EXHIBIT 10.1


 




 





 


$125,000,000


 


CREDIT AGREEMENT


dated as of September 10, 2010


 


by and among


 


MERIT MEDICAL SYSTEMS, INC.


as Borrower,


 


the Lenders referred to herein,


as Lenders,


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as Administrative Agent,


Swingline Lender and Issuing Lender


 


WELLS FARGO SECURITIES, LLC


as Sole Lead Arranger and Sole Book Manager


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION
  1.1

  	
  Definitions

  	
  1

  
	
  SECTION
  1.2

  	
  Other
  Definitions and Provisions

  	
  25

  
	
  SECTION
  1.3

  	
  Accounting
  Terms

  	
  26

  
	
  SECTION
  1.4

  	
  UCC Terms

  	
  26

  
	
  SECTION
  1.5

  	
  Rounding

  	
  26

  
	
  SECTION
  1.6

  	
  References
  to Agreement and Laws

  	
  26

  
	
  SECTION
  1.7

  	
  Times of
  Day

  	
  27

  
	
  SECTION
  1.8

  	
  Letter of
  Credit Amounts

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  REVOLVING CREDIT FACILITY

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION
  2.1

  	
  Revolving
  Credit Loans

  	
  27

  
	
  SECTION
  2.2

  	
  Swingline
  Loans

  	
  27

  
	
  SECTION
  2.3

  	
  Procedure
  for Advances of Revolving Credit Loans and Swingline Loans

  	
  29

  
	
  SECTION
  2.4

  	
  Repayment
  and Prepayment of Revolving Credit and Swingline Loans

  	
  31

  
	
  SECTION
  2.5

  	
  Permanent
  Reduction of the Revolving Credit Commitment

  	
  32

  
	
  SECTION
  2.6

  	
  Termination
  of Revolving Credit Facility

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  LETTER OF CREDIT FACILITY

  	
  33

  
	
   

  	
   

  	
   

  
	
  SECTION
  3.1

  	
  L/C
  Commitment

  	
  33

  
	
  SECTION
  3.2

  	
  Procedure
  for Issuance of Letters of Credit

  	
  33

  
	
  SECTION
  3.3

  	
  Commissions
  and Other Charges

  	
  34

  
	
  SECTION
  3.4

  	
  L/C
  Participations

  	
  35

  
	
  SECTION
  3.5

  	
  Reimbursement
  Obligation of the Borrower

  	
  35

  
	
  SECTION
  3.6

  	
  Obligations
  Absolute

  	
  36

  
	
  SECTION
  3.7

  	
  Effect of
  Letter of Credit Application

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  [RESERVED]

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  GENERAL LOAN PROVISIONS

  	
  37

  
	
   

  	
   

  	
   

  
	
  SECTION
  5.1

  	
  Interest

  	
  37

  
	
  SECTION
  5.2

  	
  Notice
  and Manner of Conversion or Continuation of Loans

  	
  39

  
	
  SECTION
  5.3

  	
  Fees

  	
  39

  
	
  SECTION
  5.4

  	
  Manner of
  Payment

  	
  40

  
	
  SECTION
  5.5

  	
  Evidence
  of Indebtedness

  	
  40

  
	
  SECTION
  5.6

  	
  Adjustments

  	
  41

  
	
  SECTION
  5.7

  	
  Obligations
  of Lenders

  	
  42

  
	
  SECTION
  5.8

  	
  Changed
  Circumstances

  	
  42

  
	
  SECTION
  5.9

  	
  Indemnity

  	
  44

  



 


i

















 


	
  SECTION
  5.10

  	
  Increased
  Costs

  	
  44

  
	
  SECTION
  5.11

  	
  Taxes

  	
  46

  
	
  SECTION
  5.12

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
  48

  
	
  SECTION
  5.13

  	
  Incremental
  Loans

  	
  49

  
	
  SECTION
  5.14

  	
  Defaulting
  Lenders

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  CONDITIONS OF CLOSING AND BORROWING

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION
  6.1

  	
  Conditions
  to Closing and the Initial Extensions of Credit

  	
  53

  
	
  SECTION
  6.2

  	
  Conditions
  to All Extensions of Credit

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES

  	
  59

  
	
   

  	
   

  	
   

  
	
  SECTION
  7.1

  	
  Organization;
  Power; Qualification

  	
  59

  
	
  SECTION
  7.2

  	
  Ownership

  	
  59

  
	
  SECTION
  7.3

  	
  Authorization
  Enforceability

  	
  59

  
	
  SECTION
  7.4

  	
  Compliance
  of Agreement, Loan Documents and Borrowing with Laws, Etc.

  	
  59

  
	
  SECTION
  7.5

  	
  Compliance
  with Law; Governmental Approvals

  	
  60

  
	
  SECTION
  7.6

  	
  Tax
  Returns and Payments

  	
  60

  
	
  SECTION
  7.7

  	
  Intellectual
  Property Matters

  	
  61

  
	
  SECTION
  7.8

  	
  Environmental
  Matters

  	
  61

  
	
  SECTION
  7.9

  	
  Employee
  Benefit Matters

  	
  62

  
	
  SECTION
  7.10

  	
  Margin
  Stock

  	
  63

  
	
  SECTION
  7.11

  	
  Government
  Regulation

  	
  63

  
	
  SECTION
  7.12

  	
  Employee
  Relations

  	
  64

  
	
  SECTION
  7.13

  	
  [Intentionally
  Omitted]

  	
  64

  
	
  SECTION
  7.14

  	
  Financial
  Statements

  	
  64

  
	
  SECTION
  7.15

  	
  No
  Material Adverse Change

  	
  64

  
	
  SECTION
  7.16

  	
  Solvency

  	
  64

  
	
  SECTION
  7.17

  	
  Titles to
  Properties

  	
  64

  
	
  SECTION
  7.18

  	
  Insurance

  	
  65

  
	
  SECTION
  7.19

  	
  Liens

  	
  65

  
	
  SECTION
  7.20

  	
  Indebtedness
  and Guaranty Obligations

  	
  65

  
	
  SECTION
  7.21

  	
  Litigation

  	
  65

  
	
  SECTION
  7.22

  	
  Absence
  of Defaults

  	
  65

  
	
  SECTION
  7.23

  	
  OFAC

  	
  65

  
	
  SECTION
  7.24

  	
  Investment
  Bankers’ and Similar Fees

  	
  66

  
	
  SECTION
  7.25

  	
  Disclosure

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  FINANCIAL INFORMATION AND NOTICES

  	
  66

  
	
   

  	
   

  	
   

  
	
  SECTION
  8.1

  	
  Financial
  Statements and Projections

  	
  66

  
	
  SECTION
  8.2

  	
  Officer’s
  Compliance Certificate

  	
  68

  
	
  SECTION
  8.3

  	
  Other
  Reports

  	
  68

  
	
  SECTION
  8.4

  	
  Notice of
  Litigation and Other Matters

  	
  68

  
	
  SECTION
  8.5

  	
  Accuracy
  of Information

  	
  70

  



 


ii

















 


	
  ARTICLE IX

  	
  AFFIRMATIVE COVENANTS

  	
  70

  
	
   

  	
   

  	
   

  
	
  SECTION
  9.1

  	
  Preservation
  of Corporate Existence and Related Matters

  	
  70

  
	
  SECTION
  9.2

  	
  Maintenance
  of Property and Licenses

  	
  70

  
	
  SECTION
  9.3

  	
  Insurance

  	
  71

  
	
  SECTION
  9.4

  	
  Accounting
  Methods and Financial Records

  	
  71

  
	
  SECTION
  9.5

  	
  Payment
  of Taxes and Other Obligations

  	
  71

  
	
  SECTION
  9.6

  	
  Compliance
  With Laws and Approvals

  	
  71

  
	
  SECTION
  9.7

  	
  Environmental
  Laws

  	
  71

  
	
  SECTION
  9.8

  	
  Compliance
  with ERISA

  	
  72

  
	
  SECTION
  9.9

  	
  Compliance
  with Agreements

  	
  72

  
	
  SECTION
  9.10

  	
  Visits
  and Inspections; Lender Meetings

  	
  72

  
	
  SECTION
  9.11

  	
  Additional
  Subsidiaries and Real Property

  	
  73

  
	
  SECTION
  9.12

  	
  Use of
  Proceeds

  	
  73

  
	
  SECTION
  9.13

  	
  Non-Consolidation

  	
  73

  
	
  SECTION
  9.14

  	
  Depository
  and Treasury Management

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  FINANCIAL COVENANTS

  	
  74

  
	
   

  	
   

  	
   

  
	
  SECTION
  10.1

  	
  Consolidated
  Total Leverage Ratio

  	
  74

  
	
  SECTION
  10.2

  	
  Fixed
  Charge Coverage Ratio

  	
  74

  
	
  SECTION
  10.3

  	
  Consolidated
  Net Income

  	
  75

  
	
  SECTION
  10.4

  	
  Maximum
  Facility Capital Expenditures

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  NEGATIVE COVENANTS

  	
  75

  
	
   

  	
   

  	
   

  
	
  SECTION
  11.1

  	
  Limitations
  on Indebtedness

  	
  75

  
	
  SECTION
  11.2

  	
  Limitations
  on Liens

  	
  77

  
	
  SECTION
  11.3

  	
  Limitations
  on Investments

  	
  79

  
	
  SECTION
  11.4

  	
  Limitations
  on Fundamental Changes

  	
  80

  
	
  SECTION
  11.5

  	
  Limitations
  on Asset Dispositions

  	
  81

  
	
  SECTION
  11.6

  	
  Limitations
  on Restricted Payments

  	
  81

  
	
  SECTION
  11.7

  	
  Transactions
  with Affiliates

  	
  82

  
	
  SECTION
  11.8

  	
  Certain
  Accounting Changes; Organizational Documents

  	
  82

  
	
  SECTION
  11.9

  	
  Limitation
  on Payments and Modifications of Subordinated Indebtedness

  	
  82

  
	
  SECTION
  11.10

  	
  No
  Further Negative Pledges; Restrictive Agreements

  	
  83

  
	
  SECTION
  11.11

  	
  Nature of
  Business

  	
  84

  
	
  SECTION
  11.12

  	
  Sale
  Leasebacks

  	
  84

  
	
  SECTION
  11.13

  	
  Operating
  Lease Payments

  	
  84

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  DEFAULT AND REMEDIES

  	
  84

  
	
   

  	
   

  	
   

  
	
  SECTION
  12.1

  	
  Events of
  Default

  	
  84

  
	
  SECTION
  12.2

  	
  Remedies

  	
  86

  
	
  SECTION
  12.3

  	
  Rights
  and Remedies Cumulative; Non-Waiver; etc.

  	
  87

  
	
  SECTION
  12.4

  	
  Crediting
  of Payments and Proceeds

  	
  87

  
	
  SECTION
  12.5

  	
  Administrative
  Agent May File Proofs of Claim

  	
  88

  



 


iii

















 


	
  ARTICLE XIII

  	
  THE ADMINISTRATIVE AGENT

  	
  89

  
	
   

  	
   

  	
   

  
	
  SECTION
  13.1

  	
  Appointment
  and Authority

  	
  89

  
	
  SECTION
  13.2

  	
  Rights as
  a Lender

  	
  89

  
	
  SECTION
  13.3

  	
  Exculpatory
  Provisions

  	
  89

  
	
  SECTION
  13.4

  	
  Reliance
  by the Administrative Agent

  	
  90

  
	
  SECTION
  13.5

  	
  Delegation
  of Duties

  	
  91

  
	
  SECTION
  13.6

  	
  Resignation
  of Administrative Agent

  	
  91

  
	
  SECTION
  13.7

  	
  Non-Reliance
  on Administrative Agent and Other Lenders

  	
  92

  
	
  SECTION
  13.8

  	
  No Other
  Duties, etc.

  	
  92

  
	
  SECTION
  13.9

  	
  Guaranty
  Matters

  	
  92

  
	
  SECTION
  13.10

  	
  Release
  Guarantees of Subsidiaries

  	
  92

  
	
  SECTION
  13.11

  	
  Specified
  Cash Management Arrangements and Specified Hedge Agreements

  	
  93

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  MISCELLANEOUS

  	
  93

  
	
   

  	
   

  	
   

  
	
  SECTION
  14.1

  	
  Notices

  	
  93

  
	
  SECTION
  14.2

  	
  Amendments,
  Waivers and Consents

  	
  95

  
	
  SECTION
  14.3

  	
  Expenses;
  Indemnity

  	
  96

  
	
  SECTION
  14.4

  	
  Right of
  Set Off

  	
  98

  
	
  SECTION
  14.5

  	
  Governing
  Law; Jurisdiction, Etc.

  	
  99

  
	
  SECTION
  14.6

  	
  Waiver of
  Jury Trial

  	
  99

  
	
  SECTION
  14.7

  	
  Reversal
  of Payments

  	
  100

  
	
  SECTION
  14.8

  	
  Injunctive
  Relief; Punitive Damages

  	
  100

  
	
  SECTION
  14.9

  	
  Accounting
  Matters

  	
  100

  
	
  SECTION
  14.10

  	
  Successors
  and Assigns; Participations

  	
  100

  
	
  SECTION
  14.11

  	
  Confidentiality

  	
  104

  
	
  SECTION
  14.12

  	
  Performance
  of Duties

  	
  105

  
	
  SECTION
  14.13

  	
  All
  Powers Coupled with Interest

  	
  105

  
	
  SECTION
  14.14

  	
  Survival

  	
  105

  
	
  SECTION
  14.15

  	
  Titles
  and Captions

  	
  105

  
	
  SECTION
  14.16

  	
  Severability
  of Provisions

  	
  105

  
	
  SECTION
  14.17

  	
  Counterparts;
  Integration; Effectiveness; Electronic Execution

  	
  105

  
	
  SECTION
  14.18

  	
  Term of
  Agreement

  	
  106

  
	
  SECTION
  14.19

  	
  USA Patriot
  Act

  	
  106

  
	
  SECTION
  14.20

  	
  Delivery
  of Lender Authorization

  	
  106

  
	
  SECTION
  14.21

  	
  Inconsistencies
  with Other Documents; Independent Effect of Covenants

  	
  107

  



 


iv

















 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit
  A-1

  	
  -

  	
  Form
  of Revolving Credit Note

  
	
  Exhibit
  A-2

  	
  -

  	
  Form
  of Swingline Note

  
	
  Exhibit
  B

  	
  -

  	
  Form
  of Notice of Borrowing

  
	
  Exhibit
  C

  	
  -

  	
  Form
  of Notice of Account Designation

  
	
  Exhibit
  D

  	
  -

  	
  Form
  of Notice of Prepayment

  
	
  Exhibit
  E

  	
  -

  	
  Form
  of Notice of Conversion/Continuation

  
	
  Exhibit
  F

  	
  -

  	
  Form
  of Officer’s Compliance Certificate

  
	
  Exhibit
  G

  	
  -

  	
  Form
  of Assignment and Assumption

  
	
  Exhibit
  H

  	
  -

  	
  Form
  of Subsidiary Guaranty Agreement

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule
  7.1

  	
  -

  	
  Jurisdictions
  of Organization and Qualification

  
	
  Schedule
  7.2

  	
  -

  	
  Subsidiaries
  and Capitalization

  
	
  Schedule
  7.6

  	
  -

  	
  Tax
  Matters

  
	
  Schedule
  7.9

  	
  -

  	
  ERISA
  Plans

  
	
  Schedule
  7.12

  	
  -

  	
  Labor
  and Collective Bargaining Agreements

  
	
  Schedule
  7.17

  	
  -

  	
  Real
  Property

  
	
  Schedule
  7.20

  	
  -

  	
  Indebtedness
  and Guaranty Obligations

  
	
  Schedule
  11.1(b)(iii)

  	
  -

  	
  Existing
  Non-Credit Party Unsecured Intercompany Indebtedness

  
	
  Schedule
  11.2

  	
  -

  	
  Existing
  Liens

  
	
  Schedule
  11.3

  	
  -

  	
  Existing
  Loans, Advances and Investments

  



 


v

















 


CREDIT
AGREEMENT, dated as of September 10, 2010, by and among MERIT MEDICAL SYSTEMS,
INC., a Utah corporation (the “Borrower”), the lenders who are party to
this Agreement pursuant to a Lender Authorization and the lenders who may
become a party to this Agreement pursuant to the terms hereof (collectively
with the lenders party hereto, the “Lenders”) and WELLS FARGO BANK,
NATIONAL ASSOCIATION, a national banking association, as Administrative Agent
for the Lenders.


 


STATEMENT OF PURPOSE


 


The
Borrower has requested, and, subject to the terms and conditions hereof, the
Administrative Agent and the Lenders have agreed, to extend certain credit
facilities to the Borrower on the terms and conditions of this Agreement.


 


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


 


ARTICLE
I


 


DEFINITIONS


 


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


 


“Act”
means the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)), as amended.


 


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


 


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


 


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


 


“Affiliate”
means, with respect to any Person, any other Person (other than a Subsidiary of
the Borrower) which directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such first
Person or any of its Subsidiaries.  The
term “control” means (a) the power to vote ten percent (10%) or more of the
securities or other equity interests of a Person having ordinary voting power,
or (b) the possession, directly or indirectly, of any other power to direct or
cause the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.  The terms “controlling” and “controlled” have
meanings correlative thereto.


 


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


 

















 


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


 


“Applicable
Margin” means (a) 1.25% for LIBOR Rate Loans, (b) 1.25% for LIBOR Market
Index Rate Loans and (c) 0.25% for Base Rate Loans.


 


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


 


“Arranger”
means Wells Fargo Securities, LLC, in its capacity as sole lead arranger and
sole book manager, and its successors.


 


“Asset
Disposition” means the disposition of any or all of the assets (including,
without limitation, any Capital Stock owned thereby) of any Credit Party or any
Subsidiary thereof whether by sale, lease, transfer or otherwise.  The term “Asset Disposition” shall not
include any Equity Issuance.


 


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


 


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


 


“Base
Rate” means, at any time, the highest of (a) the Prime Rate,
(b) the Federal Funds Rate plus 0.50% and (c) except during any
period of time during which a notice delivered to the Borrower under Section 5.8
shall remain in effect, LIBOR for an Interest Period of one month plus
1.0%; each change in the Base Rate shall take effect simultaneously with the
corresponding change or changes in the Prime Rate, the Federal Funds Rate or
LIBOR.


 


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


 


“BioSphere”
means BioSphere Medical, Inc., a Delaware corporation.


 


“BioSphere
Merger” means the merger of BioSphere and the BioSphere MergerCo pursuant
to the terms of the BioSphere Merger Agreement.


 


“BioSphere
Merger Agreement” means the agreement and plan of merger (including all
schedules and exhibits thereto), dated as of May 13, 2010, among the Borrower,
MergerCo and 


 


2

















 


BioSphere,
as amended, restated, supplemented or otherwise modified in accordance with the
terms hereof.


 


“BioSphere
MergerCo” means Merit BioAcquisition Co., a Delaware corporation and a
Wholly-Owned Subsidiary of the Borrower formed to effectuate the Merger.


 


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


 


“Borrower
Materials” has the meaning assigned thereto in Section 8.4.


 


“Business
Day” means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday
on which banks in Salt Lake City, Utah, San Francisco, California and New York,
New York, are open for the conduct of their commercial banking business, and
(b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, any LIBOR Rate Loan, any LIBOR Market
Index Rate Loan, or any Base Rate Loan as to which the interest rate is
determined by reference to LIBOR, any day that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.


 


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


 


“Capital
Expenditures” means, with respect to the Borrower and its Subsidiaries for
any period, the aggregate cost of all Capital Assets acquired by the Borrower
and its Subsidiaries during such period (excluding any Permitted Acquisition),
as determined in accordance with GAAP.


 


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


 


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


 


“Cash
Equivalents” means, collectively, (a) marketable direct obligations
issued or unconditionally guaranteed by the United States or any agency thereof
maturing within two hundred seventy (270) days from the date of acquisition
thereof, (b) commercial paper maturing no more than two hundred seventy
(270) days from the date of creation thereof and currently having the highest
rating obtainable from either Standard & Poor’s Ratings Services or Moody’s Investors
Service, Inc., (c) certificates of deposit maturing no more than two
hundred seventy (270) days from the date of creation thereof issued by
commercial banks incorporated under the 


 


3

















 


laws of the United
States, each having combined capital, surplus and undivided profits of not less
than $500,000,000 and having a rating of “A” or better by a nationally
recognized rating agency; provided that the aggregate amount invested in
such certificates of deposit shall not at any time exceed $5,000,000 for any
one such certificate of deposit and $10,000,000 for any one such bank, or
(d) time deposits maturing no more than thirty (30) days from the date of
creation thereof with commercial banks or savings banks or savings and loan
associations each having membership either in the FDIC or the deposits of which
are insured by the FDIC and in amounts not exceeding the maximum amounts of
insurance thereunder.


 


“Cash Management
Arrangement” means any arrangement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic
funds transfer, foreign exchange and other cash management arrangements.


 


“Cash Management
Swingline Loans” means the collective reference to the Swingline Loans made
pursuant to, and in accordance with, the terms of the Loan Sweep Agreement as
contemplated by Section 2.2(a), and “Cash Management Swingline Loan”
means any of such Swingline Loans.


 


“Change in Control”
means an event or series of events by which:


 


(a)           (i) any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended, but excluding any employee benefit plan of
such person or its Subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such
plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under
the Securities Exchange Act of 1934, as amended, except that a “person” or “group”
shall be deemed to have “beneficial ownership” of all securities that such “person”
or “group” has the right to acquire, whether such right is exercisable
immediately or only after the passage of time (such right, an “option right”)),
directly or indirectly, of more than thirty-five percent (35%) of the equity
securities of the Borrower entitled to vote in the election of members of the
board of directors (or equivalent governing body) of Borrower or (ii) a
majority of the board of directors (or equivalent governing body) of the
Borrower shall not be Continuing Directors; or


 


(b)           there shall have occurred under any
indenture or other instrument evidencing any Indebtedness or Capital Stock in
excess of $20,000,000 any “change in control” or similar provision (as set
forth in the indenture, agreement or other evidence of such Indebtedness)
obligating the Borrower to repurchase, redeem or repay all or any part of the
Indebtedness or Capital Stock provided for therein.


 


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


 


“Class” means,
when used in reference to any Loan, whether such Loan is a Revolving Credit
Loan or Swingline Loan and, otherwise means the Revolving Credit Commitment.


 


4
















 


“Closing
Date” means the date of this Agreement or such later Business Day upon
which each condition described in Section 6.1 shall be satisfied or
waived in all respects in a manner acceptable to the Administrative Agent, in
its sole discretion.


 


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


 


“Commitment
Fee” has the meaning assigned thereto in Section 5.3(a).


 


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


 


“Consolidated
EBITDA” means, for any period, the sum of the following determined on a
Consolidated basis, without duplication, for the Borrower and its Subsidiaries
in accordance with GAAP: (a) Consolidated Net Income for such period plus
(b) the sum of the following, without duplication, to the extent deducted
in determining Consolidated Net Income: (i) income and franchise taxes
paid during such period, (ii) Consolidated Interest Expense paid or
payable in cash, (iii) amortization, depreciation and other non-cash
charges for such period (except to the extent that such non-cash charges are
reserved for cash charges to be taken in the future), (iv) non-cash
charges or expenses related to equity incentives, including stock-based
compensation, (v) extraordinary losses during such period (excluding
extraordinary losses from discontinued operations), (vi) Transaction Costs
during such period in connection with the BioSphere Merger and (vii) Transaction
Costs during such period in connection with any Permitted Acquisition (other
than the BioSphere Merger) (provided that the aggregate amount of such
Transaction Costs added pursuant to this clause (vii) shall not exceed
$25,000,000 during the term of this Agreement) less (c) interest
income and any extraordinary gains during such period; provided that,
for each of the four fiscal quarters set forth below, Consolidated EBITDA shall
be deemed to equal the amount set forth below opposite such fiscal quarter (as
may be adjusted pursuant to the following sentence):


 


	
  Fiscal Quarter

  	
   

  	
  Consolidated

  EBITDA

  	
   

  
	
  Fiscal Quarter Ending September 30, 2009

  	
   

  	
  $

  	
  11,931,663

  	
   

  
	
  Fiscal Quarter Ending December 31, 2010

  	
   

  	
  $

  	
  11,297,708

  	
   

  
	
  Fiscal Quarter Ending March 30, 2010

  	
   

  	
  $

  	
  9,943,368

  	
   

  
	
  Fiscal Quarter Ending June 30, 2010

  	
   

  	
  $

  	
  12,551,242

  	
   

  



 


For
purposes of this Agreement, Consolidated EBITDA shall be calculated on a Pro Forma
Basis.


 


“Consolidated
Fixed Charges” means, for any period, the sum of the following determined
on a Consolidated basis for such period, without duplication, for the Borrower
and its Subsidiaries in accordance with GAAP: (a) Consolidated Interest
Expense and (b) scheduled principal payments (excluding any balloon
payment of the Obligations on the Revolving Credit Maturity Date) with respect
to Indebtedness (including Attributable Indebtedness with respect to 


 


5

















 


Capital
Leases).  For purposes of this Agreement,
Consolidated Fixed Charges shall not be calculated on a Pro Forma Basis.


 


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


 


“Consolidated
Net Income” means, for any period, the net income (or loss) of the Borrower
and its Subsidiaries for such period, determined on a Consolidated basis,
without duplication, in accordance with GAAP; provided, in calculating
Consolidated Net Income of the Borrower and its Subsidiaries for any period,
there shall be excluded (a) the net income (or loss) of any Person (other
than a Subsidiary which shall be subject to clause (c) below), in
which the Borrower or any of its Subsidiaries has a joint interest with a third
party, except to the extent such net income is actually paid in cash to the
Borrower or any of its Subsidiaries by dividend or other distribution during
such period, (b) the net income (or loss) of any Person accrued prior to
the date it becomes a Subsidiary of the Borrower or any of its Subsidiaries or
is merged into or consolidated with the Borrower or any of its Subsidiaries or
that Person’s assets are acquired by the Borrower or any of its Subsidiaries
except to the extent included pursuant to the foregoing clause (a), and
(c) the net income (if positive), of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
to the Borrower or any of its Subsidiaries of such net income (i) is not
at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary or (ii) would be
subject to any taxes payable on such dividends or distributions.


 


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


 


“Consolidated
Total Funded Indebtedness” means, as of any date of determination with
respect to the Borrower and its Subsidiaries on a Consolidated basis without
duplication, the sum of all Indebtedness of the Borrower and its Subsidiaries
described in, clauses (a), (c), (f) and (i) of the definition of “Indebtedness”.


 


“Continuing
Directors” means the directors of the Borrower on the Closing Date and each
other director of the Borrower, if, in each case, such other director’s
nomination for election to the board of directors (or equivalent governing
body) of the Borrower is recommended by at least 51% of the then Continuing
Directors.


 


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


 


“Credit Parties”
means, collectively, the Borrower and the Subsidiary Guarantors.


 


6

















 


“Debt
Issuance” shall mean the issuance of any Indebtedness for borrowed money by
any Credit Party or any of its Subsidiaries.


 


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


 


“Defaulting
Lender” means any Lender that (a) has failed to fund any portion of
the Revolving Credit Loans, participations in L/C Obligations or participations
in Swingline Loans required to be funded by it hereunder within one Business
Day of the date required to be funded by it hereunder, (b) has otherwise
failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within one Business Day of the date
when due, unless such amount is the subject of a good faith dispute, (c) has
notified the Borrower, the Administrative Agent or any other Lender in writing
that it does not intend to comply with any of its funding obligations under
this Agreement or has made a public statement to the effect that it does not
intend to comply or has failed to comply with its funding obligations under
this Agreement, or (d) has become or is insolvent or has become the
subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment.


 


“Disputes”
means any dispute, claim or controversy arising out of, connected with or
relating to this Agreement or any other Loan Document, between or among parties
hereto and to the other Loan Documents.


 


“Disqualified
Capital Stock” means any Capital Stock that, by its terms (or by the terms
of any security or other Capital Stock into which it is convertible or for
which it is exchangeable) or upon the happening of any event or condition, (a)  matures
or is mandatorily redeemable (other than solely for Qualified Capital Stock),
pursuant to a sinking fund obligation or otherwise (except as a result of a
change of control or asset sale so long as any rights of the holders thereof
upon the occurrence of a change of control or asset sale event shall be subject
to the prior repayment in full of the Loans and all other Obligations that are
accrued and payable and the termination of the Revolving Credit Commitments),
(b) is redeemable at the option of the holder thereof (other than solely
for Qualified Capital Stock) (except as a result of a change of control or
asset sale so long as any rights of the holders thereof upon the occurrence of a
change of control or asset sale event shall be subject to the prior repayment
in full of the Loans and all other Obligations that are accrued and payable and
the termination of the Revolving Credit Commitments), in whole or in part,
(c) provides for the scheduled payment of dividends in cash or (d) is
or becomes convertible into or exchangeable for Indebtedness or any other
Capital Stock that would constitute Disqualified Capital Stock, in each case,
prior to the date that is 91 days after the Revolving Credit Maturity Date;
provided, that if such Capital Stock is issued pursuant to a plan for the
benefit of the Borrower or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute Disqualified Capital Stock
solely because it may be required to be repurchased by the Borrower or its
Subsidiaries in order to satisfy applicable statutory or regulatory
obligations.


 


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


 


7

















 


“Domestic
Subsidiary” means any Subsidiary organized under the laws of any political
subdivision of the United States.


 


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


 


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


 


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


 


“Equity
Issuance” means (a) any issuance by any Credit Party or any Subsidiary
thereof to any Person that is not a Credit Party of (i) shares of its
Capital Stock, (ii) any shares of its Capital Stock pursuant to the
exercise of options or warrants or (iii) any shares of its Capital Stock
pursuant to the conversion of any debt securities to equity and (b) any
capital contribution from any Person that is not a Credit Party into any Credit
Party or any Subsidiary thereof.  The
term “Equity Issuance” shall not include (A) any Asset Disposition or
(B) any Debt Issuance.


 


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


 


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


 


“Eurodollar
Reserve Percentage” means, for any day, the percentage (expressed as a
decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%)
which is in effect for such day as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any 


 


8

















 


basic,
supplemental or emergency reserves) in respect of eurocurrency liabilities or
any similar category of liabilities for a member bank of the Federal Reserve
System in New York City.


 


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


 


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


 


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


 


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


 


“Facility Capital Expenditures” means Capital
Expenditures of the Borrower and its Subsidiaries associated with the
acquisition, building and expansion of manufacturing facilities, research
facilities, customer service and distribution facilities and other facilities
acquired, built or expanded by the Borrower and its Subsidiaries in connection
with the business thereof (including, without limitation, the acquisition of
property and plant related thereto).


 


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


 


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


 


9

















 


transactions
received by the Administrative Agent from three Federal Funds brokers of
recognized standing selected by the Administrative Agent.


 


“Fee
Letter” means the separate fee letter agreement dated May 12, 2010
among the Borrower, the Administrative Agent and the Arranger.


 


“Fiscal
Year” means the fiscal year of the Borrower and its Subsidiaries ending on December 31st.


 


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


 


“Foreign
Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.


 


“Fronting
Exposure” means, at any time there is a Defaulting Lender, (a) with
respect to the Issuing Lender, such Defaulting Lender’s Revolving Credit
Commitment Percentage of the outstanding L/C Obligations other than L/C
Obligations as to which such Defaulting Lender’s participation obligation has
been reallocated to other Lenders or cash collateral or other credit support
acceptable to the Issuing Lender shall have been provided in accordance with
the terms hereof and (b) with respect to the Swingline Lender, such
Defaulting Lender’s Revolving Credit Commitment Percentage of Swingline Loans
other than Swingline Loans as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders, repaid by the Borrower or for
which cash collateral or other credit support acceptable to the Swingline
Lender shall have been provided in accordance with the terms hereof.


 


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


 


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


 


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


 


“Governmental
Authority” means the government of the United States or any other nation,
or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to 


 


10

















 


government
(including any supra-national bodies such as the European Union or the European
Central Bank).


 


“Guaranty
Obligation” means, with respect to the Borrower and its Subsidiaries,
without duplication, any obligation, contingent or otherwise, of any such
Person pursuant to which such Person has directly or indirectly guaranteed any
Indebtedness or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of any such Person (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); provided, that the term
Guaranty Obligation shall not include (i) endorsements for collection or
deposit in the ordinary course of business and (ii) guarantees of
obligations to reimburse Governmental Authorities in connection with an
economic development incentive to the extent not considered a contingent
obligation under GAAP unless and until demand is made for payment under the
agreement evidencing such economic development incentive; provided, further,
that the amount of any Guaranty Obligations shall be equal to the amount of the
obligation so guaranteed or otherwise supported, if any, or, if less, the
amount to which such Guaranty is specifically limited, unless such primary
obligation and the amount for which such guarantor may be liable are not stated
or determinable, in which case the amount of such Guaranty shall be such
guarantor’s maximum reasonably anticipated liability in respect thereof as
determined by such guarantor in good faith.


 


“Hazardous
Materials” means any substances or materials (a) which are or become
defined as hazardous wastes, hazardous substances, pollutants, contaminants,
chemical substances or mixtures or toxic substances under any Environmental
Law, (b) which are toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise harmful to human health or
the environment and are or become regulated by any Governmental Authority under
Environmental Laws, (c) the presence of which require investigation or
remediation under any Environmental Law, (d) the discharge or emission or
release of which requires a permit or license under any Environmental Law or
other Governmental Approval, (e) which are deemed to constitute a nuisance
or a trespass which pose a health or safety hazard to Persons or neighboring
properties, (f) which consist of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance, or (g) which
contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived
substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.


 


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


 


11

















 


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


 


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


 


(b)           all obligations to pay the deferred
purchase price of property or services of any such Person (including, without
limitation, all obligations under non-competition, earn-out or similar
agreements), except (i) trade payables arising in the ordinary course of
business not more than ninety (90) days past due, or (ii) that are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided for on the
books of such Person;


 


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


 


(d)           all obligations of such Person under
conditional sale or other title retention agreements relating to property
purchased by such Person to the extent of the value of such property (other
than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business);


 


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


 


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


 


(g)           all obligations of any such Person in
respect of Disqualified Capital Stock;


 


(h)           all Net Hedging Obligations of any
such Person; and


 


(i)            all Guaranty Obligations of any such
Person with respect to any of the foregoing.


 


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


 


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


 


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


 


12

















 


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


 


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


 


“Issuing
Lender” means Wells Fargo, in its capacity as issuer thereof, or any
successor thereto.


 


“L/C
Commitment” means the lesser of (a) Fifteen Million Dollars ($15,000,000)
and (b) the Revolving Credit Commitment.


 


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


 


“L/C
Obligations” means at any time, an amount equal to the sum of (a) the
aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed pursuant to Section 3.5.


 


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


 


“Lender”
has the meaning assigned thereto in the introductory paragraph hereof


 


“Lender
Authorization” means with respect to any initial Lender, a Lender
Authorization, substantially in the form attached as Annex
A, to be executed and delivered by such Lender on the Closing
Date as provided in Section 14.20.


 


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


 


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


 


“Letters
of Credit” means the collective reference to letters of credit issued
pursuant to Section 3.1.


 


“LIBOR”
means,


 


(a)           for ay interest rate
calculation with respect to a LIBOR Rate Loan the rate of interest per annum
determined on the basis of the rate for deposits in Dollars for a period equal
to the applicable Interest Period which appears on Reuters Screen LIBOR01 Page at
approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of the applicable Interest Period (rounded upward, if necessary,
to the nearest 1/100th of 1%).  If, for
any reason, such rate does not appear on Reuters Screen LIBOR01 Page, 


 


13

















 


then
“LIBOR” shall be determined by the Administrative Agent to be the arithmetic
average of the rate per annum at which deposits in Dollars in minimum amounts
of at least $5,000,000 would be offered by first class banks in the London
interbank market to the Administrative Agent at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period.


 


(b)           for any interest
rate calculation with respect to a Base Rate Loan, the rate of interest per
annum determined on the basis of the rate for deposits in Dollars in minimum
amounts of at least $5,000,000 for a period equal to one month (commencing on
the date of determination of such interest rate) which appears on the Reuters
Screen LIBOR01 Page (or any successor page) at approximately 11:00 a.m.
(London time) on such date of determination, or, if such date is not a Business
Day, then the immediately preceding Business Day (rounded upward, if necessary,
to the nearest 1/100th of 1%).  If, for
any reason, such rate does not appear on Reuters Screen LIBOR01 Page (or
any successor page) then “LIBOR” for such Base Rate Loan shall be determined by
the Administrative Agent to be the arithmetic average of the rate per annum at
which deposits in Dollars in minimum amounts of at least $5,000,000 would be
offered by first class banks in the London interbank market to the
Administrative Agent at approximately 11:00 a.m. (London time) on such
date of determination for a period equal to one month commencing on such date
of determination.


 


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


 


“LIBOR
Market Index Rate Option” means for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBOR01 Page (or any successor page) as “LIBOR” for three (3) month
deposits in Dollars at approximately 11:00 a.m. (London time), on such
day, or if such day is not a Business Day, then the immediately preceding
Business Day (or if not so reported, then as determined by the Administrative
Agent from another recognized source or interbank quotation); provided
that if such LIBOR is not available on such date, the most recently available “LIBOR”
for three (3) month deposits in Dollars shall be used).


 


“LIBOR
Rate” means a rate per annum (rounded upwards, if necessary, to the next
higher 1/100th of 1%) determined by the Administrative Agent pursuant to the
following formula:


 


	
  LIBOR Rate =         

  	
  LIBOR

  	
   

  
	
   

  	
  1.00-Eurodollar Reserve Percentage

  	
   

  



 


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


 


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


 


14
















 


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


 


“Loan Documents” means, collectively, this
Agreement, each Note, the Subsidiary Guaranty Agreement, the Letter of Credit
Applications, the Fee Letter and each other document, instrument, certificate
and agreement executed and delivered by the Credit Parties or any of their
respective Subsidiaries in favor of or provided to the Administrative Agent in
connection with this Agreement or otherwise referred to herein or contemplated
hereby (excluding any Specified Hedge Agreement and any Specified Cash
Management Arrangement), all as may be amended, restated, supplemented or
otherwise modified from time to time.


 


“Loan Sweep Activation Date” means Closing
Date.


 


[“Loan Sweep Agreement” means, collectively, any
document, instrument, certificate, note or agreement executed and delivered in
connection with the treasury management services arrangement between the
Borrower and Wells Fargo that governs the borrowing and repayment of Cash
Management Swingline Loans, including, without limitation, the Master Agreement
for Treasury Management Services, the Wells Fargo Stagecoach Sweep Service
Description, the Acceptance of Services, the Master Repurchase Agreement, the
applicable deposit account agreement and all other Service Documentation, as
such term is defined in the Master Agreement for Treasury Management Services,
each as may be, individually or collectively, amended, restated, supplemented
or otherwise modified from time to time.]


 


“Loans” means the
collective reference to the Revolving Credit Loans and the Swingline Loans
(including, without limitation, the Cash Management Swingline Loans), and “Loan”
means any of such Loans.


 


“Material Adverse
Effect”  means a material adverse
effect on (a) the properties, business, operations, condition (financial
or otherwise), assets or liabilities (whether actual or contingent) of the
Borrower and its Subsidiaries, taken as a whole, (b) the ability of any
such Person to perform its obligations under the Loan Documents to which it is
a party, (c) the rights and remedies of the Administrative Agent or any
Lender under any Loan Document or (d) legality, validity, binding effect
or enforceability against any Credit Party of any Loan Document to which it is
a party.


 


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


 


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


 


“New Lender” has
the meaning assigned thereto in Section 5.13.


 


15

















 


“New Loan Commitments”
has the meaning assigned thereto in Section 5.13.


 


“New Loans” has
the meaning assigned thereto in Section 5.13.


 


“Non-Consenting Lender”
means any Lender that has not consented to any proposed amendment,
modification, waiver or termination of any Loan Document which, pursuant to Section 14.2,
requires the consent of all Lenders or all affected Lenders and with respect to
which the Required Lenders shall have granted their consent.


 


“Non-Guarantor
Subsidiary” means any Subsidiary of the Borrower that is not a Subsidiary
Guarantor.


 


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


 


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


 


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


 


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


 


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


 


“Obligations”
means, in each case, whether now in existence or hereafter arising:
(a) the principal of and interest on (including interest accruing after
the filing of any bankruptcy or similar petition) the Loans, (b) the L/C
Obligations, (c) all Specified Obligations and (d) all other fees and
commissions (including attorneys’ fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by the Credit Parties and each of their respective Subsidiaries to the
Administrative Agent, in each case under any Loan Document, with respect to any
Loan or Letter of Credit of every kind, nature and description, direct or indirect,
absolute or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any note; provided
that any release of Guarantors effected in the manner permitted by this
Agreement shall not require the consent of holders of the Specified
Obligations.


 


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


 


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


 


“Ongoing Capital
Expenditures” means, with respect to the Borrower and its Subsidiaries,
Capital Expenditures less Facility Capital Expenditures.


 


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


 


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


 


16

















 


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


 


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


 


“Permitted Acquisition”
means:


 


(a)           the BioSphere Merger; and


 


(b)           any acquisition by the Borrower or
any Subsidiary in the form of acquisitions of all or substantially all of the
business or a line of business (whether by the acquisition of Capital Stock,
assets or any combination thereof) of any other Person if each such acquisition
meets all of the following requirements:


 


(i)            with respect to any such
acquisition:


 


(A)          no less than ten (10) Business
Days prior to the proposed closing date of such acquisition, the Borrower shall
have delivered written notice of such acquisition to the Administrative Agent,
which notice shall include the proposed closing date of such acquisition;


 


(B)           such acquisition shall have been
approved by the board of directors (or equivalent governing body) of the Person
to be acquired;


 


(C)           the Person or business to be acquired
shall be in a substantially similar line of business as the Borrower and its
Subsidiaries pursuant to Section 11.11;


 


(D)          if such transaction is a merger or
consolidation, the Borrower or a Subsidiary shall be the surviving Person and
no Change in Control shall have been effected thereby;


 


(E)           the Borrower shall have delivered to
the Administrative Agent such documents reasonably requested by the
Administrative Agent or the Required Lenders (through the Administrative Agent)
pursuant to Section 9.11 to be delivered at the time required
pursuant to Section 9.11; and


 


(F)           no Event of Default shall have
occurred and be continuing both before and after giving effect to such
acquisition and any Indebtedness incurred in connection therewith;


 


(ii)          with respect to any such acquisition
with respect to which the Permitted Acquisition Consideration for such
acquisition (or series of related acquisitions) exceeds $2,000,000, at least
$10,000,000 in availability shall exist under the Revolving Credit Facility
after giving effect to the acquisition;


 


17

















 


(iii)          with respect to any such acquisition
with respect to which the Permitted Acquisition Consideration for such
acquisition (or series of related acquisitions) (1) individually, exceeds
$15,000,000 or (2) together with all other acquisitions consummated during
the calendar year in which such acquisition is consummated, exceeds
$50,000,000:


 


(A)          no later than five (5) Business
Days prior to the proposed closing date of such acquisition, the Borrower shall
have delivered to the Administrative Agent and the Lenders an Officer’s
Compliance Certificate for the most recent fiscal quarter end preceding such
acquisition for which financial statements are available demonstrating, in form
and substance reasonably satisfactory thereto, (A) compliance with each
covenant contained in Article X (it being agreed and acknowledged
that, notwithstanding anything to the contrary contained in this Agreement, (1) the
covenant contained in Section 10.1 shall be calculated on a Pro Forma
Basis as of the date of the acquisition and after giving effect thereto and any
Indebtedness incurred in connection therewith and (2) with respect to the
covenant contained in Section 10.2, Consolidated EBITDA shall be
calculated on a Pro Forma Basis as of the date of the acquisition and after
giving effect thereto and any Indebtedness incurred in connection therewith,
but no other component of the ratio set forth in Section 10.2 shall
be calculated on a Pro Forma Basis) and (B) the Consolidated Total Leverage
Ratio calculated on a Pro Forma Basis (as of the proposed closing date of the
acquisition and after giving effect thereto and any Indebtedness incurred in
connection therewith) at least 0.25 below the applicable ratio set forth in Section 10.1;


 


(B)           prior to the proposed closing date of
such acquisition the Borrower, to the extent requested by the Administrative
Agent, (A) the Borrower shall have delivered to the Administrative Agent
promptly upon the finalization thereof copies of substantially final Permitted
Acquisition Documents and (B) shall have delivered to, or made available
for inspection by, the Administrative Agent any Permitted Acquisition Diligence
Information delivered to the Borrower;  and


 


(C)           the Borrower shall provide such other
documents and other information as may be reasonably (both in scope of such
request and timing of such request) requested by the Administrative Agent or
the Required Lenders (through the Administrative Agent) in connection with the
acquisition, provided such information is reasonably available to the Borrower;
and


 


(iv)          with respect to any such acquisition
with respect to which the Permitted Acquisition Consideration for such
acquisition (or series of related acquisitions), together with all other
acquisitions consummated during the calendar year in which such acquisition is
consummated, exceeds:


 


(A)          for any acquisition consummated during
the calendar year 2010 (other than the BioSphere Merger), $10,000,000; and


 


18

















 


(B)           for any acquisition consummated
during any calendar year after calendar year 2010 during the term of this
Agreement, $50,000,000;


 


the Borrower shall be
required to obtain the prior written consent of the Administrative Agent and
the Required Lenders prior to the consummation of such acquisition.


 


“Permitted Acquisition
Consideration” means the aggregate amount of the purchase price, including,
but not limited to, any assumed debt, earn-outs (valued at the maximum amount
payable thereunder), deferred payments, or Capital Stock of the Borrower, net
of the applicable acquired company’s cash and Cash Equivalent, balance (as
shown on its most recent financial statements delivered in connection with the
applicable Permitted Acquisition) in connection with any applicable Permitted
Acquisition as set forth in the applicable Permitted Acquisition Documents
executed by the Borrower or any of its Subsidiaries in order to consummate the
applicable Permitted Acquisition.


 


“Permitted Acquisition
Diligence Information” means with respect to any acquisition proposed by
the Borrower or any Subsidiary Guarantor, to the extent applicable, all
material financial information, all material contracts, all material customer
lists, all material supply agreements, and all other material information, in
each case, reasonably requested to be delivered to the Administrative Agent and
which is made available to the Borrower or any Subsidiary Guarantor in
connection with such acquisition (except to the extent that any such information
is (a) subject to any confidentiality agreement, unless mutually agreeable
arrangements can be made to preserve such information as confidential,
(b) classified or (c) subject to any attorney-client privilege).


 


“Permitted Acquisition
Documents” means with respect to any acquisition proposed by the Borrower
or any Subsidiary Guarantor, final copies or substantially final drafts if not
executed at the required time of delivery of the purchase agreement, sale
agreement, merger agreement or other agreement evidencing such acquisition,
including, without limitation, all legal opinions and each other document
executed, delivered, contemplated by or prepared in connection therewith and
any amendment, modification or supplement to any of the foregoing.


 


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


 


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


 


“Platform” has the
meaning assigned thereto in Section 8.4.


 


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


 


19

















 


“Pro Forma Basis”
means, for purposes of determining the effect of any Specified Transaction in
calculating certain definitions and compliance with any test or financial
covenant under this Agreement for any period, that such Specified Transaction
(and all other Specified Transactions that have been consummated during the
applicable period) and the following transactions in connection therewith shall
be deemed to have occurred as of the first day of the applicable period of
measurement in such test or covenant: (a) income statement items (whether
positive or negative) attributable to the Property or Person subject to such
Specified Transaction, (i) in the case of a disposition of all or
substantially all of the Capital Stock of a Subsidiary or any division,
business unit, product line or line of business or any classification of any
asset, business unit, division or line of business as a discontinued operation,
shall be excluded and (ii) in the case of a Permitted Acquisition, shall
be included, (b) any retirement of Indebtedness and (c) any
Indebtedness incurred or assumed by the Borrower or any of its Subsidiaries in
connection therewith and if such Indebtedness has a floating or formula rate,
shall have an implied rate of interest for the applicable period for purposes
of this definition determined by utilizing the rate that is or would be in
effect with respect to such Indebtedness as at the relevant date of determination;
provided, that the foregoing pro forma adjustments may be applied to any
such definition, test or financial covenant solely to the extent that such
adjustments (y) are reasonably expected to be realized within twelve (12)
months of such Specified Transaction as set forth in reasonable detail on a
certificate of a Responsible Officer of the Borrower delivered to the
Administrative Agent and (z) are calculated on a basis consistent with
GAAP and Regulation S-X of the Securities Exchange Act of 1934, as amended, or
as approved by the Administrative Agent.


 


“Property” means
any right or interest in or to property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible, including, without
limitation, Capital Stock.


 


“Public Lenders”
has the meaning assigned thereto in Section 8.4.


 


“Qualified Capital
Stock” means any Capital Stock that is not Disqualified Capital Stock.


 


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


 


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


 


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


 


“Required Lenders”
means, at any date, any combination of Lenders holding more than fifty percent
(50%) of the sum of the aggregate amount of the Revolving Credit Commitment or,
if the Revolving Credit Commitment has been terminated, any combination of
Lenders holding more than fifty percent (50%) of the aggregate Extensions of
Credit; provided that the Revolving Credit Commitment of, and the
portion of the Extensions of Credit, as applicable, held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.


 


20

















 


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


 


“Revolving Credit
Commitment” means (a) as to any Revolving Credit Lender, the
obligation of such Revolving Credit Lender to make Revolving Credit Loans to the
account of the Borrower hereunder in an aggregate principal amount at any time
outstanding not to exceed the amount set forth opposite such Revolving Credit
Lender’s name on the Register, as such amount may be modified at any time or
from time to time pursuant to the terms hereof (including, without limitation, Section 5.13)
and (b) as to all Revolving Credit Lenders, the aggregate commitment of
all Revolving Credit Lenders to make Revolving Credit Loans, as such amount may
be modified at any time or from time to time pursuant to the terms hereof
(including, without limitation, Section 5.13).  The Revolving Credit Commitment of all the
Revolving Credit Lenders on the Closing Date shall be $125,000,000.


 


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


 


“Revolving Credit
Facility” means the revolving credit facility established pursuant to Article II
(including any increase in such revolving credit facility in connection with
any incremental revolving credit facilities established pursuant to Section 5.13).


 


“Revolving Credit
Lenders” means Lenders with a Revolving Credit Commitment (including New
Lenders with a New Loan Commitment).


 


“Revolving Credit Loan”
means any revolving loan made to the Borrower pursuant to Section 2.1
(including any New Loan made to the Borrower pursuant to Section 5.13),
and all such revolving loans collectively as the context requires.


 


“Revolving Credit
Maturity Date” means the earliest to occur of (a) September 10,
2015, (b)  the date of termination of the entire Revolving Credit
Commitment by the Borrower pursuant to Section 2.5, or (c) the
date of termination of the Revolving Credit Commitment pursuant to Section 12.2(a).


 


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


 


21

















 


“Revolving Credit
Outstandings” means the sum of (a) with respect to Revolving
Credit Loans and Swingline Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments
or repayments of Revolving Credit Loans and Swingline Loans, as the case may
be, occurring on such date; plus (b) with respect to any L/C
Obligations on any date, the aggregate outstanding amount thereof on such date
after giving effect to any Extensions of Credit occurring on such date and any
other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid drawings
under any Letters of Credit or any reductions in the maximum amount available
for drawing under Letters of Credit taking effect on such date.


 


“Revolving Extensions
of Credit” means (a) any Revolving Credit Loan then outstanding,
(b) any Letter of Credit then outstanding or (c) any Swingline Loan
then outstanding.


 


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


 


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


 


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


 


“Solvent” and “Solvency” mean, with
respect to any Person on any date of determination, that on such date
(a) the fair value of the property of such Person is greater than the total
amount of liabilities, including contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature, (d) such Person is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which such Person’s
property would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent obligations and
other commitments as they mature in the ordinary course of business.  The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.


 


“Specified Cash Management Arrangement” means
any Cash Management Arrangement entered into by (a) the Borrower or any of
its Subsidiaries and (b) the Administrative Agent or any of its
Affiliates.


 


“Specified Hedge Agreement” means any Hedge
Agreement (a) entered into by (i) the Borrower or any of its
Subsidiaries and (ii) any Lender or any Affiliate thereof at the time such



 


22

















 


Hedge Agreement was entered into, as counterparty and (b) that has
been designated by such Lender or such Affiliate and the Borrower, by notice to
the Administrative Agent not later than thirty (30) days after the execution
and delivery by the Borrower or such Subsidiary thereof, as a Specified Hedge
Agreement.  No Lender or Affiliate thereof that is a party to a Specified
Hedge Agreement shall have any rights in connection with the management or
release of the Obligations of any Credit Party under any Loan Document. 
For the avoidance of doubt, (i) all Hedge Agreements provided by the
Administrative Agent or any of its Affiliates and (ii) all Hedge
Agreements in existence on the Closing Date between the Borrower or any of its
Subsidiaries and any Lender, shall constitute Specified Hedge Agreements.


 


“Specified Hedge
Obligations” means all existing or future payment and other obligations
owing by the Borrower or any of its Subsidiaries under any Specified Hedge
Agreement.


 


“Specified Obligations”
means, collectively, (a) all Specified Hedge Obligations and (b) all
Obligations owing by the Borrower or any of its Subsidiaries under any
Specified Cash Management Arrangement.


 


“Specified
Representations” means (a) the representations and warranties made by
or on behalf of BioSphere in the BioSphere Merger Agreement and (b) the
representations and warranties set forth in Sections 7.1, 7.3, 7.4,
7.10, 7.11, 7.15, 7.16 and 7.23.


 


“Specified
Transactions” means (a) any disposition of all or substantially all of
the assets or Capital Stock of any Subsidiary of the Borrower or any division,
business unit, product line or line of business, (b) any Permitted
Acquisition, (c) any incurrence of Indebtedness, (d) the
classification of any asset, business unit, division or line of business as a
discontinued operation and (e) the Transactions (other than the BioSphere
Merger).


 


“Subordinated
Indebtedness” means the collective reference to any Indebtedness of any
Credit Party or any Subsidiary thereof subordinated in right and time of
payment to the Obligations and containing such other terms and conditions, in
each case as are satisfactory to the Administrative Agent.


 


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


 


“Subsidiary Guarantors”
means, collectively, all direct and indirect Subsidiaries of the Borrower
(other than the Borrower and Foreign Subsidiaries to the extent that and for so
long as the guaranty of such Foreign Subsidiary would have adverse tax
consequences for the Borrower 


 


23

















 


or any other Credit Party
or result in a violation of Applicable Laws) in existence on the Closing Date
or which becomes a party to the Subsidiary Guaranty Agreement pursuant to Section 9.11.


 


“Subsidiary Guaranty
Agreement” means the unconditional guaranty agreement of even date herewith
executed by the Subsidiary Guarantors in favor of the Administrative Agent, for
the ratable benefit and the beneficiaries thereof, substantially in the form
attached as Exhibit H, as amended,
restated, supplemented or otherwise modified from time to time.


 


“Swingline Commitment”
means the lesser of (a) One Hundred Twenty-Five Million Dollars
($125,000,000) and (b) the Revolving Credit Commitment.


 


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


 


“Swingline Lender”
means Wells Fargo in its capacity as swingline lender hereunder or any
successor thereto.


 


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


 


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


 


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


 


“Termination Event”
means except for any such event or condition that could not reasonably be
expected to have a Material Adverse Effect: (a) a “Reportable Event”
described in Section 4043 of ERISA for which the notice requirement has
not been waived by the PBGC, or (b) the withdrawal of any Credit Party or
any ERISA Affiliate from a Pension Plan during a plan year in which it was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA, or (c) the
termination of a Pension Plan, the filing of a notice of intent to terminate a
Pension Plan or the treatment of a Pension Plan amendment as a termination,
under Section 4041 of ERISA, if the plan assets are not sufficient to pay
all plan liabilities, or (d) the institution of proceedings to terminate,
or the appointment of a trustee with respect to, any Pension Plan by the PBGC,
or (e) any other event or condition which would constitute grounds under Section 4042(a) of
ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan, or (f) the imposition of a Lien pursuant to Section 430
of the Code or Section 303(k) of ERISA, or (g) the partial or
complete withdrawal of any Credit Party or any ERISA Affiliate from a
Multiemployer Plan if withdrawal liability is asserted by such plan, or
(h) any event or condition which results in the reorganization or insolvency
of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i) any
event or condition which results in the termination of a


 


24
















 


Multiemployer
Plan under Section 4041A of ERISA or the institution by PBGC of
proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA.


 


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


 


“Threshold
Amount” means $10,000,000.


 


“Transaction
Costs” means (a) all transaction fees, charges and other amounts
related to (i) this Credit Facility and (ii) any Permitted
Acquisition (including, without limitation, any financing fees, merger and
acquisition fees, legal fees and expenses, due diligence fees or any other fees
and expenses in connection therewith) and (b) severance costs in
connection with any Permitted Acquisition (including the BioSphere Merger)
consummated on or after the Closing Date, in each case, to the extent such
transaction fees have been approved by the Administrative Agent.


 


“Transactions”
means, collectively, (a) the repayment in full of all Indebtedness (other
than Indebtedness permitted pursuant to Section 11.1), (b) the
initial Extensions of Credit, (c) the BioSphere Merger and (d) the
payment of the Transaction Costs in connection with items (a) through (c) above.


 


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


 


“Uniform
Customs” means the Uniform Customs and Practice for Documentary Credits
(1993 Revision), effective January, 1994 International Chamber of Commerce
Publication No. 600.


 


“United
States” means the United States of America.


 


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


 


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


 


SECTION 1.2                 Other Definitions and Provisions.  With reference to this Agreement and each
other Loan Document, unless otherwise specified herein or in such other Loan
Document: (a) the definitions of terms herein shall apply equally to the
singular and plural forms 


 


25

















 


of the terms defined,
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms, (c) the words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation”, (d) the word “will” shall be construed to have the same
meaning and effect as the word “shall”, (e) any reference herein to any
Person shall be construed to include such Person’s successors and assigns,
(f) the words “herein”, “hereof” and “hereunder”, and words of similar
import, shall be construed to refer to this Agreement in its entirety and not
to any particular provision hereof, (g) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (h) the words “asset”
and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights, (i) the term “documents”
includes any and all instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however evidenced, whether in
physical or electronic form, (j) in the computation of periods of time
from a specified date to a later specified date, the word “from” means “from
and including;” the words “to” and “until” each mean “to but excluding;” and
the word “through” means “to and including” and (k) Section headings
herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.


 


SECTION 1.3                 Accounting Terms.  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with GAAP, applied on a consistent basis, as in effect from time to
time and in a manner consistent with that used in preparing the audited
financial statements required by Section 8.1(b), except as
otherwise specifically prescribed herein. 
Notwithstanding the foregoing, all financial statements delivered
hereunder shall be prepared, and all financial covenants contained herein shall
be calculated, without giving effect to any election under the Statement of
Financial Accounting Standards No. 159 (or any similar accounting
principle) permitting a Person to value its financial liabilities or
Indebtedness at the fair value thereof.


 


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


 


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


 


SECTION 1.6                 References to Agreement and Laws.  Unless otherwise expressly provided herein,
(a) references to formation documents, governing documents, agreements
(including the Loan Documents) and other contractual instruments shall be
deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other 


 


26

















 


modifications are not
prohibited by any Loan Document; and (b) references to any Applicable Law
shall include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Applicable Law.


 


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


 


SECTION 1.8                 Letter of Credit Amounts.  Unless otherwise specified, all references
herein to the amount of a Letter of Credit at any time shall be deemed to mean
the maximum face amount of such Letter of Credit after giving effect to all
increases thereof contemplated by such Letter of Credit or the Letter of Credit
Application therefor (at the time specified therefor in such applicable Letter of
Credit or Letter of Credit Application and as such amount may be reduced by
(a) any permanent reduction of such Letter of Credit or (b) any
amount which is drawn, reimbursed and no longer available under such Letter of
Credit).


 


ARTICLE II


 


REVOLVING
CREDIT FACILITY


 


SECTION 2.1                 Revolving Credit Loans.


 


(a)           Subject to the terms and conditions of this Agreement and the other Loan
Documents, and in reliance upon the representations and warranties set forth
herein, each Revolving Credit Lender severally agrees to make Revolving Credit
Loans to the Borrower from time to time from the Funding Date through, but not
including, the Revolving Credit Maturity Date as requested by the Borrower in
accordance with the terms of Section 2.3; provided, that
(a) the Revolving Credit Outstandings shall not exceed the Revolving
Credit Commitment and (b) the principal amount of outstanding Revolving
Credit Loans from any Revolving Credit Lender plus such Revolving Credit
Lender’s Revolving Credit Commitment Percentage of outstanding L/C Obligations
and outstanding Swingline Loans shall not at any time exceed such Revolving
Credit Lender’s Revolving Credit Commitment. 
Each Revolving Credit Loan by a Revolving Credit Lender shall be in a
principal amount equal to such Revolving Lender’s Revolving Credit Commitment
Percentage of the aggregate principal amount of Revolving Credit Loans
requested on such occasion.  Subject to
the terms and conditions hereof, the Borrower may borrow, repay and reborrow
Revolving Credit Loans hereunder from the Funding Date through and including
the Revolving Credit Maturity Date.


 


(b)           Notwithstanding anything to the contrary contained in this Agreement or
in any other Loan Document, the obligation of the Lenders to make its initial
Credit Extension hereunder is subject to satisfaction of each of the Funding
Conditions.


 


SECTION 2.2                 Swingline Loans.


 


(a)           Availability.


 


(i)            Subject to the terms and
conditions of this Agreement, prior to the Loan Sweep Activation Date, the
Swingline Lender agrees to make Swingline Loans to the 


 


27

















 


Borrower from time to time from the Funding
Date through, but not including, the Revolving Credit Maturity Date; provided,
that (A) after giving effect to any amount requested, the Revolving Credit
Outstandings shall not exceed the Revolving Credit Commitment and (B) the
aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested), shall not exceed the lesser of (1) the
Revolving Credit Commitment less the sum of all outstanding Revolving
Credit Loans and the L/C Obligations and (2) the Swingline Commitment.


 


(ii)           Subject to the terms and
conditions of this Agreement, on and after the Loan Sweep Activation Date, the
Swingline Lender agrees to make Swingline Loans to the Borrower from time to
time from the Funding Date through, but not including, the Revolving Credit
Maturity Date pursuant to, and in accordance with, the Loan Sweep Agreement; provided,
that (A) after giving effect to any amount requested, the Revolving Credit
Outstandings shall not exceed the Revolving Credit Commitment and (B) the
aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested), shall not exceed the lesser of (1) the
Revolving Credit Commitment less the sum of all outstanding Revolving
Credit Loans and the L/C Obligations and (2) the Swingline Commitment.


 


(b)           Refunding.


 


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


 


(ii)           The Borrower shall pay to
the Swingline Lender on demand the amount of such Swingline Loans to the extent
amounts received from the Revolving Credit Lenders are not sufficient to repay
in full the outstanding Swingline Loans requested or required to be
refunded.  In addition, the Borrower
hereby authorizes the Administrative Agent to charge any account maintained by
the Borrower with the Swingline Lender (up to the amount available therein) in
order to immediately pay the Swingline Lender the amount of such Swingline
Loans to the extent amounts received from the Revolving Credit Lenders are not
sufficient to repay in full the outstanding Swingline Loans requested or
required to be refunded.  If any portion
of any such amount paid to the Swingline Lender shall be recovered by or on
behalf of the Borrower from the Swingline Lender in 


 


28

















 


bankruptcy or otherwise, the loss of the
amount so recovered shall be ratably shared among all the Revolving Credit
Lenders in accordance with their respective Revolving Credit Commitment
Percentages (unless the amounts so recovered by or on behalf of the Borrower
pertain to a Swingline Loan extended after the occurrence and during the
continuance of an Event of Default of which the Administrative Agent has
received notice in the manner required pursuant to Section 13.3 and
which such Event of Default has not been waived by the Required Lenders or the
Lenders, as applicable).


 


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


 


(c)           Defaulting Lenders.  Notwithstanding anything to the contrary
contained in this Section 2.2, the Swingline Lender shall not be
obligated to make any Swingline Loan at a time when any other Revolving Credit
Lender is a Defaulting Lender, unless the Swingline Lender has entered into
arrangements (which may include the delivery of cash collateral) with the
Borrower or such Defaulting Lender which are satisfactory to the Swingline
Lender to eliminate the Swingline Lender’s Fronting Exposure (after giving
effect to Section 5.14(c)) with respect to any such Defaulting
Lender.


 


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


 


(a)           Requests for Borrowing.  The Borrower shall give the Administrative
Agent irrevocable prior written notice substantially in the form of Exhibit B (a “Notice
of Borrowing”) not later than 11:00 a.m. (i) on the same Business
Day as each Base Rate Loan, each LIBOR Market Index Rate Loan and each
Swingline Loan (other than Cash Management Swingline Loans) and (ii) at
least three (3) Business Days before each LIBOR Rate Loan, of its
intention to borrow, specifying (A) the date of such borrowing, which
shall be a Business Day, (B) the 


 


29

















 


amount of such borrowing,
which shall be, (x) with respect to Base Rate Loans and LIBOR Market Index
Rate Loans (other than Swingline Loans) in an aggregate principal amount of
$500,000 or a whole multiple of $500,000 in excess thereof, (y) with
respect to LIBOR Rate Loans in an aggregate principal amount of $500,000 or a
whole multiple of $500,000 in excess thereof and (z) with respect to
Swingline Loans (other than Cash Management Swingline Loans) in an aggregate
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof,
(C) whether such Loan is to be a Revolving Credit Loan or Swingline Loan,
(D) in the case of a Revolving Credit Loan whether the Loans are to be
LIBOR Rate Loans, LIBOR Market Index Rate Loans or Base Rate Loans, and
(E) in the case of a LIBOR Rate Loan, the duration of the Interest Period
applicable thereto.  A Notice of
Borrowing received after 11:00 a.m. shall be deemed received on the next
Business Day.  The Administrative Agent
shall promptly notify the Revolving Credit Lenders of each Notice of Borrowing.


 


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


 


(c)           Cash Management Swingline Loans.  Notwithstanding anything to the contrary
contained in this Section 2.3, all borrowing requests and all
disbursements in connection with Cash Management Swingline Loans shall be made
pursuant to, and in accordance with, the Loan Sweep Agreement.


 


30

















 


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


 


(a)           Repayment on Termination Date.  The Borrower hereby agrees to repay the
outstanding principal amount of (i) all Revolving Credit Loans in full on
the Revolving Credit Maturity Date, and (ii) all Swingline Loans in
accordance with Section 2.2(b) (but, in any event, no later
than the Revolving Credit Maturity Date), together, in each case, with all
accrued but unpaid interest thereon.


 


(b)           Mandatory Prepayments.


 


(i)            If at any time the Revolving
Credit Outstandings exceed the Revolving Credit Commitment, the Borrower agrees
to repay immediately upon notice from the Administrative Agent, by payment to
the Administrative Agent for the account of the Revolving Credit Lenders,
Extensions of Credit in an amount equal to such excess with each such repayment
applied first, to the principal amount of outstanding Swingline Loans
until paid in full, second to the principal amount of outstanding
Revolving Credit Loans until paid in full and third, with respect to any
Letters of Credit then outstanding, a payment of cash collateral into a cash
collateral account opened by the Administrative Agent, for the benefit of the
Revolving Credit Lenders, in an amount equal to the aggregate L/C Obligations
then outstanding (such cash collateral to be applied in accordance with Section 12.2(b)).


 


(ii)           If at any time the
outstanding Swingline Loans exceed the lesser of (A) the Revolving Credit
Commitment less the sum of all outstanding Revolving Credit Loans and
the L/C Obligations and (B) the Swingline Commitment, the Borrower agrees
to repay immediately upon notice from the Administrative Agent, by payment to
the Administrative Agent for the account of the Revolving Credit Lenders,
Extensions of Credit in an amount equal to such excess with each such repayment
applied to the principal amount of outstanding Swingline Loans.


 


(c)           Optional Prepayments.  The Borrower may at any time and from time to
time prepay Revolving Credit Loans and Swingline Loans, in whole or in part,
without premium or penalty (except as provided in subsection (d)), with
irrevocable prior written notice to the Administrative Agent substantially in
the form attached as Exhibit D
(a “Notice of Prepayment”) given not later than 11:00 a.m.
(i) on the same Business Day as each Base Rate Loan, each LIBOR Market
Index Rate Loan and each Swingline Loan (other than a Cash Management Swingline
Loan) and (ii) at least three (3) Business Days before each LIBOR
Rate Loan, specifying the date and amount of prepayment and whether the
prepayment is of LIBOR Rate Loans, LIBOR Market Index Rate Loans, Base Rate
Loans, Swingline Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each; provided that the Borrower may at
any time and from time to time prepay Cash Management Swingline Loans pursuant
to, and in accordance with, the Loan Sweep Agreement.  Upon receipt of such notice, the
Administrative Agent shall promptly notify each Revolving Credit Lender.  If any such notice is given, the amount
specified in such notice shall be due and payable on the date set forth in such
notice.  Partial prepayments shall be in
an aggregate amount of (x) $500,000 or a whole multiple of $500,000 in
excess thereof with respect to Base Rate Loans or LIBOR Market Index Rate Loans
(other than Swingline Loans), (y) $500,000 or a whole multiple of $500,000
in 


 


31

















 


excess thereof with
respect to LIBOR Rate Loans and (z) $500,000 or a whole multiple of
$100,000 in excess thereof with respect to Swingline Loans.  A Notice of Prepayment received after 11:00 a.m.
shall be deemed received on the next Business Day.  Each such repayment shall be accompanied by
any amount required to be paid pursuant to Section 5.9 hereof.


 


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


 


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


 


SECTION 2.5                 Permanent Reduction of the Revolving Credit Commitment.


 


(a)           Voluntary Reduction.  The Borrower shall have the right at any time
and from time to time, upon at least five (5) Business Days prior written
notice to the Administrative Agent, to permanently reduce, without premium or
penalty, (i) the entire Revolving Credit Commitment at any time or
(ii) portions of the Revolving Credit Commitment, from time to time, in an
aggregate principal amount not less than $500,000 or any whole multiple of
$500,000 in excess thereof.  Any
reduction of the Revolving Credit Commitment shall be applied to the Revolving
Credit Commitment of each Revolving Credit Lender according to its Revolving
Credit Commitment Percentage.  All
commitment fees accrued until the effective date of any termination of the
Revolving Credit Commitment shall be paid on the effective date of such
termination.


 


(b)           Corresponding Payment.  Each permanent reduction permitted pursuant
to this Section shall be accompanied by a payment of principal sufficient
to reduce the aggregate outstanding Revolving Credit Loans, Swingline Loans and
L/C Obligations, as applicable, after such reduction to the Revolving
Credit Commitment as so reduced and if the aggregate amount of all outstanding
Letters of Credit exceeds the Revolving Credit Commitment as so reduced, the
Borrower shall be required to deposit cash collateral in a cash collateral
account opened by the Administrative Agent in an amount equal to the amount of
such excess.  Such cash collateral shall
be applied in accordance with Section 12.2(b).  Any reduction of the Revolving Credit
Commitment to zero shall be accompanied by payment of all outstanding Revolving
Credit Loans and Swingline Loans (and furnishing of cash collateral
satisfactory to the Administrative Agent for all L/C Obligations) and shall
result in the termination of the Revolving Credit Commitment and the Swingline
Commitment and the Revolving Credit Facility. 
If the reduction of the Revolving Credit Commitment requires the
repayment of any LIBOR Rate Loan, such repayment shall be accompanied by any
amount required to be paid pursuant to Section 5.9 hereof.


 


(c)           Cash Management Swingline Loans.  Notwithstanding anything in this Section 2.5
to the contrary, on and after the Loan Sweep Activation Date, the Borrower
shall not be permitted to reduce the Commitments to an amount that is less than
the Swingline Commitment (unless the Swingline Commitment is reduced to an
amount that is equal to or less than the aggregate amount of the Commitments).


 


32

















 


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


 


ARTICLE III


 


LETTER
OF CREDIT FACILITY


 


SECTION 3.1                 L/C Commitment.


 


(a)           Availability.  Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Lenders set
forth in Section 3.4(a), agrees to issue standby letters of credit
(the “Letters of Credit”) for the account of the Borrower or any
Subsidiary thereof on any Business Day from the Funding Date through but not
including the fifth (5th) Business Day prior to the Revolving Credit Maturity
Date in such form as may be approved from time to time by the Issuing Lender; provided,
that the Issuing Lender shall have no obligation to issue any Letter of Credit
if, after giving effect to such issuance, (a) the L/C Obligations would
exceed the L/C Commitment or (b) the Revolving Credit Outstandings would
exceed the Revolving Credit Commitment. 
Each Letter of Credit shall (i) be denominated in Dollars in a
minimum amount of $100,000, (or such lesser amount as agreed to by the Issuing
Lender), (ii) be a standby letter of credit issued to support obligations
of the Borrower or any of its Subsidiaries, contingent or otherwise, incurred
in the ordinary course of business, (iii) expire on a date no more than
twelve (12) months after the date of issuance or last renewal of such Letter of
Credit, which date shall be no later than the fifth (5th) Business Day prior to
the Revolving Credit Maturity Date and (iv) be subject to the Uniform
Customs and/or ISP98, as set forth in the Letter of Credit Application or as
determined by the Issuing Lender and, to the extent not inconsistent therewith,
the laws of the State of New York.  The
Issuing Lender shall not at any time be obligated to issue any Letter of Credit
hereunder if such issuance would conflict with, or cause the Issuing Lender or
any L/C Participant to exceed any limits imposed by, any Applicable Law.  References herein to “issue” and derivations
thereof with respect to Letters of Credit shall also include extensions or
modifications of any outstanding Letters of Credit, unless the context
otherwise requires.


 


(b)           Defaulting Lenders.  Notwithstanding anything to the contrary
contained in this Section 3.1, the Issuing Lender shall not be
obligated to issue any Letter of Credit at a time when any other Revolving
Credit Lender is a Defaulting Lender, unless the Issuing Lender has entered
into arrangements (which may include the delivery of cash collateral) with the
Borrower or such Defaulting Lender which are satisfactory to the Issuing Lender
to eliminate the Issuing Lender’s Fronting Exposure (after giving effect to Section 5.14(c))
with respect to any such Defaulting Lender.


 


SECTION 3.2                 Procedure for Issuance of Letters of Credit.  The Borrower may from time to
time request that the Issuing Lender issue a Letter of Credit by delivering to
the Issuing Lender at the Administrative Agent’s Office a Letter of Credit
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may request.  Upon receipt
of any Letter of Credit Application, the Issuing Lender shall process such
Letter of Credit Application and the 


 


33

















 


certificates, documents
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall, subject to Section 3.1
and Article VI, promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three (3) Business Days after its receipt of
the Letter of Credit Application therefor and all such other certificates,
documents and other papers and information relating thereto) by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise
may be agreed by the Issuing Lender and the Borrower.  The Issuing Lender shall promptly furnish to
the Borrower a copy of such Letter of Credit and promptly notify each Revolving
Credit Lender of the issuance and upon request by any Revolving Credit Lender,
furnish to such Lender a copy of such Revolving Credit Letter of Credit and the
amount of such Revolving Credit Lender’s participation therein.


 


SECTION 3.3                 Commissions and Other Charges.


 


(a)           Letter of Credit Commissions.  Subject to Section 5.14(f), the
Borrower shall pay to the Administrative Agent, for the account of the Issuing
Lender and the L/C Participants, a letter of credit commission with respect to
each Letter of Credit in the amount equal to the face amount of such Letter of
Credit multiplied by the Applicable Margin with respect to Revolving
Credit Loans that are LIBOR Rate Loans (determined on a per annum basis).  Such commission shall be payable quarterly in
arrears on the last Business Day of each calendar quarter, on the Revolving
Credit Maturity Date and thereafter on demand of the Administrative Agent.  The Administrative Agent shall, promptly
following its receipt thereof, distribute to the Issuing Lender and, subject to
Section 5.14(f), the L/C Participants all commissions received
pursuant to this Section in accordance with their respective Revolving
Credit Commitment Percentages.


 


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


 


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SECTION 3.4                 L/C Participations.


 


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


 


(b)           Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in
respect of any unreimbursed portion of any payment made by the Issuing Lender
under any Letter of Credit, the Issuing Lender shall notify each L/C
Participant of the amount and due date of such required payment and such L/C
Participant shall pay to the Issuing Lender the amount specified on the
applicable due date.  If any such amount
is paid to the Issuing Lender after the date such payment is due, such L/C
Participant shall pay to the Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, times (ii) the daily
average Federal Funds Rate as determined by the Administrative Agent during the
period from and including the date such payment is due to the date on which
such payment is immediately available to the Issuing Lender, times
(iii) a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360.  A certificate of the Issuing Lender with
respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error.  With respect
to payment to the Issuing Lender of the unreimbursed amounts described in this
Section, if the L/C Participants receive notice that any such payment is due (A) prior
to 1:00 p.m. on any Business Day, such payment shall be due that Business
Day, and (B) after 1:00 p.m. on any Business Day, such payment shall
be due on the following Business Day.


 


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


 


SECTION 3.5                 Reimbursement Obligation of the Borrower.  In the event of any drawing under any Letter
of Credit, the Borrower agrees to reimburse (either with the proceeds 


 


35

















 


of a Revolving Credit Loan
as provided for in this Section or with funds from other sources), in same
day funds, the Issuing Lender on each date on which the Issuing Lender notifies
the Borrower of the date and amount of a draft paid under any Letter of Credit
for the amount of (a) such draft so paid and (b) any amounts referred
to in Section 3.3(c) incurred by the Issuing Lender in
connection with such payment.  Unless the
Borrower shall immediately notify the Issuing Lender that the Borrower intends
to reimburse the Issuing Lender for such drawing from other sources or funds,
the Borrower shall be deemed to have timely given a Notice of Borrowing to the
Administrative Agent requesting that the Revolving Credit Lenders make a
Revolving Credit Loan bearing interest at the Base Rate on such date in the
amount of (a) such draft so paid and (b) any amounts referred to in Section 3.3(c) incurred
by the Issuing Lender in connection with such payment, and the Revolving Credit
Lenders shall make a Revolving Credit Loan bearing interest at the Base Rate in
such amount, the proceeds of which shall be applied to reimburse the Issuing
Lender for the amount of the related drawing and costs and expenses.  Each Revolving Credit Lender acknowledges and
agrees that its obligation to fund a Revolving Credit Loan in accordance with
this Section to reimburse the Issuing Lender for any draft paid under a
Letter of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, non-satisfaction of the
conditions set forth in Section 2.3(a) or Article VI.  If the Borrower has elected to pay the amount
of such drawing with funds from other sources and shall fail to reimburse the
Issuing Lender as provided above, the unreimbursed amount of such drawing shall
bear interest at the rate which would be payable on any outstanding Base Rate
Loans which were then overdue from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in
full.


 


SECTION 3.6                 Obligations Absolute.  The Borrower’s obligations under this Article III
(including, without limitation, the Reimbursement Obligation) shall be absolute
and unconditional under any and all circumstances and irrespective of any set
off, counterclaim or defense to payment which the Borrower may have or have had
against the Issuing Lender or any beneficiary of a Letter of Credit or any
other Person.  The Borrower also agrees
that the Issuing Lender and the L/C Participants shall not be responsible for,
and the Borrower’s Reimbursement Obligation under Section 3.5 shall
not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even though such documents shall in
fact prove to be invalid, fraudulent or forged, or any dispute between or among
the Borrower and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee.  The Issuing Lender shall not
be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions caused by
the Issuing Lender’s gross negligence or willful misconduct, as determined by a
court of competent jurisdiction by final nonappealable judgment.  The Borrower agrees that any action taken or
omitted by the Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct shall be binding on the Borrower and shall not result in
any liability of the Issuing Lender or any L/C Participant to the Borrower.  The responsibility of the Issuing Lender to
the Borrower in connection with any draft presented for payment under any
Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining 


 


36

















 


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


 


SECTION 3.7                 Effect of Letter of Credit Application.  To the extent that any provision of any
Letter of Credit Application related to any Letter of Credit is inconsistent
with the provisions of this Article III, the provisions of this Article III
shall apply.


 


ARTICLE IV


 


[RESERVED]


 


ARTICLE V


 


GENERAL
LOAN PROVISIONS


 


SECTION 5.1                 Interest.


 


(a)           Interest Rate Options.  Subject to the provisions of this Section, at
the election of the Borrower, (i) Revolving Credit Loans shall bear
interest at (A) the Base Rate plus the Applicable Margin,
(B) the LIBOR Market Index Rate plus the Applicable Margin or
(C) the LIBOR Rate plus the Applicable Margin and (ii) any
Swingline Loan shall bear interest at the LIBOR Market Index Rate plus
the Applicable Margin.  The Borrower
shall select the rate of interest and Interest Period, if any, applicable to
any Loan at the time a Notice of Borrowing is given or at the time a Notice of
Conversion/Continuation is given pursuant to Section 5.2.  Any Loan or any portion thereof as to which
the Borrower has not duly specified an interest rate as provided herein shall
be deemed a LIBOR Market Index Rate Loan.


 


(b)           Interest Periods.  In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in Section 2.3 or
5.2, as applicable, shall elect an interest period (each, an “Interest
Period”) to be applicable to such Loan, which Interest Period shall be a
period of one (1) or three (3) months; provided that:


 


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


 


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


 


(iii)          any Interest Period with
respect to a LIBOR Rate Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically 


 


37

















 


corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day of the
relevant calendar month at the end of such Interest Period;


 


(iv)          no Interest Period shall
extend beyond the Revolving Credit Maturity Date, as applicable, and Interest
Periods shall be selected by the Borrower so as to permit the Borrower to make
the quarterly principal installment payments pursuant to Section 4.3
without payment of any amounts pursuant to Section 5.9; and


 


(v)           there shall be no more than
ten (10) Interest Periods in effect at any time.


 


(c)           Default Rate.  Subject to Section 12.3,
(i) immediately upon the occurrence and during the continuance of an Event
of Default under Section 12.1(a), (b), (h) or (i),
or (ii) at the election of the Required Lenders, upon the occurrence and
during the continuance of any other Event of Default, (A) the Borrower
shall no longer have the option to request LIBOR Rate Loans, LIBOR Market Index
Rate Loans, Swingline Loans or Letters of Credit, (B) all outstanding
LIBOR Rate Loans and LIBOR Market Index Rate Loans shall bear interest at a
rate per annum of two percent (2%) in excess of the rate (including the Applicable
Margin) then applicable to LIBOR Rate Loans or LIBOR Market Index Rate Loans
until the end of the applicable Interest Period and thereafter at a rate equal
to two percent (2%) in excess of the rate (including the Applicable Margin)
then applicable to Base Rate Loans, and (C) all outstanding Base Rate
Loans and other Obligations arising hereunder or under any other Loan Document
shall bear interest at a rate per annum equal to two percent (2%) in excess of
the rate (including the Applicable Margin) then applicable to Base Rate Loans
or such other Obligations arising hereunder or under any other Loan
Document.  Interest shall continue to
accrue on the Obligations after the filing by or against the Borrower of any petition
seeking any relief in bankruptcy or under any act or law pertaining to
insolvency or debtor relief, whether state, federal or foreign.


 


(d)           Interest Payment and Computation.  Interest on each Base Rate Loan and each
LIBOR Market Index Rate Loans shall be due and payable in arrears on the last
Business Day of each calendar month commencing September 30, 2010; and
interest on each LIBOR Rate Loan shall be due and payable on the last day of
each Interest Period applicable thereto, and if such Interest Period extends
over three (3) months, at the end of each three (3) month interval
during such Interest Period.  All
computations of interest for Base Rate Loans when the Base Rate is determined
by the Prime Rate shall be made on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed. 
All other computations of fees and interest provided hereunder shall be
made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365/366-day year).


 


(e)           Maximum Rate.  In no contingency or event whatsoever shall
the aggregate of all amounts deemed interest under this Agreement charged or
collected pursuant to the terms of this Agreement exceed the highest rate
permissible under any Applicable Law which a court of competent jurisdiction
shall, in a final determination, deem applicable hereto.  In the event that such a court determines
that the Lenders have charged or received interest hereunder in excess of the
highest applicable rate, the rate in effect hereunder shall automatically be
reduced to the maximum rate permitted by Applicable Law and the Lenders shall
at the Administrative Agent’s option (i) promptly refund to the Borrower
any interest received by the Lenders in excess of the 


 


38

















 


maximum lawful rate or
(ii) apply such excess to the principal balance of the Obligations on a pro
rata basis.  It is the intent
hereof that the Borrower not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be
paid by the Borrower under Applicable Law.


 


SECTION 5.2                 Notice and Manner of Conversion or Continuation of Loans.  Provided that no Default or
Event of Default has occurred and is then continuing, the Borrower shall have
the option to (a) convert at any time all or any portion of any
outstanding Base Rate Loans or LIBOR Market Index Rate Loans (other than
Swingline Loans) in a principal amount equal to $500,000 or any whole multiple
of $500,000 in excess thereof into one or more LIBOR Rate Loans and
(b) upon the expiration of any Interest Period, (i) convert all or
any part of its outstanding LIBOR Rate Loans in a principal amount equal to
$500,000 or a whole multiple of $500,000 in excess thereof into Base Rate Loans
or LIBOR Market Index Rate Loans (other than Swingline Loans) or
(ii) continue such LIBOR Rate Loans as LIBOR Rate Loans.  Whenever the Borrower desires to convert or
continue Loans as provided above, the Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached as Exhibit E (a “Notice
of Conversion/Continuation”) not later than 11:00 a.m. three (3) Business
Days before the day on which a proposed conversion or continuation of such Loan
is to be effective specifying (A) the Loans to be converted or continued,
and, in the case of any LIBOR Rate Loan to be converted or continued, the last
day of the Interest Period therefor, (B) the effective date of such
conversion or continuation (which shall be a Business Day), (C) the
principal amount of such Loans to be converted or continued, and (D) the
Interest Period to be applicable to such converted or continued LIBOR Rate
Loan.  The Administrative Agent shall
promptly notify the affected Lenders of such Notice of Conversion/Continuation.


 


SECTION 5.3                 Fees.


 


(a)           Commitment Fee.  Commencing on the Closing Date, subject to Section 5.14(f),
the Borrower shall pay to the Administrative Agent, for the account of the
Revolving Credit Lenders (other than any Defaulting Lender), a non-refundable
commitment fee (the “Commitment Fee”) at a rate per annum equal to 0.20%
on the average daily unused portion of the Revolving Credit Commitment of the
Revolving Credit Lenders (other than the Defaulting Lenders, if any); provided,
that the amount of outstanding Swingline Loans shall be considered usage of the
Revolving Credit Commitment for the purpose of calculating the Commitment
Fee.  The Commitment Fee shall be payable
in arrears on the last Business Day of each calendar quarter during the term of
this Agreement commencing September 30, 2010 and ending on the Revolving
Credit Maturity Date.  Such commitment
fee shall be distributed by the Administrative Agent to the Revolving Credit
Lenders (subject to Section 5.14(f)) pro  rata in
accordance with such Revolving Credit Lenders’ respective Revolving Credit
Commitment Percentages.


 


(b)           Other Fees.  The Borrower shall pay to the Arranger and
the Administrative Agent for their own respective accounts fees in the amounts
and at the times specified in the Fee Letter. 
The Borrower shall pay to the Lenders such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified.


 


39

















 


SECTION 5.4                 Manner of Payment.


 


(a)           Sharing of Payments.  Each payment by the Borrower on account of
the principal of or interest on the Loans (other than Cash Management Swingline
Loans) or of any fee, commission or other amounts (including the Reimbursement
Obligation) payable to the Lenders under this Agreement (or any of them) shall
be made not later than 1:00 p.m. on the date specified for payment under
this Agreement to the Administrative Agent at the Administrative Agent’s Office
for the account of the Lenders entitled to such payment in Dollars, in
immediately available funds and shall be made without any set off, counterclaim
or deduction whatsoever.  Any payment
received after such time but before 2:00 p.m. on such day shall be deemed
a payment on such date for the purposes of Section 12.1, but for
all other purposes shall be deemed to have been made on the next succeeding
Business Day.  Any payment received after
2:00 p.m. shall be deemed to have been made on the next succeeding
Business Day for all purposes.  Upon
receipt by the Administrative Agent of each such payment, the Administrative
Agent shall distribute to each such Lender at its address for notices set forth
herein its pro rata share of such payment in accordance with the amounts then
due and payable to such Lenders, (except as specified below) and shall wire
advice of the amount of such credit to each Lender.  Each payment to the Administrative Agent on
account of the principal of or interest on the Swingline Loans or of any fee,
commission or other amounts payable to the Swingline Lender shall be made in
like manner, but for the account of the Swingline Lender.  Each payment to the Administrative Agent of
the Issuing Lender’s fees or L/C Participants’ commissions shall be made in
like manner, but for the account of the Issuing Lender or the L/C Participants,
as the case may be.  Each payment to the
Administrative Agent of Administrative Agent’s fees or expenses shall be made
for the account of the Administrative Agent and any amount payable to any
Lender under Sections 5.9, 5.10, 5.11 or 14.3 shall
be paid to the Administrative Agent for the account of the applicable
Lender.  Subject to Section 5.1(b)(ii),
if any payment under this Agreement shall be specified to be made upon a day
which is not a Business Day, it shall be made on the next succeeding day which
is a Business Day and such extension of time shall in such case be included in
computing any interest if payable along with such payment.


 


(b)           Defaulting Lenders.  Notwithstanding the foregoing
clause (a), if any Defaulting Lender shall have failed to fund all or any
portion of any Revolving Credit Loan (each such Revolving Credit Loan, an “Affected
Loan”), each payment by the Borrower hereunder shall be applied first to
such Affected Loan and the principal amount and interest with respect to such
payment shall be distributed (i) to each Revolving Credit Lender that is
not a Defaulting Lender (each, a “Non-Defaulting Lender”) pro rata based
on the outstanding principal amount of Affected Loans owing to all
Non-Defaulting Lenders, until the principal amount of all Affected Loans has
been repaid in full and (ii) to the extent of any remaining amount of such
payment, to each Revolving Credit Lender as set forth in clause (a).  Each payment made by the Borrower on account
of the interest on any Affected Loans shall be distributed to each
Non-Defaulting Lender pro rata based on the outstanding principal amount of Affected
Loans owing to all Non-Defaulting Lenders.


 


SECTION 5.5                 Evidence of Indebtedness.


 


(a)           Extensions of Credit.  The Extensions of Credit made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the 


 


40

















 


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


 


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


 


SECTION 5.6                 Adjustments.  Other than as contemplated by Section 5.14,
if any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Loans or other obligations hereunder resulting in such Lender’s receiving
payment of a proportion of the aggregate amount of its Loans and accrued
interest thereon or other such obligations (other than pursuant to Sections
5.9, 5.10, 5.11 or 14.3) greater than its pro  rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Loans and such
other obligations of the other Lenders, or make such other adjustments as shall
be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them; provided
that


 


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


 


(ii)           the provisions of this
paragraph shall not be construed to apply to (A) any payment made by the
Borrower pursuant to and in accordance with the express terms of this
Agreement, (B) the application of cash collateral provided for in Section 5.14
or (C) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in Swingline Loans and Letters of Credit to any assignee or participant, other
than to the Borrower or any Subsidiary thereof (as to which the provisions of
this paragraph shall apply).


 


41

















 


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


 


SECTION 5.7                 Obligations of Lenders.


 


(a)           Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent
shall have received notice from a Lender prior to the proposed date of any
borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with Sections
2.3(b) and 4.2 and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact
made its share of the applicable borrowing available to the Administrative
Agent, then the applicable Lender and the 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 the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of a payment to be made by such
Lender, the greater of the daily average Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (ii) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay
such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the
applicable borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Loan included in such borrowing.  Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.


 


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


 


SECTION 5.8                 Changed Circumstances.


 


(a)           Circumstances Affecting LIBOR Rate Availability.  In connection with any request
for a LIBOR Rate Loan, LIBOR Market Index Rate Loan or a Base Rate Loan as to
which the interest rate is determined with reference to LIBOR or a conversion
to or continuation thereof, if for any reason (i) the Administrative Agent
shall determine (which determination shall be conclusive and binding absent
manifest error) that Dollar deposits are not being offered to banks in the
London interbank Eurodollar market for the applicable amount and Interest
Period 


 


42

















 


of such Loan, (ii) the
Administrative Agent shall determine (which determination shall be conclusive
and binding absent manifest error) that reasonable and adequate means do not
exist for the ascertaining the LIBOR Rate for such Interest Period with respect
to a proposed LIBOR Rate Loan, the LIBOR Market Index Rate with respect to a
proposed LIBOR Market Index Rate Loan or any Base Rate Loan as to which the
interest rate is determined with reference to LIBOR or (iii) the Required
Lenders shall determine (which determination shall be conclusive and binding
absent manifest error) that the LIBOR Rate or LIBOR Market Index Rate, as
applicable, does not adequately and fairly reflect the cost to such Lenders of
making or maintaining such Loans during such Interest Period (as applicable),
then the Administrative Agent shall promptly give notice thereof to the
Borrower.  Thereafter, until the
Administrative Agent notifies the Borrower that such circumstances no longer
exist, the obligation of the Lenders to make LIBOR Rate Loans, LIBOR Market
Index Rate Loans or Base Rate Loan as to which the interest rate is determined
with reference to LIBOR and the right of the Borrower to convert any Loan to or
continue any Loan as a LIBOR Rate Loan, a LIBOR Market Index Rate Loan or a
Base Rate Loan as to which the interest rate is determined with reference to LIBOR
shall be suspended, and (i) in the case of LIBOR Rate Loans, the Borrower
shall either (A) repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such LIBOR Rate Loan together with accrued
interest thereon (subject to Section 5.1(d)), on the last day of
the then current Interest Period applicable to such LIBOR Rate Loan; or (B) convert
the then outstanding principal amount of each such LIBOR Rate Loan to a Base
Rate Loan as to which the interest rate is not determined by reference to LIBOR
as of the last day of such Interest Period; (ii) in the case of LIBOR
Market Index Rate Loans, the Borrower shall either (A) repay in full (or
cause to be repaid in full) the then outstanding principal amount of each such
LIBOR Market Index Rate Loan together with accrued interest thereon; or (B) convert
the then outstanding principal amount of each such LIBOR Market Index Rate Loan
to a Base Rate Loan as to which the interest rate is not determined by
reference to LIBOR; or (iii) in the case of Base Rate Loans as to which
the interest rate is determined by reference to LIBOR, the Borrower shall
convert the then outstanding principal amount of each such Loan to a Base Rate
Loan as to which the interest rate is not determined by reference to LIBOR as
of the last day of such Interest Period.


 


(b)           Laws Affecting LIBOR Rate Availability.  If, after the date hereof, the introduction
of, or any change in, any Applicable Law or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any of the Lenders (or any of their respective Lending Offices)
with any request or directive (whether or not having the force of law) of any
such Governmental Authority, central bank or comparable agency, shall make it
unlawful or impossible for any of the Lenders (or any of their respective
Lending Offices) to honor its obligations hereunder to make or maintain any
LIBOR Rate Loan, any LIBOR Market Index Rate Loan, or any Base Rate Loan as to
which the interest rate is determined by reference to LIBOR, such Lender shall
promptly give notice thereof to the Administrative Agent and the Administrative
Agent shall promptly give notice to the Borrower and the other Lenders.  Thereafter, until the Administrative Agent
notifies the Borrower that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans, LIBOR Market Index Rate
Loans or Base Rate Loans as to which the interest rate is determined by
reference to LIBOR, and the right of the Borrower to convert any Loan or
continue any Loan as a LIBOR Rate Loan, a LIBOR Market Index Rate Loan or a
Base Rate Loan as to which the 


 


43

















 


interest rate is
determined by reference to LIBOR shall be suspended and thereafter the Borrower
may select only Base Rate Loans as to which the interest rate is not determined
by reference to LIBOR hereunder, (ii) all Base Rate Loans shall cease to
be determined by reference to LIBOR and (iii) if any of the Lenders may
not lawfully continue to maintain a LIBOR Rate Loan to the end of the then
current Interest Period applicable thereto, the applicable Loan shall immediately
be converted to a Base Rate Loan as to which the interest rate is not
determined by reference to LIBOR for the remainder of such Interest Period.


 


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


 


SECTION 5.10               Increased Costs.


 


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


 


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


 


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


 


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


 


44
















 


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


 


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


 


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


 


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


 


45

















 


SECTION 5.11               Taxes.


 


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


 


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


 


(c)           Indemnification by the Borrower.  The Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Lender, within ten (10) days
after demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the Issuing Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority; provided
that the Borrower shall not be obligated to indemnify the Administrative Agent,
any Lender or the Issuing Lender for any amount in respect of any such
penalties, interest or reasonable expenses if written demand therefor was not
made by the Administrative Agent, such Lender or the Issuing Lender within 180
days from the date on which such party makes payment for such penalties,
interest or expenses; provided  further that the foregoing
limitation shall not apply to any such penalties, interest or reasonable
expenses arising out of the retroactive application of any such Indemnified Tax
or Other Tax.  A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender or
the Issuing Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Lender, shall be conclusive absent manifest error.


 


(d)           Evidence of Payments.  As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower 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.


 


(e)           Status of Lenders.  Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is resident for tax purposes, or any treaty
to which such jurisdiction is a party, with respect to payments hereunder or
under any other Loan Document shall deliver to the Borrower (with a copy to the



 


46

















 


Administrative Agent), at
the time or times prescribed by Applicable Law or reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed
documentation prescribed by Applicable Law as will permit such payments to be
made without withholding or at a reduced rate of withholding.  In addition, any Lender, if requested by the
Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by Applicable Law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or
information reporting requirements. 
Without limiting the generality of the foregoing, in the event that the
Borrower is a resident for tax purposes in the United States, any Foreign
Lender shall deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the
date on which such Foreign Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the request of the Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:


 


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


 


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


 


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


 


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


 


(f)            Treatment of Certain Refunds.  If the Administrative Agent, a Lender or the Issuing
Lender determines, in its sole discretion, that it has received a refund of any
Taxes or Other Taxes as to which it has been indemnified by the Borrower or
with respect to which the Borrower has paid additional amounts pursuant to this
Section, it shall pay to the Borrower an amount equal to such refund (but only
to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the Issuing Lender, as the case may be,
and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Borrower, upon
the request of the Administrative Agent, such Lender or the Issuing Lender,
agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent, such 


 


47

















 


Lender or the Issuing
Lender in the event the Administrative Agent, such Lender or the Issuing Lender
is required to repay such refund to such Governmental Authority.  This paragraph shall not be construed to
require the Administrative Agent, any Lender or the Issuing Lender to make
available its tax returns (or any other information relating to its taxes which
it deems confidential) to the Borrower or any other Person.


 


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


 


SECTION 5.12               Mitigation Obligations; Replacement of Lenders.


 


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


 


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


 


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


 


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


 


48

















 


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


 


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


 


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


 


SECTION 5.13               Incremental Loans.


 


(a)           At any time prior to the date that is one (1) year prior to the
Revolving Credit Maturity Date, the Borrower may by written notice to the
Administrative Agent elect to request the establishment of one or more
incremental revolving credit commitments (any such incremental revolving credit
commitment, a “New Loan Commitment”) to make incremental revolving
credit loans (any such incremental revolving credit loans, a “New Loans”);
provided that (i) the total aggregate amount for all such New Loan
Commitments shall not (as of any date of incurrence thereof) exceed
$75,000,000, (ii) the total aggregate amount for each New Loan Commitment
(and the New Loans made thereunder) shall not be less than a minimum principal
amount of $10,000,000 or, if less, the remaining amount permitted pursuant to
the foregoing clause (i) and (iii) no more than three (3) New
Loan Commitments shall be permitted during the term of this Agreement.  Each such notice shall specify the date
(each, an “Increased Amount Date”) on which the Borrower proposes that
any New Loan Commitment shall be effective, which shall be a date not less than
ten (10) Business Days after the date on which such notice is delivered to
Administrative Agent.  The Borrower may
invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or
any other Person reasonably satisfactory to the Administrative Agent, to
provide a New Loan Commitment (any such Person, a “New Lender”).  Any Lender or any New Lender offered or
approached to provide all or a portion of any New Loan Commitment may elect or
decline, in its sole discretion, to provide such New Loan Commitment.  Any New Loan Commitment shall become
effective as of such Increased Amount Date; provided  further
that:


 


(A)          no Event of Default shall
exist on such Increased Amount Date before or after giving effect to (1) any
New Loan Commitment, (2) the making of any tranche of New Loans pursuant
thereto and (3) any Permitted Acquisition consummated in connection
therewith;


 


(B)           the Administrative Agent and
the Lenders shall have received from the Borrower an Officer’s Compliance
Certificate demonstrating that the Borrower will be in compliance the financial
covenants set forth in Article X (it being agreed and acknowledged
that, notwithstanding anything to the contrary contained in this Agreement, (1) the
covenant contained in Section 10.1 shall be calculated on a Pro
Forma Basis both before and after giving effect to (x) any New Loan
Commitment, (y) the making of any tranche of New Loans pursuant thereto
and (z) any Permitted Acquisition consummated in connection therewith and (2) with
respect to the covenant contained in 


 


49

















 


Section 10.2, Consolidated EBITDA shall
be calculated on a Pro Forma Basis both before and after giving effect to
(x) any New Loan Commitment, (y) the making of any tranche of New
Loans pursuant thereto and (z) any Permitted Acquisition consummated in
connection therewith, but no other component of the ratio set forth in Section 10.2
shall be calculated on a Pro Forma Basis);


 


(C)           the proceeds of any New
Loans shall be used for general corporate purposes of the Borrower and its
Subsidiaries (including Permitted Acquisitions);


 


(D)          each New Loan Commitment
(and the New Loans made thereunder) shall constitute Obligations of the
Borrower and shall be secured and guaranteed with the other Extensions of
Credit on a pari passu basis;


 


(E)           each New Loan (the terms of
which shall be set forth the relevant joinder agreement) shall mature on the
Revolving Credit Maturity Date, shall bear interest at the rate applicable to
the Revolving Credit Loans and shall be subject to the same terms and
conditions as the Revolving Credit Loans; provided that if a higher
interest rate is necessary to successfully syndicate the proposed increase,
then the interest rate applicable to all Revolving Credit Loans shall be so
increased;


 


(F)           the outstanding Revolving
Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and
L/C Obligations will be reallocated by the Administrative Agent on the
applicable Increased Amount Date among the Revolving Credit Lenders (including
the New Lenders providing such New Loans) in accordance with their revised
Revolving Credit Commitment Percentages (and the Revolving Credit Lenders
(including the New Lenders providing such New Loans) agree to make all payments
and adjustments necessary to effect such reallocation and the Borrower shall
pay any and all costs required pursuant to Section 5.9 in connection
with such reallocation as if such reallocation were a repayment);


 


(G)           any New Lender with an New
Loan Commitment shall be entitled to the same voting rights as the existing
Revolving Credit Lenders under the Revolving Credit Facility and any Extensions
of Credit made in connection with each New Loan Commitment shall receive
proceeds of prepayments on the same basis as the other Revolving Credit Loans
made hereunder;


 


(H)          such New Loan Commitments
shall be effected pursuant to one or more joinder agreements executed and
delivered by the Borrower, the Administrative Agent and the applicable New
Lenders (which joinder agreement 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 opinion of the Administrative Agent, to effect
the provisions of this Section 5.13); and


 


(I)            the Borrower shall deliver
or cause to be delivered any customary legal opinions or other documents
(including, without limitation, a resolution duly adopted by the board of
directors (or equivalent governing body) of each Credit Party authorizing 


 


50

















 


such New Loan) reasonably requested by
Administrative Agent in connection with any such transaction.


 


(b)           The New Lenders shall be included in any determination of the Required
Lenders and the New Lenders will not constitute a separate voting class for any
purposes under this Agreement.


 


(c)           On any Increased Amount Date on which any New Loan Commitment becomes
effective, subject to the foregoing terms and conditions, each New Lender with
an New Loan Commitment shall become a Revolving Credit Lender hereunder with
respect to such New Loan Commitment.


 


SECTION 5.14               Defaulting Lenders.  Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then,
until such time as such Lender is no longer a Defaulting Lender, to the extent
permitted by Applicable Law:


 


(a)           Waivers and Amendments.  Such Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement
shall be restricted as set forth in Section 14.2.


 


(b)           Reallocation of Payments.  Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of such
Defaulting Lender (whether voluntary or mandatory, at maturity, or otherwise,
and including any amounts made available to the Administrative Agent for the
account of such Defaulting Lender pursuant to Section 14.3), shall
be applied at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by such Defaulting Lender to
the Issuing Lender and/or the Swingline Lender hereunder; third, if so
determined by the Administrative Agent or requested by the Issuing Lender
and/or the Swingline Lender, to be held as cash collateral for future funding
obligations of such Defaulting Lender of any participation in any Swingline
Loan or Letter of Credit; fourth, as the Borrower may request (so long
as no Default or Event of Default exists), to the funding of any Loan in respect
of which such Defaulting Lender has failed to fund its portion thereof as
required by this Agreement, as determined by the Administrative Agent; fifth,
if so determined by the Administrative Agent and the Borrower, to be held in a
non-interest bearing deposit account and released in order to satisfy
obligations of such Defaulting Lender to fund Loans under this Agreement; sixth,
to the payment of any amounts owing to the Administrative Agent, the Lenders,
the Issuing Lender or Swingline Lender as a result of any judgment of a court
of competent jurisdiction obtained by the Administrative Agent, any Lender, the
Issuing Lender or Swingline Lender against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under this Agreement; seventh,
so long as no Default or Event of Default exists, to the payment of any amounts
owing to the Borrower as a result of any judgment of a court of competent
jurisdiction obtained by the Borrower against such Defaulting Lender as a
result of such Defaulting Lender’s breach of its obligations under this
Agreement; and eighth, to such Defaulting Lender or as otherwise
directed by a court of competent jurisdiction; provided that if (i) such
payment is a payment of the principal amount of any Revolving Credit Loans or
funded participations in Swingline Loans or Letters of Credit in respect of
which such Defaulting Lender 


 


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has not fully funded its
appropriate share and (ii) such Revolving Credit Loans or funded
participations in Swingline Loans or Letters of Credit were made at a time when
the conditions set forth in Section 6.2 were satisfied or waived,
such payment shall be applied solely to pay the Revolving Credit Loans of, and
funded participations in Swingline Loans or Letters of Credit owed to, all
non-Defaulting Lenders on a pro rata basis prior to being applied to the
payment of any Revolving Credit Loans of, or funded participations in Swingline
Loans or Letters of Credit owed to, such Defaulting Lender.  Any payments, prepayments or other amounts
paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender or to post cash collateral pursuant to this
Section 5.14(b) shall be deemed paid to and redirected by such
Defaulting Lender, and each Lender irrevocably consents hereto.


 


(c)           Reallocation of Applicable Percentages to Reduce Fronting Exposure.  During any period in which there
is a Defaulting Lender, for purposes of computing the amount of the obligation
of each non-Defaulting Lender to acquire, refinance or fund participations in
Letters of Credit or Swingline Loans pursuant to Section 2.2(b) and
Section 3.4, the “Revolving Credit Commitment Percentage” of each
non-Defaulting Lender shall be computed without giving effect to the Revolving
Credit Commitment of such Defaulting Lender; provided that (i) each
such reallocation shall be given effect only if, at the date the applicable
Lender becomes a Defaulting Lender, no Default or Event of Default exists and (ii) the
aggregate obligation of each non-Defaulting Lender to acquire, refinance or
fund participations in Letters of Credit and Swingline Loans shall not exceed
the positive difference, if any, of (A) the Revolving Credit Commitment of
that non-Defaulting Lender minus (B) the aggregate outstanding
principal amount of the Revolving Loans of that Lender.


 


(d)           Cash Collateral for Letters of Credit.  Promptly on demand by the Issuing Lender or
the Administrative Agent from time to time, the Borrower shall deliver to the
Administrative Agent cash collateral in an amount sufficient to cover all
Fronting Exposure with respect to the Issuing Lender (after giving effect to Section 5.14(c))
on terms reasonably satisfactory to the Administrative Agent and the Issuing
Lender (and such cash collateral shall be in Dollars).  Any such cash collateral shall be deposited
in a separate account with the Administrative Agent, subject to the exclusive
dominion and control of the Administrative Agent, as collateral (solely for the
benefit of the Issuing Lender) for the payment and performance of each
Defaulting Lender’s Revolving Credit Commitment Percentage of outstanding L/C
Obligations.  Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing Lender
immediately for each Defaulting Lender’s Revolving Credit Commitment Percentage
of any drawing under any Letter of Credit which has not otherwise been
reimbursed by the Borrower (including, without limitation, through a Revolving
Credit Loan) or such Defaulting Lender.


 


(e)           Prepayment of Swingline Loans.  Promptly on demand by the Swingline Lender or
the Administrative Agent from time to time, the Borrower shall prepay Swingline
Loans in an amount of all Fronting Exposure with respect to the Swingline
Lender (after giving effect to Section 5.14(c)).


 


(f)            Certain Fees.  For any period during which such Lender is a
Defaulting Lender, such Defaulting Lender (i) shall not be entitled to
receive any commitment fee pursuant to Section 5.3 (and the
Borrower shall not be required to pay any such fee that otherwise would have
been required to have been paid to such Defaulting Lender) and (ii) shall
not be entitled to 


 


52

















 


receive any letter of
credit commissions pursuant to Section 3.3(a) otherwise
payable to the account of a Defaulting Lender with respect to any Letter of
Credit as to which such Defaulting Lender has not provided cash collateral or
other credit support arrangements satisfactory to the Issuing Lender pursuant
to Section 5.14(d), but instead, the Borrower shall pay to the
non-Defaulting Lenders the amount of such letter of credit commissions in
accordance with the upward adjustments in their respective Revolving Credit
Commitment Percentages allocable to such Letter of Credit pursuant to Section 5.14(c),
with the balance of such fee, if any, payable to the Issuing Lender for its own
account.


 


(g)           Defaulting Lender Cure.  If the Borrower, the Administrative Agent,
the Swingline Lender and the Issuing Lender agree in writing in their sole
discretion that a Defaulting Lender should no longer be deemed to be a
Defaulting Lender, the Administrative Agent will so notify the parties hereto,
whereupon as of the date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any cash
collateral), that Lender will, to the extent applicable, purchase that portion
of outstanding Revolving Credit Loans of the other Lenders or take such other
actions as the Administrative Agent may determine to be necessary to cause the
Revolving Credit Loans and funded and unfunded participations in Letters of
Credit and Swingline Loans to be held on a pro  rata basis by the
Lenders in accordance with their Revolving Credit Commitment Percentages
(without giving effect to Section 5.14(c)), whereupon such Lender
will cease to be a Defaulting Lender; provided that no adjustments will
be made retroactively with respect to fees accrued or payments made by or on
behalf of the Borrower while such Lender was a Defaulting Lender; and provided,
further, that except to the extent otherwise expressly agreed by the
affected parties, no change hereunder from Defaulting Lender to Lender will
constitute a waiver or release of any claim of any party hereunder arising from
such Lender’s having been a Defaulting Lender.


 


ARTICLE VI


 


CONDITIONS
OF CLOSING AND BORROWING


 


SECTION 6.1                 Conditions to Closing and the Initial Extensions of Credit.  The obligation of the Lenders to
close this Agreement and to make the initial Loan or issue or participate in
the initial Letter of Credit, if any, is subject to the satisfaction of each of
the following conditions:


 


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


 


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


 


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(i)            Officer’s Certificate.  A certificate from a Responsible Officer
(solely in its capacity as a Responsible Officer) of the Borrower to the effect
that:


 


(A)          all representations and
warranties contained in this Agreement and the other Loan Documents are true,
correct and complete in all material respects; provided that (i) any
representation or warranty that is qualified by materiality or by reference to
Material Adverse Effect shall be true and correct in all respects and (ii) solely
with respect BioSphere and its Subsidiaries, the only representations and
warranties the accuracy of which shall be a condition to the availability of
the Extensions of Credit on the Closing Date shall be the Specified
Representations;


 


(B)           none of the Credit Parties
is in violation of any of the covenants contained in this Agreement and the
other Loan Documents;


 


(C)           after giving effect to the
transactions contemplated by this Agreement, no Default or Event of Default has
occurred and is continuing; that, since December 31, 2009, there has been no
material adverse change in the properties, business, operations, condition
(financial or otherwise), assets or liabilities (whether actual or contingent)
of (A) the Borrower and its Subsidiaries taken as a whole or (B) BioSphere
and its Subsidiaries taken as a whole, and no event has occurred or condition
arisen, either individually or in the aggregate, that could reasonably be
expected to have a Material Adverse Effect; and


 


(D)          each of the Credit Parties,
as applicable, has satisfied each of the conditions set forth in Section 6.1.


 


(ii)           Certificates of Secretary
and Organizational Documents.  With respect to each Credit Party, a
certificate of a Responsible Officer of each such Person certifying as to the
incumbency and genuineness of the signature of each officer of such Person
executing Loan Documents to which it is a party and certifying that attached
thereto is a true, correct and complete copy of (A) the articles or
certificate of incorporation or formation of such Person and all amendments thereto,
certified as of a recent date by the appropriate Governmental Authority in its
jurisdiction of incorporation or formation, (B) the bylaws or other
governing document of such Person as in effect on the Closing Date,
(C) resolutions duly adopted by the board of directors (or other governing
body) of such Person authorizing the transactions contemplated hereunder and
the execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party, and (D) each certificate required to be
delivered pursuant to Section 6.1(b)(iii).


 


(iii)          Certificates of Good
Standing.  With
respect to each Credit Party, certificates as of a recent date of the good
standing of each such Person under the laws of its jurisdiction of organization
and, to the extent requested by the Administrative Agent, each other
jurisdiction where such Person is qualified to do business and, to the extent
available, a certificate of the relevant taxing authorities of such
jurisdictions certifying that such Person has filed required tax returns and
owes no delinquent taxes.


 


54
















 


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


 


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


 


(c)           BioSphere Merger.


 


(i)            The Administrative Agent shall have received, in form
and substance reasonably satisfactory thereto a copy of the BioSphere Merger
Agreement.


 


(ii)           The BioSphere Merger shall have been consummated in
accordance with the terms and conditions of the BioSphere Merger Agreement
without any waiver, modification or consent thereunder that is materially
adverse to the Lenders (as reasonably determined by the Administrative Agent)
unless approved by the Administrative Agent.


 


(iii)          The aggregate purchase price for the BioSphere Merger
shall not exceed $110,000,000.


 


(iv)          No event shall have occurred, nor is any litigation or
investigation pending or threatened, nor does any Applicable Law exist, that
could reasonably be expected to impose materially adverse conditions, or which
could reasonably be expected to have a Material Adverse Effect, upon the
consummation of the BioSphere Merger or any of the other Transactions.


 


(d)           Lien Searches; Insurance.


 


(i)            Lien Search.  The
Administrative Agent shall have received the results of a Lien search, in form
and substance reasonably satisfactory thereto, made against the Credit Parties
under the Uniform Commercial Code as in effect in each jurisdiction in which
filings or recordations under the Uniform Commercial Code should be made to
evidence or perfect security interests in all assets of such Credit Party,
indicating among other things that the assets of each such Credit Party are
free and clear of any Lien (except for Permitted Liens).


 


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


 


55

















 


(e)           Consents; Defaults.


 


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


 


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


 


(f)            Financial Matters.


 


(i)            Financial Statements.  The
Administrative Agent shall have received (A) the audited Consolidated
balance sheet of the Borrower and its Subsidiaries as of December 31, 2009
and the related audited statements of income and retained earnings and cash
flows for the Fiscal Year then ended, (B) unaudited Consolidated balance
sheet of the Borrower and its Subsidiaries as of each subsequent fiscal quarter
ending at least forty-five (45) days prior to the Closing Date and the related
unaudited interim statements of income and retained earnings, (C) the
audited Consolidated balance sheet of BioSphere and its Subsidiaries as of
December 31, 2009 and the related audited statements of income and
retained earnings and cash flows for the Fiscal Year then ended and
(D) unaudited Consolidated balance sheet of BioSphere and its Subsidiaries
as of each subsequent fiscal quarter ending at least forty-five (45) days prior
to the Closing Date and the related unaudited interim statements of income and
retained earnings.


 


(ii)           Pro Forma Financial Statements. 
The Administrative Agent shall have received pro  forma
consolidated financial statements for the Borrower and its Subsidiaries for the
four-quarter period most recently ended prior to the Closing Date for which
financial statements are available calculated on a Pro Forma Basis after giving
effect to the Transactions (other than the BioSphere Merger), prepared in
accordance with Regulation S-X under the Securities Act of 1933, as amended,
and all other rules and regulations of the SEC under such Securities Act,
and including other adjustments previously agreed between the Borrower and the
Arranger, and a pro  forma balance sheet of the Borrower and its
Subsidiaries prepared from the financial statements for the calendar month
ended immediately prior to the Closing Date giving pro  forma
effect to the Transactions (other than the BioSphere Merger).


 


56

















 


(iii)          Financial Projections.  The
Administrative Agent shall have received pro  forma Consolidated
financial statements for the Borrower and its Subsidiaries, and projections
prepared by management of the Borrower, of balance sheets, income statements
and cash flow statements on a annual basis for each year after the Closing Date
during the term of the Credit Facility.


 


(iv)          Financial Condition/Solvency Certificate. 
The Borrower shall have delivered to the Administrative Agent a
certificate, in form and substance satisfactory to the Administrative Agent,
and certified as accurate by the chief financial officer of the Borrower, that
(A) the Borrower and its Subsidiaries, taken as a whole, are Solvent on a
Consolidated basis, (B) attached thereto are calculations evidencing
compliance with the covenants contained in Article X (it being
agreed and acknowledged that, notwithstanding anything to the contrary
contained in this Agreement, (1) the covenant contained in Section 10.1
shall be calculated on a Pro Forma Basis after giving effect to the
Transactions (other than the BioSphere Merger) and (2) with respect to the
covenant contained in Section 10.2, Consolidated EBITDA shall be
calculated on a Pro Forma Basis after giving effect to the Transactions (other
than the BioSphere Merger), but no other component of the ratio set forth in Section 10.2
shall be calculated on a Pro Forma Basis).


 


(v)           Payment at Closing. The Borrower shall have paid (A) to the
Administrative Agent, the Arranger and the Lenders the fees set forth or
referenced in Section 5.3 and any other accrued and unpaid fees or
commissions due hereunder, (B) all fees, charges and disbursements of
counsel to the Administrative Agent (directly to such counsel if requested by
the Administrative Agent) to the extent accrued and unpaid prior to or on the
Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such fees, charges
and disbursements incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrower and the Administrative Agent)
and (C) to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes, fees
and other charges in connection with the execution, delivery, recording, filing
and registration of any of the Loan Documents.


 


(g)           Miscellaneous.


 


(i)            Notice of Borrowing.  To the extent
that the Borrower will request a Revolving Credit Loan or a Swingline Loan to
be made on the Closing Date, the Administrative Agent shall have received a
Notice of Borrowing from the Borrower in accordance with Section 2.3(a),
and a Notice of Account Designation specifying the account or accounts to which
the proceeds of any Loans made on or after the Closing Date are to be
disbursed.


 


(ii)           Existing Indebtedness.  All existing
Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness
permitted pursuant to Section 11.1) shall be repaid in full and
terminated and all collateral security therefor shall be released, and the 


 


57

















 


Administrative Agent
shall have received pay-off letters in form and substance satisfactory to it
evidencing such repayment, termination and release.


 


(iii)          Patriot Act.  The Borrower
and each of the Subsidiary Guarantors shall have provided to the Administrative
Agent and the Lenders the documentation and other information requested by the
Administrative Agent in order to comply with requirements of the Act.


 


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


 


SECTION 6.2                 Conditions to All Extensions of Credit. 
The obligations of the Lenders to make or participate in any Extensions
of Credit (including the initial Extension of Credit), convert or continue any
Loan and/or the Issuing Lender to issue or extend any Letter of Credit are
subject to the satisfaction of the following conditions precedent on the
relevant borrowing, continuation, conversion, issuance or extension date:


 


(a)           Continuation of Representations and Warranties. 
The representations and warranties contained in the Credit Agreement and
the other Loan Documents shall be true and correct in all material respects
(except to the extent that any such representation and warranty is subject to a
materiality or Material Adverse Effect qualifier, in which case it shall be
true and correct in all respects) on and as of such borrowing, continuation,
conversion, issuance or extension date with the same effect as if made on and
as of such date, except for any representation and warranty made as of an
earlier date, which representation and warranty shall remain true and correct in
all material respects (except to the extent that any such representation and
warranty is subject to a materiality or Material Adverse Effect qualifier, in
which case it shall be true and correct in all respects) as of such earlier
date; provided that, solely with respect BioSphere and its Subsidiaries,
the only representations and warranties the accuracy of which shall be a
condition to the availability of the Extensions of Credit on the Closing Date
shall be the Specified Representations.


 


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


 


(c)           Notices.  The
Administrative Agent shall have received a Notice of Borrowing or Notice of Conversion/Continuation,
as applicable, from the Borrower in accordance with Section 2.3(a),
Section 4.2 or Section 5.2, as applicable.


 


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ARTICLE VII


 


REPRESENTATIONS AND
WARRANTIES OF THE CREDIT PARTIES


 


To induce the Administrative Agent and Lenders to
enter into this Agreement and to induce the Lenders to make Extensions of
Credit, the Credit Parties hereby represent and warrant to the Administrative
Agent and the Lenders both before and after giving effect to the transactions
contemplated hereunder, which representations and warranties shall be deemed
made on the Closing Date and as otherwise set forth in Section 6.2,
that:


 


SECTION 7.1                 Organization; Power; Qualification. 
Each Credit Party and each Subsidiary thereof is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, has the power and authority to own its Properties
and to carry on its business as now being and hereafter proposed to be
conducted and is duly qualified and authorized to do business in each
jurisdiction in which the character of its Properties or the nature of its
business requires such qualification and authorization except in jurisdictions
where the failure to be so qualified or in good standing could not reasonably
be expected to result in a Material Adverse Effect.  The jurisdictions in which each Credit Party
and each Subsidiary thereof are organized and qualified to do business as of
the Closing Date are described on Schedule 7.1.


 


SECTION 7.2                 Ownership.  Each
Subsidiary of the Borrower as of the Closing Date is listed on Schedule 7.2.  All outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable, with no
personal liability attaching to the ownership thereof, and not subject to any
preemptive or similar rights, except as described in Schedule 7.2.  The shareholders or other owners, as
applicable, of each of the Borrower’s Subsidiaries which are not traded on a
public exchange and the number of shares owned by each as of the Closing Date
are described on Schedule 7.2.  As
of the Closing Date, there are no outstanding stock purchase warrants,
subscriptions, options, securities, instruments or other rights of any type or
nature whatsoever, which are convertible into, exchangeable for or otherwise
provide for or permit the issuance of Capital Stock of any Credit Party or any
Subsidiary thereof, except as described on Schedule 7.2.


 


SECTION 7.3                 Authorization Enforceability. 
Each Credit Party and each Subsidiary thereof has the right, power and
authority and has taken all necessary corporate and other action to authorize
the execution, delivery and performance of this Agreement and each of the other
Loan Documents to which it is a party in accordance with their respective
terms.  This Agreement and each of the
other Loan Documents have been duly executed and delivered by the duly
authorized officers of each Credit Party and each Subsidiary thereof that is a
party thereto, and each such document constitutes the legal, valid and binding
obligation of each Credit Party and each Subsidiary thereof that is a party
thereto, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors’ rights in general and the
availability of equitable remedies.


 


SECTION 7.4                 Compliance of Agreement, Loan Documents and Borrowing
with Laws, Etc.  The execution, delivery and performance by
each Credit Party and each Subsidiary 


 


59

















 


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


 


SECTION 7.5                 Compliance with Law; Governmental Approvals. 
Each Credit Party and each Subsidiary thereof (a) has all
Governmental Approvals required by any Applicable Law for it to conduct its
business, each of which is in full force and effect, is final and not subject
to review on appeal and is not the subject of any pending or, to its knowledge,
threatened attack by direct or collateral proceeding, (b) is in compliance
with each Governmental Approval applicable to it and in compliance with all
other Applicable Laws relating to it or any of its respective properties and
(c) has timely filed all material reports, documents and other materials
required to be filed by it under all Applicable Laws with any Governmental
Authority and has retained all material records and documents required to be
retained by it under Applicable Law except in each case (a), (b) or
(c) where the failure to have, comply or file could not reasonably be
expected to have a Material Adverse Effect.


 


SECTION 7.6                 Tax Returns and Payments. 
Each Credit Party and each Subsidiary thereof has duly filed or caused
to be filed all federal, state, local and other tax returns required by
Applicable Law to be filed, and has paid, or made adequate provision for the
payment of, all federal, state, local and other taxes, assessments and
governmental charges or levies upon it and its property, income, profits and
assets which are due and payable (other than any amount the validity of which
is currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided for on the
books of the relevant Credit Party). 
Such returns accurately reflect in all material respects all liability
for taxes of any Credit Party or any Subsidiary thereof for the periods covered
thereby.  Except as set forth on Schedule
7.6, there is no ongoing audit or examination or, to the knowledge of the
Borrower, other investigation by any Governmental Authority of the tax
liability of any Credit Party or any Subsidiary thereof.  No Governmental Authority has asserted any
Lien or other claim against any Credit Party or any Subsidiary thereof with
respect to unpaid taxes which has not been discharged or resolved (other than
(i) any amount the validity of which is currently 


 


60

















 


being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided for on the books of the relevant Credit Party and
(ii) Permitted Liens).  The charges,
accruals and reserves on the books of each Credit Party and each Subsidiary
thereof in respect of federal, state, local and other taxes for all Fiscal
Years and portions thereof since the organization of any Credit Party or any
Subsidiary thereof are in the judgment of the Borrower adequate, and the
Borrower does not anticipate any additional taxes or assessments for any of
such years.


 


SECTION 7.7                 Intellectual Property Matters. 
Each Credit Party and each Subsidiary thereof owns or possesses rights
to use all material franchises, licenses, copyrights, copyright applications,
patents, patent rights or licenses, patent applications, trademarks, trademark
rights, service mark, service mark rights, trade names, trade name rights,
copyrights and other rights with respect to the foregoing which are reasonably
necessary to conduct its business.  No
event has occurred which permits, or after notice or lapse of time or both
would permit, the revocation or termination of any such rights, and no Credit
Party nor any Subsidiary thereof is liable to any Person for infringement under
Applicable Law with respect to any such rights as a result of its business operations
except as could not reasonably be expected to have a Material Adverse Effect.


 


SECTION 7.8                 Environmental Matters.


 


(a)           To the knowledge of each Credit Party, the properties
owned, leased or operated by each Credit Party and each Subsidiary thereof now
or in the past do not contain, and to their knowledge have not previously
contained, any Hazardous Materials in amounts or concentrations which
(i) constitute or constituted a material violation of applicable
Environmental Laws (except for amounts which have been remediated in accordance
with Environmental Laws) or (ii) could reasonably be expected to give rise
to material liability under applicable Environmental Laws;


 


(b)           To the knowledge of the Borrower and its Subsidiaries,
each Credit Party and each Subsidiary thereof and such properties and all
operations conducted in connection therewith are in material compliance, and
have been in material compliance, with all applicable Environmental Laws, and
there is no contamination at, under or about such properties or such operations
which could reasonably be expected to interfere with the continued operation of
such properties or impair the fair saleable value thereof;


 


(c)           No Credit Party nor any Subsidiary thereof has
received any written notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters, Hazardous
Materials, or compliance with Environmental Laws, nor does any Credit Party or
any Subsidiary thereof have knowledge or reason to believe that any such notice
will be received or is being threatened, except where such violation, alleged
violation, non-compliance, liability or potential liability which is the
subject of such notice could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect;


 


(d)           To the knowledge of the Borrower and its Subsidiaries,
Hazardous Materials have not been transported or disposed of to or from the
properties owned, leased or operated by any Credit Party or any Subsidiary thereof
in violation of, or in a manner or to a location which could give rise to
material liability under, Environmental Laws, nor have any Hazardous Materials 


 


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been generated, treated, stored or disposed of at, on
or under any of such properties in violation of, or in a manner that could
reasonably be expected to give rise to material liability under, any applicable
Environmental Laws;


 


(e)           No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the Borrower,
threatened, under any Environmental Law to which any Credit Party or any
Subsidiary thereof is or will be named as a potentially responsible party with
respect to such properties or operations conducted in connection therewith, nor
are there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to any Credit Party, any Subsidiary
thereof or such properties or such operations that could reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect;
and


 


(f)            There has been no release, or to the Borrower’s
knowledge, threat of release, of Hazardous Materials at or from properties
owned, leased or operated by any Credit Party or any Subsidiary, now or in the
past, in violation of or in amounts or in a manner that could give rise to
material liability under Environmental Laws and that could reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.


 


SECTION 7.9                 Employee Benefit Matters.


 


(a)           As of the Closing Date, no Credit Party nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any Employee
Benefit Plans other than those identified on Schedule 7.9;


 


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


 


(c)           As of the Closing Date, no Pension Plan has been
terminated, nor has any accumulated funding deficiency (as defined in
Section 412 of the Code) been incurred (without regard to any waiver
granted under Section 412 of the Code), nor has there been any failure to
meet the minimum funding standards of Sections 412 or 430 of the Code, nor has
any Credit Party or any ERISA Affiliate failed to make any contributions or to
pay any amounts due and owing as required by Sections 412 or 430 of the Code,
Section 302 of ERISA or the terms of any Pension Plan prior to the due
dates of such contributions under Sections 412 or 430 of the Code 


 


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or Section 302 of ERISA, nor has there been any
event requiring any disclosure under Section 4041(c)(3)(C) or
4063(a) of ERISA with respect to any Pension Plan;


 


(d)           Except where the failure of any of the following
representations to be correct could not reasonably be expected to have a
Material Adverse Effect, no Credit Party nor any ERISA Affiliate has:  (A) engaged in a nonexempt prohibited
transaction described in Section 406 of the ERISA or Section 4975 of
the Code, (B) incurred any liability to the PBGC which remains outstanding
other than the payment of premiums and there are no premium payments which are
due and unpaid, (C) failed to make a required contribution or payment to a
Multiemployer Plan, or (D) failed to make a required installment or other
required payment under Sections 412 or 430 of the Code;


 


(e)           No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer Plan, as
applicable; and


 


(f)            Except where the failure of any of the following
representations to be correct in all material respects could not reasonably be
expected to have a Material Adverse Effect, no proceeding, claim (other than a
benefits claim in the ordinary course of business), lawsuit and/or
investigation is existing or, to the best of the knowledge of the Borrower
after due inquiry, threatened concerning or involving any (A) employee
welfare benefit plan (as defined in Section 3(1) of ERISA) currently
maintained or contributed to by any Credit Party or any ERISA Affiliate,
(B) Pension Plan or (C) Multiemployer Plan.


 


SECTION 7.10               Margin Stock.


 


(a)           No Credit Party nor any Subsidiary thereof is engaged
principally or as one of its activities in the business of extending credit for
the purpose of “purchasing” or “carrying” any “margin stock” (as each such term
is defined or used, directly or indirectly, in Regulation U of the Board of
Governors of the Federal Reserve System). 
No part of the proceeds of any of the Loans or Letters of Credit will be
used for purchasing or carrying margin stock or for any purpose which violates,
or which would be inconsistent with, the provisions of Regulation T, U or X of
such Board of Governors.  If requested by
any Lender (through the Administrative Agent) or the Administrative Agent, the
Borrower will furnish to the Administrative Agent and each Lender a statement
to the foregoing effect in conformity with the requirements of FR Form G-3
or FR Form U 1 referred to in Regulation U.


 


(b)           Following the application of the proceeds of each
Revolving Credit Loan or Swingline Loan or each drawing under each Letter of
Credit, not more than 25% of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a consolidated basis) subject
to the provisions of Section 11.2 or Section 11.5 or
subject to any restriction contained in any agreement or instrument between any
Credit Party and any Lender or any Affiliate of any Lender relating to
Indebtedness and within the scope of Section 12.1(f) will be
“margin stock”.


 


SECTION 7.11               Government Regulation.  No Credit
Party nor any Subsidiary thereof is an “investment company” or a company
“controlled” by an “investment company” (as each such term is defined or used
in the Investment Company Act of 1940, as amended) and no Credit 


 


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Party nor any Subsidiary thereof is, or after giving
effect to any Extension of Credit will be, subject to regulation under the
Interstate Commerce Act, as amended, or any other Applicable Law which limits its
ability to incur or consummate the transactions contemplated hereby.


 


SECTION 7.12               Employee Relations.  No Credit
Party or any Subsidiary thereof is party to any collective bargaining agreement
or has any labor union been recognized as the representative of its employees
except as set forth on Schedule 7.12. 
The Borrower knows of no pending or threatened strikes, work
stoppage or other collective labor disputes involving its employees or
those of its Subsidiaries that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.


 


SECTION 7.13               [Intentionally Omitted].


 


SECTION 7.14               Financial Statements.  The audited
and unaudited financial statements delivered pursuant to Section 6.1(f)(i) are
complete and correct and fairly present in all material respects, on a
Consolidated basis, the assets, liabilities and financial position of the
Borrower and its Subsidiaries as at such dates, and the results of the
operations and changes of financial position for the periods then ended (other
than customary year-end adjustments for unaudited financial statements).  All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with
GAAP.  Such financial statements show all
material indebtedness and other material liabilities, direct or contingent, of
the Borrower and its Subsidiaries as of the date thereof, including material
liabilities for taxes, material commitments, and Indebtedness, in each case, to
the extent required to be disclosed under GAAP. 
The projections delivered pursuant to Section 5.2(f)(ii) and
the pro  forma financial statements delivered pursuant to Section 6.1(f)(ii) were
prepared in good faith on the basis of the assumptions stated therein, which
assumptions are believed to be reasonable in light of then existing conditions
except that such financial projections and statements shall be subject to
normal year end closing and audit adjustments.


 


SECTION 7.15               No Material Adverse Change. 
Since December 31, 2009, there has been no material adverse change
in the properties, business, operations, condition (financial or otherwise),
assets or liabilities (whether actual or contingent) of the Borrower and its
Subsidiaries taken as a whole and no event has occurred or condition arisen,
either individually or in the aggregate, that could reasonably be expected to
have a Material Adverse Effect.


 


SECTION 7.16               Solvency.  The Credit
Parties, on a Consolidated basis, are Solvent.


 


SECTION 7.17               Titles to Properties.  As of the Closing
Date, the real property listed on Schedule 7.17 constitutes all of the
real property that is owned, leased, subleased or used by any Credit Party or
any of its Subsidiaries.  Each Credit
Party and each Subsidiary thereof has such title to the real property owned or
leased by it as is necessary to the conduct of its business and valid and legal
title to all of its personal property and assets, except those which have been
disposed of by the Credit Parties and their Subsidiaries subsequent to such date
which dispositions have been in the ordinary course of business or as otherwise
expressly permitted hereunder.


 


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SECTION 7.18               Insurance.  The properties of each Credit Party and each
Subsidiary thereof are insured with financially sound and reputable insurance
companies not Affiliates of the Credit Parties and their Subsidiaries, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar
properties in locations where the Credit Parties and their Subsidiaries
operate.


 


SECTION 7.19               Liens.  None of the properties and assets of any
Credit party or any Subsidiary thereof is subject to any Lien, except Permitted
Liens.  No Credit Party or any Subsidiary
thereof has signed any financing statement or any security agreement
authorizing any secured party thereunder to file any financing statement,
except to perfect those Permitted Liens.


 


SECTION 7.20               Indebtedness and Guaranty
Obligations.  Schedule 7.20 is
a complete and correct listing of all Indebtedness and Guaranty Obligations of
the Credit Parties and their respective Subsidiaries as of the Closing Date in
excess of $100,000.  The Credit Parties
and their respective Subsidiaries have performed and are in compliance with all
of the material terms of such Indebtedness and Guaranty Obligations and all
instruments and agreements relating thereto, and no default or event of
default, or event or condition which with notice or lapse of time or both would
constitute such a default or event of default on the part of any of the Credit
Parties or any of their respective Subsidiaries exists with respect to any such
Indebtedness or Guaranty Obligation, which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.


 


SECTION 7.21               Litigation.  There are no actions, suits or proceedings
pending nor, to the knowledge of the Borrower, threatened against or in any
other way relating adversely to or affecting any Credit Party or any Subsidiary
thereof or any of their respective properties in any court or before any
arbitrator of any kind or before or by any Governmental Authority that
(a) has or could reasonably be expected to have a Material Adverse Effect,
or (b) materially adversely affects any transaction contemplated hereby.


 


SECTION 7.22               Absence of Defaults.  No event has occurred or is continuing
(a) which constitutes a Default or an Event of Default, or (b) which
constitutes an event of default by any Credit Party or any Subsidiary thereof
under any judgment, decree or order to which any Credit Party or any Subsidiary
thereof is a party or by which any Credit Party or any Subsidiary thereof or
any of their respective properties may be bound or which would require any
Credit Party or any Subsidiary thereof to make any payment thereunder prior to
the scheduled maturity date therefore that, in any case under this
clause (ii), could, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


SECTION 7.23               OFAC.  Neither the Borrower nor any Subsidiary of
the Borrower: (i) is a Sanctioned Person, (ii) has more than ten
percent (10%) of its assets in Sanctioned Entities, or (iii) derives more
than ten percent (10%) of its operating income from investments in, or
transactions with Sanctioned Persons or Sanctioned Entities.  The proceeds of any Loan will not be used and
have not been used to fund any operations in, finance any investments or
activities in, or make any payments to, a Sanctioned Person or a Sanctioned
Entity.


 


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SECTION 7.24               Investment Bankers’ and
Similar Fees.  No Credit Party has
any obligation to any Person in respect of any finders’, brokers’, investment
banking or other similar fee in connection with any of the Transactions.


 


SECTION 7.25               Disclosure.  No financial statement, material report,
material certificate or other material information furnished (whether in
writing or orally) by or on behalf of any Credit Party or any Subsidiary
thereof to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished), taken together as a whole, contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, pro forma financial information, estimated financial information
and other projected or estimated information, such information was prepared in
good faith based upon assumptions believed to be reasonable at the time (it
being understood that forward looking and estimated information, including
projections, are subject to significant uncertainties and contingencies).


 


ARTICLE VIII


 


FINANCIAL
INFORMATION AND NOTICES


 


Until
all the Obligations (other than (a) contingent indemnification obligations
not then due and (b) the Specified Obligations) have been paid and
satisfied in full in cash and the Revolving Credit Commitments terminated,
unless consent has been obtained in the manner set forth in Section 14.2,
the Credit Parties will furnish or cause to be furnished to the Administrative
Agent at the Administrative Agent’s Office at the address set forth in Section 14.1
and to the Lenders at their respective addresses as set forth on the Register,
or such other office as may be designated by the Administrative Agent and
Lenders from time to time:


 


SECTION 8.1                 Financial Statements and
Projections.


 


(a)           Quarterly Financial Statements.  As soon as practicable and in any event
within forty-five (45) days (or, if earlier, on the date of any required public
filing thereof) after the end of the first three fiscal quarters of each Fiscal
Year (commencing with the fiscal quarter ended September 30, 2010), an
unaudited Consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated
and consolidating statements of income, retained earnings and cash flows and a
report containing management’s discussion and analysis of such financial
statements for the fiscal quarter then ended and that portion of the Fiscal
Year then ended, including the notes thereto, all in reasonable detail setting
forth in comparative form the corresponding figures as of the end of and for
the corresponding period in the preceding Fiscal Year and prepared by the
Borrower in accordance with GAAP and, if applicable, containing disclosure of
the effect on the financial position or results of operations of any change in
the application of accounting principles and practices during the period, and
certified by the chief financial officer of the Borrower to present fairly in
all material respects the financial condition of the Borrower and its
Subsidiaries on a Consolidated and consolidating basis as of their respective
dates and the results of operations of the Borrower and its Subsidiaries for
the respective periods then ended, subject to normal year 


 


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end adjustments and the
absence of footnotes.  Delivery by the
Borrower to the Administrative Agent and the Lenders of Borrower’s quarterly
report to the SEC on Form 10-Q with respect to any fiscal quarter, or the
availability of such quarterly report on EDGAR Online or any other publicly
available database, within the period specified above shall be deemed to be
compliance by the Borrower with this Section 8.1(a), provided that
in the case of a posting on EDGAR Online or any other applicable database, the
Borrower shall promptly notify the Administrative Agent (by telecopy or
electronic mail) of the availability of such documents and the website of such
database. Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Officer’s Compliance
Certificates required by Section 8.2 to the Administrative Agent.
Except for such Officer’s Compliance Certificates, the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.


 


(b)           Annual Financial Statements.  As soon as practicable and in any event
within ninety (90) days (or, if earlier, on the date of any required public
filing thereof) after the end of each Fiscal Year (commencing with the fiscal
year ended December 31, 2010), an audited Consolidated and consolidating
balance sheet of the Borrower and its Subsidiaries as of the close of such
Fiscal Year and audited Consolidated and consolidating statements of income,
retained earnings and cash flows and a report containing management’s
discussion and analysis of such financial statements for the Fiscal Year then
ended, including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures as of the end of and for the
preceding Fiscal Year and prepared in accordance with GAAP and, if applicable,
containing disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles and practices
during the year.  Such annual financial
statements shall be audited by an independent certified public accounting firm
of recognized national standing acceptable to the Administrative Agent, and
accompanied by a report thereon by such certified public accountants that is
not qualified with respect to scope limitations imposed by the Borrower or any
of its Subsidiaries or with respect to accounting principles followed by the
Borrower or any of its Subsidiaries not in accordance with GAAP.  Delivery by the Borrower to the
Administrative Agent and the Lenders of Borrower’s annual report to the SEC on Form 10-K
with respect to any fiscal year, or the availability of such annual report on
EDGAR Online or any other publicly available database, within the period
specified above shall be deemed to be compliance by the Borrower with this Section 8.1(b),
provided that in the case of a posting on EDGAR Online or any other
applicable database, the Borrower shall promptly notify the Administrative
Agent (by telecopy or electronic mail) of the availability of such documents
and the website of such database. Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the
Officer’s Compliance Certificates required by Section 8.2 to the
Administrative Agent. Except for such Officer’s Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.


 


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


 


SECTION 8.3                 Other Reports.


 


(a)           Promptly upon receipt thereof, copies
of all reports, if any, submitted to any Credit Party, any Subsidiary thereof
or any of their respective boards of directors by their respective independent
public accountants in connection with their auditing function, including,
without limitation, any management report and any management responses thereto;


 


(b)           Promptly upon the request thereof,
such other information and documentation required by bank regulatory
authorities under applicable “know your customer” and Anti-Money Laundering rules and
regulations (including, without limitation, the Act), as from time to time
reasonably requested by the Administrative Agent or any Lender; and


 


(c)           Such other information regarding the
operations, business affairs and financial condition of any Credit Party or any
Subsidiary thereof as the Administrative Agent or any Lender may reasonably
request.


 


SECTION 8.4                 Notice of Litigation and
Other Matters.  Prompt (but in no
event later than ten (10) days after any Responsible Officer of any Credit
Party obtains knowledge thereof) telephonic and written notice of:


 


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


 


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


 


(c)           any labor controversy that has
resulted in, or threatens to result in, a strike or other work action against
any Credit Party or any Subsidiary thereof which in any such case could
reasonably be expected to have a Material Adverse Effect;


 


(d)           any attachment, judgment, lien, levy
or order exceeding the Threshold Amount that may be assessed against or
threatened against any Credit Party or any Subsidiary thereof;


 


(e)           any Default or Event of Default;


 


(f)            (i) any unfavorable determination
letter from the Internal Revenue Service regarding the qualification of an
Employee Benefit Plan under Section 401(a) of the Code (along with a
copy thereof), (ii) all notices received by any Credit Party or any ERISA
Affiliate of the PBGC’s intent to terminate any Pension Plan or to have a
trustee appointed to administer any 


 


68

















 


Pension Plan,
(iii) all notices received by any Credit Party or any ERISA Affiliate from
a Multiemployer Plan sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA and (iv) the Borrower
obtaining knowledge or reason to know that any Credit Party or any ERISA
Affiliate has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of Section 4041(c) of
ERISA; and


 


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


 


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


 


Documents
required to be delivered pursuant to this Article may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Borrower posts such documents, or provides a
link thereto on the Borrower’s website on the Internet at the website address
listed in Section 14.1; or (ii) on which such documents are
posted on the Borrower’s behalf on an Internet or intranet website, if any, to
which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (i) the Borrower shall deliver paper copies
of such documents to the Administrative Agent or any Lender that requests the
Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify the Administrative Agent and each Lender
(by telecopier or electronic mail) of the posting 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
Borrower shall be required to provide paper copies of the Officer’s Compliance
Certificates required by Section 8.2 to the Administrative
Agent.  Except for such Officer’s
Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the
Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.


 


The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Arranger will make available to the Lenders and the Issuing Lender materials
and/or information provided by or on behalf of the Borrower hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials
on SyndTrak Online or another similar electronic system (the “Platform”)
and (b) certain of the Lenders may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with
respect to the Borrower or its securities) (each, a “Public Lender”).  The Borrower hereby agrees that it will use
commercially reasonable efforts to identify that portion of the Borrower
Materials that may be distributed to the Public 


 


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Lenders
and that (w) all such Borrower Materials shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the
Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat
such Borrower Materials as not containing any material non-public information
(although it may be sensitive and proprietary) with respect to the Borrower or
its securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 14.11);
(y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Investor;” and
(z) the Administrative Agent and the Arranger shall be entitled to treat
any Borrower Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform not designated “Public Investor.”


 


SECTION 8.5                 Accuracy of Information.  All written information, reports, statements
and other papers and data furnished by or on behalf of any Credit Party or any
Subsidiary thereof to the Administrative Agent or any Lender whether pursuant
to this Article VIII or any other provision of this Agreement,
shall, at the time the same is so furnished, comply with the representations
and warranties set forth in Section 7.26.


 


ARTICLE IX


 


AFFIRMATIVE
COVENANTS


 


Until
all of the Obligations (other than (a) contingent indemnification
obligations not then due and (b) the Specified Obligations) have been paid
and satisfied in full in cash and the Revolving Credit Commitments terminated,
each Credit Party will, and will cause each of its Subsidiaries to:


 


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


 


SECTION 9.2                 Maintenance of Property and
Licenses.


 


(a)           Protect and preserve all Properties
necessary in and material to its business, including copyrights, patents, trade
names, service marks and trademarks; maintain in good working order and
condition, ordinary wear and tear excepted, all buildings, equipment and other
tangible real and personal property; and from time to time make or cause to be
made all repairs, renewals and replacements thereof and additions to such
Property necessary for the conduct of its business, so that the business
carried on in connection therewith may be conducted in a commercially
reasonable manner, in each case, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


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(b)           Maintain, in full force and effect in
all material respects, each and every material license, permit, certification,
qualification, approval or franchise issued by any Governmental Authority (each
a “License”) required for each of them to conduct their respective
businesses as presently conducted, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


SECTION 9.3                 Insurance.  Maintain insurance with financially sound and
reputable insurance companies against at least such risks and in at least such
amounts as are customarily maintained by similar businesses and as may be
required by Applicable Law (including, without limitation, hazard and business
interruption insurance).  All such
insurance shall provide that no cancellation or material modification thereof
shall be effective until at least 30 days after receipt by the Administrative
Agent of written notice thereof.  On the
Closing Date and from time to time thereafter deliver to the Administrative
Agent upon its request information in reasonable detail as to the insurance
then in effect, stating the names of the insurance companies, the amounts and
rates of the insurance, the dates of the expiration thereof and the properties
and risks covered thereby.


 


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


 


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


 


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


 


SECTION 9.7                 Environmental Laws.  In addition to and without limiting the
generality of Section 9.6, (a) comply with, and require such
compliance by all tenants and subtenants with all applicable Environmental Laws
and obtain and comply with and maintain, and require that all tenants and
subtenants, if any, obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws, (b) conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required
under Environmental Laws, and promptly comply with all lawful orders and
directives of any Governmental Authority regarding Environmental Laws, and
(c) defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or 


 


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otherwise, arising out of,
or in any way relating to the presence of Hazardous Materials, or the violation
of, noncompliance with or liability under any Environmental Laws applicable to
the operations of the Borrower or any such Subsidiary, or any orders,
requirements or demands of Governmental Authorities related thereto, including,
without limitation, reasonable attorney’s and consultant’s fees, investigation
and laboratory fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing directly result from the gross
negligence or willful misconduct of the party seeking indemnification therefor,
as determined by a court of competent jurisdiction by final nonappealable
judgment.


 


SECTION 9.8                 Compliance with ERISA.  In addition to and without limiting the
generality of Section 9.7, (a) except where the failure to so
comply could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, (i) comply with applicable provisions of
ERISA and the Code and the regulations and published interpretations thereunder
with respect to all Employee Benefit Plans, (ii) not take any action or
fail to take action the result of which could reasonably be expected to result
in a liability to the PBGC or to a Multiemployer Plan, (iii) not
participate in any prohibited transaction that could result in any civil
penalty under ERISA or tax under the Code and (iv) operate each Employee
Benefit Plan in such a manner that will not incur any tax liability under Section 4980B
of the Code or any liability to any qualified beneficiary as defined in Section 4980B
of the Code and (b) furnish to the Administrative Agent upon the
Administrative Agent’s request such additional information about any Employee
Benefit Plan as may be reasonably requested by the Administrative Agent.


 


SECTION 9.9                 Compliance with Agreements.  Comply in all material respects with each
term, condition and provision of all leases, agreements and other instruments
entered into in the conduct of its business; except (a) where such
non-compliance could not reasonably be expected to have a Material Adverse
Effect and (b) that the Borrower or any such Subsidiary may contest any
such lease, agreement or other instrument in good faith through applicable
proceedings so long as adequate reserves are maintained in accordance with GAAP


 


SECTION 9.10               Visits and Inspections; Lender
Meetings.


 


(a)           Permit representatives of the
Administrative Agent or any Lender, from time to time upon prior reasonable
notice and at such times during normal business hours, at the Borrower’s
expense, to visit and inspect its properties; inspect, audit and make extracts
from its books, records and files, including, but not limited to, management
letters prepared by independent accountants; and discuss with its principal
officers, and its independent accountants, its business, assets, liabilities,
financial condition, results of operations and business prospects; provided
that so long as no Event of Default has occurred and is continuing, the
Administrative Agent and the Lenders shall be limited to one (1) visit in
the aggregate during any Fiscal Year (which visits shall be coordinated with
the Administrative Agent).  Upon the
occurrence and during the continuance of an Event of Default, the
Administrative Agent or any Lender may do any of the foregoing at any time
without advance notice.


 


(b)           Upon the request of the
Administrative Agent or the Required Lenders, participate in a meeting of the
Administrative Agent and Lenders once during each Fiscal Year, which meeting
will be held at the Borrower’s corporate offices (or such other location as may
be agreed 


 


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to by the Borrower and the
Administrative Agent) at such time as may be agreed by the Borrower and the
Administrative Agent.


 


SECTION 9.11               Additional Subsidiaries and
Real Property.


 


(a)           Additional Domestic Subsidiaries.  Notify the Administrative Agent of the
creation or acquisition of any Domestic Subsidiary and promptly thereafter (and
in any event within thirty (30) days after such creation or acquisition), cause
such Person to (i) become a Subsidiary Guarantor by delivering to the
Administrative Agent a duly executed supplement to the Subsidiary Guaranty
Agreement or such other document as the Administrative Agent shall deem
appropriate for such purpose, (ii) deliver to the Administrative Agent
such documents and certificates referred to in Section 6.1 as may
be reasonably requested by the Administrative Agent, (iii) deliver to the
Administrative Agent such updated Schedules to the Loan Documents as requested
by the Administrative Agent with respect to such Person, and (iv) deliver
to the Administrative Agent such other documents as may be reasonably requested
by the Administrative Agent, all in form, content and scope reasonably
satisfactory to the Administrative Agent.


 


(b)           Merger Subsidiaries.  Notwithstanding the foregoing, to the extent
any new Subsidiary is created solely for the purpose of consummating a merger
transaction pursuant to a Permitted Acquisition, and such new Subsidiary at no
time holds any assets or liabilities other than any merger consideration
contributed to it contemporaneously with the closing of such merger
transaction, such new Subsidiary shall not be required to take the actions set
forth in Section 9.11(a) or (b), as applicable, until
the consummation of such Permitted Acquisition (at which time, the surviving
entity of the respective merger transaction shall be required to so comply with
Section 9.11(a) or (b), as applicable, within ten (10) Business
Days of the consummation of such Permitted Acquisition).


 


SECTION 9.12               Use of Proceeds.  The Borrower shall use the proceeds of the
Extensions of Credit (a) to finance the acquisition of Capital Assets,
(b) finance the BioSphere Merger, and (c) for working capital and
general corporate purposes of the Borrower and its Subsidiaries, including the
payment of certain fees and expenses incurred in connection with the
Transactions and this Agreement.


 


SECTION 9.13               Non-Consolidation.  Maintain (a) entity records and books of
account separate from those of any other entity which is an Affiliate of such
entity, (b) not commingle its funds or assets with those of any other
entity which is an Affiliate of such entity (except pursuant to cash management
systems reasonably acceptable to the Administrative Agent) and (c) provide
that its board of directors (or equivalent governing body) will hold all
appropriate meetings to authorize and approve such entity’s actions, which
meetings will be separate from those of other entities.


 


SECTION 9.14               Depository and Treasury
Management.  Within sixty (60) days
following the Closing Date, each Credit Party shall maintain all of their
respective primary Cash Management Arrangements, depository relationships and
treasury management relationships with Wells Fargo or an Affiliate of Wells
Fargo (including all such Cash Management 


 


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Arrangements, depository
relationships and treasury management relationships maintained at Zion’s Bank
as of the Closing Date).


 


ARTICLE X


 


FINANCIAL
COVENANTS


 


Until
all of the Obligations (other than (a) contingent indemnification
obligations not then due and (b) the Specified Obligations) have been paid
and satisfied in full in cash and the Revolving Credit Commitments terminated,
the Borrower and its Subsidiaries on a Consolidated basis will not:


 


SECTION 10.1               Consolidated Total Leverage
Ratio.  As of any fiscal quarter
ending during the periods specified below, permit the Consolidated Total
Leverage Ratio to be greater than the corresponding ratio set forth below:


 


	
  Period

  	
   

  	
  Maximum Ratio

  
	
  Closing
  Date through June 30, 2012

  	
   

  	
  2.50 to 1.00

  
	
  July 1,
  2012 through June 30, 2014

  	
   

  	
  2.25 to 1.00

  
	
  July 1,
  2014 and thereafter

  	
   

  	
  2.00 to 1.00

  



 


SECTION 10.2               Fixed Charge Coverage Ratio.  As of any fiscal quarter end, permit the
ratio of:


 


(a)           the sum of (i)  Consolidated
EBITDA for the period of four (4) consecutive fiscal quarters ending
on or immediately prior to such date less (ii) the sum of (A) federal,
state, local and foreign income taxes paid in cash, (B) dividends and
distributions paid in cash and (C) Ongoing Capital Expenditures (other
than Ongoing Capital Expenditures which are financed (i) through a Debt
Issuance permitted hereunder, (ii) through an Equity Issuance permitted
hereunder or (iii) by the proceeds of an insurance or condemnation event),
in each case for the period of four (4) consecutive fiscal quarters
ending on or immediately prior to such date;


 


to


 


(b)           Consolidated Fixed
Charges for the period of four (4) consecutive fiscal quarters ending on
or immediately prior to such date


 


to
be less than 1.75 to 1.00.


 


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SECTION 10.3               Consolidated Net Income.


 


(a)           As of any fiscal quarter end, permit Consolidated Net Income for the
period of four (4) consecutive fiscal quarters ending on or immediately
prior to such date to be less than $0.


 


(b)           As of any fiscal quarter end, permit Consolidated Net Income for each of
the two (2) consecutive fiscal quarters ending on or immediately prior to
such date to be less than $0 (such calculation to be made individually for each
such fiscal quarter and not collectively for both such fiscal quarters); provided,
that for purposes of calculating Consolidated Net Income under this Section 10.3(b),
the Borrower shall be permitted to add back to Consolidated Net Income, in each
case without duplication and solely to the extent deducted in determining
Consolidated Net Income, (i) certain non-recurring, non-cash charges
incurred during such fiscal quarter related to any past or future acquisition
of all or substantially all of the business or line of business (whether by the
acquisition of Capital Stock, assets, or any combination thereof) of any other
Person consummated by the Borrower or any of its Subsidiaries (including any
Permitted Acquisition) and (ii) Transaction Costs during such period.


 


SECTION 10.4               Maximum Facility Capital Expenditures.  Permit the aggregate amount of all Facility
Capital Expenditures (other than Facility Capital Expenditures which are
financed by the proceeds of an insurance or condemnation event)  in any Fiscal Year to exceed
$30,000,000.  Notwithstanding the foregoing,
the maximum amount of Facility Capital Expenditures permitted by this Section 10.4
in any Fiscal Year shall be increased by the amount of Facility Capital
Expenditures that were permitted to be made under this Section 10.4
in the immediately preceding Fiscal Year (without giving effect to any
carryover amount from prior Fiscal Years) over the amount of Facility Capital
Expenditures actually made during such preceding Fiscal Year; provided,
that Facility Capital Expenditures in such Fiscal Year shall be counted last
against any amount so carried forward.


 


ARTICLE XI


 


NEGATIVE
COVENANTS


 


Until
all of the Obligations (other than (a) contingent, indemnification
obligations not then due and (b) the Specified Obligations) have been paid
and satisfied in full in cash and the Revolving Credit Commitments terminated,
the Credit Parties will not, and will not permit any of their respective
Subsidiaries to.


 


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


 


(a)           the Obligations (including the Guaranty Obligations with respect
thereto);


 


(b)           unsecured intercompany Indebtedness owed by:


 


(i)            any Credit Party to any other Credit Party;


 


(ii)           any Credit Party to any Subsidiary that is not a Credit Party;


 


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(iii)          any Subsidiary that is not a Credit Party to any Credit Party:


 


(A)          existing on the Closing Date (as set forth on Schedule 11.1(b)(iii));
and


 


(B)           incurred after the Closing Date in an aggregate principal amount not to
exceed at any time outstanding (1) $40,000,000 less (2) the
amount of Guaranty Obligations incurred pursuant to Section 11.1(i) on
the applicable date of determination less (3) the amount of
Investments made in the form of Permitted Acquisitions pursuant to Section 11.3(e)(ii) during
the term of this Agreement on the applicable date of determination less (4) the
amount of Investments made pursuant to Section 11.3(g) during
the term of this Agreement on the applicable date of determination; and


 


(iv)          any Subsidiary that is not a Credit Party to any other Subsidiary that is
not a Credit Party;


 


(c)           Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or other similar instrument drawn against insufficient
funds in the ordinary course of business;


 


(d)           Indebtedness of a Person existing at the time such Person became a
Subsidiary or assets were acquired from such Person, to the extent that (i) such
Indebtedness was not incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or the acquisition of such assets, (ii) neither
the Borrower nor any of its Subsidiaries (other than such Person or any other
Person that such Person merges with or that acquires the assets of such Person)
shall have any liability or other obligation with respect to such Indebtedness
and (iii) the aggregate amount of such Indebtedness does not exceed
$10,000,000 at any time outstanding;


 


(e)           Indebtedness incurred in connection with Capital Leases and purchase
money Indebtedness in an aggregate amount not to exceed $25,000,000 at any time
outstanding;


 


(f)            Indebtedness and obligations owing under Hedge Agreements entered into in
order to manage existing or anticipated interest rate, exchange rate or commodity
price risks and not for speculative purposes;


 


(g)           Guaranty Obligations of the Borrower or any of its Subsidiaries with
respect to Indebtedness permitted pursuant to subsections (a), (e) and (f) of
this Section;


 


(h)           (i) Indebtedness of the Borrower or any of its Subsidiaries incurred
in connection with Facility Capital Expenditures made on its own behalf in an
aggregate amount not to exceed $50,000,000 at any time outstanding and (ii) to
the extent that such Indebtedness is incurred by a Credit Party, Guaranty
Obligations of any other Credit Party with respect to such Indebtedness (it
being agreed and acknowledged by all parties hereto that, except to the extent
permitted under subsection (i) below, to the extent that such Indebtedness
is incurred by a Subsidiary that is not a Credit Party, no Credit Party shall
be permitted to guaranty such Indebtedness);


 


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(i)            Guaranty Obligations of any Credit Party with respect to Indebtedness of
any Subsidiary that is not a Credit Party in an aggregate amount not to exceed
at any time outstanding (A) $40,000,000  less
(B) the amount of Investments made in the form of Permitted Acquisitions
pursuant to Section 11.3(e)(ii) during the term of this
Agreement on the applicable date of determination less (C) the
amount of Investments made in the form of Indebtedness pursuant to Section 11.3(f)(iv) during
the term of this Agreement on the applicable date of determination less (D) the
amount of Investments made pursuant to Section 11.3(g) during
the term of this Agreement on the applicable date of determination; and


 


(j)            additional Indebtedness not otherwise permitted pursuant to this Section in
an aggregate principal amount not to exceed $5,000,000 at any time outstanding.


 


SECTION 11.2               Limitations on Liens.  Create, incur, assume or suffer to exist, any
Lien on or with respect to any of its Property, whether now owned or hereafter
acquired, except:


 


(a)           Liens created pursuant to the Loan Documents (if any);


 


(b)           Liens in existence on the Closing Date and described on Schedule 11.2;
provided that the scope of any such Lien shall not be increased, or
otherwise expanded, to cover any additional property or type of asset, as
applicable, beyond that in existence on the Closing Date;


 


(c)           Liens for taxes, assessments and other governmental charges or levies
(excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) (i) not yet due or as to which the period of grace
(not to exceed thirty (30) days), if any, related thereto has not expired or
(ii) which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;


 


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


 


(e)           Liens consisting of deposits or pledges made in the ordinary course of
business in connection with, or to secure payment of, obligations under workers’
compensation, unemployment insurance and other types of social security or
similar legislation, or to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety bonds (other
than bonds related to judgments or litigation), performance bonds and other
obligations of a like nature incurred in the ordinary course of business, in
each case, so long as no foreclosure sale or similar proceeding has been
commenced with respect to any portion of the assets on account thereof;


 


(f)            Liens constituting encumbrances in the nature of zoning restrictions,
easements and rights or restrictions of record on the use of real property,
which in the aggregate are not substantial in amount and which could not
reasonably be expected to have a Material Adverse Effect;


 


77

















 


(g)           purported Liens evidenced by the filing of precautionary UCC financing
statements relating solely to personal property leased pursuant to operating
leases entered into in the ordinary course of business of the Borrower and its
Subsidiaries;


 


(h)           Liens securing Capital Lease Indebtedness and purchase money Indebtedness
permitted under Section 11.1(e); provided that (i) such
Liens shall be created substantially simultaneously with the acquisition or
lease of the related asset, (ii) such Liens do not at any time encumber
any property other than the property financed by such Indebtedness,
(iii) the amount of Indebtedness secured thereby is not increased and
(iv) the principal amount of Indebtedness secured by any such Lien shall
at no time exceed one hundred percent (100%) of the original purchase price or
lease payment amount of such property at the time it was acquired;


 


(i)            (i) Liens of a collecting bank arising in the ordinary course of
business under Section 4-210 of the Uniform Commercial Code in effect in
the relevant jurisdiction and (ii) Liens of any depositary bank in
connection with statutory, common law and contractual rights of set-off and
recoupment with respect to any deposit account of any Borrower or any
Subsidiary thereof;


 


(j)            (i) contractual or statutory Liens of landlords to the extent
relating to the property and assets relating to any lease agreements with such
landlord, and (ii) contractual Liens of suppliers (including sellers of
goods) or customers to the extent limited to the property or assets relating to
such contract; and


 


(k)           Liens on tangible property or tangible assets of any Subsidiary of the
Borrower which are in existence at the time that such Subsidiary of the Borrower
is acquired pursuant to a Permitted Acquisition (provided that (i) such
Liens (A) are not incurred in connection with, or in anticipation of, such
Permitted Acquisition and (B) do not attach to any other property or
assets of any Subsidiary thereof and (ii) the Indebtedness secured by such
Liens is permitted under Section 11.1 of this Agreement);


 


(l)            Liens securing judgments not giving rise to an Event of Default; provided,
that the judgment secured thereby has been paid, discharged or vacated or the
extension thereof has been stayed pending appeal within thirty (30) days after
entry or filing of such judgment or appeal or surety bond;


 


(m)          (i) any interest or title of a licensor, sublicensor, lessor or
sublessor with respect to any assets under any license or lease agreement
entered into in the ordinary course of business and (ii) licenses,
sublicenses, leases or subleases with respect to any assets granted to third
Persons in the ordinary course of business; provided that, in each of
the foregoing clauses (i) and (ii), the same do not interfere in any
material respect with the business of the Borrower and its Subsidiaries taken
as a whole; and


 


(n)           Liens securing Facility Capital Expenditures Indebtedness permitted under
Section 11.1(h); provided that (i) such Liens shall be
created substantially simultaneously with the acquisition of the property
(other than the real property) financed by such Indebtedness, (ii) such
Liens do not at any time encumber any property other than the property financed
by such Indebtedness, (iii) the amount of Indebtedness secured thereby is
not increased and (iv) the 


 


78

















 


principal amount of
Indebtedness secured by any such Lien shall at no time exceed the fair market
value of the property financed by such Indebtedness at the time such property
was acquired.


 


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


 


(a)           (i) equity Investments existing on the Closing Date in Subsidiaries
existing on the Closing Date, (ii) Investments existing on the Closing
Date (other than Investments in Subsidiaries existing on the Closing Date) and
described on Schedule 11.3 and (iii) equity Investments made after
the Closing Date in Subsidiary Guarantors;


 


(b)           Investments in cash and Cash Equivalents;


 


(c)           Investments by the Borrower or any of its Subsidiaries in the form of
Capital Expenditures permitted pursuant to this Agreement;


 


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


 


(e)           Investments by the Borrower or any Subsidiary thereof in the form of:


 


(i)            Permitted Acquisitions to the extent that any Person or Property acquired
in such acquisition becomes a part of a Subsidiary Guarantor or becomes
(whether or not such Person is a Wholly-Owned Subsidiary) a Subsidiary
Guarantor in the manner contemplated by Section 9.11; and


 


(ii)           Permitted Acquisitions to the extent that any Person or Property acquired
in such acquisition does not become a Subsidiary Guarantor or a part of a
Subsidiary Guarantor in an aggregate amount during the term of this Agreement
not to exceed (A) $40,000,000 (excluding any portion thereof paid with the
Net Cash Proceeds from any Equity Issuance by the Borrower other than any
Equity Issuance related to any Disqualified Capital Stock) less (B) the
amount of Guaranty Obligations incurred pursuant to Section 11.1(i) on
the applicable date of determination less (C) the amount of
Investments made in the form of Indebtedness pursuant to Section 11.3(f)(iv) during
the term of this Agreement on the applicable date of determination less (D) the
amount of Investments made pursuant to Section 11.3(g) during
the term of this Agreement on the applicable date of determination;


 


(f)            Investments in the form of Indebtedness permitted pursuant to (i) Section 11.1(b)(i),
(ii) Section 11.1(b)(ii), (iii) Section 11.1(b)(iii)(A),
(iv) Section 11.1(b)(iii)(B) and (v) Section 11.1(b)(iv);


 


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(g)           Investments in any Subsidiary that is not a Subsidiary Guarantor in an
aggregate amount during the term of this Agreement not to exceed (i) $40,000,000
less (ii) the amount of Guaranty Obligations incurred pursuant to Section 11.1(i) on
the applicable date of determination less (iii) the amount of
Investments made in the form of Permitted Acquisitions pursuant to Section 11.3(e)(ii) during
the term of this Agreement on the applicable date of determination less (iv) the
amount of Investments made in the form of Indebtedness pursuant to Section 11.3(f)(iv) during
the term of this Agreement on the applicable date of determination; and


 


(h)           other Investments, in addition to those permitted above, not to exceed
$10,000,000 in the aggregate.


 


For
purposes of determining the amount of any Investment outstanding for purposes
of this Section 11.3, such amount shall be deemed to be the amount
of such Investment when made, purchased or acquired less any amount
realized in respect of such Investment upon the sale, collection or return of
capital (not to exceed the original amount invested).


 


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


 


(a)           (i) any Wholly-Owned Subsidiary of the Borrower may be merged,
amalgamated or consolidated with or into the Borrower (provided that the
Borrower shall be the continuing or surviving entity) or (ii) any
Wholly-Owned Subsidiary of the Borrower may be merged, amalgamated or
consolidated with or into any other Wholly-Owned Subsidiary (provided
that, if either of such Wholly-Owned Subsidiaries is a Subsidiary Guarantor, (A) the
Subsidiary Guarantor shall be the continuing or surviving entity or (B) simultaneously
with such transaction, the continuing or surviving entity shall become a
Subsidiary Guarantor and the Borrower shall comply with Section 9.12
in connection therewith);


 


(b)           any Subsidiary may dispose of all or substantially all of its assets
(upon voluntary liquidation, dissolution, winding up or otherwise) to the
Borrower or any Subsidiary Guarantor; provided that, with respect to any
such disposition by any Non-Guarantor Subsidiary, the consideration for such
disposition shall not exceed the fair value of such assets;


 


(c)           any Wholly-Owned Subsidiary of the Borrower may merge with or into the
Person such Wholly-Owned Subsidiary was formed to acquire in connection with a
Permitted Acquisition, provided that (i) a Subsidiary Guarantor
shall be the continuing or surviving entity or (ii) simultaneously with
such transaction, the continuing or surviving entity shall become a Subsidiary
Guarantor and the Borrower shall comply with Section 9.11 in connection
therewith);


 


(d)           any Person may merge into the Borrower or any of its Wholly-Owned
Subsidiaries in connection with a Permitted Acquisition; provided that
(i) in the case of a merger involving the Borrower or a Subsidiary
Guarantor, the continuing or surviving Person shall be the Borrower or such
Subsidiary Guarantor and (ii) the continuing or surviving Person shall be
the Borrower or a Wholly-Owned Subsidiary of the Borrower; and


 


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(e)           any Asset Disposition permitted by Section 11.5 may be
consummated.


 


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


 


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


 


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


 


(c)           the transfer of assets to the Borrower or any Subsidiary pursuant to any
transaction permitted pursuant to Section 11.4;


 


(d)           the Borrower or any Subsidiary may write-off, discount, sell or otherwise
dispose of defaulted or past due receivables and similar obligations in the
ordinary course of business and not as part of an accounts receivable financing
transaction;


 


(e)           dispositions of Investments in cash and Cash Equivalents;


 


(f)            any Credit Party may transfer assets to any other Credit Party;


 


(g)           licenses and sublicenses of intellectual property rights in the ordinary
course of business not interfering, individually or in the aggregate, in any
material respect with the conduct of the business of the Borrower and its
Subsidiaries taken as a whole; and


 


(h)           leases, subleases, licenses or sublicenses of real or personal property
granted by any Borrower or any of its Subsidiaries to others in the ordinary
course of business not interfering in any material respect with the business of
the Borrower and its Subsidiaries taken as a whole;


 


(i)            dispositions in connection with insurance and condemnation events; and


 


(j)            the sale or other disposition of assets by the Borrower or any Subsidiary
not otherwise permitted under this Section 11.5 so long as the net
book value of all assets sold or otherwise disposed of in any Fiscal Year does
not exceed $5,000,000.


 


SECTION 11.6               Limitations on Restricted Payments.  Declare or pay any dividend on, or make any
payment or other distribution on account of, or purchase, redeem, retire or
otherwise acquire (directly or indirectly), or set apart assets for a sinking
or other analogous fund for the purchase, redemption, retirement or other
acquisition of, any class of Capital Stock of any Credit Party or any
Subsidiary thereof, or make any distribution of cash, property or assets to the
holders of shares of any Capital Stock of any Credit Party or any Subsidiary
thereof (all of the foregoing, the “Restricted Payments”); provided
that:


 


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


 


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(b)           any Subsidiary of the Borrower may pay cash dividends to the Borrower or
any Subsidiary Guarantor or ratably to all holders of its outstanding Qualified
Capital Stock;


 


SECTION 11.7               Transactions with Affiliates.  Directly or indirectly enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with (a) any officer, director, holder
of any Capital Stock in, or other Affiliate of, the Borrower or any of its
Subsidiaries or (b) any Affiliate of any such officer, director or holder,
other than:


 


(i)            transactions permitted by Sections
11.1, 11.3, 11.4, 11.6 and 11.13;


 


(ii)           transactions in the ordinary
course of business on terms as favorable as would be obtained by it on a
comparable arm’s-length transaction with an independent, unrelated third party
as determined in good faith by the board of directors (or equivalent governing
body) of the Borrower;


 


(iii)          employment and severance
arrangements (including stock option plans and employee benefit plans and
arrangements) with their respective officers and employees in the ordinary
course of business; and


 


(iv)          payment of customary fees
and reasonable out of pocket costs to, and indemnities for the benefit of,
directors, officers and employees of the Borrower and its Subsidiaries in the
ordinary course of business to the extent attributable to the ownership or
operation of the Borrower and its Subsidiaries.


 


SECTION 11.8               Certain Accounting Changes; Organizational Documents.


 


(a)           Change its Fiscal Year end, or make (without the consent of the
Administrative Agent) any material change in its accounting treatment and
reporting practices except as required by GAAP; or


 


(b)           Amend, modify or change its articles of incorporation (or corporate
charter or other similar organizational documents) or amend, modify or change
its bylaws (or other similar documents) in any manner which would materially
and adversely affect the rights or interests of the Lenders.


 


SECTION 11.9               Limitation on Payments and Modifications of Subordinated Indebtedness.


 


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


 


(b)           Cancel, forgive, make any payment or prepayment on, or redeem or acquire
for value (including, without limitation, (i) by way of depositing with
any trustee with respect thereto money or securities before due for the purpose
of paying when due and (ii) at the maturity thereof) any Subordinated
Indebtedness, except:


 


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(i)            refinancings, refundings,
renewals, extensions or exchange of any Subordinated Indebtedness to the extent
incurred pursuant to Section 11.1(d) and by any subordination
agreement applicable thereto; and


 


(ii)           the payment of interest,
expenses and indemnities in respect of Subordinated Indebtedness to the extent
incurred pursuant to Section 11.1(d) (other than any such
payments prohibited by the subordination provisions thereof).


 


SECTION 11.10             No Further Negative Pledges; Restrictive Agreements.


 


(a)           Enter into, assume or be subject to any agreement prohibiting or
otherwise restricting the creation or assumption of any Lien upon its
properties or assets, whether now owned or hereafter acquired, or requiring the
grant of any security for such obligation if security is given for some other
obligation, except (i) pursuant to this Agreement and the other Loan
Documents, (ii) pursuant to any document or instrument governing capital
lease Indebtedness and purchase money Indebtedness to the extent such
Indebtedness is incurred pursuant to Section 11.1(e); provided,
that any such restriction contained therein relates only to the asset or assets
acquired in connection therewith, (iii) restrictions contained in the organizational
documents of any Credit Party as of the Closing Date and (iv) restrictions
in connection with any Permitted Lien or any document or instrument governing
any Permitted Lien (provided, that any such restriction contained
therein relates only to the asset or assets subject to such Permitted Lien).


 


(b)           Create or otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction on the ability of any Credit Party or any
Subsidiary thereof to (i) pay dividends or make any other distributions to
any Credit Party or any Subsidiary on its Capital Stock or with respect to any
other interest or participation in, or measured by, its profits, (ii) pay
any Indebtedness or other obligation owed to the Borrower or any Subsidiary Guarantor,
(iii) make loans or advances to the Borrower or any Subsidiary Guarantor,
(iv) sell, lease or transfer any of its properties or assets to the
Borrower or any Subsidiary Guarantor or (v) act as a Guarantor pursuant to
the Loan Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except (in respect of any of the matters referred to in
clauses (i) through (v) above) for such encumbrances or
restrictions existing under or by reason of (A) this Agreement and the
other Loan Documents, (B) Applicable Law, (C) any document or
instrument governing capital lease Indebtedness and purchase money Indebtedness
to the extent such Indebtedness is incurred pursuant to Section 11.1(e) (provided,
that any such restriction contained therein relates only to the asset or assets
acquired in connection therewith), (D) any Permitted Lien or any document
or instrument governing any Permitted Lien (provided, that any such
restriction contained therein relates only to the asset or assets subject to
such Permitted Lien), (E) obligations under any provision of any agreement
or other instrument governing Indebtedness that are binding on a Person that
becomes a Subsidiary of the Borrower, so long as (1) such obligations are
not entered into in contemplation of such Person becoming a Subsidiary, (2) such
Indebtedness is otherwise permitted to be incurred or assumed under this
Agreement and (3) such obligations are not applicable to any Person, or
the properties or assets of any Person, other than the Person that becomes a
Subsidiary of the Borrower and (F) customary net worth provisions
contained in leases and other agreements entered into by the Borrower or any of
its Subsidiaries in the ordinary course of business.


 


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SECTION 11.11             Nature of Business.  With respect to the Borrower and its
Subsidiaries, engage in any business other than the business conducted by the
Borrower and its Subsidiaries as of the Closing Date and business activities
reasonably related or ancillary thereto.


 


SECTION 11.12             Sale Leasebacks.  Directly or indirectly become or remain
liable as lessee or as guarantor or other surety with respect to any lease,
whether an operating lease or a Capital Lease, of any Property (whether real,
personal or mixed), whether now owned or hereafter acquired, (a) which any
Credit Party or any Subsidiary thereof has sold or transferred or is to sell or
transfer to a Person which is not another Credit Party or Subsidiary of a
Credit Party or (b) which any Credit Party or any Subsidiary of a Credit
Party intends to use for substantially the same purpose as any other Property
that has been sold or is to be sold or transferred by such Credit Party or such
Subsidiary to another Person which is not another Credit Party or Subsidiary of
a Credit Party in connection with such lease.


 


SECTION 11.13             Operating Lease Payments.  Make operating lease payments in an aggregate
amount exceeding $20,000,000 during any calendar year.


 


ARTICLE XII


 


DEFAULT
AND REMEDIES


 


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


 


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


 


(b)           Other Payment Default.  The Borrower or any other Credit Party shall
default in the payment when and as due (whether at maturity, by reason of
acceleration or otherwise) of interest on any Loan or Reimbursement Obligation
or the payment of any other Obligation, and such default shall continue for a
period of five (5) Business Days.


 


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


 


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(d)                                 Default in Performance of Certain Covenants.  Any Credit Party shall default
in the performance or observance of any covenant or agreement contained in (i) Sections
8.1 or 8.2 and such default shall continue for a period of five (5) days
or (ii) 8.4(e)(i) or Articles X or XI.


 


(e)                                  Default in Performance of Other Covenants and Conditions.  Any Credit Party or any
Subsidiary thereof shall default in the performance or observance of any term,
covenant, condition or agreement contained in this Agreement (other than as
specifically provided for in this Section) or any other Loan Document and such
default shall continue for a period of thirty (30) days after the earlier
of (i) the Administrative Agent’s delivery of written notice thereof to
the Borrower and (ii) a Responsible Officer of the Borrower having
obtained knowledge thereof.


 


(f)                                    Indebtedness Cross-Default.  Any Credit Party or any Subsidiary thereof
shall (i) default in the payment of any Indebtedness (other than the Loans
or any Reimbursement Obligation) the aggregate outstanding amount of which
Indebtedness is in excess of the Threshold Amount beyond the period of grace if
any, provided in the instrument or agreement under which such Indebtedness was
created, or (ii) default in the observance or performance of any other
agreement or condition relating to any Indebtedness (other than the Loans, any
Reimbursement Obligation) the aggregate outstanding amount of which
Indebtedness is in excess of the Threshold Amount or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, with the giving of notice and/or lapse of time, if required, any such
Indebtedness to become due prior to its stated maturity (any applicable grace
period having expired).


 


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


 


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


 


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


 


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


 


(j)                                     Failure of Agreements.  Any material provision of this Agreement or
any provision of any other Loan Document shall cease to be valid and binding on
any Credit Party or any Subsidiary thereof party thereto or any such Person
shall so state in writing.


 


(k)                                  Termination Event.  The occurrence of any of the following
events: (i) any Credit Party or any ERISA Affiliate fails to make full
payment when due of all amounts which, under the provisions of any Pension Plan
or Sections 412 or 430 of the Code, any Credit Party or any ERISA Affiliate is
required to pay as contributions thereto, (ii) a failure to meet minimum
funding standards in excess of the Threshold Amount occurs or exists, whether
or not waived, with respect to any Pension Plan, (iii) a Termination Event
or (iv) any Credit Party or any ERISA Affiliate as employers under one or
more Multiemployer Plans makes a complete or partial withdrawal from any such
Multiemployer Plan and the plan sponsor of such Multiemployer Plans notifies
such withdrawing employer that such employer has incurred a withdrawal liability
requiring payments in an amount exceeding the Threshold Amount.


 


(l)                                     Judgment.  A final judgment or order for the payment of
money which causes the aggregate amount of all such final judgments or orders
(net of any amounts paid or fully covered by independent third party insurance
as to which the relevant insurance company does not dispute coverage) to exceed
the Threshold Amount shall be entered against any Credit Party or any
Subsidiary thereof by any court and such judgment or order shall continue without
having been discharged, vacated or stayed for a period of thirty (30)
consecutive days after the entry thereof.


 


SECTION 12.2                                            Remedies.  Upon the occurrence and during the
continuance of an Event of Default, with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower:


 


(a)                                  Acceleration; Termination of Facilities.


 


(i)                                     Terminate the
Revolving Credit Commitment and declare the principal of and interest on the
Loans and the Reimbursement Obligations at the time outstanding, and all other
amounts owed to the Lenders and to the Administrative Agent under this
Agreement or any of the other Loan Documents (including, without limitation,
all L/C Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented or shall be entitled to present the
documents required thereunder) and all other Obligations (other than Specified
Obligations), to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by each Credit
Party, anything in this Agreement or the other Loan Documents to the contrary
notwithstanding, and terminate the Credit Facility and any right of the
Borrower to request borrowings or Letters of Credit thereunder; provided, that
upon the occurrence of an Event of Default specified in Section 12.1(h) or
(i), the Credit Facility 


 


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shall be automatically terminated and all
Obligations (other than Specified Obligations) shall automatically become due
and payable without presentment, demand, protest or other notice of any kind, all
of which are expressly waived by each Credit Party, anything in this Agreement
or in any other Loan Document to the contrary notwithstanding; and


 


(ii)                                  exercise on
behalf of the Lenders all of its other rights and remedies under this
Agreement, the other Loan Documents and Applicable Law, in order to satisfy all
of the Obligations.


 


(b)                                 Letters of Credit.  With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of
an acceleration pursuant to the preceding paragraph, the Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit.  Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon,
if any, shall be applied to repay the other Obligations on a pro  rata
basis.  After all such Letters of Credit
shall have expired or been fully drawn upon, the Reimbursement Obligation shall
have been satisfied and all other Obligations (other than (i) contingent,
indemnification obligations not then due and (ii) the Specified
Obligations) shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower.


 


(c)                                  Rights of Collection.  Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower’s Obligations.


 


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


 


SECTION 12.4                                            Crediting of Payments and Proceeds.  In the event that the Obligations have been
accelerated pursuant to Section 12.2 or the Administrative Agent or
any Lender has exercised any remedy set forth in this Agreement or any other
Loan Document, all payments received by the Lenders upon the Obligations and
all net proceeds from the enforcement of the Obligations shall be applied:


 


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


 


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


 


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


 


Fourth, to payment of
that portion of the Obligations constituting unpaid principal of the Loans,
Reimbursement Obligations, Specified Hedge Obligations (including any
termination payments and any accrued and unpaid interest thereon) and Specified
Cash Management Obligations (ratably among the Lenders and the counterparties
to the Specified Hedge Obligations and Specified Cash Management Obligations,
as applicable, in proportion to the respective amounts described in this clause
Fourth held by them);


 


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


 


Last, the balance,
if any, after all of the Obligations have been indefeasibly paid in full (other
than (a) contingent, indemnification obligations not then due and (b) the
Specified Obligations), to the Borrower or as otherwise required by Applicable
Law.


 


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


 


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


 


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


 


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


 


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


 


ARTICLE XIII


 


THE
ADMINISTRATIVE AGENT


 


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


 


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


 


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


 


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


 


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


 


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


 


The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Section 14.2 and Section 12.2)
or (ii) in the absence of its own gross negligence or willful misconduct
as determined by a court of competent jurisdiction by final nonappealable
judgment.  The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing
such Default is given to the Administrative Agent by the Borrower, a Lender or
the Issuing Lender.


 


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


 


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


 


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legal counsel (who may be
counsel for the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.


 


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


 


SECTION 13.6                                            Resignation of Administrative Agent.


 


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


 


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


 


SECTION 13.7                                            Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and the Issuing
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.  Each Lender and the Issuing Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.


 


SECTION 13.8                                            No Other Duties, etc.  Anything herein to the contrary
notwithstanding, none of the syndication agents, documentation agents,
co-agents, book manager, lead manager, arranger, lead arranger or co-arranger
listed on the cover page or signature pages hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as the Administrative
Agent, a Lender or the Issuing Lender hereunder.


 


SECTION 13.9                                            Guaranty Matters.  The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion (without notice to,
or vote or consent of, any counterparty to any Specified Hedge Agreement or
Specified Cash Management Arrangement that was a Lender or an Affiliate of any
Lender at the time such agreement was executed), to release any Subsidiary
Guarantor (whether or not on the date of such release there may be outstanding
Specified Obligations or contingent indemnification obligations not then due)
from its obligations under the Subsidiary Guaranty Agreement and any other Loan
Documents if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.


 


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


 


SECTION 13.10                                      Release Guarantees of Subsidiaries.  At the request and sole expense of the
Borrower, a Subsidiary that is a Credit Party shall be released from all its
obligations under this Agreement and under all other Loan Documents in the
event that all or a majority of 


 


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the Capital Stock of such
Subsidiary shall be sold, transferred or otherwise disposed of in a transaction
permitted by this Agreement (including by way of merger or consolidation), and
the Administrative Agent, at the request and sole expense of the Borrower,
shall execute and deliver without recourse, representation or warranty all
releases or other documents necessary or desirable to evidence or confirm the
foregoing.


 


SECTION 13.11                                      Specified Cash Management Arrangements and Specified Hedge Agreements.  No Lender or Affiliate thereof
party to a Specified Cash Management Arrangement or Specified Hedge Agreement,
as applicable, that obtains the benefits of Section 12.4 by virtue
of the provisions hereof or of any other Loan Document shall have any right to
notice of any action or to consent to, direct or object to any action hereunder
or under any other Loan Document other than in its capacity as a Lender and, in
such case, only to the extent expressly provided in the Loan Documents.


 


ARTICLE XIV


 


MISCELLANEOUS


 


SECTION 14.1                                            Notices.


 


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


 


	
  If
  to the Borrower:

  	
  Merit
  Medical Systems, Inc.

  
	
   

  	
  1600 West Merit Parkway

  
	
   

  	
  South Jordan, UT 84095

  
	
   

  	
  Attention: 
  General Counsel

  
	
   

  	
  Telecopy: 
  (801) 208-4302

  
	
   

  	
   

  
	
  With
  copies to:

  	
  Parr
  Brown Gee & Loveless, PC

  
	
   

  	
  185
  S. State St., Suite 800

  
	
   

  	
  Salt
  Lake City, UT 84111

  
	
   

  	
  Attn:
  Scott W. Loveless

  
	
   

  	
  Telecopy:
  (801) 532-7750

  
	
   

  	
   

  
	
  If
  to Wells Fargo as

  	
   

  
	
  Administrative

  	
   

  
	
  Agent:

  	
  Wells
  Fargo Bank, National Association

  
	
   

  	
  299
  S. Main Suite 900

  
	
   

  	
  Salt
  Lake City, UT 84111

  
	
   

  	
  Attention
  of: Rich Lambert

  
	
   

  	
  Telephone
  No.: (801) 246-1032

  
	
   

  	
  Telecopy
  No.: (801) 532-8555

  



 


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  With
  copies to:

  	
  Wells
  Fargo Bank, National Association

  
	
   

  	
  299
  S. Main Suite 900

  
	
   

  	
  Salt
  Lake City, UT 84111

  
	
   

  	
  Attention
  of: David Kuhn

  
	
   

  	
  Telephone
  No.: (801) 246-1634

  
	
   

  	
  Telecopy
  No.: (801) 532-8555

  
	
   

  	
   

  
	
  If
  to any Lender:

  	
  To
  the address set forth on the Register

  



 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(d)                                 change Section 5.6 or Section 12.4 in a manner
that would alter the pro  rata sharing of payments required
thereby without the written consent of each Lender directly and adversely
affected thereby;


 


(e)                                  except as otherwise permitted by this Section 14.2 change any
provision of this Section or reduce the percentages specified in the
definition of “Required Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to amend, waive or otherwise modify
any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender directly affected thereby;


 


(f)                                    consent to the assignment or transfer by any Credit Party of such Credit
Party’s rights and obligations under any Loan Document to which it is a party
(except as permitted pursuant to Section 11.4), in each case,
without the written consent of each Lender; or


 


(g)                                 release (i) all of the Subsidiary Guarantors or
(iii) Subsidiary Guarantors comprising substantially all of the credit
support for the Obligations, in any case, from any Guaranty Agreement (other
than as authorized in Section 13.9), without the written consent of
each Lender;


 


95

















 


provided  further,
that (i) no amendment, waiver or consent shall, unless in writing and
signed by the Issuing Lender in addition to the Lenders required above, affect
the rights or duties of the Issuing Lender under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued
by it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Swingline Lender in addition to the Lenders required above,
affect the rights or duties of the Swingline Lender under this Agreement;
(iii) no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; (iv) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto
and (v) any waiver, amendment or modification of this Agreement that by
its terms affects the rights or duties under this Agreement of Lenders holding
Loans of a particular Class (but not the Lenders holding Loans of any
other Class) may be effected by an agreement or agreements in writing entered
into by the Borrower and the requisite percentage in interest of the affected Class of
Lenders that would be required to consent thereto under this Section if
such Class of Lenders were the only Class of Lenders hereunder at the
time.  Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Revolving Credit Commitment of such Lender may not be increased or extended
without the consent of such Lender.


 


Notwithstanding
anything in this Agreement to the contrary, each Lender hereby irrevocably
authorizes the Administrative Agent on its behalf, and without further consent,
to enter into amendments or modifications to this Agreement (including, without
limitation, amendments to this Section 14.2) or any of the other
Loan Documents or to enter into additional Loan Documents as the Administrative
Agent reasonably deems appropriate in order to effectuate the terms of Section 5.13
(including, without limitation, as applicable, (1) to permit the New Loans
to share ratably in the benefits of this Agreement and the other Loan Documents
and (2) to include the New Loan Commitments or outstanding New Loans, in
any determination of (i) Required Lenders or (ii) similar required
lender terms applicable thereto); provided that no amendment or
modification shall result in any increase in the amount of any Lender’s
Revolving Credit Commitment or any increase in any Lender’s Revolving Credit
Commitment Percentage, in each case, without the written consent of such
affected Lender.


 


SECTION 14.3                                            Expenses; Indemnity.


 


(a)                                  Costs and Expenses.  The Borrower and any other Credit Party,
jointly and severally, shall pay (i) all reasonable out of pocket expenses
incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent), in connection with the syndication of the credit facilities provided
for herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out of pocket expenses incurred by the
Issuing Lender in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder and (iii) all
out of pocket expenses incurred by the Administrative Agent, any Lender or the
Issuing Lender (including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Lender or the Issuing Lender), 


 


96

















 


and shall pay all fees and
time charges for attorneys who may be employees of the Administrative Agent,
any Lender or the Issuing Lender, in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the
other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out of pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.


 


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


 


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


 


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


 


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


 


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


 


98

















 


respective Affiliates may
have.  Each Lender, the Issuing Lender
and the Swingline Lender agrees to notify the Borrower and the Administrative
Agent promptly after any such setoff and application; provided that the
failure to give such notice shall not affect the validity of such setoff and
application.


 


SECTION 14.5                                            Governing Law; Jurisdiction, Etc.


 


(a)                                  Governing Law.  This Agreement and the other Loan Documents,
unless expressly set forth therein, shall be governed by, construed and
enforced in accordance with, the law of the State of New York.


 


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


 


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


 


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


 


SECTION 14.6                                            Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).  EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS 


 


99

















 


REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


 


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


 


SECTION 14.8                                            Injunctive Relief; Punitive Damages.


 


(a)                                  The Borrower recognizes that, in the event the Borrower fails to perform,
observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrower agrees that the Lenders, at the Lenders’ option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.


 


(b)                                 The Administrative Agent, the Lenders and the Borrower (on behalf of
itself and the other Credit Parties) hereby agree that no such Person shall
have a remedy of punitive or exemplary damages against any other party to a
Loan Document and each such Person hereby waives any right or claim to punitive
or exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.


 


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


 


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SECTION 14.10                                      Successors and Assigns; Participations.


 


(a)                                  Successors and Assigns Generally.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Credit Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of paragraph (b) of this
Section, (ii) by way of participation in accordance with the provisions of
paragraph (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of
paragraph (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in paragraph (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


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


 


(i)                                     Minimum Amounts.


 


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


 


(B)                                in any case not
described in paragraph (b)(i)(A) of this Section, the aggregate
amount of the Revolving Credit Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the applicable Revolving Credit Commitment
is not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date) shall not be less than $5,000,000, in the
case of any assignment in respect of the Revolving Credit Facility, unless each
of the Administrative Agent and, so long as no Event of Default has occurred
and is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided that the Borrower shall be
deemed to have given its consent five (5) Business Days after the date
written notice thereof has been delivered by the assigning Lender (through the
Administrative Agent) unless such consent is expressly refused by the Borrower
prior to such fifth (5th) Business Day;


 


(ii)                                  Proportionate
Amounts.  Each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender’s
rights and obligations 


 


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under this Agreement with respect to the Loan
or the Revolving Credit Commitment assigned;


 


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


 


(A)                              the consent of
the Borrower (such consent not to be unreasonably withheld) shall be required
unless (x) an Event of Default has occurred and is continuing at the time
of such assignment or (y) such assignment is to a Lender, an Affiliate of
a Lender or an Approved Fund; provided, that the Borrower shall be
deemed to have consented to any such assignment unless it shall object thereto
by written notice to the Administrative Agent within five (5) Business
Days after having received notice thereof;


 


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


 


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


 


(iv)                              Assignment and
Assumption.  The parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of
$3,500 for each assignment (provided, that only one such fee will be
payable in connection with simultaneous assignments to two or more Approved
Funds by a Lender), and the assignee, if it is not a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.


 


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


 


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


 


Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 5.8, 5.9, 5.10,
5.11 and 14.3  


 


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with
respect to facts and circumstances occurring prior to the effective date of
such assignment.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (d) of this Section.


 


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


 


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


 


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


 


(e)                                  Limitations upon Participant Rights.  A Participant shall not be entitled to
receive any greater payment under Sections 5.10 and 5.11 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant. 
No Participant shall be entitled to the benefits of Section 5.11
unless the Borrower is notified of the participation sold 


 


103

















 


to such Participant and
such Participant agrees, for the benefit of the Borrower, to comply with Section 5.11(e) as
though it were a Lender.


 


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


 


SECTION 14.11                                      Confidentiality.  Each of the Administrative Agent, the Lenders
and the Issuing Lender agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates’ respective partners,
directors, officers, employees, agents, advisors and other representatives (it
being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by, or
required to be disclosed to, any rating agency, or regulatory or similar
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners),
(c) to the extent required by Applicable Laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto,
(e) in connection with the exercise of any remedies under this Agreement
or under any other Loan Document (or any Specified Hedge Agreement) or any
action or proceeding relating to this Agreement or any other Loan Document (or
any Hedge Agreement with a Lender or the Administrative Agent) or the enforcement
of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, Participant or
proposed Participant, (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, (g) with the consent of the Borrower, (h) to Gold
Sheets and other similar bank trade publications, such information to consist
of deal terms and other information customarily found in such publications, or
(i) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the Issuing Lender or any of
their respective Affiliates on a nonconfidential basis from a source other than
the Borrower or (j) to governmental regulatory authorities in connection
with any regulatory examination of the Administrative Agent or any Lender or in
accordance with the Administrative Agent’s or any Lender’s regulatory
compliance policy if the Administrative Agent or such Lender deems necessary
for the mitigation of claims by those authorities against the Administrative
Agent or such Lender or any of its subsidiaries or affiliates.  For purposes of this Section, “Information”
means all information received from any Credit Party or any Subsidiary thereof
relating to any Credit Party or any Subsidiary thereof or any of their
respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or the Issuing Lender on a nonconfidential
basis prior to disclosure by any Credit Party or any Subsidiary thereof; provided
that, in the case of information received from a Credit Party or any Subsidiary
thereof 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


 


104
















 


have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.


 


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


 


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


 


SECTION 14.14             Survival.


 


(a)           All representations and warranties
set forth in Article VII and all representations and warranties
contained in any certificate, or any of the Loan Documents (including, but not
limited to, any such representation or warranty made in or in connection with
any amendment thereto) shall constitute representations and warranties made
under this Agreement.  All
representations and warranties made under this Agreement shall be made or
deemed to be made at and as of the Closing Date (except those that are
expressly made as of a specific date), shall survive the Closing Date and shall
not be waived by the execution and delivery of this Agreement, any
investigation made by or on behalf of the Lenders or any borrowing hereunder.


 


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


 


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


 


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


 


SECTION 14.17             Counterparts; Integration;
Effectiveness; Electronic Execution.


 


(a)           Counterparts; Integration;
Effectiveness.  This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall 


 


105

















 


constitute an original,
but all of which when taken together shall constitute a single contract.  Delivery of an executed signature page of
this Agreement or Lender Authorization by facsimile transmission shall be
effective as delivery of a manually executed counterparty hereof.  This Agreement and the other Loan Documents,
and any separate letter agreements with respect to fees payable to the
Administrative Agent, constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.  In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion
of supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement.  Each Loan Document was
drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof. 
Except as provided in Section 6.1, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof that,
when taken together, bear the signatures of each of the other parties hereto.


 


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


 


SECTION 14.18             Term of Agreement.  This Agreement shall remain in effect from
the Closing Date through and including the date upon which all Obligations
(other than (a) contingent indemnification obligations not then due and
(b) the Specified Obligations) arising hereunder or under any other Loan
Document shall have been indefeasibly and irrevocably paid and satisfied in
full and the Revolving Credit Commitment has been terminated.  No termination of this Agreement shall affect
the rights and obligations of the parties hereto arising prior to such
termination or in respect of any provision of this Agreement which survives
such termination.


 


SECTION 14.19             USA Patriot Act.  The Administrative Agent and each Lender
hereby notifies the Borrower that pursuant to the requirements of the Act, it
is required to obtain, verify and record information that identifies the
Borrower and Guarantors, which information includes the name and address of
each Borrower and Guarantor and other information that will allow such Lender
to identify such Borrower or Guarantor in accordance with the Act.


 


SECTION 14.20             Delivery of Lender Authorization.  Each initial Lender (other than any Lender
whose name appears on the signature pages to this Agreement) shall become
a party to this Agreement by delivering to the Administrative Agent a Lender
Authorization duly executed by such Lender.


 


106

















 


SECTION 14.21             Inconsistencies with Other
Documents; Independent Effect of Covenants.


 


(a)           In the event there is a conflict or
inconsistency between this Agreement and any other Loan Document, the terms of
this Agreement shall control.


 


(b)           The Borrower expressly acknowledges
and agrees that each covenant contained in Articles VIII, IX,
X or XI hereof shall be given independent effect.  Accordingly, the Borrower shall not engage in
any transaction or other act otherwise permitted under any covenant contained
in Articles VIII, IX, X or XI, before or after
giving effect to such transaction or act, the Borrower shall or would be in
breach of any other covenant contained in Articles VIII, IX,
X or XI.


 


[Signature pages to follow]


 


107

















 


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


 


 


	
   

  	
  MERIT
  MEDICAL SYSTEMS, INC., as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


	
   

  	
  AGENTS
  AND LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Administrative Agent, Swingline Lender, Issuing Lender and Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


Annex A


 


LENDER AUTHORIZATION


 


Merit Medical
Systems, Inc.


Credit Agreement


 


[                    ], 2010


 


Wells Fargo Bank, National Association,


as Administrative Agent


299 S. Main Suite 900


Salt Lake City, UT 84111


Attention of: 
Rich Lambert


 


Re:                               Credit Agreement dated as of
September 10, 2010 (as amended, the “Credit Agreement”) by and
among Merit Medical Systems, Inc. (the “Borrower”), the banks and
financial institutions party thereto, as lenders (the “Lenders”), and
Wells Fargo Bank, National Association, as administrative agent (the “Administrative
Agent”)


 


This Authorization acknowledges our receipt and review
of the execution copy of the Credit Agreement in the form posted on SyndTrak
Online.  By executing this Authorization,
we hereby approve the Credit Agreement and authorize the Administrative Agent
to execute and deliver the Credit Agreement on our behalf.


 


Each financial institution executing this
Authorization agrees or reaffirms that it shall be a party to the Credit
Agreement and the other Loan Documents (as defined in the Credit Agreement) to
which Lenders are parties and shall have the rights and obligations of a Lender
(as defined in the Credit Agreement), and agrees to be bound by the terms and
provisions applicable to a “Lender”, under each such agreement.  In furtherance of the foregoing, each
financial institution executing this Authorization agrees to execute any
additional documents reasonably requested by the Administrative Agent to
evidence such financial institution’s rights and obligations under the Credit
Agreement.


 


	
   

  	
   

  	 

	
   

  	
  [Insert name of applicable
  financial institution]

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
   

  	 

	
   

  	
  Name:

  	
   

  	 

	 
	
   

  	
  Title: