schedule 2.01

	 	—
	 	Commitments
	Schedule 2.02

	 	—
	 	Mandatory Cost
	Schedule 3.01A

	 	—
	 	Subsidiaries
	Schedule 3.01B

	 	—
	 	Options and Warrants
	Schedule 6.01

	 	—
	 	Existing Indebtedness
	Schedule 6.02

	 	—
	 	Existing Liens






EXHIBITS




	 	 	 	 	 

	Exhibit A

	 	—
	 	Form of Assignment and Assumption
	Exhibit B-1

	 	—
	 	Form of Opinion of Loan Parties’ U.S. Counsel
	Exhibit B-2

	 	—
	 	Form of Opinion of Loan Parties’ Bermuda Counsel
	Exhibit B-3

	 	—
	 	Form of Opinion of Loan Parties’ Dutch Counsel
	Exhibit B-4

	 	—
	 	Form of Opinion of Loan Parties’ Swiss Counsel
	Exhibit B-5

	 	—
	 	Form of Opinion of Loan Parties’ Australian Counsel
	Exhibit B-6

	 	—
	 	Form of Opinion of Loan Parties’ Nova Scotia Counsel
	Exhibit C

	 	—
	 	Form of Increasing Lender Supplement
	Exhibit D

	 	—
	 	Form of Augmenting Lender Supplement
	Exhibit E

	 	—
	 	List of Closing Documents








 




			
	1	 	Each capitalized term used herein and not
defined herein shall have the meaning assigned to such term in the
above-defined Credit Agreement. Items appearing in bold and italics shall be
prepared and/or provided by the Company and/or Company’s counsel.





 









 





	 	 	 	 	 

	Exhibit F-1

	 	—
	 	Form of Borrowing Subsidiary Agreement
	Exhibit F-2

	 	—
	 	Form of Borrowing Subsidiary Termination
	Exhibit G

	 	—
	 	Form of Guaranty
	Exhibit H-1

	 	—
	 	Form of U.S. Tax Certificate (Non-U.S. Lenders That
Are Not Partnerships)
	Exhibit H-2

	 	—
	 	Form of U.S. Tax Certificate (Non-U.S. Lenders That
Are Partnerships)
	Exhibit H-3

	 	—
	 	Form of U.S. Tax Certificate (Non-U.S. Participants
That Are Not Partnerships)
	Exhibit H-4

	 	—
	 	Form of U.S. Tax Certificate (Non-U.S. Participants
That Are Partnerships)







	2.	 	Notes executed by the initial Borrowers in favor of each of the Lenders, if any, which has
requested a note pursuant to Section 2.10(e) of the Credit Agreement.
	 
	3.	 	Guaranty executed by the initial Guarantors (collectively with the Borrowers, the “Loan
Parties”) in favor of the Administrative Agent





B. CORPORATE DOCUMENTS





	4.	 	Certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (i) that
there have been no changes in the Certificate of Incorporation or other charter document of
such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of
State (or analogous governmental entity) of the jurisdiction of its organization, since the
date of the certification thereof by such governmental entity, (ii) the By-Laws or other
applicable organizational document, as attached thereto, of such Loan Party as in effect on
the date of such certification, (iii) resolutions of the Board of Directors or other governing
body of such Loan Party and, in relation to the Parent and any Dutch Subsidiary Borrower,
resolutions of its General Meeting of Shareholders, in each case authorizing the execution,
delivery and performance of each Loan Document to which it is a party, and (iv) the names and
true signatures of the incumbent officers of each Loan Party authorized to sign the Loan
Documents to which it is a party, and (in the case of each Borrower) authorized to request a
Borrowing or the issuance of a Letter of Credit under the Credit Agreement.






	5.	 	Good Standing Certificate (or analogous documentation if applicable) for each Loan Party from
the Secretary of State (or analogous governmental entity) of the jurisdiction of its
organization, to the extent generally available in such jurisdiction.





C. OPINIONS





	6.	 	Opinion of Goodwin Procter LLP, U.S. counsel for the Loan Parties.






	7.	 	Opinion of Appleby, Bermuda counsel for the Loan Parties.






	8.	 	Opinion of Stibbe, Dutch counsel for the Loan Parties.






	9.	 	Opinion of Baker & McKenzie Zurich, Swiss counsel for the Loan Parties.






	10.	 	Opinion of Clayton Utz, Australian counsel for the Loan Parties.






	11.	 	Opinion of Stewart McKelvey Stirling Scales, Nova Scotia counsel for the Loan Parties.




2









 











D. CLOSING CERTIFICATES AND MISCELLANEOUS





	12.	 	A Certificate signed by the President, a Vice President or a Financial Officer of the Company
certifying the following: (i) all of the representations and warranties of the Company set
forth in the Credit Agreement are true and correct and (ii) no Default or Event of Default has
occurred and is then continuing.






	13.	 	Designation Letter in respect of Corporation Service Company.










3









 








EXHIBIT F-1




[FORM OF]



BORROWING SUBSIDIARY AGREEMENT



          BORROWING SUBSIDIARY AGREEMENT dated as of [_____], among Vistaprint Limited, a Bermuda
company (the “Company”), Vistaprint N.V. (the “Parent”), [Name of Subsidiary
Borrower], a [__________] (the “New Borrowing Subsidiary”), and JPMorgan Chase Bank, N.A.
as Administrative Agent (the “Administrative Agent”).




          Reference is hereby made to the Credit Agreement dated as of October 21, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among the
Company, the Parent, the Subsidiary Borrowers from time to time party thereto, the Lenders from
time to time party thereto and JPMorgan Chase Bank, N.A. as Administrative Agent. Capitalized
terms used herein but not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement. Under the Credit Agreement, the Lenders have agreed, upon the terms and
subject to the conditions therein set forth, to make Loans to certain Subsidiary Borrowers
(collectively with the Company, the “Borrowers”), and the Company and the New Borrowing
Subsidiary desire that the New Borrowing Subsidiary become a Subsidiary Borrower. In addition, the
New Borrowing Subsidiary hereby authorizes the Company to act on its behalf as and to the extent
provided for in Article II of the Credit Agreement. [Notwithstanding the preceding
sentence, the New Borrowing Subsidiary hereby designates the following officers as being authorized
to request Borrowings under the Credit Agreement on behalf of the New Subsidiary Borrower and sign
this Borrowing Subsidiary Agreement and the other Loan Documents to which the New Borrowing
Subsidiary is, or may from time to time become, a party: [______________].]




          Each of the Company and the New Borrowing Subsidiary represents and warrants that the
representations and warranties of the Company in the Credit Agreement relating to the New Borrowing
Subsidiary and this Agreement are true and correct in all material respects on and as of the date
hereof, other than representations given as of a particular date, in which case they shall be true
and correct in all material respects as of that date. [The Company and the New Borrowing
Subsidiary further represent and warrant that the execution, delivery and performance by the New
Borrowing Subsidiary of the transactions contemplated under this Agreement and the use of any of
the proceeds raised in connection with this Agreement will not contravene or conflict with, or
otherwise constitute unlawful financial assistance under, Sections 677 to 683 (inclusive) of the
United Kingdom Companies Act 2006 of England and Wales (as amended).] [INSERT OTHER PROVISIONS
REASONABLY REQUESTED BY ADMINISTRATIVE AGENT OR ITS COUNSELS]1 The Company agrees that
the Guarantee of the Company contained in the Credit Agreement will apply to the Obligations of the
New Borrowing Subsidiary. Upon execution of this Agreement by each of the Company, the New
Borrowing Subsidiary and the Administrative Agent, the New Borrowing Subsidiary shall be a party to
the Credit Agreement and shall constitute a “Subsidiary Borrower” for all purposes thereof, and the
New Borrowing Subsidiary hereby agrees to be bound by all provisions of the Credit Agreement.




          This Agreement shall be governed by and construed in accordance with the laws of the State of
New York.




[Signature Page Follows]






 




			
	1	 	To be included only if a New Borrowing
Subsidiary will be a Borrower organized under the laws of England and Wales.




 









 










          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
authorized officers as of the date first appearing above.




	 	 	 	 	 
	 	VISTAPRINT LIMITED

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF NEW BORROWING SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JPMORGAN CHASE BANK, N.A., as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








 









 








EXHIBIT F-2




[FORM OF]



BORROWING SUBSIDIARY TERMINATION



JPMorgan Chase Bank, N.A.

as Administrative Agent

for the Lenders referred to below

10 South Dearborn

Chicago, Illinois 60603

Attention: [__________]




[Date]



Ladies and Gentlemen:




          The undersigned, Vistaprint Limited (the “Company”), refers to the Credit Agreement
dated as of October 21, 2011 (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among the Company, the Subsidiary Borrowers from time to time party
thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.




          The Company hereby terminates the status of [______________] (the “Terminated Borrowing
Subsidiary”) as a Subsidiary Borrower under the Credit Agreement. [The Company represents and
warrants that no Loans made to the Terminated Borrowing Subsidiary are outstanding as of the date
hereof and that all amounts payable by the Terminated Borrowing Subsidiary in respect of interest
and/or fees (and, to the extent notified by the Administrative Agent or any Lender, any other
amounts payable under the Credit Agreement) pursuant to the Credit Agreement have been paid in full
on or prior to the date hereof.] [The Company acknowledges that the Terminated Borrowing Subsidiary
shall continue to be a Borrower until such time as all Loans made to the Terminated Borrowing
Subsidiary shall have been prepaid and all amounts payable by the Terminated Borrowing Subsidiary
in respect of interest and/or fees (and, to the extent notified by the Administrative Agent or any
Lender, any other amounts payable under the Credit Agreement) pursuant to the Credit Agreement
shall have been paid in full, provided that the Terminated Borrowing Subsidiary shall not
have the right to make further Borrowings under the Credit Agreement.]




[Signature Page Follows]






 









 








          This instrument shall be construed in accordance with and governed by the laws of the State of
New York.




	 	 	 	 	 
	 	Very truly yours,



VISTAPRINT LIMITED

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




			
	Copy to:	 	JPMorgan Chase Bank, N.A.

270 Park Avenue

New York, New York 10017










2









 








EXHIBIT G




[FORM OF]



GUARANTY



GUARANTY



          THIS GUARANTY (this “Guaranty”) is made as of October 21, 2011, by and among each of
the undersigned (the “Initial Guarantors” and along with any additional Subsidiaries of the Company
which become parties to this Guaranty by executing a supplement hereto in the form attached as
Annex I, the “Guarantors”) in favor of the Administrative Agent, for the ratable benefit of
the Holders of Guaranteed Obligations (as defined below), under the Credit Agreement referred to
below.




WITNESSETH




          WHEREAS, Vistaprint Limited, a Bermuda company (the “Company”), the Subsidiary
Borrowers parties thereto (the “Subsidiary Borrowers” and, together with the Company, the
“Borrowers”), the institutions from time to time parties thereto as lenders (the
“Lenders”), and JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative
Agent”) have entered into a certain Credit Agreement dated as of October 21, 2011 (as the same
may be amended, modified, supplemented and/or restated, and as in effect from time to time, the
“Credit Agreement”), providing, subject to the terms and conditions thereof, for extensions
of credit and other financial accommodations to be made by the Lenders to the Borrowers;




          WHEREAS, it is a condition precedent to the extensions of credit by the Lenders under the
Credit Agreement that each of the Guarantors (constituting the Parent and all of the Subsidiaries
of the Company required to execute this Guaranty pursuant to Section 5.09 of the Credit Agreement)
execute and deliver this Guaranty, whereby each of the Guarantors shall guarantee the payment when
due of all Obligations; and




          WHEREAS, in consideration of the direct and indirect financial and other support that the
Borrowers have provided, and such direct and indirect financial and other support as the Borrowers
may in the future provide, to the Guarantors, and in order to induce the Lenders and the
Administrative Agent to enter into the Credit Agreement, each of the Guarantors is willing to
guarantee the Obligations of the Borrowers;




          NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:




          SECTION 1. Definitions. Terms defined in the Credit Agreement and not otherwise
defined herein have, as used herein, the respective meanings provided for therein.




          SECTION 2. Representations, Warranties and Covenants. Each of the Guarantors
represents and warrants (which representations and warranties shall be deemed to have been renewed
at the time of the making, conversion or continuation of any Loan or issuance of any Letter of
Credit) that:






     (A) It is a corporation, company, partnership or limited liability company duly and
properly incorporated or organized, as the case may be, validly existing and (to the extent
such



 









 







concept applies to such entity) in good standing under the laws of its jurisdiction of
incorporation, organization or formation and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted, except to the extent that
the failure to have such authority could not reasonably be expected to have a Material
Adverse Effect.




     (B) It (to the extent applicable) has the requisite power and authority and legal right
to execute and deliver this Guaranty and to perform its obligations hereunder. The
execution and delivery by each Guarantor of this Guaranty and the performance by each of its
obligations hereunder have been duly authorized by proper proceedings, and this Guaranty
constitutes a legal, valid and binding obligation of such Guarantor, respectively,
enforceable against such Guarantor, respectively, in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally.




     (C) Neither the execution and delivery by it of this Guaranty, nor the consummation by
it of the transactions herein contemplated, nor compliance by it with the provisions hereof
will (i) violate any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on it or its articles or certificate of incorporation (or equivalent charter
or constating documents), limited liability company or partnership agreement, certificate of
partnership, articles or certificate of organization, by-laws, or operating agreement or
other management agreement, as the case may be, or the provisions of any indenture,
instrument or agreement to which any of the Borrowers or any of its Subsidiaries is a party
or is subject, or by which it, or its property, is bound, or (ii) conflict with, or
constitute a default under, or result in, or require, the creation or imposition of any Lien
in, of or on its property pursuant to the terms of, any such indenture, instrument or
agreement (other than any Loan Document). No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration with, or
exemption by, or other action in respect of any governmental or public body or authority, or
any subdivision thereof, which has not been obtained by it, is required to be obtained by it
in connection with the execution, delivery and performance by it of, or the legality,
validity, binding effect or enforceability against it of, this Guaranty.



          In addition to the foregoing, each of the Guarantors covenants that, so long as any Lender has
any Commitment outstanding under the Credit Agreement or any amount payable under the Credit
Agreement or any other Guaranteed Obligations (other than contingent indemnity obligations not yet
due and payable) shall remain unpaid, it will, and, if necessary, will enable each of the Borrowers
to, fully comply with those covenants and agreements of such Borrower applicable to such Guarantor
set forth in the Credit Agreement.




          SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally guarantees,
jointly with the other Guarantors and severally, the full and punctual payment and performance when
due (whether at stated maturity, upon acceleration or otherwise) of the Obligations, including,
without limitation, (i) the principal of and interest on each Loan made to any Borrower pursuant to
the Credit Agreement, (ii) any obligations of any Borrower to reimburse LC Disbursements
(“Reimbursement Obligations”), (iii) all obligations of any Borrower owing to any Lender or
any affiliate of any Lender under any Swap Agreement or Banking Services Agreement, (iv) all other
amounts payable by any Borrower or any of its Subsidiaries under the Credit Agreement, any Swap
Agreement, any Banking Services Agreement and the other Loan Documents and (v) the punctual and
faithful performance, keeping, observance, and fulfillment by any Borrower of all of the
agreements, conditions, covenants, and obligations of such Borrower contained in the Loan Documents
(all of the foregoing being referred to collectively as the “Guaranteed Obligations” and the
holders from time to time of the Guaranteed Obligations being referred to collectively as the
“Holders of Guaranteed Obligations”). Upon (x) the failure by any Borrower or any of its
Affiliates, as applicable, to pay punctually any such amount






2









 







or perform such obligation, and (y) such failure continuing beyond any applicable grace or
notice and cure period, each of the Guarantors agrees that it shall forthwith on demand pay such
amount or perform such obligation at the place and in the manner specified in the Credit Agreement,
any Swap Agreement, any Banking Services Agreement or the relevant Loan Document, as the case may
be. Each of the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and
unconditional guaranty of payment and is not a guaranty of collection.




          SECTION 4. Guaranty Unconditional. The obligations of each of the Guarantors
hereunder shall be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:




     (A) any extension, renewal, settlement, indulgence, compromise, waiver or release of or
with respect to the Guaranteed Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed
Obligations, whether (in any such case) by operation of law or otherwise, or any failure or
omission to enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or with respect to any obligation of any
other guarantor of any of the Guaranteed Obligations;




     (B) any modification or amendment of or supplement to the Credit Agreement, any Swap
Agreement, any Banking Services Agreement or any other Loan Document, including, without
limitation, any such amendment which may increase the amount of, or the interest rates
applicable to, any of the Obligations guaranteed hereby;




     (C) any release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, of any collateral securing the Guaranteed
Obligations or any part thereof, any other guaranties with respect to the Guaranteed
Obligations or any part thereof, or any other obligation of any person or entity with
respect to the Guaranteed Obligations or any part thereof, or any nonperfection or
invalidity of any direct or indirect security for the Guaranteed Obligations;




     (D) any change in the corporate, partnership or other existence, structure or ownership
of any Borrower or any other guarantor of any of the Guaranteed Obligations, or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting such Borrower
or any other guarantor of the Guaranteed Obligations, or any of their respective assets or
any resulting release or discharge of any obligation of such Borrower or any other guarantor
of any of the Guaranteed Obligations;




     (E) the existence of any claim, setoff or other rights which the Guarantors may have at
any time against any Borrower, any other guarantor of any of the Guaranteed Obligations, the
Administrative Agent, any Holder of Guaranteed Obligations or any other Person, whether in
connection herewith or in connection with any unrelated transactions; provided that
nothing herein shall prevent the assertion of any such claim by separate suit or compulsory
counterclaim;




     (F) the enforceability or validity of the Guaranteed Obligations or any part thereof or
the genuineness, enforceability or validity of any agreement relating thereto or with
respect to any collateral securing the Guaranteed Obligations or any part thereof, or any
other invalidity or unenforceability relating to or against any Borrower or any other
guarantor of any of the Guaranteed Obligations, for any reason related to the Credit
Agreement, any Swap Agreement, any Banking Services Agreement, any other Loan Document, or
any provision of applicable law decree, order or regulation of any jurisdiction purporting
to prohibit the payment by such



3









 







Borrower or any other guarantor of the Guaranteed Obligations, of any of the Guaranteed
Obligations or otherwise affecting any term of any of the Guaranteed Obligations;




     (G) the failure of the Administrative Agent to take any steps to perfect and maintain
any security interest in, or to preserve any rights to, any security or collateral for the
Guaranteed Obligations, if any;




     (H) the election by, or on behalf of, any one or more of the Holders of Guaranteed
Obligations, in any proceeding instituted under Chapter 11 of Title 11 of the United States
Code (11 U.S.C. 101 et seq.) (the “Bankruptcy Code”), of the application of Section
1111(b)(2) of the Bankruptcy Code or any other applicable federal, state, provincial,
municipal, local or foreign law relating to such matters;




     (I) any borrowing or grant of a security interest by any Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code or any other applicable
federal, state, provincial, municipal, local or foreign law relating to such matters;




     (J) the disallowance, under Section 502 of the Bankruptcy Code or any other applicable
federal, state, provincial, municipal, local or foreign law relating to such matters, of all
or any portion of the claims of the Holders of Guaranteed Obligations or the Administrative
Agent for repayment of all or any part of the Guaranteed Obligations;




     (K) the failure of any other guarantor to sign or become party to this Guaranty or any
amendment, change, or reaffirmation hereof; or




     (L) any other act or omission to act or delay of any kind by any Borrower, any other
guarantor of the Guaranteed Obligations, the Administrative Agent, any Holder of Guaranteed
Obligations or any other Person or any other circumstance whatsoever which might, but for
the provisions of this Section 4, constitute a legal or equitable discharge of any
Guarantor’s obligations hereunder except as provided in Section 5.



          SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In Certain
Circumstances. Each of the Guarantors’ obligations hereunder shall remain in full force and
effect until all Guaranteed Obligations (other than contingent indemnity obligations not yet due
and payable) shall have been paid in full in cash and the Commitments and all Letters of Credit
issued under the Credit Agreement shall have terminated or expired. If at any time any payment of
the principal of or interest on any Loan, any Reimbursement Obligation or any other amount payable
by any Borrower or any other party under the Credit Agreement, any Swap Agreement, any Banking
Services Agreement or any other Loan Document is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise, each of
the Guarantors’ obligations hereunder with respect to such payment shall be reinstated as though
such payment had been due but not made at such time. The parties hereto acknowledge and agree that
each of the Guaranteed Obligations shall be due and payable in the same currency as such Guaranteed
Obligation is denominated but if currency control or exchange regulations are imposed in the
country which issues such currency with the result that such currency (the “Original
Currency”) no longer exists or the relevant Guarantor is not able to make payment in such
Original Currency, then all payments to be made by such Guarantor hereunder in such currency shall
instead be made when due in Dollars in an amount equal to the Dollar Amount (as of the date of
payment) of such payment due, it being the intention of the parties hereto that each Guarantor
takes all risks of the imposition of any such currency control or exchange regulations.




          SECTION 6. General Waivers; Additional Waivers.







4









 









     (A) General Waivers. Each of the Guarantors irrevocably waives acceptance hereof,
presentment, demand or action on delinquency, protest, the benefit of any statutes of
limitations and, to the fullest extent permitted by law, any notice not provided for herein,
as well as any requirement that at any time any action be taken by any Person against any
Borrower, any other guarantor of the Guaranteed Obligations, or any other Person.




     (B) Additional Waivers. Notwithstanding anything herein to the contrary, each of the
Guarantors hereby absolutely, unconditionally, knowingly, and expressly waives:




     (i) any right it may have to revoke this Guaranty as to future indebtedness or notice
of acceptance hereof;




     (ii) (a) notice of acceptance hereof; (b) notice of any loans or other financial
accommodations made or extended under the Loan Documents or the creation or existence of any
Guaranteed Obligations; (c) notice of the amount of the Guaranteed Obligations, subject,
however, to each Guarantor’s right to make inquiry of Administrative Agent and Holders of
Guaranteed Obligations to ascertain the amount of the Guaranteed Obligations at any
reasonable time; (d) notice of any adverse change in the financial condition of any Borrower
or of any other fact that might increase such Guarantor’s risk hereunder; (e) notice of
presentment for payment, demand, protest, and notice thereof as to any instruments among the
Loan Documents; (f) notice of any Default or Event of Default; and (g) all other notices
(except if such notice is specifically required to be given to such Guarantor hereunder or
under the Loan Documents) and demands to which each Guarantor might otherwise be entitled;




     (iii) its right, if any, to require the Administrative Agent and the other Holders of
Guaranteed Obligations to institute suit against, or to exhaust any rights and remedies
which the Administrative Agent and the other Holders of Guaranteed Obligations has or may
have against, the other Guarantors or any third party; and each Guarantor further waives any
defense arising by reason of any disability or other defense (other than the defense that
the Guaranteed Obligations shall have been fully and finally performed and indefeasibly
paid) of the other Guarantors or by reason of the cessation from any cause whatsoever of the
liability of the other Guarantors in respect thereof;




     (iv) (a) any rights to assert against the Administrative Agent and the other Holders of
Guaranteed Obligations any defense (legal or equitable), set-off, counterclaim, or claim
which such Guarantor may now or at any time hereafter have against the other Guarantors or
any other party liable to the Administrative Agent and the other Holders of Guaranteed
Obligations; (b) any defense, set-off, counterclaim, or claim, of any kind or nature,
arising directly or indirectly from the present or future lack of perfection, sufficiency,
validity, or enforceability of the Guaranteed Obligations or any security therefor; (c) any
defense such Guarantor has to performance hereunder, and any right such Guarantor has to be
exonerated, arising by reason of: the impairment or suspension of the Administrative
Agent’s and the other Holders of Guaranteed Obligations’ rights or remedies against the
other Guarantors; the alteration by the Administrative Agent and the other Holders of
Guaranteed Obligations of the Guaranteed Obligations; any discharge of the other Guarantors’
obligations to the Administrative Agent and the other Holders of Guaranteed Obligations by
operation of law as a result of the Administrative Agent’s and the other Holders of
Guaranteed Obligations’ intervention or omission; or the acceptance by the Administrative
Agent and the other Holders of Guaranteed Obligations of anything in partial satisfaction of
the Guaranteed Obligations; and (d) the benefit of any statute of limitations affecting such
Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer or
delay the operation of any statute of limitations applicable to the Guaranteed Obligations



5









 







shall similarly operate to defer or delay the operation of such statute of limitations
applicable to such Guarantor’s liability hereunder; and




     (v) any defense arising by reason of or deriving from (a) any claim or defense based
upon an election of remedies by the Administrative Agent and the other Holders of Guaranteed
Obligations; or (b) any election by the Administrative Agent and the other Holders of
Guaranteed Obligations under Section 1111(b) of Title 11 of the United States Code entitled
“Bankruptcy” or any other applicable federal, state, provincial, municipal, local or foreign
law relating to such matters, as now and hereafter in effect (or any successor statute), to
limit the amount of, or any collateral securing, its claim against the Guarantors.



          SECTION 7. Subordination of Subrogation; Subordination of Intercompany Indebtedness.





     (A) Subordination of Subrogation. Until the Guaranteed Obligations (other than
contingent indemnity obligations not yet due and payable) have been fully and finally
performed and indefeasibly paid in full in cash, the Guarantors (i) shall have no right of
subrogation with respect to such Guaranteed Obligations (ii) waive any right to enforce any
remedy which the Holders of Guaranteed Obligations, the Issuing Bank or the Administrative
Agent now have or may hereafter have against any Borrower, any endorser or any guarantor of
all or any part of the Guaranteed Obligations or any other Person, and (iii) waive any
benefit of, and any right to participate in, any security or collateral given to the Holders
of Guaranteed Obligations, the Issuing Bank and the Administrative Agent to secure the
payment or performance of all or any part of the Guaranteed Obligations or any other
liability of any Borrower to the Holders of Guaranteed Obligations or the Issuing Bank.
Should any Guarantor have the right, notwithstanding the foregoing, to exercise its
subrogation rights, each Guarantor hereby expressly and irrevocably (A) subordinates any and
all rights at law or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off that such Guarantor may have to the indefeasible payment in full
in cash of the Guaranteed Obligations and (B) waives any and all defenses available to a
surety, guarantor or accommodation co-obligor until the Guaranteed Obligations are
indefeasibly paid in full in cash. Each Guarantor acknowledges and agrees that this
subordination is intended to benefit the Administrative Agent and the other Holders of
Guaranteed Obligations and shall not limit or otherwise affect such Guarantor’s liability
hereunder or the enforceability of this Guaranty, and that the Administrative Agent, the
other Holders of Guaranteed Obligations and their respective successors and assigns are
intended third party beneficiaries of the waivers and agreements set forth in this Section
7(A).




     (B) Subordination of Intercompany Indebtedness. Each Guarantor agrees that any
and all claims of such Guarantor against any Borrower or any other Guarantor hereunder (each
an “Obligor”) with respect to any “Intercompany Indebtedness” (as hereinafter
defined), any endorser, obligor or any other guarantor of all or any part of the Guaranteed
Obligations, or against any of its properties shall be subordinate and subject in right of
payment to the prior payment, in full and in cash, of all Guaranteed Obligations;
provided that, as long as no Event of Default has occurred and is continuing, such
Guarantor may receive payments of principal and interest from any Obligor with respect to
Intercompany Indebtedness. Notwithstanding any right of any Guarantor to ask, demand, sue
for, take or receive any payment from any Obligor, all rights, liens and security interests
of such Guarantor, whether now or hereafter arising and howsoever existing, in any assets of
any other Obligor shall be and are subordinated to the rights of the Holders of Guaranteed
Obligations and the Administrative Agent in those assets. No Guarantor shall have any right
to possession of any such asset or to foreclose upon any such asset, whether by judicial
action or otherwise, unless and until all of the Guaranteed Obligations (other



6









 







than contingent indemnity obligations not yet due and payable) shall have been fully
paid and satisfied (in cash) and all financing arrangements pursuant to any Loan Document,
any Swap Agreement or any Banking Services Agreement have been terminated. If all or any
part of the assets of any Obligor, or the proceeds thereof, are subject to any distribution,
division or application to the creditors of such Obligor, whether partial or complete,
voluntary or involuntary, and whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or proceeding, or
if the business of any such Obligor is dissolved or if substantially all of the assets of
any such Obligor are sold, then, and in any such event (such events being herein referred to
as an “Insolvency Event”), any payment or distribution of any kind or character,
either in cash, securities or other property, which shall be payable or deliverable upon or
with respect to any indebtedness of any Obligor to any Guarantor (“Intercompany
Indebtedness”) shall be paid or delivered directly to the Administrative Agent for
application on any of the Guaranteed Obligations, due or to become due, until such
Guaranteed Obligations shall have first been fully paid and satisfied (in cash). Should any
payment, distribution, security or instrument or proceeds thereof be received by the
applicable Guarantor upon or with respect to the Intercompany Indebtedness after any
Insolvency Event and prior to the satisfaction of all of the Guaranteed Obligations and the
termination of all financing arrangements pursuant to any Loan Document among any Borrower
and the Holders of Guaranteed Obligations, such Guarantor shall receive and hold the same in
trust, as trustee, for the benefit of the Holders of Guaranteed Obligations and shall
forthwith deliver the same to the Administrative Agent, for the benefit of the Holders of
Guaranteed Obligations, in precisely the form received (except for the endorsement or
assignment of the Guarantor where necessary), for application to any of the Guaranteed
Obligations, due or not due, and, until so delivered, the same shall be held in trust by the
Guarantor as the property of the Holders of Guaranteed Obligations. If any such Guarantor
fails to make any such endorsement or assignment to the Administrative Agent, the
Administrative Agent or any of its officers or employees is irrevocably authorized to make
the same. Each Guarantor agrees that until the Guaranteed Obligations (other than the
contingent indemnity obligations) have been paid in full (in cash) and satisfied and all
financing arrangements pursuant to any Loan Document among any Borrower and the Holders of
Guaranteed Obligations have been terminated, no Guarantor will assign or transfer to any
Person (other than the Administrative Agent) any claim any such Guarantor has or may have
against any Obligor.



          SECTION 8. Contribution with Respect to Guaranteed Obligations.





     (A) To the extent that any Guarantor shall make a payment under this Guaranty (a
“Guarantor Payment”) which, taking into account all other Guarantor Payments then
previously or concurrently made by any other Guarantor, exceeds the amount which otherwise
would have been paid by or attributable to such Guarantor if each Guarantor had paid the
aggregate Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion
as such Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior
to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors
as determined immediately prior to the making of such Guarantor Payment, then, following
indefeasible payment in full in cash of the Guaranteed Obligations and termination of the
Credit Agreement, the Swap Agreements and the Banking Services Agreements, such Guarantor
shall be entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their
respective Allocable Amounts in effect immediately prior to such Guarantor Payment.




     (B) As of any date of determination, the “Allocable Amount” of any Guarantor shall be
equal to the excess of the fair saleable value of the property of such Guarantor over the
total



7









 







liabilities of such Guarantor (including the maximum amount reasonably expected to
become due in respect of contingent liabilities, calculated, without duplication, assuming
each other Guarantor that is also liable for such contingent liability pays its ratable
share thereof), giving effect to all payments made by other Guarantors as of such date in a
manner to maximize the amount of such contributions.




     (C) This Section 8 is intended only to define the relative rights of the Guarantors,
and nothing set forth in this Section 8 is intended to or shall impair the obligations of
the Guarantors, jointly and severally, to pay any amounts as and when the same shall become
due and payable in accordance with the terms of this Guaranty.




     (D) The parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution
and indemnification is owing.




     (E) The rights of the indemnifying Guarantors against other Guarantors under this
Section 8 shall be exercisable upon the full and indefeasible payment of the Guaranteed
Obligations in cash and the termination of the Credit Agreement, the Swap Agreements and the
Banking Services Agreements.



          SECTION 9. Limitation on Guaranty. Notwithstanding any other provision of this
Guaranty, the amount guaranteed by each Guarantor hereunder shall be limited to the extent, if any,
required so that its obligations hereunder shall not be subject to avoidance under Section 548 of
the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform
Fraudulent Conveyance Act or similar statute or common law. In determining the limitations, if
any, on the amount of any Guarantor’s obligations hereunder pursuant to the preceding sentence, it
is the intention of the parties hereto that any rights of subrogation, indemnification or
contribution which such Guarantor may have under this Guaranty, any other agreement or applicable
law shall be taken into account.




          SECTION 10. Stay of Acceleration. If acceleration of the time for payment of any
amount payable by any Borrower under the Credit Agreement, any Swap Agreement, any Banking Services
Agreement or any other Loan Document is stayed upon the insolvency, bankruptcy or reorganization of
such Borrower, all such amounts otherwise subject to acceleration under the terms of the Credit
Agreement, any Swap Agreement, any Banking Services Agreement or any other Loan Document shall
nonetheless be payable by each of the Guarantors hereunder forthwith on demand by the
Administrative Agent.




          SECTION 11. Notices. All notices, requests and other communications to any party
hereunder shall be given in the manner prescribed in Article IX of the Credit Agreement with
respect to the Administrative Agent at its notice address therein and with respect to any
Guarantor, in care of the Company at the address of the Company set forth in the Credit Agreement
or such other address or telecopy number as such party may hereafter specify for such purpose by
notice to the Administrative Agent in accordance with the provisions of such Article IX.




          SECTION 12. No Waivers. No failure or delay by the Administrative Agent or any other
Holder of Guaranteed Obligations in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. The rights and
remedies provided in this Guaranty, the Credit Agreement, any Swap Agreement, any Banking Services
Agreement and the other Loan Documents shall be cumulative and not exclusive of any rights or
remedies provided by law.







8









 








          SECTION 13. Successors and Assigns. This Guaranty is for the benefit of the
Administrative Agent and the other Holders of Guaranteed Obligations and their respective
successors and permitted assigns; provided, that no Guarantor shall have any right to
assign its rights or obligations hereunder without the consent of all of the Lenders, and any such
assignment in violation of this Section 13 shall be null and void; and in the event of an
assignment of any amounts payable under the Credit Agreement, any Swap Agreement, any Banking
Services Agreement or the other Loan Documents in accordance with the respective terms thereof, the
rights hereunder, to the extent applicable to the indebtedness so assigned, may be transferred with
such indebtedness. This Guaranty shall be binding upon each of the Guarantors and their respective
successors and assigns.




          SECTION 14. Changes in Writing. Other than in connection with the addition of
additional Subsidiaries, which become parties hereto by executing a supplement hereto in the form
attached as Annex I, neither this Guaranty nor any provision hereof may be changed, waived,
discharged or terminated orally, but only in writing signed by each of the Guarantors and the
Administrative Agent.




          SECTION 15. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.




          SECTION 16. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL; IMMUNITY.





     (A) CONSENT TO JURISDICTION. EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN
THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY
AND EACH GUARANTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER TO
BRING PROCEEDINGS AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY ANY GUARANTOR AGAINST THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR
ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
THE CITY OF NEW YORK.




     (B) EACH GUARANTOR HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS THE SERVICE OF
PROCESS AGENT, WITH OFFICES ON THE DATE HEREOF AT 111 EIGHTH AVENUE, NEW YORK, NEW YORK
10011, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON
ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY
REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE
PARENT AND EACH BORROWER AGREE TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK
CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION REASONABLY SATISFACTORY TO THE



9









 







ADMINISTRATIVE AGENT UNDER THIS AGREEMENT. EACH GUARANTOR IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ALL CLAIM OF ERROR BY REASON OF ANY SUCH SERVICE IN SUCH
MANNER AND AGREES THAT SUCH SERVICE SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF
PROCESS UPON SUCH GUARANTOR IN ANY SUCH SUIT, ACTION OR PROCEEDING AND SHALL, TO THE FULLEST
EXTENT PERMITTED BY LAW, BE TAKEN AND HELD TO BE VALID AND PERSONAL SERVICE UPON AND
PERSONAL DELIVERY TO SUCH GUARANTOR. NOTHING HEREIN WILL AFFECT THE RIGHT OF ANY PARTY
HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.




     (C) WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT
OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER AND FURTHER WAIVES ANY RIGHT
TO INTERPOSE ANY COUNTERCLAIM RELATED TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY IN SUCH ACTION.




     (D) TO THE EXTENT THAT ANY GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER FROM SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OF A JUDGMENT, EXECUTION OR
OTHERWISE), EACH GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS GUARANTY.



          SECTION 17. No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Guaranty. In the event an ambiguity or question of intent or
interpretation arises, this Guaranty shall be construed as if drafted jointly by the parties hereto
and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Guaranty.




          SECTION 18. Taxes, Expenses of Enforcement, etc.





     (A) Taxes.




     (i) Each payment by any Guarantor hereunder or under any promissory note or application
for a Letter of Credit shall be made without withholding for any Taxes, unless such
withholding is required by any law. If any Guarantor determines, in its sole discretion
exercised in good faith, that it is so required to withhold Taxes, then such Guarantor may
so withhold and shall timely pay the full amount of withheld Taxes to the relevant
Governmental Authority in accordance with applicable law. If such Taxes are Indemnified
Taxes, then the amount payable by the Guarantor shall be increased as necessary so that, net
of such withholding (including such withholding applicable to additional amounts payable
under this Section), the applicable Recipient receives the amount it would have received had
no such withholding been made.




     (ii) In addition, such Guarantor shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.



10









 






     (iii) As soon as practicable after any payment of Indemnified Taxes by any Guarantor to
a Governmental Authority, such Guarantor shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.




     (iv) The Guarantors shall jointly and severally indemnify each Recipient for any
Indemnified Taxes that are paid or payable by such Recipient in connection with any Loan
Document (including amounts payable under this Section 18(A)) and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. The
indemnity under this Section 18(A) shall be paid within ten (10) days after the Recipient
delivers to any Guarantor a certificate stating the amount of any Indemnified Taxes so
payable by such Recipient. Such certificate shall be conclusive of the amount so payable
absent manifest error. Such Recipient shall deliver a copy of such certificate to the
Administrative Agent. In the case of any Lender making a claim under this Section 18(A) on
behalf of any of its beneficial owners, an indemnity payment under this Section 18(A) shall
be due only to the extent that such Lender is able to establish that, with respect to the
applicable Indemnified Taxes, such beneficial owners supplied to the applicable Persons such
properly completed and executed documentation necessary to claim any applicable exemption
from, or reduction of, such Indemnified Taxes.




     (v) By accepting the benefits hereof, each Lender agrees that it will comply with
Section 2.17(f) of the Credit Agreement.




     (B) Expenses of Enforcement, Etc. The Guarantors agree to reimburse the
Administrative Agent and the other Holders of Guaranteed Obligations for any reasonable
costs and out-of-pocket expenses (including attorneys’ fees) paid or incurred by the
Administrative Agent or any other Holder of Guaranteed Obligations in connection with the
collection and enforcement of amounts due under the Loan Documents, including without
limitation this Guaranty.



          SECTION 19. Setoff. At any time after all or any part of the Guaranteed Obligations
have become due and payable (by acceleration or otherwise), each Holder of Guaranteed Obligations
(including the Administrative Agent) may, without notice to any Guarantor and regardless of the
acceptance of any security or collateral for the payment hereof, appropriate and apply in
accordance with the terms of the Credit Agreement toward the payment of all or any part of the
Guaranteed Obligations due and payable (i) any indebtedness due or to become due from such Holder
of Guaranteed Obligations or the Administrative Agent to any Guarantor, and (ii) any moneys,
credits or other property belonging to any Guarantor, at any time held by or coming into the
possession of such Holder of Guaranteed Obligations (including the Administrative Agent) or any of
their respective affiliates.




          SECTION 20. Financial Information. Each Guarantor hereby assumes responsibility for
keeping itself informed of the financial condition of each of the Borrowers and any and all
endorsers and/or other Guarantors of all or any part of the Guaranteed Obligations, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations, or any part
thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees that none of the
Holders of Guaranteed Obligations (including the Administrative Agent) shall have any duty to
advise such Guarantor of information known to any of them regarding such condition or any such
circumstances. In the event any Holder of Guaranteed Obligations (including the Administrative
Agent), in its sole discretion, undertakes at any time or from time to time to provide any such
information to a Guarantor, such Holder of Guaranteed Obligations (including the Administrative
Agent) shall be under no obligation (i) to undertake






11









 







any investigation not a part of its regular business routine, (ii) to disclose any information
which such Holder of Guaranteed Obligations (including the Administrative Agent), pursuant to
accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or
(iii) to make any other or future disclosures of such information or any other information to such
Guarantor.




          SECTION 21. Severability. Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Guaranty shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.




          SECTION 22. Merger. This Guaranty represents the final agreement of each of the
Guarantors with respect to the matters contained herein and may not be contradicted by evidence of
prior or contemporaneous agreements, or subsequent oral agreements, between the Guarantor and any
Holder of Guaranteed Obligations (including the Administrative Agent).




          SECTION 23. Headings. Section headings in this Guaranty are for convenience of
reference only and shall not govern the interpretation of any provision of this Guaranty.




          SECTION 24. Judgment Currency. If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due from any Guarantor hereunder in the currency expressed to be
payable herein (the “specified currency”) into another currency, the parties hereto agree,
to the fullest extent that they may effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures the Administrative Agent could purchase the
specified currency with such other currency at the Administrative Agent’s main New York City office
on the Business Day preceding that on which final, non-appealable judgment is given. The
obligations of each Guarantor in respect of any sum due hereunder shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only to the extent that on
the Business Day following receipt by any Holder of Guaranteed Obligations (including the
Administrative Agent), as the case may be, of any sum adjudged to be so due in such other currency
such Holder of Guaranteed Obligations (including the Administrative Agent), as the case may be, may
in accordance with normal, reasonable banking procedures purchase the specified currency with such
other currency. If the amount of the specified currency so purchased is less than the sum
originally due to such Holder of Guaranteed Obligations (including the Administrative Agent), as
the case may be, in the specified currency, each Guarantor agrees, to the fullest extent that it
may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify
such Holder of Guaranteed Obligations (including the Administrative Agent), as the case may be,
against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum
originally due to any Holder of Guaranteed Obligations (including the Administrative Agent), as the
case may be, in the specified currency and (b) amounts shared with other Holders of Guaranteed
Obligations as a result of allocations of such excess as a disproportionate payment to such other
Holder of Guaranteed Obligations under Section 2.18 of the Credit Agreement, such Holder of
Guaranteed Obligations (including the Administrative Agent), as the case may be, agrees, by
accepting the benefits hereof, to remit such excess to such Guarantor.




          SECTION 25. Swiss Limitation Language for Swiss Subsidiary Guarantors.





     (a) If and to the extent that a payment in fulfilling the joint and several obligations
under Section 3 of this Guaranty of any Swiss Subsidiary Guarantor would, at the time
payment is due, under Swiss law and practice (inter alia, prohibiting capital repayments or
restricting profit distributions) not be permitted, in particular if and to the extent that
such Swiss Subsidiary Guarantor guarantees obligations other than obligations of one of its
subsidiaries (i.e. obligations



12









 







of its direct or indirect parent companies (up-stream guarantee) or sister companies
(cross-stream guarantee)) (such obligations, “Restricted Obligations”), then such
obligations and payment amount shall from time to time be limited to the amount permitted to
be paid; provided that such limited amount shall at no time be less than such Swiss
Subsidiary Guarantor’s profits and reserves available for the distribution as dividends
(being the balance sheet profits and any reserves available for this purpose, in each case
in accordance with art. 675(2) and art. 671(1) and (2), no. 3, of the Swiss Federal Code of
Obligations) at the time or times payment under or pursuant to Section 3 of this
Guaranty is requested from such Swiss Subsidiary Guarantor, and further provided that such
limitation (as may apply from time to time or not) shall not (generally or definitively)
free such Swiss Subsidiary Guarantor from payment obligations hereunder in excess thereof,
but merely postpone the payment date therefor until such times as payment is again permitted
notwithstanding such limitation.




     (b) In respect of Restricted Obligations, each Swiss Subsidiary Guarantor shall:




     (i) if and to the extent required by applicable law in force at the relevant
time:




          (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory
tax (Verrechnungssteuer; Swiss Withholding Tax) at the rate of 35% (or such other
rate as in force from time to time) from any payment made by it in respect of
Restricted Obligations;




          (B) pay any such deduction to the Swiss Federal Tax Administration; and




          (C) notify (or ensure that the Company notifies) the Administrative Agent that
such a deduction has been made and provide the Administrative Agent with evidence
that such a deduction has been paid to the Swiss Federal Tax Administration; and




     (ii) to the extent such a deduction is made, not be obliged to either gross-up
in accordance with Section 18 of this Guaranty in relation to any such payment made
by it in respect of Restricted Obligations unless grossing-up is permitted under the
laws of Switzerland then in force.




     (c) If and to the extent requested by the Administrative Agent and if and to the extent
this is from time to time required under Swiss law (restricting profit distributions), in
order to allow the Administrative Agent to obtain a maximum benefit under the joint and
several liabilities obligations under Section 3 of this Guaranty, each Swiss Subsidiary
Guarantor undertakes to promptly implement all such measures and/or to promptly obtain the
fulfillment of all prerequisites allowing it to promptly make the requested payment(s)
hereunder from time to time, including the following:




     (i) preparation of an up-to-date audited balance sheet of such Swiss Subsidiary
Guarantor;




     (ii) confirmation of the auditors of such Swiss Subsidiary Guarantor that the
relevant amount represents the maximum freely distributable profits;



13









 






     (iii) approval by a shareholders’ or a quotaholders’ meeting (as applicable) of
such Swiss Subsidiary Guarantor of the resulting profit distribution; and




     (d) all such other measures necessary or useful to allow such Swiss Subsidiary
Guarantor to make the payments agreed hereunder with a minimum of limitations.



          SECTION 26. Dutch Limitation Language for Dutch Loan Parties. The Guaranteed
Obligations of any Guarantor organized under the laws of the Netherlands and any Guarantor being a
direct or indirect subsidiary of such Guarantor will not extend to include any obligations or
liabilities for so long as this would constitute a breach of the financial assistance prohibitions
contained in section 2:98c or 2:207c of the Dutch Civil Code.




          SECTION 27. Counterparts. This Guaranty may be executed in any number of counterparts
and by the parties on separate counterparts. Each counterpart constitutes the deed of each party
who has executed and delivered that counterpart.




          SECTION 28. Termination of Guaranty. The obligations of any Guarantor under this
Guaranty shall automatically terminate in accordance with Section 9.14 of the Credit Agreement.




Remainder of Page Intentionally Blank.






14









 








     IN WITNESS WHEREOF, each of the Initial Guarantors has caused this Guaranty to be duly
executed by its authorized officer as of the day and year first above written.



	 	 	 	 	 
	 	[GUARANTORS]

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 




15









 





Acknowledged and Agreed

as of the date first written above:




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 











16









 








ANNEX I TO GUARANTY




          Reference is hereby made to the Guaranty (the “Guaranty”) made as of October 21, 2011,
by and among [GUARANTORS TO COME] (the “Initial Guarantors” and along with any additional
Subsidiaries of the Company, which become parties thereto and together with the undersigned, the
“Guarantors”) in favor of the Administrative Agent, for the ratable benefit of the Holders
of Guaranteed Obligations, under the Credit Agreement. Capitalized terms used herein and not
defined herein shall have the meanings given to them in the Guaranty. By its execution below, the
undersigned [NAME OF NEW GUARANTOR], a [corporation] [partnership] [limited liability company] (the
“New Guarantor”), agrees to become, and does hereby become, a Guarantor under the Guaranty
and agrees to be bound by such Guaranty as if originally a party thereto. By its execution below,
the undersigned represents and warrants as to itself that all of the representations and warranties
contained in Section 2 of the Guaranty are true and correct in all respects as of the date hereof.




          IN WITNESS WHEREOF, New Guarantor has executed and delivered this Annex I counterpart to the
Guaranty as of this __________ day of _________, 20__.




	 	 	 	 	 
	 	[NAME OF NEW GUARANTOR]

 	 
	 	By:  	 	 
	 	Its: 	 	 
	 	 	 	 
	 








 









 








EXHIBIT H-1




FORM OF U.S. TAX CERTIFICATE



(For Non-U.S. Lenders That Are Not Partnerships And Are Not

Disregarded Entities For U.S. Federal Income Tax Purposes)



          Reference is hereby made to the Credit Agreement dated as of October 21, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Vistaprint Limited (the “Company”), Vistaprint N.V., the Subsidiary Borrowers from time to
time party thereto, the Lenders from time to time party thereto (collectively with the Company, the
“Borrowers”) and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the
“Administrative Agent”).




          Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is
not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent
shareholder of any Loan Party within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is
not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C)
of the Code and (v) the interest payments in question are not effectively connected with the
undersigned’s conduct of a U.S. trade or business.




          The undersigned has furnished the Administrative Agent and the Borrowers with a certificate of
its non-U.S. person status on IRS Form W-8BEN. By executing this certificate, the undersigned
agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform the Borrowers and the Administrative Agent and (2) the undersigned shall have at
all times furnished the Borrowers and the Administrative Agent with a properly completed and
currently effective certificate in either the calendar year in which each payment is to be made to
the undersigned, or in either of the two calendar years preceding such payments.




          Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



[NAME OF LENDER]




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 





Date: __________, 20[__]









 









 








EXHIBIT H-2




FORM OF U.S. TAX CERTIFICATE



(For Non-U.S. Lenders That Are Partnerships Or Are Disregarded

Entities For U.S. Federal Income Tax Purposes)



          Reference is hereby made to the Credit Agreement dated as of October 21, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Vistaprint Limited (the “Company”), Vistaprint N.V., the Subsidiary Borrowers from time to
time party thereto, the Lenders from time to time party thereto (collectively with the Company, the
“Borrowers”) and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the
“Administrative Agent”).




          Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing
such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are
the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii)
with respect to the extension of credit pursuant to this Credit Agreement, neither the undersigned
nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered
into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of
the Code, (iv) none of its partners/members is a ten percent shareholder of any Loan Party within
the meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled
foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and
(vi) the interest payments in question are not effectively connected with the undersigned’s or its
partners/members’ conduct of a U.S. trade or business.




          The undersigned has furnished the Administrative Agent and the Borrowers with IRS Form W-8IMY
accompanied by an IRS Form W-8BEN from each of its partners/members claiming the portfolio interest
exemption; provided that, if the undersigned is a disregarded entity for U.S. federal
income tax purposes, the appropriate tax forms have been furnished by the first direct or indirect
beneficial owner of the undersigned that is not a disregarded entity. By executing this
certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent and
(2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent
with a properly completed and currently effective certificate in either the calendar year in which
each payment is to be made to the undersigned, or in either of the two calendar years preceding
such payments.




          Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



[NAME OF LENDER]




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 





Date: __________, 20[__]









 









 








EXHIBIT H-3




FORM OF U.S. TAX CERTIFICATE



(For Non-U.S. Participants That Are Not Partnerships Or Are

Disregarded Entities For U.S. Federal Income Tax Purposes)



          Reference is hereby made to the Credit Agreement dated as of October 21, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Vistaprint Limited (the “Company”), Vistaprint N.V., the Subsidiary Borrowers from time to
time party thereto, the Lenders from time to time party thereto (collectively with the Company, the
“Borrowers”) and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the
“Administrative Agent”).




          Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the participation in respect of
which it is providing this certificate, (ii) it is not a bank within the meaning of Section
881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of any Loan Party within the
meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation
related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (v) the interest
payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade
or business.




          The undersigned has furnished its participating Lender with a certificate of its non- U.S.
person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1)
if the information provided on this certificate changes, the undersigned shall promptly so inform
such Lender in writing and (2) the undersigned shall have at all times furnished such Lender with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.




          Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



[NAME OF LENDER]




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 





Date: __________, 20[__]









 









 








EXHIBIT H-4




FORM OF U.S. TAX CERTIFICATE



(For Non-U.S. Participants That Are Partnerships Or Are Disregarded

Entities For U.S. Federal Income Tax Purposes)



          Reference is hereby made to the Credit Agreement dated as of October 21, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Vistaprint Limited (the “Company”), Vistaprint N.V., the Subsidiary Borrowers from time to
time party thereto, the Lenders from time to time party thereto (collectively with the Company, the
“Borrowers”) and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the
“Administrative Agent”).




          Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the participation in respect of which it is
providing this certificate, (ii) its partners/members are the sole beneficial owners of such
participation, (iii) with respect such participation, neither the undersigned nor any of its
partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its partners/members is a ten percent shareholder of any Loan Party within the meaning
of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign
corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the
interest payments in question are not effectively connected with the undersigned’s or its
partners/members’ conduct of a U.S. trade or business.




          The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by an
IRS Form W-8BEN from each of its partners/members claiming the portfolio interest exemption;
provided that, if the undersigned is a disregarded entity for U.S. federal income tax
purposes, the appropriate tax forms have been furnished by the first direct or indirect beneficial
owner of the undersigned that is not a disregarded entity. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times
furnished such Lender with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.




          Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



[NAME OF LENDER]




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 





Date: __________, 20[__]