exv10w2






Exhibit 10.2




Execution Copy




REVOLVING CREDIT AGREEMENT




Dated as of June 23, 2011



among



THERMO FISHER SCIENTIFIC INC.,

as the Borrower,



BARCLAYS BANK PLC,

as Administrative Agent and Swing Line Lender



and



The Other Lenders Party Hereto



BARCLAYS CAPITAL, and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Joint Lead Arrangers



BARCLAYS CAPITAL,

as Sole Bookrunner



BANK OF AMERICA, N.A.,

as Syndication Agent



DEUTSCHE BANK SECURITIES INC.,

J.P. MORGAN SECURITIES, LLC, and

THE ROYAL BANK OF SCOTLAND PLC,

as Documentation Agents



 

 






 









 
















TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	20	 
	1.03 Accounting Terms
	 	 	21	 
	1.04 Rounding
	 	 	21	 
	1.05 Times of Day
	 	 	21	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND BORROWINGS
	 	 	21	 
	2.01 Committed Loans
	 	 	21	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	22	 
	2.03 Swing Line Loans
	 	 	24	 
	2.04 Prepayments
	 	 	26	 
	2.05 Termination or Reduction of Commitments
	 	 	27	 
	2.06 Repayment of Loans; Term-Out Option
	 	 	28	 
	2.07 Interest
	 	 	28	 
	2.08 Fees
	 	 	29	 
	2.09 Computation of Interest and Fees
	 	 	29	 
	2.10 Evidence of Debt
	 	 	29	 
	2.11 Payments Generally; Administrative Agent’s Clawback
	 	 	30	 
	2.12 Sharing of Payments by Lenders
	 	 	32	 
	2.13 Subsidiary Guarantors
	 	 	32	 
	2.14 Defaulting Lenders
	 	 	33	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	35	 
	3.01 Taxes
	 	 	35	 
	3.02 Illegality
	 	 	38	 
	3.03 Inability to Determine Rates
	 	 	38	 
	3.04 Increased Costs; Reserves on Eurocurrency Rate Loans
	 	 	38	 
	3.05  Compensation for Losses
	 	 	40	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	41	 
	3.07 Survival
	 	 	41	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT
	 	 	41	 
	4.01 Conditions to Closing Date
	 	 	41	 
	4.02 Conditions to each Loan
	 	 	43	 
	4.03 Conditions to Borrowings in connection with the Acquisition
	 	 	43	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	45	 
	5.01 Existence, Qualification and Power
	 	 	45	 
	5.02 Authorization; No Contravention
	 	 	45	 
	5.03 Governmental Authorization; Other Consents
	 	 	45	 
	5.04 Binding Effect
	 	 	45	 






i









 






	 	 	 	 	 
	Section	 	Page
	5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event
	 	 	46	 
	5.06 Litigation
	 	 	46	 
	5.07 Ownership of Property; Liens
	 	 	46	 
	5.08 Environmental Compliance
	 	 	46	 
	5.09 Insurance
	 	 	47	 
	5.10 Taxes
	 	 	47	 
	5.11 ERISA Compliance
	 	 	47	 
	5.12 Margin Regulations; Investment Company Act
	 	 	48	 
	5.13 Disclosure
	 	 	48	 
	5.14 Compliance with Laws
	 	 	48	 
	5.15 Taxpayer Identification Number; Other Identifying Information
	 	 	48	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	49	 
	6.01 Financial Statements
	 	 	49	 
	6.02 Certificates; Other Information
	 	 	50	 
	6.03 Notices
	 	 	50	 
	6.04 Payment of Obligations
	 	 	51	 
	6.05 Preservation of Existence, Etc.
	 	 	51	 
	6.06 Maintenance of Properties; Maintenance of Insurance
	 	 	51	 
	6.07 Compliance with Laws
	 	 	51	 
	6.08 Inspection Rights; Books and Records
	 	 	51	 
	6.09 Use of Proceeds
	 	 	52	 
	6.10 Approvals and Authorizations
	 	 	52	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	52	 
	7.01 Liens
	 	 	52	 
	7.02 Subsidiary Indebtedness
	 	 	54	 
	7.03 Fundamental Changes
	 	 	54	 
	7.04 Dispositions
	 	 	55	 
	7.05 Transactions with Affiliates
	 	 	55	 
	7.06 Consolidated Leverage Ratio
	 	 	56	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	56	 
	8.01 Events of Default
	 	 	56	 
	8.02 Remedies Upon Event of Default
	 	 	58	 
	8.03 Application of Funds
	 	 	59	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	59	 
	9.01 Appointment and Authority
	 	 	59	 
	9.02 Rights as a Lender
	 	 	59	 
	9.03 Exculpatory Provisions
	 	 	60	 
	9.04 Reliance by Administrative Agent
	 	 	60	 
	9.05 Delegation of Duties
	 	 	61	 
	9.06 Resignation of Administrative Agent
	 	 	61	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	62	 
	9.08 No Other Duties, Etc.
	 	 	62	 






ii









 






	 	 	 	 	 
	Section	 	Page
	9.09 Administrative Agent May File Proofs of Claim
	 	 	62	 
	9.10 Guaranty Matters
	 	 	63	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	63	 
	10.01 Amendments, Etc.
	 	 	63	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	64	 
	10.03 No Waiver; Cumulative Remedies
	 	 	66	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	66	 
	10.05 Payments Set Aside
	 	 	69	 
	10.06 Successors and Assigns
	 	 	69	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	74	 
	10.08 Right of Setoff
	 	 	75	 
	10.09 Interest Rate Limitation
	 	 	76	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	76	 
	10.11 Survival of Representations and Warranties
	 	 	76	 
	10.12 Severability
	 	 	76	 
	10.13 Replacement of Lenders
	 	 	77	 
	10.14 Governing Law; Jurisdiction; Etc.
	 	 	77	 
	10.15 Waiver of Jury Trial
	 	 	78	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	79	 
	10.17 USA PATRIOT Act Notice
	 	 	80	 






iii









 






	 	 	 

	SCHEDULES
	 	 
	 
	 	 
	1.01
	 	Mandatory Cost Formulae
	2.01
	 	Commitments and Applicable Percentages
	5.08
	 	Environmental Matters
	7.01
	 	Existing Liens
	7.02
	 	Existing Indebtedness
	7.04
	 	Dispositions
	10.02
	 	Administrative Agent’s Office; Certain Addresses for Notices






EXHIBITS




	 	 	 

	 
	 	Form of
	 
	 	 
	A-1
	 	Committed Loan Notice
	A-2
	 	Prepayment Notice
	B-1
	 	Swing Line Loan Notice
	B-2
	 	Swing Line Prepayment Notice
	C
	 	Note
	D
	 	Compliance Certificate
	E
	 	Assignment and Assumption
	F
	 	Subsidiary Guaranty











iv









 








REVOLVING CREDIT AGREEMENT




     This REVOLVING CREDIT AGREEMENT (“Agreement”) is entered into as of June 23, 2011,
among THERMO FISHER SCIENTIFIC INC., a Delaware corporation (the “Borrower”), each lender
from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and BARCLAYS BANK PLC, as Administrative Agent.



R E C I T A L S




     The Borrower has requested that the Lenders provide a revolving credit facility (the
“Facility”), and the Lenders are willing to do so on the terms and conditions set forth
herein, the proceeds of which will be used (a) to fund, in part, the Acquisition including the
payment of certain existing Indebtedness of Target, (b) to pay all or a portion of the costs
incurred by the Borrower or any of its Subsidiaries in connection with the Transactions and (c) for
working capital and other general corporate purposes of the Borrower and its Subsidiaries,
including to back-stop any commercial paper issuances by the Borrower.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




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



     “Acquisition” means the acquisition by the Borrower, directly or indirectly through
one or more of its subsidiaries, of all of the equity interests of the Target pursuant to the
Acquisition Agreement.



     “Acquisition Agreement” means that certain Agreement, dated as of May 19, 2011, among
the Borrower and certain shareholders of the Target (and all schedules, exhibits and annexes
thereto and all side letters and agreements affecting the terms thereof or entered into in
connection therewith).



     “Acquisition Closing Date” means the date of the closing of the Acquisition Agreement
and the consummation of the Acquisition, provided, that in no event shall the Acquisition Closing
Date occur after November 19, 2011.



     “Act” has the meaning specified in Section 10.17.



     “Administrative Agent” means Barclays Bank, in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



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



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



     “Agent Indemnitee” has the meaning specified in Section 10.04(c).



     “Agent Parties” has the meaning specified in Section 10.02(c).



     “Aggregate Commitments” means, at any time, the Commitments of all the Lenders then
outstanding.



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



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time. If the commitment of each Lender to make Loans has been terminated
pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable
Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender
most recently in effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or
in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable.



     “Applicable Rate” means, from time to time, the rate, corresponding to the applicable
Debt Rating as set forth below:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Rate	 	 
	 	 	Debt Ratings	 	 	 	for	 	Applicable Rate
	Pricing	 	S&P and	 	Undrawn	 	Eurocurrency	 	for Base Rate
	Level	 	Moody’s	 	Fee	 	Rate Loans	 	Loans
	1
	 	Better than or

equal to A and A2
	 	0.075%
	 	1.00%
	 	0%
	2
	 	A- and A3
	 	0.10%
	 	1.25%
	 	0.25%
	3
	 	Any ratings lower

than Pricing Level 2
	 	0.15%
	 	1.50%
	 	0.50%






     “Debt Rating” means, as of any date of determination, the rating, as determined by the
two Rating Agencies (collectively, the “Debt Ratings”) of the Borrower’s
non-credit-enhanced,



- 2 -









 




senior unsecured long-term debt; provided that (a) if the respective Debt Ratings
issued by the two foregoing Rating Agencies differ by one level, then the Pricing Level for the
higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest
and the Debt Rating for Pricing Level 3 being the lowest); (b) if the respective Debt Ratings
issued by the two foregoing Rating Agencies differ by more than one level, then the Pricing Level
that is one Pricing Level lower than the higher of such Debt Ratings shall apply; (c) if the
Borrower has only one Debt Rating, then the Pricing Level that is one level lower than that of such
Debt Rating shall apply and (d) if the Borrower does not have any Debt Rating, Pricing Level 3
shall apply.



Initially, the Applicable Rate shall be determined based upon the Debt Rating effective as of the
Closing Date. Thereafter, each change in the Applicable Rate resulting from a publicly announced
change in the Debt Rating shall be effective during the period commencing on the date of the public
announcement thereof and ending on the date immediately preceding the effective date of the next
such change; provided, that if no such public announcement is made, such change in the
Applicable Rate shall be effective on the date the change in the Debt Rating is effective.




     “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.



     “Arrangers” means Barclays Capital and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, in their capacity as joint lead arrangers.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



     “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
10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
E or any other form approved by the Administrative Agent.



     “Attorney Costs” means and includes all reasonable fees, expenses, charges,
disbursements and other charges of any one law firm or external counsel (and one regulatory counsel
and one local counsel in each affected jurisdiction to the extent reasonably necessary) and, solely
in the case of an actual or potential conflict of interest, one additional counsel (and one
additional regulatory counsel and one additional local counsel in each affected jurisdiction to the
extent reasonably necessary) to each Indemnitee affected by such conflict of interest).



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries (as of December 31, 2010) for the fiscal year ended December 31,
2010, and the related consolidated statements of income or operations, shareholders’ equity and
cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments



- 3 -









 




pursuant to Section 2.05, and (c) the date of termination of the commitment of each
Lender to make Loans after the Acquisition Closing Date pursuant to Section 8.02.




     “Barclays Bank” means Barclays Bank PLC and its successors.



     “Barclays Capital” means Barclays Capital, the investment banking division of Barclays
Bank.



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly
announced from time to time by the Administrative Agent as its “prime rate” and (c) the
Eurocurrency Rate that would be calculated as of such day (or, if such day is not a Business Day,
as of the next preceding Business Day) in respect of a proposed Eurocurrency Loan with a one-month
Interest Period (such rate to include any additional amounts that would be payable pursuant to
Section 3.04(e) if such Loan were a Eurocurrency Loan) plus 1.0%. The “prime rate”
is a rate set by the Administrative Agent based upon various factors including the Administrative
Agent’s costs and desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by the Administrative Agent shall take effect at the
opening of business on the day specified in the public announcement of such change.



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



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



     “Borrower Materials” has the meaning specified in Section 10.02.



     “Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.



     “Borrowing Officer” means any Responsible Officer of the Borrower, the treasurer or
assistant treasurer of the Borrower or any other individual designated in writing by a Responsible
Officer of the Borrower (including officers of other Loan Parties).



     “Bridge Facility” means the 364-day committed bridge credit facility dated as of the
date hereof under which Barclays Bank acts as administrative agent and under which one or more
lenders agree to lend up to $2 billion to the Borrower entered into in connection with the
Acquisition.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state of
New York and, if such day relates to any interest rate settings as to a Eurocurrency Rate Loan, any
fundings, disbursements, settlements and payments in respect of any such Eurocurrency Rate Loan, or
any other dealings to be carried out pursuant to this Agreement in respect of any Eurocurrency Rate
Loan, on which dealings in deposits in Dollars are conducted by and between banks in the London
interbank eurodollar market.



- 4 -









 





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



     “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; provided,
that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and
Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in
connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank
for International Settlements, the Basel Committee on Banking Supervision (or any successor or
similar authority) or the United States regulatory authorities, in each case, pursuant to Basel III
shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.



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




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act, 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 Exchange Act), directly or indirectly, of 40% or more of the equity
securities of the Borrower entitled to vote for members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted basis; or




     (b) a majority of the members of the board of directors or other equivalent governing
body of the Borrower shall cease to be composed of individuals (i) who were members of that
board or equivalent governing body on the Closing Date or (ii) whose election by the board
of directors of the Borrower, or whose nomination for election by the shareholders of the
Borrower, was approved by a vote of at least a majority of the directors of the Borrower who
were either directors on the Closing Date or whose election or nomination was previously so
approved.



     “Closing Date” means the date on which all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01, which date is June 23,
2011.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrower pursuant to Section 2.01 and (b) purchase participations in Swing Line Loans,
in an aggregate principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant
to



- 5 -









 




which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from
time to time in accordance with this Agreement. The aggregate amount of the Commitments on the
date hereof is $1,000,000,000.




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



     “Committed Loan” has the meaning specified in Section 2.01.



     “Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit A-1.



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



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a)
the following without duplication and to the extent deducted in calculating such Consolidated Net
Income: (i) income tax expense, (ii) interest expense, amortization or writeoff of debt discount
and debt issuance costs and commissions, discounts and other fees and charges associated with
Indebtedness (including the Loans), (iii) depreciation and amortization expense, (iv) amortization
of intangibles and organization costs, (v) any extraordinary, unusual or non-recurring non-cash
expenses or losses (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, non-cash losses on sales of assets
outside of the ordinary course of business), and (vi) any extraordinary, unusual or non-recurring
cash expenses or losses to the extent that they do not exceed, in the aggregate, $75,000,000 during
such period, (vii) stock-based compensation expense, (viii) any expenses or losses on forward
foreign exchange transactions entered into in connection with the Acquisition that have been
disclosed to the Arrangers and the Lenders on or prior to the date hereof, (ix) cash charges
related to the Acquisition and the acquisition of Dionex Corporation, including related integration
costs of the Borrower and its Subsidiaries, in an aggregate amount not to exceed $50,000,000 and
minus (b) the following to the extent included in calculating such Consolidated Net Income:
(i) interest income, (ii) any extraordinary, unusual or non-recurring non-cash income or gains
(including, whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, non-cash gains on the sales of assets outside of the
ordinary course of business), (iii) any extraordinary, unusual or non-recurring cash income or
gains to the extent they exceed, in the aggregate, $75,000,000 during such period, and (iv) income
tax credits (to the extent not netted from income tax expense), and (v) any income or gain on
forward foreign exchange transactions entered into in connection with the Acquisition that have
been disclosed to the Arrangers and the Lenders on or prior to the date hereof.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
all Indebtedness of the Borrower and its Subsidiaries as of such date to (b) Consolidated EBITDA
for the period of the four fiscal quarters most recently ended; provided, however, that
Consolidated EBITDA shall be calculated on a Pro Forma Basis to give effect to (i) the



- 6 -









 




Acquisition, if consummated, or (ii) any acquisition or sale of a Subsidiary or operating
division thereof, in each case, for more than $50,000,000.




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



     “Consolidated Total Tangible Assets” means, as of any date of determination, the total
assets of the Borrower and its Subsidiaries on a consolidated basis, as determined in accordance
with GAAP, but excluding Intangible Assets.



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



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



     “Debt Rating” has the meaning specified in the definition of “Applicable Rate.”



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



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



     “Default Rate” means an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate, any Mandatory Cost and
amounts owing pursuant to Section 3.04(e)) otherwise applicable to such Loan plus 2% per
annum.



     “Defaulting Lender” means any Lender, as reasonably determined by the Administrative
Agent, that has (a) failed to fund any portion of its Committed Loans or participations in Swing
Line Loans required to be funded by it on the date required to be funded by it hereunder, (b)
notified the Borrower, the Administrative Agent or any 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 with its funding obligations under this Agreement or
under other agreements generally in which it commits to extend credit, (c) failed, within three
Business Days after request by the Administrative Agent, to confirm that it will comply with the
terms of this Agreement relating to its obligations to fund prospective Loans, provided that such
Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such
confirmation by the Administrative Agent, (d) otherwise failed to pay over to the



- 7 -









 




Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within three Business Days of the date when due, unless the subject of a good faith dispute, or (e)
(i) become or is insolvent or has a parent company that has become or is insolvent, in each case as
adjudicated or determined by any Governmental Authority having regulatory authority over such
Lender or its assets or (ii) 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 or has a parent company that 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, provided that a Lender shall not be a Defaulting Lender solely by virtue
of the ownership or acquisition of any equity interest in that Lender, or any direct or indirect
parent company thereof, by a Governmental Authority so long as such ownership interest does not
result nor provide such Lender with immunity from the jurisdiction of courts within the United
States or from the enforcement of judgments or writs of attachment on its assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender.




     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith and includes any sale, transfer
or other disposition of any ownership interest in any Subsidiary of the Borrower.



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



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of the
United States, any state thereof or the District of Columbia.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Sections 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)).



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



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



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



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



- 8 -









 





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



     “Eurocurrency Rate” means, for any Interest Period with respect to a Eurocurrency Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the “Eurocurrency Rate”
for such Interest Period shall be the rate per annum determined by the Administrative Agent to be
the rate at which deposits in Dollars for delivery on the first day of such Interest Period in
immediate available funds in the approximate amount of the Eurocurrency Rate Loan being made,
continued or converted by the Administrative Agent and with a term equivalent to such Interest
Period would be offered by the Administrative Agent’s London Branch (or other branch of the
Administrative Agent or its Affiliate) to first class banks in the London interbank market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of
such Interest Period.



     “Eurocurrency Rate Loan” means a Committed Loan that bears interest at a rate based on
the Eurocurrency Rate.



     “Event of Default” means any of the events specified in Section 8.01,
provided that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.



     “Exchange Act” means the Securities Exchange Act of 1934.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of any Loan Party
hereunder, (a) taxes imposed on or measured by its overall net income (however denominated),
franchise taxes imposed on it (in lieu of net income taxes), and branch profits (or similar) taxes
imposed by the jurisdiction (or any political subdivision thereof) under the laws of which such
recipient is organized, in which its principal office is located, or as a result of a present or
former connection between the Recipient and the jurisdiction imposing such tax or any political
subdivision or taxing authority thereof (other than a connection arising solely as a result of its
execution and delivery of any Loan Document or its exercise of its rights or performance of its



- 9 -









 




obligations thereunder or otherwise as a result of its participation (or the participation of
an entity in which it owns a beneficial interest) in the transactions contemplated by the Loan
Documents) or, in the case of any Lender, in which its applicable Lending Office is located, (b) in
the case of a Lender (other than an assignee pursuant to a request by the Borrower under
Section 10.13), any United States withholding tax (including, for the avoidance of doubt,
backup withholding taxes) that is imposed on amounts payable to such Lender at the time such Lender
becomes a party hereto (or designates a new Lending Office) or is attributable to such Lender’s
failure or inability (in the case of an inability, other than solely as a result of a Change in
Law) to comply with Section 3.01(f), except to the extent that such 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 applicable Loan Party with respect to such withholding tax
pursuant to Section 3.01(a), and (c) any taxes imposed pursuant to FATCA.




     “Existing Credit Agreement” means that certain Credit Agreement, dated as of August
29, 2006, among the Borrower, Bank of America, N.A., as administrative agent and swing line lender,
Bank of America, N.A. and Barclays Bank, as l/c issuers, the lenders party thereto and the other
agents party thereto, as amended.



     “Facility” has the meaning specified in the Recitals hereto.



     “FATCA” means Sections 1471 through 1474 of the Code as of the date hereof, and any
substantially similar amendments thereto or successor provisions and any current or future
regulations or official interpretations thereof.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to the Administrative Agent on such day on such transactions as determined by the
Administrative Agent.



     “Fee Letter” means the letter agreement, dated June 23, 2011, among the Borrower and
the Administrative Agent.



     “Foreign Lender” means any Lender that is not a “United States person” as defined by
Section 7701(a)(30) of the Code.



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



     “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.



- 10 -









 





     “GAAP” means generally accepted accounting principles in the United States set forth
in the Accounting Standards Codification issued by the Financial Accounting Standards Board, as in
effect from time to time.



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



     “Granting Lender” has the meaning specified in Section 10.06(h).



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable or
performable by another Person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation,
(ii) to purchase or lease property, securities or services for the purpose of assuring the obligee
in respect of such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow of the primary obligor
so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered
into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or
other obligation of the payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part) or (b) any Lien on any assets of such Person securing any
Indebtedness of any other Person, whether or not such Indebtedness is assumed by such Person. The
amount of any Guarantee of any guaranteeing person shall be deemed to be the lower of (1) an amount
equal to the stated or determinable amount of the primary obligation in respect of which such
Guarantee is made and (2) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee shall be such guaranteeing person’s
maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good
faith. The term “Guarantee” as a verb has a corresponding meaning.



     “Indebtedness” of any Person at any date, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price
of property or services (excluding accounts payable and accrued expenses), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession or sale of such
property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under or in respect of bankers’
acceptances, (g) all reimbursement obligations of such Person in respect of drawings or



- 11 -









 




payments made under letters of credit, surety or performance bonds or other similar
arrangements that are not satisfied within three Business Days following the date of receipt by
such Person of notice of such drawing or payment, (h) the liquidation value of all mandatorily
redeemable preferred capital stock of such Person, (i) all Guarantees of such Person in respect of
obligations of the kind referred to in clauses (a) through (f) and (h) above, (j) all obligations
of the kind referred to in clauses (a) thought (i) above secured by any Lien on property (including
accounts and contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, and (k) for the purposes of Section
8.01(e) only, all obligations of such Person in respect of Swap Contracts. It is understood
that obligations in respect of a Permitted Receivables Securitization shall not constitute
Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the extent such Person is
liable therefor as a result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness expressly provide that such Person is
not liable therefor.




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



     “Indemnified Loss” has the meaning specified in Section 10.04(c).



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitee” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Intangible Assets” means assets that are considered to be intangible assets under
GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks,
patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and
capitalized research and development costs.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date and, in the case of
an Interest Period of more than three months duration, each day that is three months after the
first day of such Interest Period and the last day of such Interest Period and (b) as to any Base
Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.



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




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



- 12 -









 







Business Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Business Day;




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




     (iii) no Interest Period shall extend beyond the Maturity Date (or in the case of any
Committed Loan outstanding after the Maturity Date pursuant to Section 2.06(a), the first
anniversary of the Maturity Date).



     “Internal Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, the Borrower’s internal controls over
financial reporting, in each case as described in the Securities Laws.



     “IRS” means the United States Internal Revenue Service.



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



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



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



     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Committed Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, each Note, the Fee Letter and the Subsidiary
Guaranty.



     “Loan Parties” means, collectively, the Borrower and each Subsidiary Guarantor.



- 13 -









 





     “Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01.



     “Margin Stock” has the meaning set forth in Regulation U issued by the FRB.



     “Master Agreement” has the meaning specified in the definition of Swap Contract.



     “Material Adverse Effect” means (a) a material adverse effect upon, the business,
assets, liabilities (actual or contingent), operations or financial condition of the Borrower and
its Subsidiaries taken as a whole or (b) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to which it is a party
or the rights or remedies of the Administrative Agent or the Lenders thereunder.



     “Material Subsidiary” means, as of any date of determination, any Subsidiary of the
Borrower (a) whose revenues are greater than 5% of the consolidated revenues of the Borrower and
its Subsidiaries for the most recent fiscal year of the Borrower for which financial statements are
available or (b) the book value of whose assets is greater than 5% of the book value of the total
consolidated assets of the Borrower and its Subsidiaries as of the end of such fiscal year, in each
case determined in accordance with GAAP.



     “Maturity Date” means the date which is 364 days after the Closing Date;
provided, that if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.



     “Maximum Rate” has the meaning specified in Section 10.09.



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



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



     “Non-Consenting Lender” has the meaning specified in Section 10.13.



     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender to the Borrower, substantially in the form of Exhibit C.



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



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the



- 14 -









 




certificate or articles of formation or organization and operating agreement, and (c) with
respect to any partnership, joint venture, trust or other form of business entity, the partnership,
joint venture or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.




     “Other Taxes” means all present or future recording, stamp or documentary taxes or any
other excise, transfer, sales 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 including any interest,
additions to tax or penalties applicable thereto, excluding (other than an assignment pursuant to a
request by the Borrower under Section 10.13), in each case, such amounts that result from
an Assignment and Assumption, grant of a Participation, transfer or designation of a new applicable
Lending Office or other office for receiving payments under any Loan Document and Excluded Taxes.



     “Outstanding Amount” means (i) with respect to Committed Loans on any date, the amount
of the aggregate outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of such Committed Loans occurring on such date; and (ii) with respect to
Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments of such Swing Line Loans occurring on such
date.



     “Overnight Rate” means, for any day, the greater of (i) the Federal Funds Rate and
(ii) an overnight rate determined by the Administrative Agent or the Swing Line Lender, as the case
may be, in accordance with banking industry rules on interbank compensation.



     “Participant” has the meaning specified in Section 10.06(d).



     “Participant Register” has the meaning specified in Section 10.06(d).



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



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



     “Permitted Receivables Securitization” means any Receivables Securitization
Transaction, provided that the aggregate amount of the financing represented by such transactions
at any one time outstanding does not exceed $400,000,000.



- 15 -









 





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



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



     “Platform” has the meaning specified in Section 10.02(c).



     “Pro Forma Basis” means, with respect to compliance with any covenant hereunder,
compliance with such covenant after giving effect to the Acquisition, any acquisition, any asset
sale of a Subsidiary or operating entity for which historical financial statements for the relevant
period are available or any incurrence of Indebtedness (including pro forma adjustments arising out
of events which are directly attributable to the Acquisition, acquisition, asset sale or any
incurrence of Indebtedness, are factually supportable and are expected to have a continuing impact,
in each case as determined on a basis consistent with Article 11 of Regulation S-X of the
Securities Act, as interpreted by the SEC, and such other adjustments as are reasonably
satisfactory to the Administrative Agent, in each case as certified by the chief financial officer
of the Borrower) using, for purposes of determining such compliance, the historical financial
statements of all entities or assets so acquired or sold and the consolidated financial statements
of the Borrower and its Subsidiaries, which shall be reformulated as if such acquisition or asset
sale, and all other acquisitions or asset sales that have been consummated during the period, and
any Indebtedness or other liabilities to be incurred or repaid in connection therewith had been
consummated and incurred or repaid at the beginning of such period.



     “Qualified Indebtedness” means Indebtedness related to or outstanding pursuant to any
(x) senior debt securities of the Borrower or any Subsidiary Guarantor issued in capital markets
transactions or (y) senior credit facilities of the Borrower or any Subsidiary Guarantor, which,
for the avoidance of doubt shall include the Existing Credit Agreement and the Bridge Facility.



     “Rating Agency” means either of S&P or Moody’s.



     “Receivables” means accounts receivable of the Borrower or any of its Subsidiaries
(including any thereof constituting or evidenced by chattel paper, instruments or general
intangibles), and all proceeds thereof and rights (contractual and other) and collateral related
thereto.



     “Receivables Securitization Transaction” means, with respect to the Borrower or any of
its Subsidiaries, the sale, contribution or other transfer of Receivables by any such Person to a
trust, partnership, corporation or other entity and the related further transfer or financing of
such Receivables (and all of activities and transactions customarily effected in connection with
the foregoing) in an asset securitization transaction.



     “Register” has the meaning specified in Section 10.06(c).



     “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Borrower as prescribed by the Securities Laws.



- 16 -









 





     “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.



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



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans has terminated,
Lenders holding in the aggregate more than 50% of the Outstanding Amount of all Loans (with the
aggregate amount of each Lender’s risk participation and funded participation in Swing Line Loans
being deemed “held” by such Lender for purposes of this definition); provided that the
Commitment of, and the portion of the Loans held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.



     “Responsible Officer” means, with respect to any Person, the chief executive officer,
president, treasurer or chief financial officer of such Person. Any document delivered hereunder
that is signed by a Responsible Officer of such 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.



     “Restricted Margin Stock” means Margin Stock owned by the Borrower or any of its
Subsidiaries which represents not more than 25% of the aggregate value (determined in accordance
with Regulation U), on a consolidated basis, of the property and assets of the Borrower and its
Subsidiaries (including any Margin Stock) that is subject to the provisions of Sections
7.01 and 7.04.



     “S&P” means Standard & Poor’s Financial Services, LLC. and any successor thereto.



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



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



     “Securities Act” means the Securities Act of 1933.



     “Securities Laws” means the Securities Act, the Exchange Act, Sarbanes-Oxley and the
applicable accounting and auditing principles, rules, standards and practices promulgated, approved
or incorporated by the SEC.



     “SPC” has the meaning specified in Section 10.06(h).



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity which is consolidated with such Person under GAAP.
Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of the Borrower.



- 17 -









 





     “Subsidiary Guarantors” means (a) as of the Closing Date, each Subsidiary of the
Borrower that is a guarantor under the Existing Credit Agreement as of the Closing Date and (b)
thereafter, collectively, each Subsidiary of the Borrower that is or becomes a guarantor under the
Existing Credit Agreement or the CP Facility pursuant to Section 2.13.



     “Subsidiary Guaranty” means the Subsidiary Guaranty made by the Subsidiary
Guarantor(s) in favor of the Administrative Agent and the Lenders, substantially in the form of
Exhibit F.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement relating to any
of the foregoing (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master Agreement.



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



     “Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.03.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.03.



     “Swing Line Lender” means Barclays Bank PLC in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.03(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.03(b), which, if in writing, shall be substantially in the form of Exhibit
B-1.



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     “Swing Line Sublimit” means an amount equal to $200,000,000. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Commitments.



     “Target” means CB Diagnostics Holdings AB, a company incorporated in Sweden with
registered number 556712-9050 whose registered address is c/o Phadia AB, Box 6460, SE-751 37
Uppsala, Sweden.



     “Target Material Adverse Effect” means any event, change or fact that is, individually
or in the aggregate, materially adverse to the assets, liabilities, results of operations or
financial condition of the Target Companies (as defined in the Acquisition Agreement), taken as a
whole, which: (a) occurs after the date of the Acquisition Agreement; (b) was not Fairly Disclosed
(as defined in the Acquisition Agreement) by the Acquisition Agreement, any other Transaction
Document (as defined in the Acquisition Agreement) or any document disclosed in the Data Room (as
defined in the Acquisition Agreement); (c) directly results in cost or loss to the Target Companies
in excess of €375 million, excluding, for the avoidance of doubt, any Indirect Damages (as defined
in the Acquisition Agreement) and having set off any increase in the market value of the Target
Companies caused by any other events which have occurred since the date of the Acquisition
Agreement, but excluding from the calculation of the amount of such reduction any loss, damage,
costs or liability arising from the event to the extent that it has been remedied prior to Closing
(as defined in the Acquisition Agreement) and/or the Target Companies have a right of compensation
or recovery in respect thereof (whether by insurance or otherwise); and (d) does not, directly or
indirectly, relate to or result from: (i) changes in interest rates, exchange rates or securities
or commodity prices or in economic, financial, market or political conditions (including any acts
of war, civil unrest or other hostilities (or the escalation of such acts of war, civil unrest or
other hostilities)) generally; (ii) changes in conditions generally affecting the industry in which
the Target Companies operate; (iii) seasonal changes or any hurricane, tornado, flood, earthquake,
volcanic eruption, other consequence of weather or any other natural disaster, or any acts of God,
terrorist attacks, or any caution or recommendation against travel by any Governmental Entity (as
defined in the Acquisition Agreement), for whatever reason; (iv) the announcement of the signing of
the Acquisition Agreement or the pendency of the transactions contemplated thereby, including, in
such case, the impact thereof on relationships, contractual or otherwise, with customers,
suppliers, vendors, investors or employees and the identity of the Purchaser and its Subsidiaries
(as defined in the Acquisition Agreement); (v) changes in applicable laws, regulations or
accounting practices; (vi) any failure by the Target Businesses (as defined in the Acquisition
Agreement) to meet any projections, guidance, estimates, forecasts or milestones for or during any
period ending on or after the date of the Acquisition Agreement (provided, however, that, except as
otherwise provided in this definition, the underlying causes of such failure may be taken into
account in determining whether a Material Adverse Change has occurred); (vii) any transaction
contemplated by any of the Transaction Documents or any change in control resulting from any such
transaction; (viii) any act or omission of the Purchaser or any member of the Purchaser Group (each
as defined in the Acquisition Agreement); or (ix) any act or omission of any member of the Seller
(as defined in the Acquisition Agreement) or the Target Companies in the ordinary course of
business or at the request or with the consent of the Purchaser or any member of the Purchaser
Group or as required or permitted to be done under the terms of any of the Transaction Documents.



- 19 -









 





     “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.



     “Threshold Amount” means $75,000,000.



     “Threshold Indebtedness” has the meaning specified in Section 8.01(e).



     “Transactions” means the Acquisition, the transactions contemplated by the Loan
Documents and the other transactions described in the Acquisition Agreement.



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



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



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



     “Unrestricted Margin Stock” means any Margin Stock owned by the Borrower or any of its
Subsidiaries which is not Restricted Margin Stock.



     “Withholding Agent” means any Loan Party or the Administrative Agent, as the case may
be.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:



          (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word
“shall.” Unless the context requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein or in any other Loan Document), (ii) any reference herein to any
Person shall be construed to include such Person’s successors and assigns, (iii) the words
“herein,” “hereof” and “hereunder,” and words of similar import when used
in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to
any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified,





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




          (b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and
including.”




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




     1.03 Accounting Terms.



          (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein.




          (b) Changes in GAAP. If at any time any material 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.




     1.04 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 is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



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



ARTICLE II.

THE COMMITMENTS AND BORROWINGS




     2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrower in



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Dollars from time to time, on any Business Day during the Availability Period, in an aggregate
amount not to exceed at any time outstanding the amount of such Lender’s Commitment;
provided, however, that after giving effect to any Committed Borrowing, (i) the
aggregate Outstanding Amount of all Loans shall not exceed the Aggregate Commitments and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Commitment. Within the limits of each Lender’s Commitment, and subject to the other terms
and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under
Section 2.04, and reborrow under this Section 2.01. Committed Loans may be Base
Rate Loans or Eurocurrency Rate Loans, as further provided herein.




     2.02 Borrowings, Conversions and Continuations of Committed Loans.



          (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other
and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable
notice to the Administrative Agent, which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than 12:00 noon, New York time, (i) three Business
Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency
Rate Loans or of any conversion of Eurocurrency Rate Loans to Base Rate Loans, and (ii) one
Business Day prior to the requested date of any Borrowing of Base Rate Loans. Each telephonic
notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed
and signed by a Borrowing Officer. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans shall be in a principal amount of $10,000,000 or a whole multiple of
$1,000,000 in excess thereof. Each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Committed
Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation
of Eurocurrency Rate Loans, (ii) the requested date of the Committed Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of
Committed Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Committed Loans are to be converted and (v) if applicable, the duration of the
Interest Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan in
a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate
Loans. Any automatic conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the
Borrower requests a Committed Borrowing of, conversion to, or continuation of Eurocurrency Rate
Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed
to have specified an Interest Period of one month.




          (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage of the applicable Committed Loans,
and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to Base
Rate Loans as described in the preceding subsection. In the case of a






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Committed Borrowing, each Lender shall make the amount of its Committed Loan available to the
Administrative Agent in immediately available funds at the Administrative Agent’s Office for the
applicable currency not later than 12:00 noon, New York time on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the conditions set forth in Section
4.02 (or, if such Committed Borrowing is requested to be made to fund the Acquisition and
related costs on the Acquisition Closing Date, Section 4.03), the Administrative Agent
shall make all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.




          (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the
existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency
Rate Loans without the consent of the Required Lenders.




          (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in the Administrative Agent’s prime rate
used in determining the Base Rate promptly following the public announcement of such change.




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




          (f) Notwithstanding anything to the contrary in this Agreement, in connection with the
execution of the Acquisition and the related transactions scheduled to occur on the Acquisition
Closing Date, the Borrower may request each Lender to fund each Lender’ Applicable Percentage of
the Committed Loans to the Administrative Agent one Business Day prior to the anticipated
Acquisition Closing Date. If the Borrower notifies the Administrative Agent of this election at the
time of delivery of the Committed Loan Notice (which notice shall be given and which Committed Loan
Notice shall be delivered, for purposes of this Section 2.02(f), one Business Day in
advance to the dates otherwise set forth in Section 2.02(a) for any requested Borrowing),
the Administrative Agent following receipt of such notice shall promptly notify each Lender of the
amount of its Applicable Percentage of the applicable Committed Loans. Each Lender shall make the
amount of its Committed Loan available to the Administrative Agent in immediately available funds
at the Administrative Agent’s Office not later than 12:00 noon, New York time, one Business Day
prior to the anticipated Acquisition Closing Date specified in the applicable Committed Loan Notice
(the “Prefunding Date”). All such funds shall be deposited at the Administrative Agent’s
Office on the Prefunding Date and upon satisfaction of the conditions set forth in Section
4.03, the Administrative Agent shall make all funds so received available to the Borrower on
the Acquisition Closing Date as provided in Section 2.02(b). In the event that the
conditions set forth in Section 4.03 are not satisfied on the anticipated Acquisition
Closing Date specified in the Committed Loan Notice, the




- 23 -









 




Administrative Agent shall repay to each Lender the amount so distributed in immediately
available funds (with such amounts subject to being readvanced in accordance with the provisions of
this Agreement). The Borrower shall pay interest on the amount of the Committed Loans so deposited
with the Administrative Agent as provided in Section 2.07, provided that the
accruing of interest and the Interest Period applicable to such Committed Loans shall commence on
the Prefunding Date. For the avoidance of doubt, the Borrower shall not have any right or interest
in the funds deposited with the Administrative Agent until the satisfaction of the conditions set
forth in Section 4.03 and the release of such funds by the Administrative Agent on the
Acquisition Closing Date.




     2.03 Swing Line Loans.



          (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.03, to make loans in Dollars (each such loan, a “Swing Line Loan”) to the
Borrower from time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding
the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Committed Loans of the Lender acting as Swing Line Lender, may exceed the
amount of such Lender’s Commitment; provided, however, that after giving effect to
any Swing Line Loan, (i) the aggregate Outstanding Amount of all Loans shall not exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any
Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Lender’s Commitment, and provided, further, that
the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing
Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.03, prepay under Section 2.04, and
reborrow under this Section 2.03. Each Swing Line Loan shall be a Base Rate Loan.
Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation
in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage
times the amount of such Swing Line Loan.




          (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $500,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Borrowing Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00






- 24 -









 







p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not
to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first
sentence of Section 2.03(a), or (B) that one or more of the applicable conditions specified
in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower by wire transfer of
funds in accordance with instructions provided to (and reasonably acceptable to) the Swing Line
Lender by the Borrower.




          (c) Refinancing of Swing Line Loans.




               (i) The Swing Line Lender at any time in its sole and absolute discretion may request, on
behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on
its behalf), that each Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable
Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof)
and in accordance with the requirements of Section 2.02, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans, but subject to the
unutilized portion of the Aggregate Commitments and the conditions set forth in Section
4.02. The Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed
Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall
make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan
Notice available to the Administrative Agent in immediately available funds for the account of the
Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day
specified in such Committed Loan Notice, whereupon, subject to Section 2.03(c)(ii), each
Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower
in such amount. The Administrative Agent shall remit the funds so received to the Swing Line
Lender.



               (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing
in accordance with Section 2.03(c)(i), the request for Base Rate Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that
each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s
payment to the Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.03(c)(i) shall be deemed payment in respect of such participation.



               (iii) If any Lender fails to make available to the Administrative Agent for the account of the
Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(i), the
Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the Swing Line Lender at a
rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any
administrative, processing or similar fees customarily charged by the Swing Line Lender in
connection with the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Committed Loan



- 25 -









 




included in the relevant Committed Borrowing or funded participation in the relevant Swing
Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall
be conclusive absent manifest error.




               (iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.03(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever, (B) the existence of a Default,
or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Committed Loans pursuant
to this Section 2.03(c) is subject to the conditions set forth in Section 4.02. No
such funding of risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided herein.



          (d) Repayment of Participations.




               (i) At any time after any Lender has purchased and funded a risk participation in a Swing Line
Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as
those received by the Swing Line Lender.



               (ii) If any payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan is required to be returned by the Swing Line Lender under any of the
circumstances described in Section 10.05 (including pursuant to any settlement entered into
by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its
Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned, at a rate per annum equal to the
applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the
Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in
full of the Obligations and the termination of this Agreement.



          (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Loan or risk participation pursuant to this Section 2.03 to refinance
such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable
Percentage shall be solely for the account of the Swing Line Lender.




          (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.




     2.04 Prepayments.



          (a) The Borrower may, upon notice from the Borrower to the Administrative Agent (substantially
in the form of Exhibit A-2), at any time or from time to time voluntarily prepay Committed
Loans in whole or in part without premium or penalty; provided that (i) such






- 26 -









 







notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three
Business Days prior to any date of prepayment of Eurocurrency Rate Loans, and (B) on the date of
prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans shall be in a
principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any
prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$1,000,000 in excess thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s)
of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest
Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt
of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount
prepaid, together with any additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Committed Loans of the Lenders in accordance with their
respective Applicable Percentages.




          (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent) (substantially in the form of Exhibit B-2), at any time or from time to time,
voluntarily prepay Swing Line Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000 (or, if less, the entire principal
amount thereof then outstanding). Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date specified therein.




          (c) If at any time the aggregate Outstanding Amount of all Loans shall exceed the Aggregate
Commitments, the Borrower shall promptly prepay the Loans in an amount equal to such excess.




     2.05 Termination or Reduction of Commitments.



     The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or from time to time permanently reduce the Aggregate Commitments; provided
that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m.,
New York time, five Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of
$1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce the Aggregate
Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the
aggregate Outstanding Amount of all Loans would exceed the Aggregate Commitments, and (iv) if,
after giving effect to any reduction of the Aggregate Commitments, the Swing Line Sublimit exceeds
the amount of the Aggregate Commitments, such Swing Line Sublimit shall be automatically reduced by
the amount of such excess. The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Commitments. Any reduction of the Aggregate
Commitments shall be applied to the Commitment of each Lender according to its Applicable
Percentage. All fees accrued until the



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effective date of any termination of the Aggregate Commitments shall be paid on the effective
date of such termination. The Commitments shall be automatically terminated on the Maturity Date
(whether or not the term-out option set forth in Section 2.06(a) is selected by the
Borrower).




     2.06 Repayment of Loans; Term-Out Option.



          (a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal
amount of Committed Loans made to the Borrower outstanding on such date, provided that, the
Borrower may elect, by giving written notice of such election to the Administrative Agent at least
30 days prior to the Maturity Date, that the aggregate principal amount of Committed Loans
outstanding on the Maturity Date shall be payable on the date which is the first anniversary of the
Maturity Date, so long as (i) the conditions set forth in Section 4.02 are satisfied at the time
of such election and on the Maturity Date and (ii) the term-out fee set forth in Section 2.08(b) is
paid by the Borrower.




          (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the Maturity Date.




     2.07 Interest.



          (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate for
Eurocurrency Rate Loans plus (in the case of a Eurocurrency Rate Loan of any Lender which
is lent from a Lending Office in the United Kingdom or a Participating Member State) the Mandatory
Cost and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate for Base Rate Loans.




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




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



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



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







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     2.08 Fees.



          (a) Undrawn Fee. The Borrower shall pay to the Administrative Agent for the account
of each Lender in accordance with its Applicable Percentage, a fee, in Dollars, equal to the
Applicable Rate times the actual daily unused amount of the Aggregate Commitments (which
usage shall not include the Swing Line Loans for purposes of this calculation). The undrawn fee
shall accrue at all times during the Availability Period, including at any time during which one or
more of the conditions in Article IV are not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the last day of the Availability Period
(and, if applicable, thereafter on demand). The undrawn fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect.




          (b) Term-Out Fee. The Borrower agrees to pay to the Administrative Agent, for the
account of each Lender, a term-out fee in an amount equal to 1.0% of the aggregate principal amount
of any Committed Loans that remain outstanding after the Maturity Date pursuant to Section
2.06(a), payable on the effective date of exercise of the term-out option pursuant to
Section 2.06(a).




          (c) Other Fees. The Borrower shall pay to the Administrative Agent for its own
accounts fees, in Dollars, in the amounts and at the times specified in the Fee Letter. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.




     2.09 Computation of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by the Administrative Agent’s “prime rate” shall be made on the basis
of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations
of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall
not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it is made shall bear
interest for one day. Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest error.



     2.10 Evidence of Debt.



          (a) The Loans made by each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Administrative Agent in the ordinary course of business. The
accounts or records maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Loans made by the Lenders 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






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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
Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each
Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount,
currency and maturity of its Loans and payments with respect thereto.




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




     2.11 Payments Generally; Administrative Agent’s Clawback.



          (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m., New York
time on the date specified herein. The Administrative Agent will promptly distribute to each
Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender’s Lending Office. All payments received by
the Administrative Agent after 2:00 p.m., New York time shall in each case be deemed received on
the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If
any payment to be made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.




          (b) (i) 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
Committed Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate
Loans, prior to 12:00 noon, New York time, on the date of such Committed Borrowing) that such
Lender will not make available to the Administrative Agent such Lender’s share of such Committed
Borrowing, the Administrative Agent may assume that such Lender has made such share available on
such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate
Loans, that such Lender has made such share available in accordance with and at the time required
by Section 2.02) 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 Committed 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 in immediately available funds 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 (A) in the case of a payment to be made by such Lender, the
Overnight Rate, plus any administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, and (B)






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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 Committed Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Loan included in such Committed 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.




               (ii) Payments by the Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender in immediately available funds with interest
thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the Overnight Rate.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



          (c) Failure to Satisfy Conditions Precedent. Except as otherwise provided in
Section 2.02(f), if any Lender makes available to the Administrative Agent funds for any
Loan to be made by such Lender to the Borrower as provided in the foregoing provisions of this
Article II, and such funds are not made available to the Borrower by the Administrative
Agent because the conditions to the applicable Borrowing set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without interest.




          (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans, to fund participations in Swing Line Loans and to make payments pursuant to
Section 10.04(c) are several and not joint. The failure of any Lender to make any
Committed Loan, to fund any such participation or to make any payment under Section
10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan, to purchase its participation or to make its payment under
Section 10.04(c).




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







- 31 -









 








     2.12 Sharing of Payments by Lenders. 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
the Committed Loans made by it, or the participations in Swing Line Loans held by it resulting in
such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or
participations and accrued interest thereon 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
Committed Loans and subparticipations in Swing Line Loans 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 Committed Loans and other amounts owing them, provided that:



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



               (ii) the provisions of this Section shall not be construed to apply to (x) any payment made by
the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Committed Loans or subparticipations in Swing Line Loans to any assignee or participant,
other than the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall
apply).



     Each Loan 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 such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.



     2.13 Subsidiary Guarantors. At any time that a Subsidiary of the Borrower is designated as or
becomes a “subsidiary guarantor” under the Existing Credit Agreement, the Borrower shall, after
giving not less than 15 Business Days’ notice to the Administrative Agent, designate such
Subsidiary as a Subsidiary Guarantor to guaranty the Obligations hereunder by delivering to the
Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly
executed Subsidiary Guaranty in substantially the form of Exhibit F. All Guarantees of the
Obligations by the Subsidiary Guarantors shall be automatically released to the extent that and for
so long as (i) no Subsidiary of the Borrower guarantees, or is required to guarantee, any Qualified
Indebtedness or (ii) any such guarantees of Qualified Indebtedness is to be released substantially
concurrently with or, upon compliance with provisions of the instruments governing such Qualified
Indebtedness that shall be satisfied, promptly after, the release of its obligations under the
Subsidiary Guaranty. The parties hereto acknowledge and agree that prior to any Subsidiary
becoming a Subsidiary Guarantor, the Administrative Agent and the Lenders shall have received such
supporting resolutions, incumbency certificates, opinions of counsel and other documents or
information, in form, content and scope reasonably satisfactory to the Administrative Agent, as may
be required by the Administrative Agent or the Required Lenders in their reasonable discretion.



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




          (a) the Undrawn Fees pursuant to Section 2.08(a) shall cease to accrue on the
Commitment of such Defaulting Lender;




          (b) the Commitment and Loans of such Defaulting Lender shall not be included in determining
whether all Lenders or the Required Lenders have taken or may take any action hereunder (including
any consent to any amendment or waiver pursuant to Section 10.01), provided that
any waiver, amendment or modification (i) requiring the consent of all Lenders or each affected
Lender which affects such Defaulting Lender differently than other affected Lenders or (ii) which
extends or increases the Commitment of a Defaulting Lender or (iii) which amends the proviso of
this Section 2.14(b) shall, in each case, require the consent of such Defaulting Lender;




          (c) if any Swing Line Loan is outstanding at the time a Lender becomes a Defaulting Lender
then (such Defaulting Lender’s Applicable Percentage of the outstanding principal amount of the
Swing Line Loans being referred to as the “Swing Line Portion”):




               (i) the Swing Line Portion of such Defaulting Lender will, subject to the limitation in the
first proviso below, automatically be reallocated (effective on the day such Lender becomes a
Defaulting Lender) among the non-Defaulting Lenders pro rata in accordance with their respective
Commitments; provided that (i) the sum of the total Outstanding Amount of each non-Defaulting
Lender’s Committed Loans and its Applicable Percentage of Swing Line Loans may not in any event
exceed the Commitment of such non-Defaulting Lender as in effect at the time of such reallocation
and (ii) neither such reallocation nor any payment by a non-Defaulting Lender pursuant thereto will
constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Swing Line
Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender
to be a non-Defaulting Lender; and



               (ii) to the extent that any portion (the “unreallocated portion”) of the Defaulting
Lender’s Swing Line Portion cannot be so reallocated, whether by reason of the proviso in clause
(i) above or otherwise, the Borrower will, not later than five Business Days after demand by the
Administrative Agent (at the direction of the Swing Line Lender) either, at the Borrower’s option,
(A) prepay (subject to clause (c) below) in full the unreallocated portion thereof or (B) cash
collateralize such Defaulting Lender’s Swing Line Portion (after giving effect to any partial
reallocation pursuant to clause (a) above) in accordance with procedures reasonably acceptable to
the Administrative Agent for so long as such Swing Line Portion is outstanding;



          (d) any amount payable to such Defaulting Lender hereunder (whether on account of principal,
interest, fees or otherwise and including any amount that would otherwise be payable to such
Defaulting Lender pursuant to Section 2.12 but excluding Section 10.13) shall, in
lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a
segregated account and, subject to any applicable requirements of law, be applied at such time or
times as may be determined by the Administrative Agent (i) first, to the payment of






- 33 -









 







any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii)
second, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender
under this Agreement, (iii) third, if so determined by the Administrative Agent or requested by the
Swing Line Lender, held in such account as cash collateral for future funding obligations of the
Defaulting Lender in respect of any existing or future participating interest in any Swing Line
Loan, (iv) fourth, to the funding of any Committed 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, (v) fifth, if so determined by the Administrative Agent and the Borrower,
held in such account as cash collateral for future funding obligations of the Defaulting Lender in
respect of any Committed Loans under this Agreement, (vi) sixth, to the payment of any amounts
owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by
any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement, (vi) seventh, 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 (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction, provided, with respect to this clause (viii), that if such payment
is (x) a prepayment of the principal amount of any Committed Loans which a Defaulting Lender has
funded its appropriate share and (y) made at a time when Commitments of non-Defaulting Lenders
remain outstanding, such payment shall be applied solely to prepay the Committed Loans of all
non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Committed Loans
owed to any Defaulting Lender;




          (e) so long as any Lender is a Defaulting Lender, the Swing Line Lender shall not be required
to fund any Swing Line Loan unless it is satisfied that the related exposure of the Defaulting
Lender will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral
will be provided by the Borrower in accordance with paragraph (c)(ii) of this Section, and
participating interests in any such newly made Swing Line Loan shall be allocated among
non-Defaulting Lenders in a manner consistent with paragraph (c)(i) and (c)(ii) of this Section;
and




          (f) the Borrower may (a) terminate the unused amount of the Commitment of a Defaulting Lender
upon not less than three (3) Business Days’ prior notice to the Administrative Agent (which will
promptly notify the Lenders hereof); provided that such termination will not be deemed to be a
waiver or release of any claim the Borrower, the Administrative Agent, the Swing Line Lender or
any Lender may have against such Defaulting Lender.




          (g) If the Borrower and the Administrative Agent and the Swing Line Lender agree in writing
that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein, that Lender will, to the extent applicable, purchase at par that portion of
outstanding Loans of the other Lenders or take such actions as the Administrative Agent may
determine to be necessary to cause the Loans and funded and unfunded participations in Swing Line
Loans of such Lender to be held pro rata in accordance with its Applicable Percentage.




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ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



          (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of a Loan Party hereunder or under any other Loan Document shall be made free and clear of and
without deduction or withholding for any Indemnified Taxes or Other Taxes, provided that if
the applicable Withholding Agent shall be required by applicable law to deduct or withhold any
Indemnified Taxes (including any Other Taxes) from such payments, as determined in good faith by
the applicable Withholding Agent, then (i) the sum payable by the applicable Loan Party shall be
increased as necessary so that after making all required deductions (including withholdings or
deductions applicable to additional sums payable under this Section) the Administrative Agent or
Lender, as the case may be, receives an amount equal to the sum it would have received had no such
withholdings or deductions been made and (ii) the applicable Withholding Agent shall make such
deductions or withholdings and 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
subsection (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 and each Lender within ten 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 or such
Lender, as the case may be, on or with respect to any payment by or on account of any obligation of
a Loan Party hereunder or any other Loan Document, and any incremental taxes, penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate setting forth in reasonable detail the amount of such payment or
liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by
the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.




          (d) Evidence of Payments. As soon as practicable after any payment of Taxes by the
Borrower or by the Administrative Agent to a Governmental Authority as provided in this Section
3.01, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall
deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of any return reporting such payment
or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative
Agent, as the case may be.




          (e) Indemnification by the Lenders. Each Lender shall indemnify the Administrative
Agent for the full amount of any Taxes imposed by any Governmental Authority that are attributable
to such Lender and that are payable or paid by the Administrative Agent, together with all
incremental taxes, interest, penalties, reasonable costs and expenses arising




- 35 -









 




therefrom or with respect thereto, as determined by the Administrative Agent in good faith. A
certificate as to the amount of such payment or liability delivered to any Lender by the
Administrative Agent shall be conclusive absent manifest error.




          (f) Status of Lenders.




               (i) Any Lender that is a “United States person” within the meaning of § 7701(a)(30) of the
Code shall deliver to the Borrower and the Administrative Agent executed originals of Internal
Revenue Service Form W-9 or such other documentation or information prescribed by applicable laws
or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or
the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to
backup withholding or information reporting requirements; and



               (ii) Each Foreign Lender that is entitled to an exemption from or reduction of any United
States withholding tax (including each Participant that acquired a participation from a Foreign
Lender) shall deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been purchased) 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 (or on or prior to the date on which such
Participant acquires its participation from a Lender) (and from time to time thereafter upon the
request of the Borrower or the Administrative Agent or when a lapse in time or a change in
circumstance renders the prior certificates obsolete), but only if such Foreign Lender is legally
entitled to do so, whichever of the following is applicable:



                    (A) executed originals of Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY) and any
required supporting documentation (or any successor or other applicable form prescribed by the IRS
certifying as to such Lender’s entitlement to a reduction of or complete exemption from United
States withholding tax),



                    (B) 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 “ten 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) executed
originals of Internal Revenue Service Form W-8BEN, or



                    (C) executed originals of 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.



     If a payment made to a Lender hereunder would be subject to U.S. federal withholding Tax
imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements
of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code,



- 36 -









 




as applicable), such Lender shall deliver to the Borrower and the Administrative Agent, at the
time or times prescribed by law and at such time or times reasonably requested by the Borrower and
the Administrative Agent, such documentation prescribed by applicable law (including as prescribed
by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by
the Borrower and the Administrative Agent as may be necessary for the Borrower and the
Administrative Agent to comply with its obligations under FATCA, to determine that such Lender has
or has not complied with such Lender’s obligations under FATCA or to determine the amount to deduct
and withhold from such payment.




     Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each
Lender agrees promptly to deliver to the Administrative Agent or the Borrower, as the
Administrative Agent or the Borrower shall reasonably request, on or prior to the Closing Date, and
in a timely fashion thereafter, such other documents and forms required by any relevant taxing
authorities under the Laws of any other jurisdiction, duly executed and completed by such Lender,
as are required under such Laws to confirm such Lender’s entitlement to any available exemption
from, or reduction of, applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrower pursuant to this Agreement or otherwise to establish
such Lender’s status for withholding tax purposes in such other jurisdiction, provided that in such
Lender’s reasonable judgment such documentation does not subject such Lender to a material
unreimbursed cost or expense or otherwise prejudice the legal or commercial position of such
Lender.



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



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







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     3.02 Illegality. If any Law has made it unlawful, or any Governmental Authority has asserted
that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund
Eurocurrency Rate Loans or to determine or charge interest rates based upon the Eurocurrency Rate
or any Governmental Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of
such Lender to make or continue Eurocurrency Rate Loans or to convert Base Rate Loans to
Eurocurrency Rate Loans, shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all such Eurocurrency Rate Loans of such
Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted and, upon any such prepayment or conversion on a day other than the last day of the
relevant Interest Period, all amounts due pursuant to Section 3.05.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof
that (a) deposits are not being offered to banks in the applicable interbank market for the
applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan or (c) the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent
will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to
make or maintain Eurocurrency Rate Loans shall be suspended until the Administrative Agent (upon
the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans or, failing that, will be deemed to have converted such request into a
request for a Borrowing of Base Rate Loans in the amount specified therein.



     3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.



          (a) Increased Costs Generally. If any Change in Law, after the date on which a Lender
becomes a Lender hereunder, shall:




               (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except (A) any reserve requirement contemplated by
Section 3.04(e) and (B) the requirements of the Bank of England and the Financial Services
Authority or the European Central Bank reflected in the Mandatory Cost, other than as set forth
below);



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



               (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to represent the
cost to any Lender of complying with the requirements of the Bank of England and/or the Financial
Services Authority or the European Central Bank in relation to its making, funding or maintaining
Eurocurrency Rate Loans; or



               (iv) impose on any Lender or the London interbank market any other material condition, cost or
expense affecting this Agreement or Eurocurrency Rate Loans made by such Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or
to materially reduce the amount of any sum received or receivable by such Lender (whether of
principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay
to such Lender such additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered. Notwithstanding anything to the contrary contained herein,
the Borrower shall have no obligation under this Section 3.04(a) with respect to any
additional cost or reduction suffered in connection with any Indemnified Taxes or Other Taxes
(which shall be governed exclusively by the provisions of Section 3.01) or Excluded Taxes.




          (b) Capital Requirements. If any Lender determines that any Change in Law, after the
date on which a Lender becomes a Lender hereunder, affecting such Lender or any Lending Office of
such Lender or such 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 capital or on the capital of such
Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by such Lender, to a level below that which such Lender or such Lender’s
holding company could have achieved but for such Change in Law (taking into consideration such
Lender’s policies and the policies of such Lender’s holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender or such Lender’s holding company for any such reduction
suffered.




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




          (d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lender’s right to demand such compensation, provided that the Borrower shall not be




- 39 -









 




required to compensate a Lender pursuant to the foregoing provisions of this Section for any
increased costs incurred or reductions suffered more than 90 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such 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 90-day period referred
to above shall be extended to include the period of retroactive effect thereof).




          (e) Additional Reserve Requirements. The Borrower shall pay to each Lender, without
duplication of any Mandatory Cost, (i) as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or including eurocurrency funds or
deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid
principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), and (ii) as long as such Lender shall be required to comply
with any reserve ratio requirement or analogous requirement of any other central banking or
financial regulatory authority imposed in respect of the maintenance of the Commitments or the
funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per annum
and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs
allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith,
which determination shall be conclusive), which in each case shall be due and payable on each date
on which interest is payable on such Loan; provided the Borrower shall have received at
least ten days’ prior notice (with a copy to the Administrative Agent) of such additional interest
or costs from such Lender. If a Lender fails to give notice ten days prior to the relevant
Interest Payment Date, such additional interest or costs shall be due and payable ten days from
receipt of such notice.




     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any reasonable and invoiced loss, cost or expense incurred by it (in each case
together with a reasonably detailed supporting calculation) as a result of:



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




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




          (c) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
10.13;



including any foreign exchange losses and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the
deposits from which such funds were obtained or from the performance of any foreign exchange






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contract. The Borrower shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing (not to exceed $250 per applicable transaction).



For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the
Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the interbank market
for such currency for a comparable amount and for a comparable period, whether or not such
Eurocurrency Rate Loan was in fact so funded.




     3.06 Mitigation Obligations; Replacement of Lenders.



          (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or 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 3.01, or if
any Lender gives a notice pursuant to Section 3.02, 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 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each
case, would not subject 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
3.04 or delivers a notice under Section 3.02, 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 3.01, the Borrower may replace such Lender in accordance with
Section 10.13.




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



ARTICLE IV.

CONDITIONS PRECEDENT




     4.01 Conditions to Closing Date. The effectiveness of this Agreement is subject to the
satisfaction (or waiver pursuant to Section 10.01) of the following conditions precedent:



          (a) the Administrative Agent’s receipt of the following, each dated as of the Closing Date
(or, in the case of certificates of governmental officials, a recent date before the Closing Date)
and each in form and substance reasonably satisfactory to the Administrative Agent and each of the
Lenders:




               (i) executed counterparts of (x) this Agreement, executed and delivered by the Administrative
Agent, the Borrower and each Person listed on Schedule 2.01, (y) the Subsidiary Guaranty, executed
and delivered by the Administrative Agent and each



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Subsidiary Guarantor and (z) the Acquisition Agreement, each properly executed by a
Responsible Officer of the relevant Loan Party;




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



               (iii) such documents and certifications as the Administrative Agent may reasonably require to
evidence that each Loan Party is duly organized or formed, and that such Loan Party is validly
existing, in good standing and qualified to engage in business in the jurisdiction of its
organization, each, where applicable, properly executed by a Responsible Officer of the relevant
Loan Party;



               (iv) a favorable opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Borrower
and the other Loan Parties, addressed to the Administrative Agent and each Lender, as to such
matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the
Required Lenders may reasonably request;



               (v) a Note properly executed by a Responsible Officer of the Borrower in favor of each Lender
requesting a Note;



               (vi) all information requested by any Lender necessary to enable such Lender to identify the
Borrower to the extent required for compliance with the Act or other “know your customer” and
anti-money laundering rules and regulations, including the Act;



          (b) each of the representations and warranties of the Loan Parties contained in Article
V or which are contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct in all material respects (except that any representation
and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and
correct in all respects) on and as of the Closing Date as if made on and as of such date, except to
the extent that such representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respects (except that any representation and
warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and
correct in all respects) as of such earlier date;




          (c) No Default or Event of Default shall exist on the Closing Date;




          (d) the Administrative Agent shall have received a certificate properly executed by a
Responsible Officer of the Borrower satisfactory to it demonstrating compliance by the Borrower as
of the Closing Date with the financial covenant included in Section 7.06;




          (e) the Administrative Agent shall have received a certificate signed by a Responsible Officer
of the Borrower confirming, as of the Closing Date, the satisfaction (unless waived by the Required
Lenders) of the conditions specified in this Section 4.01;




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          (f) the Lenders, the Administrative Agent and the Arrangers shall have received all fees
required to be paid, and all expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel), on or before the Closing Date, including fees and
expenses and other compensation contemplated by the Fee Letter. Without duplication of the
foregoing, unless waived by the Administrative Agent, the Borrower shall have paid all fees,
charges and disbursements of counsel to the Administrative Agent (directly to such counsel if
requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date.




     Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



     4.02 Conditions to each Loan. The obligation of each Lender to make any Loan requested to be
made by it on any date (except as otherwise provided in Section 4.03) is subject to the
satisfaction (or waiver pursuant to Section 10.01) of the following conditions precedent:



          (a) the Administrative Agent shall have received a Committed Loan Notice in accordance with
the requirements of Article II;




          (b) each
of the representations and warranties of the Loan Parties contained in Article V (excluding the representation and warranty made by the Borrower in Section
5.05(c)), shall be true and correct in all material respects (except that any
representation and warranty that is qualified as to “materiality” or “Material Adverse Effect”
shall be true and correct in all respects) on and as of such date as if made on and as of such date
(immediately before and immediately after giving effect to such Loan and the application of the
proceeds thereof), except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they shall be true and correct in all material respects (except
that any representation and warranty that is qualified as to “materiality” or “Material Adverse
Effect” shall be true and correct in all respects) as of such earlier date; and




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



Each Borrowing by the Borrower under this Section 4.02 shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in this Section 4.02
have been satisfied.




     4.03 Conditions to Borrowings in connection with the Acquisition. Notwithstanding anything to
the contrary in Section 4.02, any Borrowings requested by the Borrower to be made after the Closing
Date the purpose of which shall be used to fund the Acquisition and related costs on the
Acquisition Closing Date are only subject to the satisfaction (or waiver pursuant to Section 10.01)
of the following conditions precedent:



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          (a) the Administrative Agent shall have received a Committed Loan Notice in accordance with
the requirements of Article II;




          (b) the Administrative Agent shall have received a certificate signed by a Responsible Officer
of the Borrower confirming, as of the Acquisition Closing Date, the satisfaction (unless waived by
the Required Lenders) of the conditions specified in clauses (c), (d), and
(e) of this Section 4.03;




          (c) the following representations and warranties shall be accurate on the Acquisition Closing
Date: (i) such representations and warranties made by the Target in the Acquisition Agreement as
are material to the interests of the Arrangers and the Lenders, but only to the extent that the
Borrower has the right to terminate its obligations under the Acquisition Agreement as a result of
a breach of such representations in the Acquisition Agreement (determined without regard to whether
any notice is required to be delivered by the Borrower) and (ii) each of the representations and
warranties of the Loan Parties contained in Section 5.01(a) (with respect to the Borrower
only), Section 5.01(b)(ii), 5.02(a), 5.04,
5.12, and 5.13 (but only with respect to the Borrower’s Annual Report on Form 10-K for the year ended December
31, 2010 and the Borrower’s other filings with the SEC since December 31, 2010, and only to the
extent that a breach of such representation would reasonably be expected to have a Material Adverse
Effect);




          (d) the Administrative Agent shall have received reasonably satisfactory evidence (which may
be provided by a certificate of a Responsible Officer of the Borrower) that the Acquisition has
been consummated (or shall be consummated substantially concurrently with the making of the Loans
to be made on the Acquisition Closing Date) in accordance with the terms of the Acquisition
Agreement; provided, that, since the date of the Acquisition Agreement, no amendment,
modification or waiver of any term thereof or any condition to the Borrower’s obligation to
consummate the Acquisition thereunder or consent granted thereunder will be made or granted, as the
case may be, without the prior written consent (which consent shall not be unreasonably withheld or
delayed) of the Arrangers (other than any such amendment, modification or waiver or consent that is
not materially adverse to any interest of the Arrangers or the Lenders, it being understood that
any (A) change in the price (including any price decrease), (B) modification of the structure of
the Acquisition resulting in the acquisition of the Target other than by purchase of the shares of
the Target with the Borrower or a direct or indirect wholly-owned Subsidiary thereof or (C) written
consent granted by the Borrower to the Target with respect to any act or omission, otherwise
prohibited by the Acquisition Agreement in the absence of such written consent, that is or would be
reasonably expected to be material and adverse (whether at the time of such consent or at the
Acquisition Closing Date) to any interest of the Arrangers or the Lenders will require the consent
of the Arrangers, in each case which consent shall not be unreasonably withheld or delayed);




          (e) there shall not have occurred and be continuing any Target Material Adverse Effect; and




          (f) The Administrative Agent shall have received reasonably satisfactory evidence (which may
be provided by a certificate of a Responsible Officer of the Borrower) that there shall be no
outstanding loans under the Existing Credit Agreement the proceeds of which





- 44 -











 




are used to finance the Acquisition (including any fees and expenses incurred in connection
therewith) unless the Aggregate Commitments (less any amount outstanding under any commercial paper
issued by the Borrower) have been utilized in full.




ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders as of the
date hereof and as of the Acquisition Closing Date that:



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



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



     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other material action by, or material notice to, or material filing with (other
than any SEC filing by the Borrower in compliance with the SEC disclosure obligations), any
Governmental Authority or any other Person is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or
any other Loan Document.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and



 - 45 - 









 




subject to general principles of equity, regardless of whether considered in a proceeding in
equity or at law.




     5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event.



          (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(ii) fairly present in all material respects the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the period covered thereby
and the Audited Financial Statements show, reflect or describe all material indebtedness and other
material contingent liabilities of the Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material long term commitments and Indebtedness other than those
that are (A) not material to the Borrower and its Subsidiaries as a whole or (B) are reflected in
the Borrower’s most recent report on Form 10-K and any subsequent reports on Form 10-Q or Form 8-K
filed with the SEC.




          (b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated April
2, 2011 and the related consolidated statements of income or operations, shareholders’ equity and
cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present in all material respects the financial condition of the Borrower
and its Subsidiaries as of the date thereof and their results of operations for the period covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal
year-end audit adjustments.




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




     5.06 Litigation. Except as specifically disclosed in the Borrower’s Annual Report on Form
10-K and the other filings with the SEC from time to time, there are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened, at law,
in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any
of its Subsidiaries or against any of their properties or revenues that either individually or in
the aggregate would reasonably be expected to have a Material Adverse Effect.



     5.07 Ownership of Property; Liens. Each of the Borrower and each Subsidiary has good record
and marketable title in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in title as could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the
Borrower and its Subsidiaries is subject to no Lien, other than Liens permitted by Section
7.01.



     5.08 Environmental Compliance. Except as specifically disclosed in Schedule 5.08, the
Borrower and its Subsidiaries are in compliance with all applicable Environmental Laws, except for
such non-compliance as would not, individually or in the aggregate, reasonably be



 - 46 - 









 




expected to have a Material Adverse Effect. Except as specifically disclosed in Schedule
5.08, there are no pending claims alleging potential liability under or responsibility for
violation of any Environmental Law against or with respect to the Borrower and its Subsidiaries or
their respective businesses, operations and properties, except such pending claims as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.




     5.09 Insurance. Except to the extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect, the properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates of the Borrower, 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 localities where the Borrower or the
applicable Subsidiary operates.



     5.10 Taxes. Except to the extent that the failure to do so could not reasonably be expected
to have a Material Adverse Effect, the Borrower and its Subsidiaries have filed all Federal, state
and other material tax returns and reports required to be filed (subject to any applicable
extensions), and have paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or assets which are
due and payable, except those which are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in accordance with GAAP.



     5.11 ERISA Compliance.



          (a) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse
Effect, (i) each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws; and (ii) each Plan that is intended to qualify
under Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of, such
qualification.




          (b) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse
Effect, the Borrower and each ERISA Affiliate have made all required contributions to each Plan
subject to Section 412 of the Code, no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with respect to any Plan and
no lien in favor of the PBGC or a Plan has arisen.




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




          (d) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse
Effect, (i) no ERISA Event has occurred or is reasonably expected to occur;






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(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA
with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.




     5.12 Margin Regulations; Investment Company Act.



          (a) No part of the proceeds of any Loan will be used for any purpose that violates the
provisions of Regulation U or any of the other Regulations of the FRB. If requested by any Lender
or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender
a statement to the forgoing effect in conformity with the requirements of FR Form G-3 or FR Form
U-1, as applicable, referred to in Regulation U.




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




     5.13 Disclosure. No report, financial statement, certificate or other information furnished
by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby or delivered hereunder or under any other Loan Document (in each
case, as modified or supplemented by other information so furnished), taken as a whole, contains
any untrue statement of 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 management projections or guidance or forward looking
statements, the Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time, it being recognized by the Lenders that
such financial information as it relates to future events is not to be viewed as fact and that
actual results during the period or periods covered by such financial information may differ from
the projected results set forth therein by a material amount.



     5.14 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance in
all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties (including but not limited to compliance with
economic and trade sanctions programs such as those administered by the United States Treasury,
Office of Foreign Asset Control or another Governmental Authority), except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being contested in good
faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith,
either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.



     5.15 Taxpayer Identification Number; Other Identifying Information. The true and correct U.S.
taxpayer identification number of the Borrower is set forth on Schedule 10.02.



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ARTICLE VI.

AFFIRMATIVE COVENANTS




     As of the Closing Date and for so long as any Lender shall have any Commitment hereunder or
any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall, and
shall (except in the case of the covenants set forth in Sections 6.01, 6.02 and
6.03) cause each Subsidiary to:



     6.01 Financial Statements. Deliver to the Administrative Agent (for distribution to each
Lender), in form and detail reasonably satisfactory to the Administrative Agent and the Required
Lenders:



          (a) as soon as available, but in any event within the filing deadline applicable to “large
accelerated filers” set forth in the SEC regulations promulgated pursuant to Section 13 of the
Exchange Act, after the end of each fiscal year of the Borrower (commencing with the fiscal year
ended December 31, 2011), a consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal year, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, prepared in accordance with GAAP, audited and
accompanied by a report and opinion of a Registered Public Accounting Firm of nationally recognized
standing, which report and opinion shall be prepared in accordance with generally accepted auditing
standards and applicable Securities Laws and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit; and




          (b) as soon as available, but in any event within the filing deadline applicable to “large
accelerated filers” set forth in the SEC regulations promulgated pursuant to Section 13 of the
Exchange Act, after the end of each of the first three fiscal quarters of each fiscal year of the
Borrower (commencing with the fiscal quarter ended July 2, 2011), a consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each
case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal
year and the corresponding portion of the previous fiscal year, all in reasonable detail, and
certified by a Responsible Officer of the Borrower as fairly presenting in all material respects
the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP, subject to normal year-end audit adjustments and the
absence of footnotes.



Notwithstanding anything to the contrary in this Section 6.01, the Borrower shall not be
required to deliver any financial statements to the Administrative Agent with respect to any period
for which it has timely filed its Form 10-K or Form 10-Q, as the case may be, with the SEC;
provided, that such Form 10-K or Form 10-Q, as the case may be, is publicly available on
the SEC’s website (or a similar website) within the time periods required by this Section.







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     6.02 Certificates; Other Information. Deliver to the Administrative Agent (for distribution
to each Lender), in form and detail reasonably satisfactory to the Administrative Agent and the
Required Lenders:



          (a) concurrently with the delivery of the financial statements referred to in Section
6.01(a), a certificate of a Responsible Officer of the Borrower stating that such Responsible
Officer has no knowledge of any Default under the financial covenants set forth herein or, if any
such Default shall exist, stating the nature and status of such event;




          (b) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b) (commencing with the delivery of the financial statements for the
fiscal quarter ended July 2, 2011), a duly completed Compliance Certificate signed by the chief
executive officer, chief financial officer, treasurer or controller of the Borrower;




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




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




     Documents required to be delivered pursuant to Section 6.01(a) or (b) may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date
(i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule 10.02; 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). Notwithstanding anything contained
herein, in every instance the Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(b) to the Administrative Agent. Except for such
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.



     6.03 Notices. Promptly, after a Responsible Officer of the Borrower obtains knowledge
thereof, notify the Administrative Agent:



          (a) of the occurrence of any Default;




          (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect;







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          (c) of the occurrence of any ERISA Event or the institution of proceedings or the taking of
any other action by the PBGC with respect to the withdrawal from or the termination, reorganization
or insolvency of, any Plan that, in any case, could reasonably be expected to have a Material
Adverse Effect; and




          (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary.




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



     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its material obligations and liabilities (including taxes), which if not paid could reasonably be
expected to have a Material Adverse Effect, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are
being maintained by the Borrower or such Subsidiary.



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect the legal existence and good standing of Borrower and any Subsidiary Guarantor under the
Laws of the jurisdiction of its organization except in a transaction permitted by Section
7.03 or 7.04; (b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of its business,
except to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.



     6.06 Maintenance of Properties; Maintenance of Insurance. Except to the extent that, in the
aggregate, non-compliance could not reasonably be expected to have a Material Adverse Effect, (a)
maintain, preserve and protect all of its material properties and equipment necessary in the
operation of its business in good working order and condition, ordinary wear and tear excepted; and
(b) maintain with financially sound and reputable insurance companies, insurance with respect to
its properties and business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other Persons.



     6.07 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.



     6.08 Inspection Rights; Books and Records. (a) Maintain proper books and records and accounts
in which full, true and correct entries in conformity with GAAP and all Laws shall be made of all
dealings and transactions material to the Borrower and its Subsidiaries, taken as a



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whole, in relation to its business and activities; and (b) permit representatives of any
Lender to visit and inspect any of its properties and examine and make abstracts from any of its
books and records at any reasonable time but only during normal business hours and (except in the
event a Default or Event of Default exists) upon reasonable prior notice to the Borrower and as
often as may reasonably be desired (but in no event more frequently than two times a year unless an
Event of Default exists) and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and employees of the Borrower
and its Subsidiaries and, when an Event of Default exists, with their Registered Public Accounting
Firm.




     6.09 Use of Proceeds.



          (a) The proceeds of the Loans requested to be made on the Acquisition Closing Date will be
used to fund, in whole or in part, the Acquisition, including the payment of Indebtedness of Target
and to pay all or a portion of the costs incurred by the Borrower or any of its Subsidiaries in
connection with the Transactions.




          (b) The proceeds of the Loans requested to be made on any date other than the Acquisition
Closing Date will be used for general corporate purposes of the Borrower and its Subsidiaries,
including to back-stop any commercial paper issuances by the Borrower.




     6.10 Approvals and Authorizations. Except to the extent that, in the aggregate,
non-compliance could not reasonably be expected to have a Material Adverse Effect, maintain all
authorizations, consents, approvals and licenses from, exemptions of, and filings and registrations
with, each Governmental Authority of the jurisdiction in which each Loan Party is organized and
existing, and all approvals and consents of each other Person in such jurisdiction, in each case
that are required in connection with the Loan Documents.



ARTICLE VII.

NEGATIVE COVENANTS




     As of the Closing Date and for so long as any Lender shall have any Commitment hereunder or
any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall not,
nor shall it permit any Subsidiary to, directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues (other than Liens on Margin Stock created, incurred or assumed at a time when
such Margin Stock constitutes Unrestricted Margin Stock), whether now owned or hereafter acquired,
other than the following:



          (a) Liens pursuant to any Loan Document;




          (b) Liens existing on the Closing Date and listed on Schedule 7.01(b) and any renewals
or extensions thereof; provided that (i) the property covered thereby is not changed, (ii)
the amount secured or benefited thereby is not increased except as contemplated by Section
7.02(a), and (iii) any renewal or extension of the obligations secured or benefited thereby is
permitted by Section 7.02(a);







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          (c) on or prior to the date that is ten (10) Business Days after the Acquisition Closing Date,
Liens on assets of the Target and its Subsidiaries existing on the Closing Date and listed on
Schedule 7.01(c);




          (d) Liens on property of the Borrower and its Subsidiaries not reflected on the consolidated
balance sheet of the Borrower and its Subsidiaries that are limited to amounts that have been
irrevocably deposited with a financial institution;




          (e) Liens for Taxes not yet delinquent, that remain payable without penalty, or which are
being contested in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable Person in accordance
with GAAP;




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




          (g) pledges or deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation;




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




          (i) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;




          (j) Liens securing judgments for the payment of money or securing appeal or other surety bonds
related to such judgments;




          (k) customary rights of setoff upon deposit accounts and securities accounts of cash in favor
of banks or other depository institutions and securities intermediaries; provided that (i) such
deposit account or securities account is not a dedicated cash collateral account and is not subject
to restrictions against access by the Borrower or any of its Subsidiaries owning the affected
deposit account or other funds maintained with a creditor depository institution in excess of those
set forth by regulations promulgated by the FRB or any foreign regulatory agency performing an
equivalent function, and (ii) such deposit account or securities account is not intended by the
Borrower or any of its Subsidiaries to provide collateral (other than such as is ancillary to the
establishment of such deposit account or securities account) to the depository institution;




          (l) Liens arising under cash management pooling arrangements;







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          (m) any interest or title of a lessor under any lease entered into by the Borrower or any of
its Subsidiaries in the ordinary course of its business and covering only the assets so leased;




          (n) Liens incurred pursuant to a Permitted Receivables Securitization on the Receivables that
are subject thereto; and




          (o) other Liens securing Indebtedness in an aggregate amount not to exceed, at any time
outstanding, 10% of the book value of the Consolidated Total Tangible Assets of the Borrower and
its Subsidiaries.




     7.02 Subsidiary Indebtedness. Permit any Subsidiary that is not a Subsidiary Guarantor to
create, incur, assume or suffer to exist any Indebtedness, except:



          (a) Indebtedness outstanding on the Closing Date and listed on Schedule 7.02(a) and
additional Indebtedness incurred after the Closing Date under the revolving credit arrangements
listed on Schedule 7.02(a) in an aggregate principal amount at any one time outstanding not
to exceed the commitments or limits existing with respect thereto on the date hereof and set forth
on such Schedule and any replacements, refinancings, refundings, renewals or extensions thereof;
provided that the principal amount of such Indebtedness is not increased at the time of
such replacement, refinancing, refunding, renewal or extension above the commitments or limits set
forth on such Schedule and the maturity thereof is not shortened to a date earlier than the
maturity thereof set forth on such Schedule;




          (b) on or prior to the date that is ten (10) Business Days after the Acquisition Closing Date,
Indebtedness of Target and its Subsidiaries outstanding on the Closing Date and listed on
Schedule 7.02(b);




          (c) Indebtedness of any Subsidiary to the Borrower or to any other Subsidiary;




          (d) Guarantees by any Subsidiary in respect of Indebtedness of the Borrower or any other
Subsidiary otherwise permitted hereunder; provided, however, that any Guarantees by
Subsidiaries that are not Subsidiary Guarantors in respect of Indebtedness of the Borrower or any
Subsidiary Guarantor shall not exceed, at any time outstanding, $50,000,000 in the aggregate; and




          (e) Indebtedness of all Subsidiaries (other than any Subsidiary Guarantor) in an aggregate
principal amount not to exceed, at any time outstanding, 10% of the total book value of the
Consolidated Total Tangible Assets of the Borrower and its Subsidiaries.




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



          (a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall
be the continuing or surviving Person, or (ii) any one or more other Subsidiaries,






 - 54 - 









 







provided that when any Subsidiary Guarantor is merging with another Subsidiary, the
Subsidiary Guarantor shall be the continuing or surviving Person;




          (b) any Subsidiary may Dispose of all or substantially all of its assets (i) (upon voluntary
liquidation or otherwise) to the Borrower or to another Subsidiary or (ii) pursuant to a
Disposition permitted by Section 7.04;




          (c) any Subsidiary (other than a Subsidiary Guarantor) may be wound up, liquidated or
dissolved, as deemed appropriate by the Borrower; and




          (d) any Person (other than the Borrower or any Subsidiary) may be merged or consolidated with
any Subsidiary.




     7.04 Dispositions. Make any Disposition (other than any property which, at the time of any
Disposition, constitutes Unrestricted Margin Stock) or enter into any agreement to make any
Disposition, except:



          (a) Dispositions of obsolete, surplus or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business;




          (b) Dispositions of inventory in the ordinary course of business;




          (c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;




          (d) Dispositions of property by the Borrower or any of its Subsidiaries to the Borrower or any
of its Subsidiaries;




          (e) Dispositions listed on Schedule 7.04;




          (f) Disposition of Receivables pursuant to a Permitted Receivables Securitization;




          (g) Dispositions by the Borrower and its Subsidiaries of property pursuant to sale-leaseback
transactions; and




          (h) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this
Section 7.04; provided that (i) at the time of such Disposition, no Default exists
or would result from such Disposition and (ii) the aggregate book value of all property Disposed of
in reliance on this clause (h) in any fiscal year shall not exceed 10% of the book value of the
total consolidated assets of the Borrower and its Subsidiaries in accordance with GAAP.




     7.05 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Borrower, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s length



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transaction with a Person other than an Affiliate; provided that the foregoing
restriction shall not apply to (a) transactions between or among the Borrower and any of its
Subsidiaries, (b) transactions otherwise permitted hereunder or (c) transactions that do not
exceed, in the aggregate, $5,000,000 during any fiscal year.




     7.06 Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as at the last day
of any fiscal quarter to be greater than 3.5 to 1.0.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




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



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




          (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.03(a), 6.05 (with respect to the
existence of the Borrower or any Subsidiary Guarantor), 6.09 or Article VII or any
Subsidiary Guarantor fails to perform or observe any term, covenant or agreement contained in
Section 1 of the Subsidiary Guaranty; or




          (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for 30 days after the earlier of (i) a
Responsible Officer of the Borrower having knowledge of such Default or (ii) the receipt by the
Borrower or any such Loan Party of written notice from the Administrative Agent or any Lender of
such Default; or




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




          (e) Cross-Default. (i) The Borrower or any Material Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise and after any applicable grace period) in respect of any Indebtedness (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) or Guarantee having an aggregate
principal amount (including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount (any such Indebtedness or Guarantee, “Threshold
Indebtedness”), or (B) fails to observe or perform (after any applicable grace period) any
other agreement or condition relating to any Threshold Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of
which default or other event (other than (v) any






 - 56 - 









 







such default or event arising solely out of the violation by the Borrower or any of its
Subsidiaries of any covenant in any way restricting the Borrower, or any such Subsidiary’s, right
or ability to sell, pledge or otherwise dispose of Unrestricted Margin Stock or (x) any event
requiring the repurchase, repayment or redemption (automatically or otherwise) or an offer to
repurchase, prepay or redeem any Threshold Indebtedness, or the delivery of any notice with respect
thereto, solely as a result of the Borrower’s or any of its Subsidiaries’ failure to consummate a
merger or other acquisition contemplated to be funded in whole or in part with the proceeds of such
Threshold Indebtedness or (y) for the avoidance of any doubt, any right (including any prior right)
of a holder or holders of any Threshold Indebtedness that is convertible into equity securities to
require the repurchase, repayment or redemption of such Threshold Indebtedness on a predetermined
date provided in the documentation for such Threshold Indebtedness, or an offer to repurchase,
repay or redeem such Threshold Indebtedness on such date or the delivery of a notice with respect
thereto or (z) a mandatory prepayment pursuant to sections 2.03(c) or (d) of the Bridge Facility)
is to cause, or to permit the holder or holders or the beneficiary or beneficiaries of such
Threshold Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such Threshold Indebtedness to be
demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such Threshold Indebtedness to become payable or cash collateral
in respect thereof to be demanded (other than as described in clauses (v), (x), (y) and (z) of this
clause (B)); or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from any event of default under such Swap Contract as to which the
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) and the Swap
Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than the
Threshold Amount,; or




          (f) Insolvency Proceedings, Etc. Any Loan Party or any of their respective Material
Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief
Law, or makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all
or any material part of its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or




          (g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any of their respective
Material Subsidiaries becomes unable or admits in writing its inability or fails generally to pay
its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 30 days after its issue or levy; or




          (h) Judgments. There is entered against the Borrower or any Material Subsidiary one
or more final judgments or orders for the payment of money in an aggregate






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amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer does not dispute coverage and
there is a period of 30 consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect or such judgment is not satisfied,
vacated or discharged; or




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




          (j) Invalidity of Loan Documents. Any Loan Party denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any
Loan Document; or




          (k) Change of Control. There occurs any Change of Control.




     8.02 Remedies Upon Event of Default.



          If any Event of Default exists, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following actions:




               (i) if such Event of Default occurs after the earlier of (i) the funding of the Loans on the
Acquisition Closing Date or (ii) November 20, 2011, declare the commitment of each Lender to make
Loans to be terminated, whereupon such commitments and obligation shall be terminated;



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



               (iii) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States after
the Acquisition Closing Date, the obligation of each Lender to make Loans shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, in each case without further act
of the Administrative Agent or any Lender. Notwithstanding anything to the contrary contained
herein, in no event shall the existence of a Default or Event of Default affect the Obligations of
each Lender to make Loans under Section 4.03 if the conditions set forth in Section
4.03 are satisfied.







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     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable as set forth in
the proviso to Section 8.02), any amounts received on account of the Obligations shall be
applied by the Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including Attorney
Costs under this Agreement and amounts payable under Article III), ratably among them 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 other 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 ratably among the Lenders in proportion to the respective amounts described in this
clause Fourth held by them, and



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



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders hereby irrevocably appoints Barclays Bank
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 and the Lenders and neither the Borrower nor any other
Loan Party shall have rights as a third party beneficiary of any of such provisions.



     9.02 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.



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     9.03 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 to any party, regardless of
whether a Default exists;


          (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 to any Lender 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 Sections 10.01 and
8.02) or (ii) in the absence of its own gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and non-appealable 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 or a 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 IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     9.04 Reliance by 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



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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 that by its terms must be fulfilled to the satisfaction of a
Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender
unless the Administrative Agent shall have received notice to the contrary from such Lender prior
to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be
counsel for the Borrower), independent accountants and other experts and advisors 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, experts or advisors.




     9.05 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 selected by it with reasonable care and to the Related Parties of the Administrative Agent
and any such sub agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities as Administrative
Agent.



     9.06 Resignation of Administrative Agent.



          (a) The Administrative Agent may at any time give notice of its resignation to the Lenders and
the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with and subject to approval by the Borrower (such approval not to be
unreasonably withheld or delayed), 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 subject to approval by the
Borrower (such approval not to be unreasonably withheld or delayed), 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 (i) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents at such time and (ii) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
(other than payments to the Administrative Agent (in such capacity or in its capacity as a Lender)
for its own account) shall instead be made by or to each Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
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 Section). The fees payable by the
Borrower to a successor Administrative Agent






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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 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.




          (b) Any resignation by Barclays Bank as Administrative Agent pursuant to this Section shall
also constitute its resignation as Swing Line Lender. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of such retiring Swing Line Lender and
(ii) such retiring Swing Line Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents.




     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each 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 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.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Arrangers, Syndication Agent or Documentation Agent listed on the cover page 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 or a Lender hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan 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 and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation, 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 2.08 and
10.04) allowed in such judicial proceeding; and




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







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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.08
and 10.04.




     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 to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.



     9.10 Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion, to release any Subsidiary Guarantor from its obligations under the
Subsidiary Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder. The Lenders also irrevocably authorize the Administrative Agent to provide
confirmation to the Borrower to the extent requested by the Borrower of the release of the
Subsidiary Guarantors pursuant to Section 2.13. Upon request by the Administrative Agent
at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to
release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty pursuant to
this Section 9.10.



ARTICLE X.

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the Borrower or the
applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:



          (a) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
after the Acquisition Closing Date pursuant to Section 8.02) without the written consent of
such 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 affected thereby;




          (c) reduce the principal of, or the rate of interest specified herein on, any Loan, or
(subject to clause (iii) of the second proviso to this Section 10.01) any fees or other
amounts payable hereunder or under any other Loan Document without the written consent of






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each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary to amend the definition of “Default
Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate;




          (d) change Section 2.11, Section 2.12 or Section 8.03 in a manner that
would alter the pro rata sharing of payments required thereby without the written consent of each
Lender;




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




          (f) except as is permitted by Section 2.13 or Section 9.10, release all or
substantially all of the value of the Subsidiary Guaranty without the written consent of each
Lender;



and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement, (ii) 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; (iii) Section 10.06(h) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of whose Loans are being
funded by an SPC at the time of such amendment, waiver or other modification; and (iv) the Fee
Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the
parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder, except to the extent
provided in Section 2.14(b).




     10.02 Notices; Effectiveness; Electronic Communication.



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




               (i) if to the Borrower, the Administrative Agent or the Swing Line Lender, to the address,
telecopier number, electronic mail address or telephone number specified for such Person on
Schedule 10.02; and



               (ii) if to any other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire.



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




          (b) Electronic Communications. Notices and other communications to the Lenders
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 pursuant to Article II if such
Lender has notified the Administrative Agent that it 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) The Platform. The Borrower hereby acknowledges that the Administrative Agent
and/or the Arrangers will make available to the Lenders materials and/or information provided by or
on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”).
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In
no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to the Borrower, any Lender or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials
through the Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent





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jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent
Party have any liability to the Borrower, any Lender or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual damages).




          (d) Change of Address, Etc. Each of the Borrower and the Administrative Agent may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the Borrower and the
Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time
to time to ensure that the Administrative Agent has on record (i) an effective address, contact
name, telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.




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




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



     10.04 Expenses; Indemnity; Damage Waiver.



          (a) Costs and Expenses. The Borrower shall pay (i) all reasonable and documented out
of pocket expenses incurred by the Administrative Agent, the Arrangers and each Related Party of
any of the foregoing Persons (including Attorney Costs and the charges of the Platform), 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
and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated) and (ii) all out of pocket
expenses incurred by the Administrative Agent or any Lender (including Attorney Costs) 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





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Section, or (B) in connection with the Loans made hereunder, including all such out of pocket
expenses incurred during any workout, restructuring or negotiations, or in any bankruptcy case or
insolvency proceeding in respect of such Loans.




          (b) Indemnification by the Borrower. The Borrower shall indemnify and hold harmless
the Administrative Agent (and any sub-agent thereof selected by it with reasonable care), each
Lender and the Arrangers and each Related Party of any of the foregoing Persons (each such Person
being called an “Indemnitee”) from and against (and will reimburse each Indemnitee as the
same are incurred for) any and all actions, suits, proceedings (including any investigations or
inquiries), claims, damages, losses, liabilities and expenses (including Attorney Costs), joint or
several, of any kind or nature whatsoever that may be incurred or suffered by, asserted against or
involve an Indemnitee or brought by the Borrower, any of its Subsidiaries, any of their respective
Affiliates or any other Person or entity, in each case, arising out of or in connection with or by
reason of (including in connection with any investigation, litigation or proceeding or preparation
of a defense in connection therewith (including in connection with the enforcement of the
indemnification obligations set forth herein)) (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, the consummation of
the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and
any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the
other Loan Documents or (ii) any Loan or the use or proposed use of the proceeds therefrom, except
to the extent such action, suit, proceeding, claim, damage, loss, liability or expense (x) is found
to have resulted directly and primarily from such Indemnitee’s gross negligence, material breach of
contract or willful misconduct, in each case, as determined by a court of competent jurisdiction in
a final and non-appealable judgment or (y) arises from disputes between and among Persons otherwise
entitled to indemnification that have not resulted from any misrepresentation, default or breach of
the Loan Documents by the Loan Parties, provided that the Administrative Agent (and its
related affiliates, officers, directors, employees, agents, controlling persons, advisors and other
representatives), to the extent acting in its capacity as such, shall remain indemnified in respect
of such disputes to the extent otherwise entitled to be so indemnified hereunder. The Borrower
agrees that no Indemnitee shall have any liability (whether direct or indirect, in contract or tort
or otherwise) to the Borrower or its Subsidiaries or Affiliates or the Borrower’s respective equity
holders or creditors or any other party arising out of, related to or in connection with any aspect
of the transactions contemplated hereby, except to the extent of direct, as opposed to special,
indirect, consequential or punitive, damages determined to have resulted from such Indemnitee’s
gross negligence, material breach of contract or willful misconduct, in each case, as determined by
a court of competent jurisdiction in a final and non-appealable judgment. Notwithstanding any
other provision of this Agreement, no Indemnitee shall be liable for any damages arising from the
use by others of information or other materials obtained through Internet, electronic,
telecommunications or other information transmission systems other than damages resulting directly
and primarily from its gross negligence, material breach of contract or willful misconduct, in each
case, as determined by a court of competent jurisdiction in a final and non-appealable judgment.
If legally permitted, any Indemnitee shall promptly notify the Borrower in writing of any claim or
action by a third party for which the Indemnitee plans to seek indemnification hereunder;
provided that no failure or delay by any Indemnitee to so provide such notice shall relieve
the Borrower from any liability or obligation hereunder except to the extent of any material
prejudice, damage or






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liability caused by or arising out of such delay or failure. The Borrower shall have the
right to control the defense or settlement of any such claim or action and to select counsel with
respect thereto, which counsel shall be subject to the approval of the Indemnitee (such approval
not to be unreasonably withheld or delayed); provided, however, that the Borrower
shall not consent to any settlement or to the entry of any judgment with respect to such claim or
action that (i) does not include a complete and unconditional release of the Indemnitee from all
liability with respect thereto, (ii) imposes any liability or obligation on the Indemnitee or (iii)
includes any statement as to any admission of fault, culpability, wrong-doing or a failure to act
by or on behalf of the Indemnitee, without the prior written consent of the Indemnitee.
Notwithstanding the Borrower’s right to appoint counsel to represent an Indemnitee in an action,
such Indemnitee shall have the right to employ separate counsel (and the Borrower shall pay for or
reimburse such Indemnitee for Attorney Costs) and assume the defense and control the settlement of
any claim or action as to it with the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) if (i) the use of counsel chosen by the Borrower to represent the Indemnitee
would present such counsel with an actual or potential conflict of interest or the Indemnitee
reasonably determines that there are defenses available to it which are in addition to or different
from the defenses available to the Borrower or (ii) the Borrower shall not have employed counsel
satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after notice of
the institution of such action. Notwithstanding the foregoing, any Indemnitee shall have the right
to settle any such claim or action without the consent of the Borrower; provided that the
Borrower shall have no liability for any settlement entered into without its consent.




          (c) Reimbursement by Lenders. Each Lender severally agrees to indemnify (to the
extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so)
the Administrative Agent, each of its sub-agents and their respective Related Parties (each, an
“Agent Indemnitee”), ratably according to such Lender’s Applicable Percentage in effect on
the date on which indemnification is sought under this subsection (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such Applicable Percentage immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever (each, an
“Indemnified Loss”) that may at any time (whether before or after the payment of the Loans)
be imposed on, incurred by or asserted against such Agent Indemnitee and which may be brought by
the Borrower, any of its Subsidiaries, any Lender, any of their respective Affiliates or any other
party, in any way relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by such Agent Indemnitee
under or in connection with any of the foregoing; provided that the Indemnified Loss was
incurred by or asserted against the Administrative Agent or its sub-agent in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent or its
sub-agent in connection with such capacity; provided further, that no Lender shall
be liable for the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final
and non-appealable judgment of a court of competent jurisdiction to have resulted from such Agent
Indemnitee’s gross negligence or willful misconduct. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.11(d).







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          (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee
referred to in subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a court of competent
jurisdiction in a final and non-appealable judgment.




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




          (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.




     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the
Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right
of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the
date of such demand to the date such payment is made at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, of such recovery or payment. The obligations of the
Lenders under clause (b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.



     10.06 Successors and Assigns.



          (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither the Borrower nor any other Loan 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
subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, (iii) by way of pledge or assignment of a security






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interest subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC in
accordance with the provisions of subsection (h) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby and 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 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
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 subsection (b)(i)(A) of this Section, the aggregate amount of
the Commitment and 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 such Trade Date, shall not be less than $5,000,000 unless each of
the Administrative Agent and, so long as no Event of Default exists, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single assignee (or to an assignee and members
of its Assignee Group) will be treated as a single assignment for purposes of determining whether
such minimum amount has been met.



               (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to
the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;



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



                    (A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed)
shall be required unless (1) an Event of Default exists at the time of such assignment or (2) such
assignment is to an existing Lender or, in the case of any assignment of any funded Loan hereunder,
an Affiliate of an existing Lender or an Approved Fund; provided, that the Borrower shall
be deemed to have consented to any such assignment



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unless it shall object thereto by written notice to the Administrative Agent within 5 Business
Days after having received notice thereof; and




                    (B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or
delayed) shall be required if such assignment is to any Person that is not either an existing
Lender or, in the case of any assignment of any funded Loan hereunder, an Affiliate of an existing
Lender or an Approved Fund;



                    (C) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment unless the assignee is an existing Lender;


provided that, notwithstanding anything to the contrary in this Agreement, all assignments
by any Lender prior to the funding of the Loans on the Acquisition Closing Date shall require, in
any event, the prior consent of the Borrower, provided, further, 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 5 Business Days after having received notice thereof.




               (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 in the amount of $3,500; provided, however, that the Administrative
Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case
of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire and any tax forms required by Section 3.01(f).



               (v) No Assignment to Borrower. 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 subsection (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 3.01, 3.04, 3.05 and 10.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 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 subsection (d) of this
Section.







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          (c) Register. The Administrative Agent, acting solely for this purpose as a
non-fiduciary agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of
each Assignment and Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts and interest 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 shall treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The right, title, and interest of any Lender shall be transferable only upon notation of such
transfer in the Register. The Register shall be available for inspection by the Borrower or any
Lender (but only, in the case of a Lender, at the Administrative Agent’s Office and with respect to
any entry relating to such Lender’s Commitments or Loans), 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 Commitment and/or the Loans (including such Lender’s
participations in Swing Line 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 and the 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, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled, through the applicable Lender, to the
benefits of, and subject to the limitations of, Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.12 as though it were a
Lender. Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary
agent of the Borrower, shall maintain a register on which it enters the name and address of each
Participant and the principal amounts and interest of each Participant’s interest in the Loans or
other obligations under this Agreement (the “Participant Register”); provided, that
no Lender shall have any obligation to disclose all or any portion of the Participant Register to
any Person (including the identity of any Participant or any information relating to a
Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document)
except to the extent that such disclosure is necessary to establish that such Commitment, Loan or
other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register



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shall be conclusive, and such Lender, each Loan Party and the Administrative Agent shall treat
each Person whose name is recorded in the Participant Register pursuant to the terms hereof as the
owner of such participation for all purposes of this Agreement, notwithstanding notice to the
contrary.




          (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01, 3.04 or 3.05 than the
applicable Lender would have been entitled to receive with respect to the participation sold to
such Participant. Without limiting the foregoing, no Participant shall be entitled to the benefits
of Section 3.01 unless such Participant complies with Section 3.01(f) 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 (including under its Note(s), if any) to
secure obligations of such Lender, including 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.




          (g) 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.




          (h) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of
any Committed Loan that such Granting Lender would otherwise be obligated to make pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to
fund any Committed Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails
to make all or any part of such Committed Loan, the Granting Lender shall be obligated to make such
Committed Loan pursuant to the terms hereof or, if it fails to do so, to make such payment to the
Administrative Agent as is required under Section 2.11(b)(ii). Each party hereto hereby
agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall
increase the costs or expenses or otherwise increase or change the obligations of the Borrower
under this Agreement (including its obligations under Section 3.04), (ii) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for which a Lender
would be liable, and (iii) the Granting Lender shall for all purposes, including the approval of
any amendment, waiver or other modification of any provision of any Loan Document, remain the
lender of record hereunder. The making of a Committed Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Committed Loan were made by
such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the date





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that is one year and one day after the payment in full of all outstanding commercial paper or
other senior debt of any SPC, it will not institute against, or join any other Person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Borrower and the Administrative Agent and with the payment of a processing fee in
the amount of $3,500 to the Administrative Agent, assign all or any portion of its right to receive
payment with respect to any Committed Loan to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of Loans to any rating
agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.




          (i) Resignation as Swing Line Lender after Assignment. Notwithstanding anything to
the contrary contained herein, if at any time Barclays Bank assigns all of its Commitment and Loans
pursuant to subsection (b) above, Barclays Bank may, upon 30 days’ notice to the Borrower and the
Lenders, resign as Swing Line Lender. In the event of any such resignation as Swing Line Lender,
the Borrower shall be entitled to appoint from among the Lenders a successor Swing Line Lender
hereunder; provided, however, that no failure by the Borrower to appoint any such
successor shall affect the resignation of Barclays Bank as as Swing Line Lender. If Barclays Bank
resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of
such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.03(c). Upon the
appointment of a successor Swing Line Lender, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of such retiring Swing Line Lender.




     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and
the Lenders agrees on its own behalf and on behalf of its Affiliates to keep confidential all
non-public Information provided to it by the Borrower or any of its Subsidiaries pursuant to or in
connection with this Agreement; provided that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing any such Information (a) subject to an express
agreement to maintain the confidentiality of such Information in compliance with the provisions of
this Section 10.07 to an Affiliate of the Administrative Agent or any Lender, solely for
the purposes of, or otherwise in connection with, this Agreement, (b) subject to an express
agreement to maintain the confidentiality of such Information in compliance with the provisions of
this Section 10.07, to any actual or prospective transferee or any direct or indirect
counterparty to any Swap Contract (or any professional advisor to such counterparty), (c) to its
employees, directors, agents, attorneys, accountants and other professional advisors or those of
any of its Affiliates, or of any Affiliate of any Lender, in each case who have a need to know such
Information in accordance with customary business practices (it being understood that the person to
whom such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (d) upon the request or demand of any
governmental or regulatory authority, (e) in response to any order of any court or other
governmental or regulatory authority or as may otherwise be required pursuant to any requirement of
law, (f) if required to do so in connection with any litigation or similar proceeding, (g) that has
been publicly disclosed, other than as a result of a disclosure by



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the Administrative Agent or any Lender or any of their respective employees, directors,
agents, attorneys, accountants and other professional advisors or those of any of their respective
affiliates, in violation of this paragraph, or (h) upon the request of any rating agency when
required by it, (i) upon the request of the CUSIP Service Bureau or any similar organization, or
(j) in connection with the exercise of any remedy hereunder or under any of the Loan Documents or
to prepare any defense relating to this Agreement, any of the Loan Documents or any transaction or
matter related thereto. The Administrative Agent or any Lender shall, prior to any disclosure
under clause (d), (e), (f), (h) or (i) above to (x) any governmental or regulatory authority that
does not have supervisory, regulatory or other similar authority with respect to the Administrative
Agent or such Lender and that is seeking such disclosure solely in connection with an
investigation, litigation or other proceeding that does not otherwise involve the Administrative
Agent or such Lender or (y) any other person that is not a governmental or regulatory authority,
notify the Borrower of any request for the disclosure of any such non-public Information so as to
provide the Borrower with the reasonable opportunity to obtain a protective order or other
comparable relief; provided, that no such notification will be required if the
Administrative Agent or such Lender (or their respective counsel) reasonably determines that such
notification would be prohibited by applicable law or court order. None of the Administrative
Agent or any Lender will make available to the Borrower or any of its Affiliates confidential
Information that they have obtained or may obtain from any other customer. The Administrative
Agent and each Lender are permitted to access, use and share with any of their respective bank or
non-bank Affiliates, agents, advisors (legal or otherwise) or representatives any Information
concerning the Borrower or any of its Affiliates that is or may come into the possession of the
Administrative Agent or any Lender or any of such Affiliates; provided, however,
that, in each case, such Information shall be used solely in connection with this Credit Agreement.




     For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses other than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary after the
date hereof.



     Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning the Borrower or a Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with applicable Law,
including Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default exists, each 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 or any such Affiliate to or for the credit or
the account of the Borrower or any other Loan Party against any and all of the obligations of the
Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan
Document to such Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement or any other Loan Document and although such obligations of the



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Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office
of such Lender different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender and its Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender or its Affiliates may
have. Each 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.




     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy, facsimile or pdf or other
electronic transmission shall be effective as delivery of a manually executed counterpart of this
Agreement.



     10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.



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



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     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
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 3.01, if any Lender is a
Defaulting Lender, if the obligation of any Lender to make or continue Eurocurrency Rate Loans is
suspended pursuant to Section 3.02 or if any Lender (a “Non-Consenting Lender”)
refuses to consent to an amendment, modification or waiver of this Agreement that, pursuant to
Section 10.01, requires consent of 100% of the Lenders and for which the consent of the
Required Lenders has been obtained or if any other circumstance exists hereunder that gives the
Borrower the right to replace a Lender as a party hereto, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to
execute an Assignment and Assumption (the Administrative Agent being hereby authorized to execute
any Assignment and Assumption on behalf of such Lender relating to the assignment of Loans and/or
Commitments of such Lender) assigning and delegating, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, Section 10.06), 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, but may not be a natural person, the Borrower or any Affiliate or
Subsidiary of the Borrower), provided that:



          (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);




          (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents (including any amounts under Section 3.05) 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);




          (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter;




          (d) in the event such Lender is a Non-Consenting Lender, each assignee shall consent, at the
time of such assignment, to each matter in respect of which such Lender was a Non-Consenting Lender
and the Borrower also requires each other Lender that is a Non-Consenting Lender to assign its
Loans and Commitments; and




          (e) such assignment does not conflict with applicable Laws.



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




     10.14 Governing Law; Jurisdiction; Etc.



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







- 77 -









 








          (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NON-EXCLUSIVE 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 NOT SUBJECT TO FURTHER
APPEAL 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 OR ANY
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 LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.




          (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.




          (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.




     10.15 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



- 78 -









 




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




     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Borrower and each other Loan Party acknowledges and agrees,
and acknowledges its Affiliates’ understanding, that: (a) the credit facilities provided for
hereunder and any related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document)
are an arm’s-length commercial transaction between the Borrower, the other Loan Parties and their
respective Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the
other hand, and the Borrower and the other Loan Parties are capable of evaluating and understanding
and understand and accept the terms, risks and conditions of the transactions contemplated hereby
and by the other Loan Documents (including any amendment, waiver or other modification hereof or
thereof); (b) in connection with the process leading to such transaction, the Administrative Agent
and the Arrangers each is and has been acting solely as a principal and is not the financial
advisor, agent or fiduciary, for the Borrower, any other Loan Parties or any of their respective
Affiliates, stockholders, creditors or employees or any other Person; (c) neither the
Administrative Agent nor any of the Arrangers has assumed or will assume an advisory, agency or
fiduciary responsibility in favor of the Borrower or any other Loan Party with respect to any of
the transactions contemplated hereby or the process leading thereto, including with respect to any
amendment, waiver or other modification hereof or of any other Loan Document (irrespective of
whether the Administrative Agent or any of the Arrangers has advised or is currently advising the
Borrower, the other Loan Parties or any of their respective Affiliates on other matters) and
neither the Administrative Agent nor any of the Arrangers has any obligation to the Borrower, the
other Loan Parties or any of their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan
Documents; (d) the Administrative Agent and each of the Arrangers and their respective Affiliates
may be engaged in a broad range of transactions that involve interests that differ from those of
the Borrower, the other Loan Parties and their respective Affiliates, and neither the
Administrative Agent nor any of the Arrangers has any obligation to disclose any of such interests
by virtue of any advisory, agency or fiduciary relationship; and (e) the Administrative Agent and
the Arrangers have not provided and will not provide any legal, accounting, regulatory or tax
advice with respect to any of the transactions contemplated hereby (including any amendment, waiver
or other modification hereof or of any other Loan Document) and each of the Borrower and the other
Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it
has deemed appropriate. The Borrower and each other Loan Party hereby waives and releases, to the
fullest extent permitted by law, any claims that it may have against the Administrative Agent and
the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty.
Notwithstanding the foregoing, the parties hereto acknowledge and agree that the provisions of this
paragraph shall be subject to the terms of the Company Financial Advisor Agreement (as defined
below). The Borrower and each other Loan Party acknowledges that Barclays Bank (or one or more of
its



- 79 -









 




affiliates) has been retained by the Borrower as a buy-side financial advisor to the Borrower
(in such capacity, “Company Financial Advisor” and the written retention agreement in
respect thereof, the “Company Financial Advisor Agreement”) in connection with the
Acquisition. Notwithstanding the foregoing, the Borrower and each other Loan Party agrees not to
assert any claim it might allege based on any actual or potential conflict of interest that might
be asserted to arise or result from the engagement of the Company Financial Advisor and Barclays
Bank’s or its affiliates’ relationships with the Borrower as described and referred to herein.




     10.17 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined)
and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.



[Signature Pages Follow]




- 80 -









 





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



	 	 	 	 	 

	 

	 	THERMO FISHER SCIENTIFIC INC.	 	 
	 
	 	 	 	 
	 

	 	By: /s/ Anthony H. Smith
 

Name: Anthony H. Smith
	 	 
	 

	 	Title: Vice President, Tax and Treasury and Treasurer	 	 






Revolving Credit Agreement Signature Page

















 





	 	 	 	 	 	 	 

	 	 	BARCLAYS BANK PLC, as Administrative 
Agent, Swing Line Lender and a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ritam Bhalla	 	 
	 

	 	Name:
	 	 

Ritam Bhalla
	 	 
	 

	 	Title:
	 	Vice President	 	 






Revolving Credit Agreement Signature Page




 









 





	 	 	 	 	 	 	 

	 	 	Bank of America, N.A., as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jill J. Hogan	 	 
	 

	 	Name:
	 	 

Jill J. Hogan
	 	 
	 

	 	Title:
	 	Vice President	 	 






Revolving Credit Agreement Signature Page




 









 





	 	 	 	 	 	 	 

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

	 	By:
	 	/s/ Vanessa Chiu	 	 
	 

	 	Name:
	 	 

Vanessa Chiu
	 	 
	 

	 	Title:
	 	Executive Director	 	 






Revolving Credit Agreement Signature Page




 









 





	 	 	 	 	 	 	 

	 	 	DEUTSCHE BANK AG CAYMAN 
ISLANDS BRANCH, as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Frederick W. Laird	 	 
	 

	 	Name:
	 	 

Frederick W. Laird
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ming K. Chu	 	 
	 

	 	Name:
	 	 

Ming K. Chu
	 	 
	 

	 	Title:
	 	Vice President	 	 






Revolving Credit Agreement Signature Page




 









 





	 	 	 	 	 	 	 

	 	 	The Royal Bank of Scotland plc, as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Scott MacVicar	 	 
	 

	 	Name:
	 	 

Scott MacVicar
	 	 
	 

	 	Title:
	 	Authorized Signatory	 	 






Revolving Credit Agreement Signature Page




 









 





	 	 	 	 	 	 	 

	 	 	THE BANK OF TOKYO-MITSUBISHI 
UFJ, LTD, as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brian McNany	 	 
	 

	 	Name:
	 	 

Brian McNany
	 	 
	 

	 	Title:
	 	Vice President	 	 






Revolving Credit Agreement Signature Page




 









 





	 	 	 	 	 	 	 

	 	 	BNP Paribas, as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Nicholas Rabier	 	 
	 

	 	Name:
	 	 

Nicholas Rabier
	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brendan Heneghan	 	 
	 

	 	Name:
	 	 

Brendan Heneghan
	 	 
	 

	 	Title:
	 	Vice President	 	 






Revolving Credit Agreement Signature Page




 









 





	 	 	 	 	 	 	 

	 	 	Goldman Sachs Bank USA, as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark Walton	 	 
	 

	 	Name:
	 	 

Mark Walton
	 	 
	 

	 	Title:
	 	Authorized Signatory	 	 






Revolving Credit Agreement Signature Page




 









 





	 	 	 	 	 	 	 

	 	 	HSBC Bank USA, National Association, as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David Carroll	 	 
	 

	 	Name:
	 	 

David Carroll
	 	 
	 

	 	Title:
	 	Vice President	 	 






Revolving Credit Agreement Signature Page




 









 





EXHIBIT A-1




FORM OF COMMITTED LOAN NOTICE




Date: ___________, _____




To: Barclays Bank PLC, as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Revolving Credit Agreement, dated as of June 23, 2011 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Thermo
Fisher Scientific Inc., a Delaware corporation (the “Company”), the Lenders from time to
time party thereto, and Barclays Bank PLC, as Administrative Agent.



     The Company hereby requests:



     o A Borrowing of Committed Loans      o A conversion or continuation of Loans




	1	 	On ____________________ (a Business Day).
	 
	2.	 	In the amount of $ __________________.
	 
	3.	 	Comprised of _______________________

  [Type of Committed Loan requested]
	 
	4.	 	In the following currency: ________________________
	 
	5.	 	For Eurocurrency Rate Loans: with an Interest Period of ___ months.





     The Committed Borrowing, if any, requested herein complies with Section 2.01 of the
Agreement.



[Signature Page Follows]





A-1-1









 








	 	 	 	 	 	 	 

	 	 	THERMO FISHER SCIENTIFIC INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






A-1-2









 





EXHIBIT A-2




FORM OF PREPAYMENT NOTICE




Date: ___________, _____




To: Barclays Bank PLC, as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Revolving Credit Agreement, dated as of June 23, 2011 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Thermo
Fisher Scientific Inc., a Delaware corporation (the “Borrower”), the Lenders from time to
time party thereto, and Barclays Bank PLC, as Administrative Agent.



     Pursuant to Section 2.04 of the Credit Agreement, the Borrower hereby gives notice to the
Administrative Agent that on ______________, 20__ (the “Prepayment Date”), it intends to
voluntarily prepay Committed Loans in an aggregate amount of __________________. Such prepayment
shall be applied in whole on the Prepayment Date to the repayment as follows:




	 	(A)	 	_____________ of Base Rate Loans and
	 
	 	(B)	 	_____________ of Eurocurrency Rate Loans with an Interest Period of
_____________,





     all interest and fees due and payable in connection therewith. Such prepayment should be
applied in accordance with the Agreement. The Borrower acknowledges that it has been informed by
the Administrative Agent that this notice may not be withdrawn by the Borrower, unless the
Administrative Agent in its sole discretion consents to such withdrawal.



[Signature Page Follows]




A-2-1









 








     IN WITNESS WHEREOF, the undersigned has executed this Prepayment Notice as of the date first
set forth above.



	 	 	 	 	 	 	 

	 	 	THERMO FISHER SCIENTIFIC INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






A-2-2









 





EXHIBIT B-1




FORM OF SWING LINE LOAN NOTICE




Date: ___________, _____





			
	To:	 	Barclays Bank PLC, as Swing Line Lender


Barclays Bank PLC, as Administrative Agent





Ladies and Gentlemen:




     Reference is made to that certain Revolving Credit Agreement, dated as of June 23, 2011 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Thermo
Fisher Scientific Inc., a Delaware corporation (the “Company”), the Lenders from time to
time party thereto, and Barclays Bank PLC, as Administrative Agent.



     The undersigned hereby requests a Swing Line Loan:




	1	 	On ____________________ (a Business Day).
	 
	2.	 	In the amount of $ __________________.





     The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.03(a) of the Agreement.



	 	 	 	 	 	 	 

	 	 	THERMO FISHER SCIENTIFIC INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






B-1-1









 





EXHIBIT B-2




FORM OF SWING LINE PREPAYMENT NOTICE




Date: ___________, _____





			
	To:	 	Barclays Bank PLC, as Swing Line Lender


Barclays Bank PLC, as Administrative Agent





Ladies and Gentlemen:




     Reference is made to that certain Revolving Credit Agreement, dated as of June 23, 2011 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Thermo
Fisher Scientific Inc., a Delaware corporation (the “Borrower”), the Lenders from time to
time party thereto, and Barclays Bank PLC, as Administrative Agent.



     Pursuant to Section 2.04 of the Agreement, the Borrower hereby gives notice to the
Administrative Agent and the Swing Line Lender that on ______________, 20__ (the “Prepayment
Date”), it intends to voluntarily prepay Swing Line Loans in an aggregate amount of
___________________, all interest and fees due and payable in connection therewith. Such
prepayment should be applied in accordance with the Agreement. The Borrower acknowledges that it
has been informed by the Swing Line Lender that this notice may not be withdrawn by the Borrower,
unless the Swing Line Lender in its sole discretion consents to such withdrawal.



[Signature Page Follows]





B-2-1









 








     IN WITNESS WHEREOF, the undersigned has executed this Prepayment Notice as of the date first
set forth above.



	 	 	 	 	 	 	 

	 	 	THERMO FISHER SCIENTIFIC INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






B-2-2









 





EXHIBIT C




FORM OF NOTE




_______________________




     FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
_____________________ or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to the Borrower under that certain Revolving Credit Agreement, dated as
of June 23, 2011 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among Thermo Fisher Scientific Inc., a Delaware corporation (the “Company”), the
Lenders from time to time party thereto and Barclays Bank PLC, as Administrative Agent.



     The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. Except as otherwise provided in Section 2.03(f) of the
Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in immediately available funds at the
Administrative Agent’s Office for such currency. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Subsidiary Guaranty. Upon the
occurrence and continuation of one or more of the Events of Default specified in the Agreement, all
amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due
and payable all as provided in the Agreement. Loans made by the Lender shall be evidenced by one
or more loan accounts or records maintained by the Lender in the ordinary course of business. The
Lender may also attach schedules to this Note and endorse thereon the date, amount, currency and
maturity of its Loans and payments with respect thereto.



     No transfer by the Lender of any interest of the Lender in this Note or in the right to
receive any payments hereunder shall be effective unless and until a book entry of such transfer is
made upon the Register referred to in the Agreement.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



C-1









 




THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.




	 	 	 	 	 	 	 

	 	 	THERMO FISHER SCIENTIFIC INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 











C-2









 








LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	Outstanding	 	 
	 	 	 	 	 	 	End of	 	Principal or	 	Principal	 	 
	 	 	Type of Loan	 	Amount of	 	Interest	 	Interest Paid	 	Balance This	 	Notation
	Date	 	Made	 	Loan Made	 	Period	 	This Date	 	Date	 	Made By
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 





C-3









 





EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date: __________,




To: Barclays Bank PLC, as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Revolving Credit Agreement, dated as of June 23, 2011 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Thermo
Fisher Scientific Inc., a Delaware corporation (the “Company”), the Lenders from time to
time party thereto, and Barclays Bank PLC, as Administrative Agent.



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



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




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



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




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



[select one:]




     [to the best knowledge of the undersigned during such fiscal period, the Company performed and
observed each covenant and condition of the Loan Documents applicable to it, and no Default
exists.]



[—or—]




     [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]



     2. The financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this Certificate.



D-1









 








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



	 	 	 	 	 	 	 

	 	 	THERMO FISHER SCIENTIFIC INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 











D-2









 








EXHIBIT E




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and [the][each] Assignee identified
in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights
and obligations of [the Assignors][the Assignees] hereunder are several and not
joint.].2 Capitalized terms used but not defined herein shall have the meanings given
to them in the Revolving Credit Agreement identified below (as amended, restated, extended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the Credit Agreement
(including, without limitation, the Swing Line Loans) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of [the
Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as
Lenders)] against any Person, whether known or unknown, arising under or in connection with the
Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the foregoing, including,
but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to
[the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as
[the][an] “Assigned Interest”). Each such sale and assignment is without recourse to
[the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without
representation or warranty by [the][any] Assignor. Each such sale and assignment must be recorded
in the Register pursuant to Section 10.06(c) of the Credit Agreement for such sale and assignment
to be effective.





 




			
	1	 	For bracketed language here and
elsewhere in this form relating to the Assignor(s), if the assignment is from a
single Assignor, choose the first bracketed language. If the assignment is from
multiple Assignors, choose the second bracketed language.
	 
	2	 	Include bracketed language if there are
either multiple Assignors or multiple Assignees.





E-1









 





	 	 	 

	1.   Assignor[s]:

	 	____________________
	 
	 	 
	 

	 	____________________
	 
	 	 
	 

	 	____________________
	 
	 	 
	2.   Assignee[s]:

	 	____________________
	 
	 	 
	 

	 	____________________






     [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]




	3.	 	Borrower: Thermo Fisher Scientific Inc.
	 
	4.	 	Administrative Agent: Barclays Bank PLC, as the
administrative agent under the Credit Agreement
	 
	5.	 	Credit Agreement: Credit Agreement, dated as of June 23,
2011, among Thermo Fisher Scientific Inc., the Lenders from
time to time party thereto, and Barclays Bank PLC, as
Administrative Agent.
	 
	6.	 	Assigned Interest[s]:





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Aggregate	 	 	 	 	 	 
	 	 	 	 	Amount of	 	Amount of	 	Percentage	 	 
	 	 	 	 	Commitment	 	Commitment	 	Assigned of	 	CUSIP
	Assignor[s]3	 	Assignee[s]4	 	for all Lenders5	 	Assigned	 	Commitment6	 	Number
	 

	 	 	 	$_____________
	 	$_________
	 	_________%
	 	 
	 

	 	 	 	$_____________
	 	$_________
	 	_________%	 	 
	 

	 	 	 	$_____________
	 	$_________
	 	_________%	 	 







			
	[7.	 	Trade Date: __________________]7







 




			
	3	 	List each Assignor, as appropriate.
	 
	4	 	List each Assignee, as appropriate.
	 
	5	 	Amounts in this column and in the column
immediately to the right to be adjusted by the counterparties to take into
account any payments or prepayments made between the Trade Date and the
Effective Date.
	 
	6	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment of all Lenders thereunder.
	 
	7	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.





E-2









 




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




[Remainder of page intentionally left blank.]




E-3









 





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



	 	 	 	 	 	 	 

	 	 	ASSIGNOR

[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE

[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






[Consented to and] Accepted:




BARCLAYS BANK PLC, as

   Administrative Agent




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 






[Consented to:]




	 	 	 	 	 

	THERMO FISHER SCIENTIFIC INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 






E-4









 





ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




CREDIT AGREEMENT DATED AS OF JUNE 23, 2011,

AMONG THERMO FISHER SCIENTIFIC INC.,

THE LENDERS FROM TIME TO TIME PARTY THERETO, AND

BARCLAYS BANK PLC, AS ADMINISTRATIVE AGENT




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION



          1. Representations and Warranties.




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




          1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
10.06(b)(iii), (v), and (vi) of the Credit Agreement (subject to such consents,
if any, as may be required under Section 10.06(b)(iii) of the Credit Agreement), (iii) from
and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by [the][such] Assigned Interest and either it, or the Person
exercising discretion in making its decision to acquire [the][such] Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such
other documents and information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into





E-5









 







this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it
is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant
to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b)
agrees that (i) it will, independently and without reliance upon the Administrative Agent,
[the][any] Assignor or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.




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




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




E-6









 





EXHIBIT F




FORM OF SUBSIDIARY GUARANTY



This SUBSIDIARY GUARANTY (“Guaranty”) is entered into as of [_______ __], 2011 by
[_____________________] (the “Guarantor” and, together with any additional Domestic
Subsidiaries of the Borrower (as defined below) executing this Guaranty after the date hereof
pursuant to Section 17 hereof, collectively, the “Guarantors”), in favor of and for
the benefit of BARCLAYS BANK PLC, as agent for and representative of (in such capacity herein
called the “Guarantied Party”), the financial institutions (the “Lenders”) party to
the Credit Agreement (as hereinafter defined; the terms defined therein and not otherwise defined
herein being used herein as therein defined).




R E C I T A L S



WHEREAS, Thermo Fisher Scientific Inc., a Delaware corporation (the “Borrower”), has
entered into a Revolving Credit Agreement dated as of June 23, 2011 (as it may hereafter be
amended, restated, amended and restated, supplemented or otherwise modified from time to time,
being the “Credit Agreement”) with the Lenders, and the Guarantied Party as Administrative
Agent for the Lenders, pursuant to which Lenders have made certain commitments, subject to the
terms and conditions set forth in the Credit Agreement, to extend certain credit facilities to the
Borrower; and



WHEREAS, the Guarantied Party and the Lenders are sometimes referred to herein as the
“Beneficiaries”;



NOW THEREFORE, for value received, the sufficiency of which is hereby acknowledged, and in
consideration of any credit and/or financial accommodation heretofore or hereafter from time to
time made or granted to the Borrower by the Beneficiaries, each Guarantor hereby furnishes its
guaranty of the Guarantied Obligations (as hereinafter defined) as follows:




     1. Guaranty. (a) In order to induce the Lenders to extend credit to the Borrower, each
Guarantor hereby absolutely and unconditionally guarantees, as a guaranty of payment and
performance and not merely as a guaranty of collection, prompt payment when due, whether at stated
maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times
thereafter, of any and all existing and future Obligations of the Borrower to the Beneficiaries,
now or hereafter made, incurred or created, whether absolute or contingent, liquidated or
unliquidated, whether due or not due, and however arising under or in connection with the Credit
Agreement, this Guaranty, the other Loan Documents (including those arising under successive
borrowing transactions under the Credit Agreement and all renewals, extensions and modifications
thereof and all costs, attorneys’ fees and expenses incurred by the Beneficiaries in connection
with the collection or enforcement thereof payable in accordance with, and to the extent provided
in Section 10.04 of the Credit Agreement) and whether recovery upon such indebtedness and
liabilities may be or hereafter become unenforceable or shall be an allowed or disallowed claim
under any proceeding or case commenced by or against any



F-1









 




Guarantor or the Borrower under any Debtor Relief Law, and including interest that accrues
after the commencement by or against the Borrower of any proceeding under any Debtor Relief Laws
(collectively, the “Guarantied Obligations”). In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees that any Guarantor’s payment of a portion,
but not all, of the Guarantied Obligations shall in no way limit, affect, modify or abridge any
Guarantor’s liability for any portion of the Guarantied Obligations that has not been paid. The
books and records of each Beneficiary showing the amount of the Guarantied Obligations shall be
admissible in evidence in any action or proceeding, and shall be binding upon the Guarantors and
conclusive for the purpose of establishing the amount of the Guarantied Obligations absent manifest
error. This Guaranty shall not be affected by the genuineness, validity, regularity or
enforceability of the Guarantied Obligations or any instrument or agreement evidencing any
Guarantied Obligations, or by the existence, validity, enforceability, perfection, non-perfection
or extent of any collateral therefor, or by any fact or circumstance relating to the Guarantied
Obligations which might otherwise constitute a defense to the obligations of each Guarantor under
this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to any or all of the foregoing.




     (b) Anything contained in this Guaranty to the contrary notwithstanding, the obligations of
each Guarantor under this Guaranty and the other Loan Documents shall be limited to a maximum
aggregate amount equal to the largest amount that would not render its obligations hereunder
subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy
Code or any applicable provisions of comparable state law (collectively, the “Fraudulent
Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor,
contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Guarantor (i) in respect of intercompany indebtedness
to the Borrower or other Affiliates of the Borrower to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such Guarantor hereunder and (ii) under any
guaranty of subordinated Indebtedness which guaranty contains a limitation as to maximum amount
similar to that set forth in this Section 1(b), pursuant to which the liability of such Guarantor
hereunder is included in the liabilities taken into account in determining such maximum amount) and
after giving effect as assets to the value (as determined under the applicable provisions of the
Fraudulent Transfer Laws) of any rights to subrogation, reimbursement, indemnification or
contribution of such Guarantor pursuant to applicable law or pursuant to the terms of any
agreement.



     (c) The Guarantors desire to allocate among themselves, in a fair and equitable manner, their
obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is
made on any date by a Guarantor under this Guaranty, each such Guarantor shall be entitled to a
contribution from each of the other Guarantors in the maximum amount permitted by law so as to
maximize the aggregate amount of the Guarantied Obligations paid to the Beneficiaries.



     2. Representations and Warranties. Each Guarantor represents and warrants that (a) it is
duly organized or formed, validly existing and, as applicable, in good standing under the laws of
the jurisdiction of its incorporation or organization and has all requisite power and authority to
execute, deliver and perform its obligations under this Guaranty, and all necessary



F-2









 




authority has been obtained; (b) this Guaranty constitutes its legal, valid and binding
obligation enforceable in accordance with its terms; (c) the making and performance of this
Guaranty does not and will not violate in any material respect the provisions of any applicable
law, regulation or order, and does not and will not result in the breach of, or constitute a
default or require any consent under, any material agreement, instrument, or document to which it
is a party or by which it or any of its property may be bound or affected; and (d) all requisite
governmental licenses, authorizations, consents and approvals for the execution, delivery and
performance of this Guaranty have been obtained or made and are in full force and effect; except in
each case referred to in clause (a) or (c), to the extent that such failure to do so or such
contravention, as the case may be, could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.




     3. Covenants. Unless the Required Lenders or all Lenders, as the case may be, shall otherwise
consent in writing in accordance with the terms of the Credit Agreement, each Guarantor agrees
that, so long as any part of the Obligations under the Credit Agreement shall remain unpaid or any
Lender shall have any Commitment, such Guarantor shall, and shall cause each of its Subsidiaries
to, perform or observe all of the terms, covenants and agreements that the Loan Documents state
that the Borrower is to cause such Guarantor and such Subsidiaries to perform or observe.



     4. No Setoff or Deductions; Taxes; Payments. Each Guarantor represents and warrants that it
is organized and resident in the United States of America. Each Guarantor shall make all payments
hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless such Guarantor is compelled by law
to make such deduction or withholding. If any such obligation (other than one arising with respect
to taxes based on or measured by the income or profits of any Beneficiary) is imposed upon any
Guarantor with respect to any amount payable by it hereunder, such Guarantor will pay to each
Beneficiary, on the date on which such amount is due and payable hereunder, such additional amount
in U.S. dollars as shall be necessary to enable the such Beneficiary to receive the same net amount
which such Beneficiary would have received on such due date had no such obligation been imposed
upon such Guarantor. Each Guarantor will deliver promptly to each Beneficiary certificates or other
valid vouchers for all taxes or other charges deducted from or paid with respect to payments made
by such Guarantor hereunder. The obligations of the Guarantors under this section shall survive the
payment in full of the Guarantied Obligations and termination of this Guaranty. At the applicable
Beneficiary’s option, all payments under this Guaranty shall be made in the United States. The
obligations hereunder shall not be affected by any acts of any legislative body or governmental
authority affecting the Borrower, including but not limited to, any restrictions on the conversion
of currency or repatriation or control of funds or any total or partial expropriation of the
Borrower’s property, or by economic, political, regulatory or other events in the countries where
the Borrower is located.



     5. Rights of Beneficiaries. Each Guarantor consents and agrees that any Beneficiary may, at
any time and from time to time, without notice or demand, and without affecting the



F-3









 




enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise,
discharge, accelerate or otherwise change the time for payment or the terms of the Guarantied
Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to
perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any
Guarantied Obligations; (c) apply such security and direct the order or manner of sale thereof as
such Beneficiary in its reasonable discretion may determine; and (d) release or substitute one or
more of any endorsers or other guarantors of any of the Guarantied Obligations. Without limiting
the generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any
action which might in any manner or to any extent vary the risks of such Guarantor under this
Guaranty or which, but for this provision, might operate as a discharge of such Guarantor.




     6. Certain Waivers. Each Guarantor waives (a) any defense arising by reason of any disability
or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever
(including any act or omission of any Beneficiary) of the liability of the Borrower; (b) any
defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than
those of the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s
liability hereunder; (d) any right to require any Beneficiary to proceed against the Borrower,
proceed against or exhaust any security for the Indebtedness, or pursue any other remedy in such
Beneficiary’s power whatsoever; (e) any benefit of and any right to participate in any security now
or hereafter held by any Beneficiary; and (f) to the fullest extent permitted by law, any and all
other defenses or benefits that may be derived from or afforded by applicable law limiting the
liability of or exonerating guarantors or sureties.



     Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands
for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest,
notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect
to the Guarantied Obligations, and all notices of acceptance of this Guaranty or of the existence,
creation or incurrence of new or additional Guarantied Obligations.



     7. Obligations Independent. The obligations of each Guarantor hereunder are those of primary
obligor, and not merely as surety, and are independent of the Guarantied Obligations and the
obligations of any other guarantor, and a separate action may be brought against any Guarantor to
enforce this Guaranty whether or not the Borrower or any other person or entity is joined as a
party.



     8. Subrogation. No Guarantor shall exercise any right of subrogation, contribution,
indemnity, reimbursement or similar rights with respect to any payments it makes under this
Guaranty until all of the Guarantied Obligations and any amounts payable under this Guaranty have
been indefeasibly paid and performed in full and any commitments of each Beneficiary or facilities
provided by each Beneficiary with respect to the Guarantied Obligations are terminated. If any
amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall
be held in trust for the benefit of each Beneficiary and shall forthwith be paid to each
Beneficiary to reduce the amount of the Guarantied Obligations, whether matured or unmatured.



F-4









 





     9. Termination; Reinstatement. This Guaranty is a continuing and irrevocable guaranty of all
Guarantied Obligations now or hereafter existing and shall remain in full force and effect with
respect to all Guarantied Obligations only until all Obligations under the Credit Agreement and the
other Loan Documents and any other amounts payable under this Guaranty are indefeasibly paid in
full in cash and any commitments of any Beneficiary or facilities provided by any Beneficiary with
respect to the Obligations under the Credit Agreement are terminated. Notwithstanding the
foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be,
if any payment by or on behalf of the Borrower or any Guarantor is made, or any Beneficiary
exercises its right of setoff, in respect of the Guarantied Obligations and such payment or the
proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent
or preferential, set aside or required (including pursuant to any settlement entered into by such
Beneficiary in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment
had not been made or such setoff had not occurred and whether or not the Guarantied Party is in
possession of or has released this Guaranty and regardless of any prior revocation, rescission,
termination or reduction.



     10. Subordination. Each Guarantor hereby subordinates the payment of all obligations and
indebtedness of the Borrower owing to such Guarantor (including any obligation or indebtedness of
the Borrower owing to such Guarantor as subrogee of any Beneficiary in respect of any Guarantied
Obligations), whether now existing or hereafter arising and in each case resulting from any
Guarantor’s performance under this Guaranty, to the indefeasible payment in full in cash of all
Guarantied Obligations. Nothing herein shall preclude the Guarantor from making advances to the
Borrower or receiving payment of those obligations, to the extent permitted under the Credit
Agreement, in each case prior to the occurrence of an Event of Default.



     11. Stay of Acceleration. In the event that acceleration of the time for payment of any of
the Guarantied Obligations is stayed, in connection with any case commenced by or against any other
Guarantor or the Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall
nonetheless be payable by each Guarantor immediately upon demand by the Guarantied Party.



     12. Expenses. Each Guarantor shall pay on demand all out-of-pocket expenses incurred by any
Beneficiary (including Attorney Costs of any Beneficiary) in connection with the enforcement or
protection of any Beneficiary’s rights under this Guaranty or in respect of the Guarantied
Obligations, including any incurred during any “workout” or restructuring in respect of the
Guarantied Obligations and any incurred in the preservation, protection or enforcement of any
rights of any Beneficiary in any proceeding under any Debtor Relief Laws. The obligations of each
Guarantor under this section shall survive the payment in full of the Guarantied Obligations and
termination of this Guaranty.



     13. Miscellaneous. No provision of this Guaranty may be waived, amended, supplemented or
modified, except by a written instrument executed by the Guarantied Party and each Guarantor. No
failure by any Beneficiary to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof; nor shall any single or partial



F-5









 




exercise of any right, remedy or power hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law or in equity. The unenforceability or
invalidity of any provision of this Guaranty shall not affect the enforceability or validity of any
other provision herein. Unless otherwise agreed by the Guarantied Party and each Guarantor in
writing, this Guaranty is not intended to supersede or otherwise affect any other guaranty now or
hereafter given by such Guarantor for the benefit of the Beneficiaries or any term or provision
thereof.




     14. Condition of Borrower. Each Guarantor acknowledges and agrees that it has the sole
responsibility for, and has adequate means of, obtaining from the Borrower and any other guarantor
such information concerning the financial condition, business and operations of the Borrower and
any such other guarantor as such Guarantor requires, and that the Beneficiaries have no duty, and
such Guarantor is not relying on the Beneficiaries at any time, to disclose to such Guarantor any
information relating to the business, operations or financial condition of the Borrower or any
other guarantor (the guarantor waiving any duty on the part of the Beneficiaries to disclose such
information and any defense relating to the failure to provide the same).



     15. Setoff. If and to the extent any payment is not made when due hereunder, any Beneficiary
may setoff and charge from time to time any amount so due against any or all of each Guarantor’s
accounts or deposits with such Beneficiary.



     16. Indemnification and Survival. Without limitation of its indemnification obligations
under the other Loan Documents, each Guarantor agrees to indemnify and hold harmless the Guarantied
Party and the other Indemnitees from and against (and will reimburse each Indemnitee as the same
are incurred for) any and all actions, suits, proceedings (including any investigations or
inquiries), claims, damages, losses, liabilities and expenses (including Attorney Costs and all
fees and time charges and disbursements for attorneys who may be employees of any Indemnitee), in
each case, arising out of or in connection with or by reason of (including in connection with any
investigation, litigation or proceeding or preparation of a defense in connection therewith) the
execution or delivery of this Guaranty or any other Loan Document or any agreement or instrument
contemplated hereby and thereby or, in the case of the Guarantied Party and its Related Parties
only, the administration of this Guaranty and the other Loan Documents, to the extent the Borrower
would be required to do so pursuant to Section 10.04 of the Credit Agreement.



     17. Additional Guarantors. The initial Guarantors hereunder shall be such of the
Subsidiaries of the Borrower as are signatories hereto on the date hereof. From time to time
subsequent to the date hereof, other Subsidiaries of the Borrower may become parties hereto, as
additional Guarantors (each an “Additional Guarantor”), by executing a counterpart of this
Guaranty in substantially the form attached as Exhibit A. Upon delivery of any such
counterpart to the Guarantied Party, notice of which is hereby waived by the Guarantors, each such
Additional Guarantor shall be a Guarantor and shall be as fully a party hereto as if such
Additional Guarantor were an original signatory hereof. Each Guarantor expressly agrees that its
obligations arising hereunder shall not be affected or diminished by the addition or release of any
other Guarantor hereunder. This Guaranty shall be fully effective as to any Guarantor that is or



F-6









 




becomes a party hereto regardless of whether any other Person becomes or fails to become or
ceases to be a Guarantor hereunder.




     18. Discharge of Guaranty Upon Sale of a Subsidiary Guarantor. If all of the stock of any
Guarantor or any of its successors in interest under this Guaranty shall be sold or otherwise
disposed of (including by merger or consolidation) in a sale or other disposition to a Person
(other than a Subsidiary or an Affiliate of the Borrower) not prohibited by the Credit Agreement or
otherwise consented to by the Required Lenders in accordance with the terms of the Credit
Agreement, such Guarantor or such successor in interest, as the case may be, may request the
Guarantied Party to, and the Guarantied Party shall, execute and deliver documents or instruments
necessary to evidence the release and discharge of this Guaranty as provided in Section 9.10 of the
Credit Agreement.



     19. GOVERNING LAW; ASSIGNMENT; JURISDICTION; NOTICES. THIS GUARANTY SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.



     This Guaranty shall (a) bind each Guarantor and its successors and assigns, provided that no
Guarantor may assign its rights or obligations under this Guaranty without the prior written
consent of the Beneficiaries (and any attempted assignment without such consent shall be void), and
(b) inure to the benefit of each Beneficiary and its successors and assigns and each Beneficiary
may, without notice to any Guarantor and without affecting any Guarantor’s obligations hereunder,
assign, sell or grant participations in the Guarantied Obligations and this Guaranty, in whole or
in part.



     EACH GUARANTOR HEREBY 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 GUARANTY, 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 GUARANTY SHALL AFFECT ANY RIGHT THAT ANY
BENEFICIARY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY AGAINST
ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT



F-7









 




IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS GUARANTY IN ANY COURT REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH 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.




     EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF
ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     Each Guarantor agrees that any Beneficiary may disclose, in accordance with Section 10.07 of
the Credit Agreement, to any assignee of or participant in, or any prospective assignee of or
participant in, any of its rights or obligations of all or part of the Guarantied Obligations any
and all information in such Beneficiary’s possession concerning such Guarantor, this Guaranty and
any security for this Guaranty. All notices and other communications to any Guarantor under this
Guaranty shall be provided in the manner set forth for notices in Section 10.02 of the Credit
Agreement.



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



     THIS GUARANTY CONSTITUTES THE ENTIRE CONTRACT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER
HEREOF AND SUPERSEDES ANY AND ALL PREVIOUS AGREEMENTS AND UNDERSTANDINGS, ORAL OR WRITTEN, RELATING
TO THE SUBJECT MATTER HEREOF.



     21. Foreign Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due under this Guaranty in one currency into another currency, the rate
of exchange used shall be that at which in accordance with normal banking procedures the applicable
Beneficiary could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of each Guarantor



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in respect of any such sum due from it to any Beneficiary under this Guaranty shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in
which such sum is denominated in accordance with the applicable provisions of this Guaranty (the
“Obligations Currency”), be discharged only to the extent that on the Business Day
following receipt by any Beneficiary of any sum adjudged to be so due in the Judgment Currency,
such Beneficiary may in accordance with normal banking procedures purchase the Obligations Currency
with the Judgment Currency. If the amount of the Obligations Currency so purchased is less than the
sum originally due to such Beneficiary from any Guarantor in the Obligations Currency, each such
Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such
Beneficiary to whom such obligation was owing against such loss. If the amount of the Obligations
Currency so purchased is greater than the sum originally due to such Beneficiary in such currency,
such Beneficiary agrees to return the amount of any excess to each such Guarantor.




     22. Guarantied Party as Agent. The Guarantied Party has been appointed to act as the
Guarantied Party hereunder by Lenders. The Guarantied Party shall be obligated, and shall have the
right hereunder, to make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action, solely in accordance with this Guaranty and
the Credit Agreement; provided that the Guarantied Party shall exercise, or refrain from
exercising, any remedies under or with respect to this Guaranty in accordance with the instructions
of the Required Lenders or all Lenders, as the case may be, in accordance with the terms of the
Credit Agreement.


The Guarantied Party shall at all times be the same Person that is the Administrative Agent under
the Credit Agreement. Written notice of resignation by the Administrative Agent pursuant to Section
9.06 of the Credit Agreement shall also constitute notice of resignation as the Guarantied Party
under this Guaranty; and appointment of a successor Administrative Agent (after resignation or
removal) pursuant to Section 9.06 of the Credit Agreement shall also constitute appointment of a
successor Guarantied Party under this Guaranty. Upon the acceptance of any appointment as the
Administrative Agent under Section 9.06 of the Credit Agreement by a successor Administrative
Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring or removed Guarantied Party under this
Guaranty, and the retiring or removed Guarantied Party under this Guaranty shall promptly (a)
transfer to such successor Guarantied Party all sums held hereunder, together with all records and
other documents necessary or appropriate in connection with the performance of the duties of the
successor Guarantied Party under this Guaranty, and (b) take such other actions as may be necessary
or appropriate in connection with the assignment to such successor Guarantied Party of the rights
created hereunder, whereupon such retiring Guarantied Party shall be discharged from its duties and
obligations under this Guaranty. After any retiring Guarantied Party’s resignation hereunder as the
Guarantied Party, the provisions of this Guaranty shall inure to its benefits as to any actions
taken or omitted to be taken by it under this Guaranty while it was the Guarantied Party hereunder.




     23. Counterparts; Effectiveness. This Guaranty may be executed in any number of counterparts
and by the different parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original for all purposes; but all such



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counterparts together shall constitute but one and the same instrument. This Guaranty shall
become effective as to each Guarantor upon the execution of a counterpart hereof by such Guarantor
(whether or not a counterpart hereof shall have been executed by any other Guarantor) and receipt
by the Guarantied Party of written or telephonic notification of such execution and authorization
of delivery thereof.




     24. Application of Funds. Except as expressly provided elsewhere in this Guaranty, all
proceeds received by the Beneficiaries on account of the Guarantied Obligations from any Guarantor
shall be applied to the payment of all Guarantied Obligations (for the ratable benefit of the
holders thereof) and, as to Obligations arising under the Credit Agreement, as provided in Section
8.03 of the Credit Agreement.



[Remainder of page intentionally left blank.]









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     IN WITNESS WHEREOF, the Guarantor and, solely for purposes of the waiver of the right to jury
trial contained in Section 20 hereof, the Guarantied Party have caused this Guaranty to be
duly executed and delivered by their respective officers thereunto duly authorized as of the date
hereof.



	 	 	 	 	 	 	 

	 	 	[_______________], as a Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	[_______________], as a Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






[Signature Page to Revolver Subsidiary Guaranty]




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	 	 	BARCLAYS BANK PLC, as Administrative

   Agent, as Guarantied Party
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






[Signature Page to Revolver Subsidiary Guaranty]









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EXHIBIT A




[FORM OF] COUNTERPART FOR ADDITIONAL GUARANTORS



     This COUNTERPART (this “Counterpart”), dated _______, 20__, is delivered pursuant to Section
17 of the Guaranty referred to below. The undersigned hereby agrees that this Counterpart may be
attached to the Guaranty, dated as of [______ __], 2011 (as it may be amended, restated, amended
and restated, supplemented or otherwise modified from time to time, the “Guaranty”;
capitalized terms used herein not otherwise defined herein shall have the meanings ascribed
therein), among [______________] and the other Guarantors named therein and Barclays Bank PLC, as
Administrative Agent for the Lenders, as Guarantied Party. The undersigned, by executing and
delivering this Counterpart, hereby becomes an Additional Guarantor under the Guaranty in
accordance with Section 17 thereof and agrees to be bound by all of the terms thereof.



     IN WITNESS WHEREOF, the undersigned has caused this Counterpart to be duly executed and
delivered by its officer thereunto duly authorized as of ______________, 20_.



	 	 	 	 	 	 	 

	 	 	[NAME OF ADDITIONAL GUARANTOR], 

   as a Guarantor
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 







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