exv10w18






Exhibit 10.18




Execution Copy




U.S. $1,500,000,000




 






FOUR-YEAR CREDIT AGREEMENT




 






Dated as of June 17, 2011




among



BAXTER INTERNATIONAL INC.



as Borrower



THE FINANCIAL INSTITUTIONS NAMED HEREIN



as Banks



JPMORGAN CHASE BANK, NATIONAL ASSOCIATION



as Administrative Agent



and



BANK OF AMERICA, N.A.

and

CITIBANK, N.A.



as Syndication Agents




and



J.P. MORGAN SECURITIES LLC

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

CITIGROUP GLOBAL MARKETS INC.



as Co-Lead Arrangers and Joint Bookrunners




 









 





TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE I
	 	DEFINITIONS	 	1
	 
	 	 	 	 
	SECTION 1.01.
	 	Defined Terms	 	1
	SECTION 1.02.
	 	Computation of Time Periods	 	17
	SECTION 1.03.
	 	Accounting Terms and Principles	 	17
	 
	 	 	 	 
	ARTICLE II
	 	THE SYNDICATED BORROWING FACILITY	 	18
	 
	 	 	 	 
	SECTION 2.01.
	 	The Syndicated Borrowing Facility	 	18
	SECTION 2.02.
	 	Making the Syndicated Advances	 	18
	SECTION 2.03.
	 	Method of Electing Interest Rates	 	19
	SECTION 2.04.
	 	Determination of Dollar Amounts; Required Payments; Termination	 	20
	SECTION 2.05.
	 	Increase in Aggregate Commitment	 	21
	 
	 	 	 	 
	ARTICLE III
	 	THE COMPETITIVE BID BORROWING FACILITY	 	22
	 
	 	 	 	 
	SECTION 3.01.
	 	The Competitive Bid Facility	 	22
	SECTION 3.02.
	 	Competitive Bid Quote Request	 	22
	SECTION 3.03.
	 	Invitation for Competitive Bid Quotes	 	23
	SECTION 3.04.
	 	Submission and Contents of Competitive Bid Quotes.	 	23
	SECTION 3.05.
	 	Notice to the Borrower	 	25
	SECTION 3.06.
	 	Acceptance and Notice by the Borrower	 	25
	SECTION 3.07.
	 	Allocation by Administrative Agent	 	26
	SECTION 3.08.
	 	Notification of Acceptances to the Affected Banks	 	26
	SECTION 3.09.
	 	Funding of Competitive Bid Advances	 	26
	 
	 	 	 	 
	ARTICLE IV
	 	THE LETTER OF CREDIT FACILITY	 	27
	 
	 	 	 	 
	SECTION 4.01.
	 	Obligation to Issue	 	27
	SECTION 4.02.
	 	Types and Amounts	 	27
	SECTION 4.03.
	 	Conditions	 	28
	SECTION 4.04.
	 	Procedure for Issuance of Letters of Credit.	 	28
	SECTION 4.05.
	 	Letter of Credit Participation	 	29
	SECTION 4.06.
	 	Reimbursement Obligation	 	30
	SECTION 4.07.
	 	Issuing Bank Charges	 	30
	SECTION 4.08.
	 	Issuing Bank Reporting Requirements	 	30
	SECTION 4.09.
	 	Indemnification; Exoneration	 	31
	 
	 	 	 	 
	ARTICLE V
	 	GENERAL TERMS	 	32
	 
	 	 	 	 
	SECTION 5.01.
	 	Illegality; Interest Rate Inadequate or Unfair	 	32
	SECTION 5.02.
	 	Effect of Notice of Borrowing; Maximum Number of Borrowings	 	34
	SECTION 5.03.
	 	Effect of Failure to Borrow or Fund	 	34
	SECTION 5.04.
	 	Fees and Certain Credit Rating Determinations	 	35
	SECTION 5.05.
	 	Reduction of the Commitments	 	38






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TABLE OF CONTENTS




	 	 	 	 	 

	SECTION 5.06.
	 	Repayment	 	38
	SECTION 5.07.
	 	Interest	 	38
	SECTION 5.08.
	 	Additional Interest on Eurocurrency Advances and	 	 
	 
	 	EURIBOR Advances.	 	42
	SECTION 5.09.
	 	Interest on Overdue Principal	 	42
	SECTION 5.10.
	 	Interest Rate Determinations	 	43
	SECTION 5.11.
	 	Performance of Banks' Obligations	 	43
	SECTION 5.12.
	 	Optional Prepayments.	 	43
	SECTION 5.13.
	 	Increased Costs	 	44
	SECTION 5.14.
	 	Payments and Computations.	 	45
	SECTION 5.15.
	 	Taxes	 	47
	SECTION 5.16.
	 	Noteless Agreement; Evidence of Indebtedness.	 	50
	SECTION 5.17.
	 	Sharing of Payments, Etc	 	51
	SECTION 5.18.
	 	Termination and Prepayment with Respect to any Bank.	 	51
	SECTION 5.19.
	 	Defaulting Banks	 	54
	 
	 	 	 	 
	ARTICLE VI
	 	CONDITIONS PRECEDENT	 	56
	 
	 	 	 	 
	SECTION 6.01.
	 	Conditions Precedent to Effectiveness of Agreement	 	56
	SECTION 6.02.
	 	Conditions Precedent to Each Borrowing	 	57
	SECTION 6.03.
	 	Termination of Existing Credit Agreement	 	57
	 
	 	 	 	 
	ARTICLE VII
	 	REPRESENTATIONS AND WARRANTIES	 	58
	 
	 	 	 	 
	SECTION 7.01.
	 	Representations and Warranties of the Borrower	 	58
	 
	 	 	 	 
	ARTICLE VIII
	 	COVENANTS	 	59
	 
	 	 	 	 
	SECTION 8.01.
	 	Affirmative Covenants of the Borrower	 	59
	SECTION 8.02.
	 	Negative Covenants of the Borrower	 	62
	 
	 	 	 	 
	ARTICLE IX
	 	EVENTS OF DEFAULT	 	66
	 
	 	 	 	 
	SECTION 9.01.
	 	Events of Default	 	66
	SECTION 9.02.
	 	Cash Collateral	 	69
	 
	 	 	 	 
	ARTICLE X
	 	THE ADMINISTRATIVE AGENT	 	69
	 
	 	 	 	 
	SECTION 10.01.
	 	Authorization and Action	 	69
	SECTION 10.02.
	 	Duties and Obligations	 	69
	SECTION 10.03.
	 	Administrative Agent and Affiliates	 	70
	SECTION 10.04.
	 	Bank Credit Decision	 	70
	SECTION 10.05.
	 	Indemnification	 	70
	SECTION 10.06.
	 	Successor Administrative Agent	 	71
	SECTION 10.07.
	 	Syndication Agents and Co-Lead Arrangers	 	71






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TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE XI
	 	MISCELLANEOUS	 	72
	 
	 	 	 	 
	SECTION 11.01.
	 	Amendments, Etc	 	72
	SECTION 11.02.
	 	Notices, Etc	 	72
	SECTION 11.03.
	 	No Waiver; Cumulative Remedies	 	73
	SECTION 11.04.
	 	Costs and Expenses; Indemnification	 	73
	SECTION 11.05.
	 	Right of Set-Off	 	74
	SECTION 11.06.
	 	Binding Effect; Assignment.	 	74
	SECTION 11.07.
	 	Confidentiality	 	77
	SECTION 11.08.
	 	Governing Law	 	78
	SECTION 11.09.
	 	Execution in Counterparts	 	78
	SECTION 11.10.
	 	Severability	 	78
	SECTION 11.11.
	 	Entire Agreement	 	78
	SECTION 11.12.
	 	Market Disruption	 	78
	SECTION 11.13.
	 	Judgment Currency	 	78
	SECTION 11.14.
	 	USA PATRIOT ACT	 	79






EXHIBITS AND SCHEDULES




	 	 	 	 	 

	Exhibit 2.02

	 	-
	 	Form of Notice of Syndicated Borrowing
	Exhibit 2.03

	 	-
	 	Form of Notice of Interest Rate Election
	Exhibit 3.02

	 	-
	 	Form of Competitive Bid Quote Request
	Exhibit 3.04

	 	-
	 	Form of Competitive Bid Quote
	Exhibit 3.06

	 	-
	 	Form of Notice of Competitive Bid Borrowing
	Exhibit 5.15(d)(iv)

	 	-
	 	Form of Section 5.15(d)(iv) Certificate
	Exhibit 6.01(d)

	 	-
	 	Form of Opinion of Borrower’s Counsel
	Exhibit 8.01(f)(ii)

	 	-
	 	Form of Certificate of Independent Accountants
	Exhibit 11.06

	 	-
	 	Form of Assignment and Acceptance
	 
	 	 	 	 
	Schedule 1.01

	 	-
	 	Commitments
	Schedule 1.02

	 	-
	 	Lending Office Addresses
	Schedule 1.03

	 	-
	 	Existing Letters of Credit







iii











 





FOUR-YEAR

CREDIT AGREEMENT




Dated as of June 17, 2011



          Baxter International Inc., a Delaware corporation (the “Borrower”), the financial
institutions listed on the signature pages of this Agreement under the heading “Banks” (such
financial institutions and any successor financial institution that becomes a party to this
Agreement pursuant to Section 2.05, 5.18 or 11.06 hereinafter referred to
as the “Banks”), JPMorgan Chase Bank, National Association (“JPMorgan Chase”), as
administrative agent hereunder (such administrative agent and any successor administrative agent
appointed pursuant to Section 10.06 hereinafter referred to as the “Administrative
Agent”), each of Bank of America, N.A. (“Bank of America”) and Citibank, N.A.
(“Citibank”), as Syndication Agents (Bank of America and Citibank, collectively,
hereinafter referred to as the “Syndication Agents”), and each of J.P. Morgan Securities
LLC (“J.P. Morgan Securities”), Merrill Lynch, Pierce, Fenner & Smith Incorporated
(“Merrill”) and Citigroup Global Markets Inc. (“Citigroup”), as co-lead arrangers
and joint bookrunners hereunder (J.P. Morgan Securities, Merrill and Citigroup, collectively,
hereinafter referred to as the “Co-Lead Arrangers”), agree as follows:



ARTICLE I




DEFINITIONS



          SECTION 1.01. Defined Terms. As used in this Four-Year Credit Agreement (this
“Agreement”), the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):



          “Absolute Rate” means, with respect to an Absolute Rate Advance made by a given Bank
for the relevant Interest Period, the rate of interest per annum (rounded to the nearest 1/100 of
1%) offered by such Bank and accepted by the Borrower with respect to such Absolute Rate Advance.



          “Absolute Rate Advance” means an Advance made or to be made by a Bank pursuant to
Article III as an Absolute Rate Advance in accordance with the applicable Notice of
Competitive Bid Borrowing. Each Absolute Rate Advance shall bear interest at an Absolute Rate as
provided in Section 5.07(d).



          “Absolute Rate Auction” means a solicitation of Competitive Bid Quotes setting forth
Absolute Rates for Absolute Rate Advances to be extended pursuant to Article III.



          “Act” has the meaning assigned to that term in Section 11.14.



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



 









 





          “Advance” means a Syndicated Advance and/or a Competitive Bid Advance, as the context
requires.



          “Affiliate” means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person.



          “Aggregate Commitments” means, at any time, the aggregate amount of the Commitments of
all the Banks hereunder at such time.



          “Agreed Currencies” means (i) Dollars, (ii) so long as such currencies remain Eligible
Currencies, Swiss Francs, Japanese Yen, Pounds Sterling and Euro, and (iii) any other Eligible
Currency which the Borrower requests the Administrative Agent to include as an Agreed Currency
hereunder and which is acceptable to all of the Banks. For the purposes of this definition, each
of the specific currencies referred to in clause (ii), above, shall mean and be deemed to
refer to the lawful currency of the jurisdiction referred to in connection with such currency,
e.g., “Swiss Francs” means the lawful currency of Switzerland.



          “Applicable Lending Office” means, with respect to each Bank, such Bank’s Domestic
Lending Office in the case of a Base Rate Advance, such Bank’s Eurocurrency Lending Office in the
case of a Eurocurrency Rate Advance, such Bank’s EURIBOR Lending Office in the case of a EURIBOR
Rate Advance, and such Bank’s Competitive Bid Lending Office in the case of a Competitive Bid
Advance.



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



          “Approximate Dollar Amount” of any currency with respect to any amount of Dollars
means the Dollar Amount of such currency with respect to such amount of Dollars on or as of such
date, rounded up to the nearest amount of such currency as determined by the Administrative Agent
from time to time.



          “Assignment and Acceptance” has the meaning assigned to that term in Section
11.06(c).



          “Available Commitment” means, with respect to any Bank at any time, an amount equal to
(i) such Bank’s Commitment at such time minus (ii) an amount equal to such Bank’s ratable
share, determined on the basis that such Bank’s Commitment bears to all Commitments at such time,
of the aggregate Dollar Amount of all Competitive Bid Advances outstanding at such time
minus (iii) such Bank’s L/C Interest in the L/C Obligations outstanding at such time.



          “Bank Termination Date” has the meaning assigned to that term in Section
5.18(b).



          “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination



2









 







of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy
Event shall not result solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.



          “Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus 1/2
of 1% and (c) the Eurocurrency Rate for deposits in Dollars for a one-month Interest Period on such
day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%;
provided that, for the avoidance of doubt, the Eurocurrency Rate for any day shall be based
on the rate appearing on the Reuters BBA Libor Rate Page 3750 (or any successor or substitute page
of such page) at approximately 11:00 a.m. London time on such day; provided,
further, that the Administrative Agent shall deliver a copy of such Page 3750 to the
Borrower within one (1) Business Day of determining such rate per annum, provided that the
failure of the Administrative Agent to provide a copy of such Page 3750 shall in no way limit or
modify the obligations of the Borrower under this Agreement. Any change in the Base Rate due to a
change in the Prime Rate, the Federal Funds Rate or the Eurocurrency Rate shall be effective from
and including the effective date of such change in the Prime Rate, the Federal Funds Rate or the
Eurocurrency Rate, respectively.



          “Base Rate Advance” means (i) an Advance made or to be made by a Bank pursuant to
Section 2.01, as a Base Rate Advance in accordance with the applicable Notice of Syndicated
Borrowing, or pursuant to Section 5.01, as a Base Rate Advance in substitution for a Fixed
Rate Advance, or pursuant to Section 4.06, as a Base Rate Advance by a Bank funding an
unreimbursed Reimbursement Obligation, and (ii) any Advance Converted into a Base Rate Advance in
accordance with Section 2.03 or Section 5.01. Each Base Rate Advance shall bear
interest as provided in Section 5.07(a).



          “Borrowing” means a Syndicated Borrowing and/or a Competitive Bid Borrowing, as the
context requires.



          “Borrowing Date” means a date on which an Advance is, or is proposed to be, made
hereunder, or a Letter of Credit is, or is proposed to be, issued hereunder.



          “Business Day” means (i) with respect to a Base Rate Advance or an Absolute Rate
Advance or for any other purpose not relating to any borrowing, payment or rate selection of
Eurocurrency Advances or EURIBOR Advances, a Domestic Business Day, (ii) with respect to a
Eurocurrency Advance, a Eurocurrency Business Day, and (iii) with respect to a EURIBOR Advance, a
EURIBOR Business Day.



          “Change in Law” has the meaning assigned to that term in Section 5.13.



3









 





          “Change of Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the
rules of the SEC thereunder as in effect on the date hereof) of fifty percent (50%) or
more of the aggregate ordinary voting power represented by the issued and outstanding Equity
Interests of the Borrower or (b) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Borrower by Persons who were neither (i) nominated by the board of
directors of the Borrower nor (ii) appointed by directors so nominated.



          “Closing Date” means June 17, 2011.



          “Code” has the meaning assigned to that term in Section 5.15(d)(i).



          “Co-Lead Arrangers” means J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, and Citigroup Global Markets Inc., in their capacities as Co-Lead Arrangers and
Joint Bookrunners.



          “Commitment” means, with respect to any Bank at any time the amount indicated opposite
such Bank’s name on Schedule 1.01 hereto, as such amount may from time to time have been
increased pursuant to Section 2.05, reduced pursuant to Section 5.05 or modified in
accordance with Section 11.06.



          “Competitive Bid Advance” means an advance by a Bank to the Borrower pursuant to
Article III and refers to a Eurocurrency Bid Rate Advance, a EURIBOR Bid Rate Advance, an
Absolute Rate Advance or an advance in substitution therefor pursuant to Section 5.01.



          “Competitive Bid Borrowing” means a borrowing consisting of Competitive Bid Advances
(i) made on the same day by the Banks whose Competitive Bid Quotes in connection with a given type
of auction, whether a Eurocurrency Auction, EURIBOR Auction or an Absolute Rate Auction, shall have
been accepted by the Borrower in accordance with Section 3.06, (ii) having the same
Interest Period, and (iii) being in the same currency.



          “Competitive Bid Borrowing Facility” has the meaning assigned to that term in
Section 3.01.



          “Competitive Bid Lending Office” means, with respect to each Bank, the office of such
Bank specified as its “Competitive Bid Lending Office” opposite its name on Schedule 1.02
hereto (or, if no such office is specified, its Domestic Lending Office) or such other office of
such Bank as such Bank may from time to time specify to the Borrower and the Administrative Agent.
Any Bank may from time to time by notice to the Borrower and the Administrative Agent designate
separate Competitive Bid Lending Offices for its Absolute Rate Advances, its Eurocurrency Bid Rate
Advances and its EURIBOR Bid Rate Advances, in which case all references herein to the “Competitive
Bid Lending Office” of such Bank shall be deemed to refer to any one or all of such offices, as the
context may require.



          “Competitive Bid Margin” means (i) with respect to a Eurocurrency Bid Rate Advance, a
margin above or below the applicable Eurocurrency Rate which is offered for a Eurocurrency Bid Rate
Advance, expressed as a percentage (rounded to the nearest 1/10,000 of



4









 







1%) to be added to or
subtracted from such Eurocurrency Rate and (ii) with respect to a EURIBOR Bid Rate Advance, a
margin above or below the applicable EURIBOR which is
offered for a EURIBOR Rate Advance, expressed as a percentage (rounded to the nearest 1/10,000
of 1%) to be added to or subtracted from such EURIBOR.




          “Competitive Bid Quote” means a Competitive Bid Quote substantially in the form of
Exhibit 3.04 hereto, completed by a Bank and delivered by such Bank to the Administrative
Agent in accordance with Section 3.04.



          “Competitive Bid Quote Request” means a Competitive Bid Quote Request substantially in
the form of Exhibit 3.02 hereto, completed by the Borrower and delivered by the Borrower to
the Administrative Agent in accordance with Section 3.02.



          “Computation Date” has the meaning assigned to that term in Section 2.04(a).



          “Consolidated” refers to the full consolidation of the accounts of the Borrower and
its Subsidiaries in accordance with generally accepted accounting principles, including principles
of consolidation, consistent with those applied in the preparation of the financial statements
referred to in Section 7.01(f).



          “Consolidated Adjusted Debt” means, at any time, (i) all Debt minus (ii) an
amount equal to all cash and cash equivalent investments of the Borrower and its Consolidated
Subsidiaries.



          “Consolidated Capitalization” means, at any time, the sum at such time of: (i) the
Consolidated stockholders’ equity of the Borrower and its Consolidated Subsidiaries, and (ii)
Consolidated Adjusted Debt of the Borrower and its Consolidated Subsidiaries.



          “Consolidated Net Tangible Assets” means the total amount of assets which would be
included on a Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries (and
which shall reflect the deduction of applicable reserves) after deducting therefrom all current
liabilities of the Borrower and its Consolidated Subsidiaries and all Intangible Assets.



          “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.



          “Convert,” “Conversion,” “Converting” and “Converted” each
refers to a conversion of Advances of one Type into Advances of another Type or a continuation of
Advances as the same Type for an additional Interest Period, in each case pursuant to Section
2.03.



          “Credit Ratings” has the meaning assigned to that term in Section 5.04(a).



          “Debentures” means long-term debt securities (without third-party credit enhancement).



5









 





          “Debt” means the sum of: (i) indebtedness for borrowed money or for the deferred
purchase price of property or services carried as indebtedness on the Consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries (excluding accounts payable
arising in the ordinary course of such Person’s business payable on terms customary in the trade),
(ii) obligations of the Borrower and its Consolidated Subsidiaries as lessee under leases that, in
accordance with generally accepted accounting principles, are recorded as capital leases, and (iii)
obligations of the Borrower and its Consolidated Subsidiaries under direct or indirect guaranties
in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or obligations of other
parties of the kinds referred to in clauses (i) and (ii) above (other than Debt of
any Subsidiary, to the extent such Debt is included in the calculation of Debt as a result of
clause (i) or (ii) above) in excess of $100,000,000 in the aggregate. The term
“Debt” shall not include the undrawn face amount of any letter of credit issued for the account of
the Borrower or any of its Consolidated Subsidiaries, but shall include the reimbursement
obligation owing from time to time by the Borrower or any of its Consolidated Subsidiaries in
respect of drawings made under any letter of credit in the event reimbursement is not made
immediately following the applicable drawing.



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



          “Dollar Amount” of any currency at any date means (i) the amount of such currency if
such currency is Dollars or (ii) the equivalent in Dollars of the amount of such currency if such
currency is any currency other than Dollars, calculated on the basis of the rate at



6









 







which such
currency may be exchanged into Dollars at the time of determination on such day on the Reuters
Currency pages, if available, for such currency. In the event that such rate does not
appear on any Reuters Currency pages, the exchange rate shall be determined by reference to
such other publicly available service for displaying exchange rates as may be agreed upon by the
Administrative Agent and the Borrower, or, in the absence of such an agreement, such exchange rate
shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent
in the market where its foreign currency exchange operations in respect of such currency are then
being conducted, at or about such time as the Administrative Agent shall elect after determining
that such rates shall be the basis for determining the exchange rate, on such date for the purchase
of Dollars for delivery two (2) Business Days later; provided that if at the time of any
such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may
use any reasonable method it deems appropriate to determine such rate, and such determination shall
be prima facie evidence thereof.



          “Dollars” and “$” means the lawful currency of the United States of America.



          “Domestic Business Day” means a day (other than Saturday or Sunday) of the year on
which banks are not required or authorized to close in New York City or Chicago, Illinois and are
generally open for the conduct of substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire system.



          “Domestic Lending Office” means, with respect to each Bank, the office of such Bank
specified as its “Domestic Lending Office” opposite its name on Schedule 1.02 hereto or
such other office of such Bank as such Bank may from time to time specify to the Borrower and the
Administrative Agent.



          “Eligible Currency” means any currency other than Dollars (i) that is readily
available, (ii) that is freely traded, (iii) in which deposits are customarily offered to banks in
the Brussels euro-zone interbank market or London interbank market, as applicable, (iv) which is
convertible into Dollars in the international interbank market and (v) as to which a Dollar Amount
may be readily calculated. If, after the designation by the Banks of any currency as an Agreed
Currency, (x) currency control or other exchange regulations are imposed in the country in which
such currency is issued with the result that different types of such currency are introduced, (y)
such currency is, in the determination of the Administrative Agent, no longer readily available or
freely traded or (z) in the determination of the Administrative Agent, a Dollar Amount of such
currency is not readily calculable, the Administrative Agent shall promptly notify the Banks and
the Borrower, and such currency shall no longer be an Agreed Currency until such time as all of the
Banks agree to reinstate such currency as an Agreed Currency and promptly, but in any event within
five (5) Business Days of receipt of such notice from the Administrative Agent, the Borrower shall
repay all Advances in such affected currency or convert such Advances into Advances in Dollars or
another Agreed Currency, subject to the other terms set forth in Article II and Article
III.



          “Environmental Laws” means federal, state, local and foreign laws, rules and
regulations relating to the release, emission, disposal, storage and related handling of waste
materials, pollutants and hazardous substances.



7









 





          “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity interests
in a Person, and any and all warrants, rights or options to purchase any of the foregoing.



          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and any successor statute of similar import, together with the regulations
thereunder, in each case as in effect from time to time. References to sections of ERISA also
refer to any successor sections.



          “EURIBOR” means, with respect to any EURIBOR Advance for the relevant Interest Period,
the interest rate per annum equal to the rate determined by the Administrative Agent to be the rate
at which deposits in Euro appear on the Reuters Screen EURIBOR01 as of 11:00 a.m., Brussels time,
on the date that is two (2) TARGET Settlement Days (or, if such date is not a EURIBOR Business Day,
the first day preceding such date that is a EURIBOR Business Day) preceding the first day of such
Interest Period, and having a maturity equal to such Interest Period; provided, that if
such rate does not appear on the Reuters Screen EURIBOR01, then EURIBOR shall be an interest rate
per annum equal to the arithmetic mean determined by the Administrative Agent (rounded to the
nearest. 01%) of the rates per annum at which deposits in Euro are offered by the London branches
of JPMorgan Chase Bank, National Association, Bank of America, N.A. and Citibank, N.A. at
approximately 11:00 a.m., Brussels time, on the day that is two (2) TARGET Settlement Days (or, if
such date is not a EURIBOR Business Day, the first day preceding such date that is a EURIBOR
Business Day) preceding the first day of such Interest Period to other leading banks in the
euro-zone interbank market at which deposits in Euro are offered, and having a maturity equal to
such Interest Period. The Administrative Agent will deliver a copy of such Reuters Screen or its
calculation of EURIBOR, as applicable, to the Borrower within one (1) EURIBOR Business Day of the
beginning of the relevant Interest Period; provided that the failure of the Administrative
Agent to provide such copy of the Reuters Screen or such calculation of EURIBOR shall in no way
limit or modify the obligations of the Borrower under this Agreement.



          “EURIBOR Advance” means any EURIBOR Rate Advance or EURIBOR Bid Rate Advance for any
Advance in Euro.



          “EURIBOR Auction” means a solicitation of Competitive Bid Quotes setting forth
Competitive Bid Margins in relation to the applicable EURIBOR for EURIBOR Bid Rate Advances to be
extended pursuant to Article III.



          “EURIBOR Bid Rate” means, with respect to a EURIBOR Bid Rate Advance made by a given
Bank for the relevant Interest Period, the sum of (a) the EURIBOR applicable thereto and (b) the
Competitive Bid Margin offered by such Bank and accepted by the Borrower with respect to such
EURIBOR Bid Rate Advance.



          “EURIBOR Bid Rate Advance” means an Advance made or to be made by a Bank pursuant to
Article III as a EURIBOR Bid Rate Advance in accordance with the applicable Notice of
Competitive Bid Borrowing. Each EURIBOR Bid Rate Advance shall bear interest at a EURIBOR Bid Rate
as provided in Section 5.07(d).



8









 





          “EURIBOR Business Day” means any Domestic Business Day on which dealings are carried
on in the Brussels euro-zone interbank market and the London interbank market and which is a TARGET
Settlement Day.



          “EURIBOR Lending Office” means, with respect to each Bank, the office of such Bank
specified as its “EURIBOR Lending Office” opposite its name on Schedule 1.02 hereto (or if
no such office is specified, its Domestic Lending Office) or such other office of such Bank as such
Bank may from time to time specify to the Borrower and the Administrative Agent.



          “EURIBOR Margin” has the meaning assigned to that term in Section 5.07(c).



          “EURIBOR Rate Advance” means (i) an Advance made or to be made by a Bank pursuant to
Section 2.01 as a EURIBOR Rate Advance in accordance with the applicable Notice of
Syndicated Borrowing and (ii) any Advance converted into a EURIBOR Rate Advance in accordance with
Section 2.03. Each EURIBOR Rate Advance shall bear interest as provided in Section
5.07(c).



          “Euro” and/or “EUR” means the euro referred to in Council Regulation (EC) No.
1103/97, dated June 17, 1997, passed by the Council of the European Union, or, if different, the
then lawful currency of the member states of the European Union that participate in the third stage
of Economic and Monetary Union.



          “Eurocurrency Advance” means any Eurocurrency Rate Advance or Eurocurrency Bid Rate
Advance for any Advance in any Agreed Currency other than Euro.



          “Eurocurrency Auction” means a solicitation of Competitive Bid Quotes setting forth
Competitive Bid Margins in relation to the applicable Eurocurrency Rate for Eurocurrency Bid Rate
Advances to be extended pursuant to Article III.



          “Eurocurrency Bid Rate” means, with respect to a Eurocurrency Bid Rate Advance made by
a given Bank for the relevant Interest Period, the sum of (a) the Eurocurrency Rate applicable
thereto and (b) the Competitive Bid Margin offered by such Bank and accepted by the Borrower with
respect to such Eurocurrency Bid Rate Advance.



          “Eurocurrency Bid Rate Advance” means an Advance made or to be made by a Bank pursuant
to Article III as a Eurocurrency Bid Rate Advance in accordance with the applicable Notice
of Competitive Bid Borrowing. Each Eurocurrency Bid Rate Advance shall bear interest at a
Eurocurrency Bid Rate as provided in Section 5.07(d).



          “Eurocurrency Business Day” means any Domestic Business Day on which dealings are
carried on in the London interbank market.



          “Eurocurrency Lending Office” means, with respect to each Bank, the office of such
Bank specified as its “Eurocurrency Lending Office” opposite its name on Schedule 1.02
hereto (or, if no such office is specified, its Domestic Lending Office) or such other office of
such Bank as such Bank may from time to time specify to the Borrower and the Administrative Agent.



9









 





          “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from time to time.



          “Eurocurrency Margin” has the meaning assigned to that term in Section
5.07(b).



          “Eurocurrency Rate” means, with respect to any Eurocurrency Advance in an Agreed
Currency (other than Euro) for the relevant Interest Period, the applicable British Bankers’
Association Interest Settlement Rate for deposits in the applicable Agreed Currency as reported by
any generally recognized financial information service as of 11:00 a.m. (London time) two (2)
Eurocurrency Business Days prior to the first day of such Interest Period, and having a maturity
equal to such Interest Period; provided, that, if no such British Bankers’ Association
Interest Settlement Rate is available to the Administrative Agent, the applicable Eurocurrency Rate
for the relevant Interest Period shall instead be the rate determined by the Administrative Agent
to be the rate at which JPMorgan Chase or one of its Affiliate banks offers to place deposits in an
Agreed Currency (other than Euro) with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Eurocurrency Business Days prior to the first day of
such Interest Period, and having a maturity equal to such Interest Period; provided,
further, that the Administrative shall deliver a copy of such report or its calculation of
Eurocurrency Rate, as applicable, to the Borrower within one (1) Eurocurrency Business Day of the
beginning of such Interest Period; provided that the failure of the Administrative Agent to
provide a copy of such report or calculation shall in no way limit or modify the obligations of the
Borrower under this Agreement.



          “Eurocurrency Rate Advance” means (i) an Advance made or to be made by a Bank pursuant
to Section 2.01 as a Eurocurrency Rate Advance in accordance with the applicable Notice of
Syndicated Borrowing and (ii) any Advance Converted into a Eurocurrency Rate Advance in accordance
with Section 2.03. Each Eurocurrency Rate Advance shall bear interest as provided in
Section 5.07(b).



          “Eurocurrency Rate Reserve Percentage” of any Bank for the Interest Period for any
Eurocurrency Advance or EURIBOR Advance, as applicable, means the maximum reserve percentage
applicable during such Interest Period (or, if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such Interest Period during
which any such percentage shall be so applicable) under regulations issued from time to time by the
Board of Governors of the Federal Reserve System for determining the reserve requirement
(including, without limitation, any emergency, supplemental or other marginal reserve requirement
and taking into account any transitional adjustments or other scheduled changes in reserve
requirements during such Interest Period) for such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.



          “Events of Default” has the meaning assigned to that term in Section 9.01.



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



10









 





          “Existing Credit Agreement” means the Five-Year Credit Agreement, dated as of December
20, 2006, among the Borrower, the financial institutions parties thereto and JPMorgan Chase, as
administrative agent.



          “Existing Letters of Credit” means the Letters of Credit identified on Schedule
1.03 hereto.



          “Facility Usage” means, at any time, an amount equal to the sum of (i) the aggregate
principal amount of all Syndicated Advances denominated in Dollars and the Dollar Amount of all
Syndicated Advances denominated in Agreed Currencies other than Dollars outstanding at such time,
(ii) the aggregate principal amount of all Competitive Bid Advances denominated in Dollars and the
Dollar Amount of all Competitive Bid Advances denominated in Agreed Currencies other than Dollars
outstanding at such time and (iii) the aggregate amount of all L/C Obligations outstanding at such
time.



          “FATCA” means Section 1471 through 1474 of the Code, including any regulations
promulgated thereunder or official interpretations thereof.



          “Federal Funds Rate” means, for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as published on the next
succeeding Domestic Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Domestic Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three (3) Federal funds brokers of recognized standing selected by
it. The Administrative Agent shall deliver to the Borrower a copy of such publication or average
quotation, as applicable, within one (1) Business Day of such day; provided that the
failure of the Administrative Agent to provide such publication or such average quotation shall in
no way limit or modify the obligations of the Borrower under this Agreement.



          “First Borrowing” means the earlier to occur of (i) the initial Borrowing made by the
Borrower hereunder or (ii) the initial Letter of Credit issued by an Issuing Bank hereunder,
including, without limitation, the deemed issuance of the Existing Letters of Credit as Letters of
Credit hereunder on the Closing Date.



          “Fitch” means Fitch, Inc., or its successor.



          “Fixed Rate Advances” means Eurocurrency Rate Advances, EURIBOR Rate Advances or
Competitive Bid Advances (excluding Competitive Bid Advances bearing interest at the Base Rate
pursuant to Section 5.01) or any combination of the foregoing.



          “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.



          “Governmental Acts” has the meaning assigned to that term in Section 4.09(a).



11









 





          “Governmental Authority” means any nation or government, any federal, state, local or
other political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.



          “Governmental Entity” has the meaning assigned to that term in Section
8.02(a)(xvii).



          “Intangible Assets” means all assets of the Borrower and its Consolidated Subsidiaries
which are treated as intangibles in conformity with generally accepted accounting principles on the
Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries.



          “Interest Period” means, for each Advance comprising part of the same Borrowing, the
period commencing on the date of such Advance (or, in the case of any Syndicated Borrowing, on the
effective date of Conversion thereof pursuant to Section 2.03) and ending on the last day
of the period selected by the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be (a) in the case of a Eurocurrency Rate Advance or a EURIBOR Rate Advance,
one (1), two (2) , three (3) or six (6) months, (b) in the case of a Eurocurrency Bid Rate Advance
or a EURIBOR Bid Rate Advance, one (1), two (2), three (3) or six (6) months, and (c) in the case
of an Absolute Rate Advance, a number of days not to exceed 180 days, in each case as the Borrower
may select pursuant to Section 2.02, 2.03 or 3.02, as applicable;
provided, that:




     (i) The duration of any Interest Period which would otherwise end after the Termination
Date shall end on the Termination Date;




     (ii) Interest Periods commencing on the same day for Advances comprising the same
Borrowing shall be of the same duration;




     (iii) Whenever the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall be extended to occur on the
next succeeding Business Day, unless, in the case of any Interest Period for a Eurocurrency
Advance or a EURIBOR Advance, such extension would cause the last day of such Interest
Period to occur in the next following calendar month, in which case the last day of such
Interest Period shall occur on the immediately preceding Business Day; and




     (iv) If an Interest Period for a Eurocurrency Advance or a EURIBOR Advance 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), such Interest
Period shall end on the last Business Day of a calendar month.



          “Issuing Banks” means any of JPMorgan Chase, Bank of America, Citibank and any other
Bank which, at the Borrower’s request, agrees, in such other Bank’s sole discretion, to become an
Issuing Bank for the purpose of issuing Letters of Credit under this Agreement, and their
respective successors and assigns.



12









 





          “JPMorgan Chase” means JPMorgan Chase Bank, National Association, a national banking
association having its principal office in New York, New York, in its individual capacity, and its
successors.



          “L/C Application” means a letter of credit application and reimbursement agreement in
such form as the applicable Issuing Bank may from time to time employ in the ordinary course of
business.



          “L/C Draft” means a draft drawn on an Issuing Bank pursuant to a Letter of Credit.



          “L/C Interest” has the meaning assigned to such term in Section 4.05.



          “L/C Obligations” means, without duplication, an amount equal to the sum of (i) the
aggregate of the amount then available for drawing under each of the Letters of Credit, (ii) the
face amount of all outstanding L/C Drafts corresponding to the Letters of Credit, which L/C Drafts
have been accepted by the applicable Issuing Bank, (iii) the aggregate outstanding amount of all
Reimbursement Obligations at such time and (iv) the aggregate face amount of all Letters of Credit
requested by the Borrower but not yet issued (unless the request for an unissued Letter of Credit
has been denied). The L/C Obligations of any Bank at any time shall be such Bank’s pro rata share
of the Aggregate Commitments multiplied by the aggregate L/C Obligations at such time.



          “LIBOR Market Rate Spread” means, for any Advance, at any time, the thirty (30) day
moving average of the Borrower’s interpolated four-year credit default swap mid-rate spread (as
provided by Markit Group Limited or another similar financial services company selected by the
Administrative Agent and approved by the Borrower (which approval shall not be unreasonably
withheld or delayed)) for the four-year period beginning on the date on which the LIBOR Market Rate
Spread has most recently been set for such Advance; provided that the minimum and maximum
LIBOR Market Rate Spread shall be as set forth in Section 5.07. The LIBOR Market Rate
Spread will in each case be (a) determined by the Administrative Agent by reference to the thirty
(30) day moving average of the Borrower’s interpolated four-year credit default swap mid-rate
spread as provided on the Markit Group Limited (or another similar financial services company
selected by the Administrative Agent and approved by the Borrower (which approval shall not be
unreasonably withheld or delayed) website for such four-year period, and (b) set for each
Eurocurrency Advance and/or each EURIBOR Rate Advance at the time that the initial Eurocurrency
Rate or EURIBOR Rate applicable to such Eurocurrency Advance or EURIBOR Rate Advance, as the case
may be, is set (which is one (1) day after the related Notice of Borrowing) and at the beginning of
each subsequent applicable Interest Period; provided that for each Eurocurrency Advance or
EURIBOR Rate Advance having an Interest Period longer than three (3) months, the LIBOR Market Rate
Spread shall be reset as of the last day of each three-month interval during such Interest Period.
The Administrative Agent will deliver to the Borrower a copy of the relevant webpage within one (1)
Business Day of the beginning of the relevant Interest Period; provided that the failure of
the Administrative Agent to deliver such copy of the webpage shall in no way limit or modify the
obligations of the Borrower under this Agreement.



13









 





          “Letter of Credit” means any letter of credit issued by an Issuing Bank pursuant to
Section 4.01.



          “Local Time” means Chicago time, in the case of notices or payments with respect to
Borrowings in Dollars, and London time, in the case of notices or payments with respect to
Borrowings in Agreed Currencies other than Dollars.



          “Majority Banks” means at any time Banks having more than fifty percent (50%) of the
then aggregate amount of the Commitments or, if the Commitments have been terminated, holding more
than fifty percent (50%) of the aggregate unpaid principal amount of Advances and L/C Obligations
then outstanding under this Agreement. The Commitments, Advances and L/C Obligations of any
Defaulting Bank shall be disregarded in determining the Majority Banks at any time.



          “Margin Regulations” has the meaning assigned to that term in Section 8.01(g).



          “Margin Stock” has the meaning assigned to that term under Regulation U issued by the
Board of Governors of the Federal Reserve System.



          “Material Subsidiary” means any of (i) Baxter Healthcare Corporation, a Delaware
corporation, (ii) Baxter World Trade Corporation, a Delaware corporation, or (iii) any other
Subsidiary of the Borrower that would be a “significant subsidiary” of the Borrower within the
meaning of Rule 1-02(w)(2) under Regulation S-X promulgated by the SEC (17 C.F.R. 210.1-02(w)(2));
provided that the reference therein to “10 percent of the total assets of the registrant
and its subsidiaries” shall be deemed for purposes of this definition to read as “20 percent of the
total assets of the registrant and its subsidiaries.”



          “Moody’s” means Moody’s Investors Service, Inc., or its successor.



          “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any Material Subsidiary makes or is obligated to make
contributions.



          “Non-Consenting Bank” means any Bank that does not approve any consent, waiver or
amendment that (i) requires the approval of all affected Banks in accordance with the terms of
Section 11.01 and (ii) has been approved by the Majority Banks.



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



          “Note” has the meaning assigned to that term in Section 5.16(d).



          “Notice of Borrowing” means a Notice of Competitive Bid Borrowing and/or a Notice of
Syndicated Borrowing, as the context requires.



          “Notice of Competitive Bid Borrowing” has the meaning assigned to that term in
Section 3.06.



14









 





          “Notice of Interest Rate Election” has the meaning assigned to that term in
Section 2.03.



          “Notice of Syndicated Borrowing” has the meaning assigned to that term in Section
2.02.



          “Original Currency” has the meaning assigned to that term in Section 5.14(b).



          “Other Taxes” has the meaning assigned to that term in Section 5.15(b).



          “Parent” means, with respect to any Bank, any Person as to which such Bank is,
directly or indirectly, a subsidiary.



          “Person” means an individual, a corporation, a partnership, an association, a trust or
any other entity or organization, including a government or political subdivision or an agency or
instrumentality thereof.



          “PBGC” means the Pension Benefit Guaranty Corporation and any entity succeeding to any
or all of its functions under ERISA.



          “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 Material Subsidiary or to which the Borrower or any
Material Subsidiary contributes or has an obligation to contribute.



          “Prime Rate” means a rate per annum equal to the prime rate of interest announced from
time to time by JPMorgan Chase (which is not necessarily the lowest rate charged to any customer)
as its prime rate in effect at its principal office in New York City, changing when and as said
prime rate changes.



          “Receivable” has the meaning assigned to that term in Section 8.02(a)(xii).



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



          “Register” has the meaning assigned to that term in Section 11.06(e).



          “Reimbursement Obligation” has the meaning assigned to that term in Section
4.06.



          “S&P” means Standard & Poor’s Ratings Services, a division of the McGraw-Hill
Companies, Inc., or its successor.



          “SEC” means the United States Securities and Exchange Commission or any successor
thereto.



15









 





          “Secured Debt” means the amount of Debt or other obligation or liability of the
Borrower or any of its Material Subsidiaries the payment of which is secured by a Security
Interest.



          “Security Interest” means any lien, security interest, mortgage or other charge or
encumbrance of any kind, title retention device, pledge or any other type of preferential
arrangement, upon or with respect to any property of the Borrower or of any Material Subsidiary,
whether now owned or hereafter acquired.



          “Special Notice” has the meaning assigned to that term in Section 5.18(a).



          “Specified Currency” has the meaning assigned to that term in Section 11.13.



          “Subsidiary” means any entity with respect to which the Borrower alone owns, the
Borrower and one or more Subsidiaries together own, or the Borrower and any Person controlling the
Borrower together own, in each such case directly or indirectly, capital stock (or the equivalent
equity interest) having ordinary voting power to elect a majority of the members of the Board of
Directors of such corporation (or, in the case of a partnership or joint venture, having the
majority interest in the capital or profits of such entity).



          “Successor Bank” has the meaning assigned to that term in Section 5.18(b).



          “Syndicated Advance” means an advance by a Bank to the Borrower (i) pursuant to
Section 2.02, as the same may be converted or continued from time to time pursuant to
Section 2.03 or (ii) pursuant to Section 4.06. At any time, depending upon the
interest rate selected therefor or otherwise applicable thereto in accordance with Sections
2.03 and 5.01, a Syndicated Advance shall be a Base Rate Advance, a Eurocurrency Rate
Advance or a EURIBOR Rate Advance.



          “Syndicated Borrowing” means a borrowing consisting of Syndicated Advances of the same
Type and in the same currency, made on the same day by the Banks, as the same may be converted or
continued from time to time pursuant to Section 2.03 and after giving effect to any
subsequent Conversion in connection with which a single Syndicated Borrowing may have been divided
into several Syndicated Borrowings or several Syndicated Borrowings may have been combined (in
whole or in part) into a single Syndicated Borrowing. An Advance substituted, pursuant to
Section 5.01, for a Syndicated Advance made in connection with any Syndicated Borrowing
shall continue to comprise a part of such Syndicated Borrowing with the same effect as if such
substituted Advance were an Advance of the Type requested in the applicable Notice of Syndicated
Borrowing or Notice of Interest Rate Election.



          “Syndicated Borrowing Facility” has the meaning assigned to that term in Section
2.01.



          “Syndicated Reduction” means, with respect to any Bank at any time, the temporary
reduction in such Bank’s Available Commitment existing at such time as a result of clause
(ii) of the definition of Available Commitment and, with respect to all Banks, the aggregate
amount of such reductions existing at such time.



16









 





          “Syndication Agents” means Bank of America, N.A. and Citibank , N.A., in their
capacity as Syndication Agents.



          “TARGET Settlement Day” means any day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System (or any successor settlement system) is open.



          “Taxes” has the meaning assigned to that term in Section 5.15(a).



          “TB Advance” has the meaning assigned to that term in Section 5.18(c).



          “Terminated Bank” has the meaning assigned to that term in Section 5.18(b).



          “Termination Date” means, the earlier of (i) June 17, 2015, and (ii) the date on which
the Commitments shall have been reduced to zero or terminated in whole pursuant to the terms
hereof.



          “Termination Notice” has the meaning assigned to that term in Section 5.18(b).



          “Type” of Advance means (i) in the case of Syndicated Advances, Eurocurrency Rate
Advances, EURIBOR Rate Advances or Base Rate Advances and (ii) in the case of Competitive Bid
Advances, Eurocurrency Bid Rate Advances, EURIBOR Bid Rate Advances or Absolute Rate Advances or
any Type of Advance described in clause (i) which shall, pursuant to Section 5.01,
be substituted therefor.



          “Unfunded Liability” means, in the case of a Plan, the amount, if any, by which the
present value of all vested benefits accrued to the date of determination under such Plan exceeds
the fair market actuarial value of all assets of such Plan allocable to such benefits as of such
date, calculated as of the most recent valuation date for such Plan by the Plan’s enrolled actuary
using the actuarial assumptions used to calculate the Plan’s minimum funding obligation under
ERISA.



          “Unmatured Event of Default” means an event which would constitute an Event of Default
but for the requirement that notice be given or time elapse or both.



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



          SECTION 1.02. Computation of Time Periods. In this Agreement, when computing periods
of time from a specified date to a later specified date, the word “from” means “from and including”
and the words “to” and “until” each mean “to but excluding.”



          SECTION 1.03. Accounting Terms and Principles. All accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time, applied on a basis consistent (except for
changes concurred in by the Borrower’s independent accountants or, in the case of the financial
statements required to be delivered pursuant to Section 8.01(f)(i), as



17









 




determined by the Borrower to be required in accordance with then existing generally accepted
accounting principles) with the December 31, 2010 audited Consolidated financial statements of the
Borrower and its Consolidated Subsidiaries.




ARTICLE II




THE SYNDICATED BORROWING FACILITY



          SECTION 2.01. The Syndicated Borrowing Facility. Each Bank severally agrees, on the
terms and conditions provided herein, to make Syndicated Advances denominated in Agreed Currencies
to the Borrower from time to time on any Business Day during the period from the date hereof to the
Termination Date in an aggregate Dollar Amount not to exceed at any time outstanding the amount of
such Bank’s Available Commitment (the “Syndicated Borrowing Facility”). Subject to
Section 5.01, each Syndicated Borrowing shall be in an aggregate amount not less than
$25,000,000 (and in integral multiples of $5,000,000 in excess thereof) (or the Approximate Dollar
Amounts thereof if such Syndicated Advances are denominated in Agreed Currencies other than
Dollars), shall be made on the same day from the Banks ratably according to their respective
Commitments and shall consist of Syndicated Advances of the same Type. Within the limits of each
Bank’s Available Commitment, the Borrower may borrow Syndicated Advances under this Section
2.01, maintain Syndicated Advances outstanding by Converting such Syndicated Advances pursuant
to Section 2.03, or prepay Syndicated Advances pursuant to Section 5.12, and
re-borrow Syndicated Advances under this Section 2.01. The Aggregate Commitments to lend
hereunder shall expire on the Termination Date.



          SECTION 2.02. Making the Syndicated Advances. Each Syndicated Borrowing shall be
requested by facsimile notice given by the Borrower to the Administrative Agent not later than (i)
10:00 a.m. (Local Time) three (3) Business Days (or with respect to Agreed Currencies other than
Dollars, four (4) Business Days) prior to the proposed Borrowing Date, in the case of a Borrowing
comprised of Eurocurrency Rate Advances or EURIBOR Rate Advances, and (ii) 9:00 a.m. (Chicago time)
on the proposed Borrowing Date, in the case of a Borrowing comprised of Base Rate Advances;
provided that in the case of a Borrowing comprised of Eurocurrency Rate Advances or EURIBOR
Rate Advances, a copy of such facsimile notice shall also be given by the Borrower to J.P. Morgan
Europe Limited. Each notice of Syndicated Borrowing pursuant to this Section 2.02 (a
“Notice of Syndicated Borrowing”) shall be in substantially the form of Exhibit
2.02 hereto, specifying the proposed Borrowing Date, Type of Syndicated Advances, aggregate
amount of the proposed Syndicated Borrowing and the Interest Period, if any, and Agreed Currency
applicable thereto for each such Syndicated Advance, and shall include such information as shall be
required by Section 8.01(g). The Administrative Agent shall in turn promptly notify each
Bank by facsimile of the date, applicable interest rate and aggregate amount of such Syndicated
Borrowing and such Bank’s ratable portion of such Syndicated Borrowing. Each Bank, for the account
of its Applicable Lending Office, shall (i) with respect to a Syndicated Borrowing denominated in
Dollars, before 12:00 Noon (Chicago time) on the Borrowing Date specified in the notice received
from the Administrative Agent pursuant to the preceding sentence, deposit such Bank’s ratable
portion of such Syndicated Borrowing in same day funds to the Administrative Agent’s LS2 Incoming
Clearing Account No. 5927684 (ABA No. 071000013) (unless another account is designated by
the Administrative Agent for such purpose), Reference: Baxter International Inc., maintained
at



18









 







1 Chase Tower, Chicago, Illinois and (ii) with respect to a Syndicated Borrowing denominated in
an Agreed Currency other than Dollars, before 12:00 Noon (Local Time) in the city of the
Administrative Agent’s account as specified by the Administrative Agent to the Banks, on the
Borrowing Date specified in the notice received from the Administrative Agent pursuant to the
preceding sentence, deposit such Bank’s ratable portion of such Syndicated Borrowing in such funds
as may then be customary for the settlement of international transactions in such Agreed Currency
in such account of the Administrative Agent. After the Administrative Agent’s receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article VI, the
Administrative Agent shall make same day funds in the amount of such funds available to the
Borrower by 2:00 p.m. (Local Time) on the date of Borrowing, at the account specified by the
Borrower in the applicable Notice of Syndicated Borrowing.



          SECTION 2.03. Method of Electing Interest Rates.




     (a) The Advances included in each Syndicated Borrowing shall bear interest initially at
the type of rate specified by the Borrower in the applicable Notice of Syndicated Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the Interest
Period for each Borrowing (subject in each case to the provisions of Article V)
consisting of Eurocurrency Rate Advances and EURIBOR Rate Advances, as follows:




     (i) if such Advances are Base Rate Advances, the Borrower may elect to (A)
convert such Advances to Eurocurrency Rate Advances or (B) continue such Advances as
Base Rate Advances, in each case effective as of any Business Day;




     (ii) if such Advances are Eurocurrency Rate Advances, the Borrower may elect to
continue such Advances as Eurocurrency Rate Advances for an additional Interest
Period, effective on the last day of the then current Interest Period applicable to
such Advances; and




     (iii) if such Advances are EURIBOR Rate Advances, the Borrower may elect to
continue such Advances as EURIBOR Rate Advances for an additional Interest Period,
effective as of the last day of the then current Interest Period applicable to such
Advances.


Each such election shall be made by delivering a notice (a “Notice of Interest Rate
Election”) to the Administrative Agent by not later than 10:00 a.m. (Local Time) at least three
(3) Business Days before the conversion or continuation selected in such notice is to be effective;
provided that in the case of an election comprised of Eurocurrency Rate Advances or EURIBOR
Rate Advances, a copy of such Notice of Interest Rate Election shall also be given by the Borrower
to J.P. Morgan Europe Limited. If the Borrower shall fail to issue a Notice of Interest Rate
Election within three (3) Business Days prior to the end of any Interest Period (unless the
Borrower shall have issued a notice of prepayment in respect of the applicable Borrowing in
accordance with Section 5.12), the Advances comprising such Borrowing shall be, as
applicable, converted into or continued as Base Rate Advances or shall be, as applicable, continued
as a Eurocurrency
Advance or EURIBOR Advance, as applicable, in the same Agreed Currency with an Interest


19









 






 Period of
one (1) month (with respect to an Advance denominated in an Agreed Currency other than Dollars). A
Notice of Interest Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Borrowing; provided that (i) such portion is allocated
ratably among the Advances comprising such Borrowing and (ii) the portion to which such Notice of
Interest Rate Election applies, and the remaining portion to which it does not apply, are each
$25,000,000 or any larger multiple of $5,000,000 (or the Approximate Dollar Amounts thereof if such
Syndicated Advances are denominated in Agreed Currencies other than in Dollars). Notwithstanding
any contrary provision herein, this Section shall not be construed to permit the Borrower to change
the currency of any Borrowing.





     (b) Each Notice of Interest Rate Election shall be substantially in the form of
Exhibit 2.03 hereto and shall specify:




     (i) the Borrowing (or portion thereof) to which such notice applies;




     (ii) the date on which the conversion or continuation selected in such notice
is to be effective, which shall comply with the applicable clause of subsection
(a) above;




     (iii) if the Advances comprising such Borrowing are to be converted, the next
Type of Advances; and




     (iv) the duration of the new Interest Period (if any).


Each Interest Period specified in a Notice of Interest Rate Election shall comply with the
provisions of the definition of Interest Period. Each Notice of Interest Rate Election shall be
irrevocable when given by the Borrower.





     (c) Upon receipt of a Notice of Interest Rate Election from the Borrower pursuant to
subsection (a) above, the Administrative Agent shall promptly notify each Bank of
the contents thereof.




     (d) Upon the occurrence, and during the continuance, of an Event of Default, the
Administrative Agent may (and, at the direction of the Majority Banks, the Administrative
Agent shall) suspend the ability of the Borrower to obtain Conversions of Syndicated
Borrowings into Eurocurrency Rate Advances or EURIBOR Rate Advances, and each Conversion
proposed to occur during any such period of suspension shall, in the case of an Advance
denominated in Dollars, be a Conversion into Base Rate Advances or shall, in the case of an
Advance denominated in an Agreed Currency other than Dollars, be continued as a Eurocurrency
Advance or EURIBOR Advance, as applicable, in the same Agreed Currency with an Interest
Period of one (1) month. Such suspension shall become effective upon notice thereof to the
Borrower and each of the Banks, and shall remain in effect until the Event of Default giving
rise to such notice is cured or waived.



          SECTION 2.04. Determination of Dollar Amounts; Required Payments; Termination.




     (a) The Administrative Agent will determine the Dollar Amount of:



20









 






     (i) each Advance as of the date three (3) Business Days prior to the Borrowing
Date or, if applicable, date of conversion/continuation of such Advance, and




     (ii) all outstanding Advances on and as of the last Domestic Business Day of
each quarter and on any other Business Day elected by the Administrative Agent in
its discretion or upon instruction by the Majority Banks.


Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the
preceding clauses (i) and (ii) is herein described as a “Computation Date” with respect to
each Advance for which a Dollar Amount is determined on or as of such day. If at any time the
Dollar Amount of the sum of the aggregate principal amount of all outstanding Advances (calculated,
with respect to those Advances denominated in an Agreed Currency other than Dollars, as of the most
recent Computation Date with respect to each such Advance) plus the aggregate amount of any
L/C Obligations (net of any Reimbursement Obligations that shall have been converted to Syndicated
Borrowings) exceeds 105% of the Aggregate Commitments, the Borrower shall immediately repay
Advances (and/or cash collateralize any outstanding Letters of Credit) in an aggregate principal
amount sufficient to cause the remaining outstanding Advances and L/C Obligations not to exceed the
Aggregate Commitments.





     (b) Any outstanding Advances and all other unpaid amounts due and payable hereunder
shall be paid in full by the Borrower on the Termination Date.



          SECTION 2.05. Increase in Aggregate Commitment. The Borrower may, at its option, on
one or more occasions, seek to increase the Aggregate Commitments by up to $500,000,000 up to a
maximum Aggregate Commitment of $2,000,000,000 upon at least five (5) Domestic Business Days’ prior
notice to the Administrative Agent, which notice shall specify the amount of any such requested
increase and shall be delivered at a time when no Event of Default or Unmatured Event of Default
has occurred and is continuing. The Administrative Agent, in consultation with the Borrower, will
offer the increase in the Aggregate Commitments to banks or other financial institutions (which
increase may be declined by any Bank in its sole discretion). If and to the extent that such
increase is accepted by banks or other financial institutions that are not Banks hereunder, each
such bank or other financial institution shall be consented to by the Administrative Agent and the
Issuing Banks (which consents shall not be unreasonably withheld or delayed). The Administrative
Agent shall reallocate the direct (in the case of Advances, other than Competitive Bid Advances) or
participation (in the case of Letters of Credit) interest in each then outstanding Advance and
Letter of Credit such that, after giving effect to any increase by a new or existing Bank, all
credit exposure (other than Competitive Bid Advances) hereunder is held ratably by the Banks in
proportion to their respective Commitments. If such assignments are made other than on the last
day of the relevant Interest Period for the EURIBOR Advance or Eurocurrency Advances, as
applicable, being assigned, the Borrower shall, upon demand by any existing Bank (with a copy of
such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Bank any amounts required to
compensate such Bank for any costs referred to in Section 11.04(b) which it may reasonably
incur as a result of such reallocation. No increase in the Aggregate Commitments shall become
effective until the existing Bank or new Bank extending such incremental commitment amount and the
Borrower shall have executed and delivered to the Administrative Agent an agreement in



21









 







writing in
form and substance reasonably acceptable to the Administrative Agent pursuant to which such Bank
states its Commitment and agrees to assume and accept the obligations and rights of a Bank
hereunder.



ARTICLE III




THE COMPETITIVE BID BORROWING FACILITY



          SECTION 3.01. The Competitive Bid Facility. Each Bank severally agrees, on the terms
and conditions provided herein, to make available to the Borrower a competitive bid borrowing
facility (the “Competitive Bid Borrowing Facility”) pursuant to which the Borrower may,
from time to time on any Business Day during the period from the date hereof to the Termination
Date and as otherwise set forth in this Article III, request all of the Banks or certain
Banks specified by the Borrower to offer to make Competitive Bid Advances denominated in Agreed
Currencies to the Borrower. Each Bank of which any such request shall be made may, but shall have
no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept
any such offer in the manner set forth in this Article III. The Competitive Bid Borrowing
Facility is an entirely separate facility from the Syndicated Borrowing Facility; provided
that at no time shall the Facility Usage exceed the Aggregate Commitments at such time (except that
under the circumstances set forth in the last sentence of Section 2.04(a), due to currency
fluctuations, Facility Usage may equal up to 105% of the Aggregate Commitments). Within the limits
and on the conditions set forth in this Article III, the Borrower may from time to time
borrow, repay and re-borrow under this Article III.



          SECTION 3.02. Competitive Bid Quote Request. When the Borrower wishes to request
offers to make Competitive Bid Advances under this Article III, it shall deliver to the
Administrative Agent a Competitive Bid Quote Request by telecopier or telex so as to be received no
later than (x) 10:00 a.m. (Local Time) at least four (4) Business Days prior to the Borrowing Date
proposed therein, in the case of a Eurocurrency Auction or EURIBOR Auction or (y) 9:00 a.m.
(Chicago time) at least one (1) Business Day prior to the Borrowing Date proposed therein, in the
case of an Absolute Rate Auction (or, in either case upon reasonable prior notice to the Banks,
such other time and date as the Borrower and the Administrative Agent may agree), specifying:




     (a) the proposed Borrowing Date, which shall be a Business Day, for the proposed
Competitive Bid Advances;




     (b) the aggregate principal amount and currency of such Competitive Bid Advances;




     (c) whether the Competitive Bid Quotes requested are to set forth a Competitive Bid
Margin (and, if so, whether based on a Eurocurrency Rate or EURIBOR) or an Absolute Rate, or
both;




     (d) the Interest Period and Agreed Currency applicable thereto; and




     (e) if fewer than all Banks are to be solicited, the names of the Banks to be
solicited; provided that the Borrower shall not specify fewer than all of the Banks,
and



22









 







the Administrative Agent shall reject any Competitive Bid Quote Request that specifies
fewer than all of the Banks, if the aggregate Dollar Amount of all Competitive Bid Advances
which will be outstanding after giving effect to the Competitive Bid Advances requested in
such Competitive Bid Quote Request and which shall have been made in response to one or more
Competitive Bid Quote Requests that specified fewer than all of the Banks exceeds
$150,000,000.



          In the case of a Eurocurrency Auction or EURIBOR Auction, such Competitive Bid Quote Request
shall also be delivered by telecopier or telex by the Borrower to J.P. Morgan Europe Limited. The
Borrower may request offers to make Competitive Bid Advances for more than one (1) Interest Period,
but not more than eight (8) Interest Periods, in a single Competitive Bid Quote Request. No
Competitive Bid Quote Request shall be given within five (5) Business Days (or such other number of
days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote
Request. A Competitive Bid Quote Request that does not conform substantially to the format of
Exhibit 3.02 hereto shall be rejected, and the Administrative Agent shall promptly notify
the Borrower of such rejection by telex or telecopy.



          SECTION 3.03. Invitation for Competitive Bid Quotes. The Administrative Agent shall
(a) promptly upon receipt of a Competitive Bid Quote Request that is not rejected pursuant to
Section 3.02, and in any event not later than (i) 11:00 a.m. (Local Time) on the date of
receipt of a Competitive Bid Quote Request, in the case of a Eurocurrency Auction or a EURIBOR
Auction, and (ii) 10:00 a.m. (Chicago time) on the date of receipt of a Competitive Bid Quote
Request, in the case of an Absolute Rate Auction, provide notice by facsimile, telex or telecopy to
each of the Banks (or, if fewer than all of the Banks shall have been specified therein, to each of
the specified Banks) of the request set forth therein, and (b) promptly thereafter provide to each
such Bank by facsimile, telex or telecopy a copy of such Competitive Bid Quote Request or a summary
of the contents thereof. If, pursuant to Section 3.02, the Borrower and the Administrative
Agent shall agree as to times for the delivery of a Competitive Bid Quote Request other than those
set forth in Section 3.02, and shall notify the Banks thereof, such notice to the Banks
shall set forth in addition any changes in the times set forth in this Section 3.03. A
Competitive Bid Quote Request shall not be revocable at any time after the Administrative Agent’s
notice to the Banks by facsimile, telex or telecopy of such Competitive Bid Quote Request.



          SECTION 3.04. Submission and Contents of Competitive Bid Quotes.




     (a) Each Bank receiving notice of a Competitive Bid Quote Request from the
Administrative Agent pursuant to Section 3.03 may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make Competitive Bid Advances
in response to such Competitive Bid Quote Request. Each Competitive Bid Quote must
comply with the requirements of this Section 3.04 and must be submitted to the
Administrative Agent by
telex or telecopy at its offices specified in or pursuant to
Section 11.02 not later than (x) 1:00 p.m. (Local Time) at least three (3) Business
Days prior to the proposed Borrowing Date, in the case of a Eurocurrency Auction or a
EURIBOR Auction or (y) 9:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case
of an Absolute Rate Auction (or, in either case upon reasonable prior notice to the Banks,
such other time and date as the Borrower and the Administrative Agent may



23









 






agree);
provided that Competitive Bid Quotes submitted by JPMorgan Chase may be submitted,
and may only be submitted, if the Administrative Agent or JPMorgan Chase notifies the
Borrower of the terms of the offer or offers contained therein not later than (x) one hour
prior to the time all other Banks are required hereunder to submit Competitive Bid Quotes to
the Administrative Agent, in the case of a Eurocurrency Auction or a EURIBOR Auction or (y)
fifteen minutes prior to the time all other Banks are required hereunder to submit
Competitive Bid Quotes to the Administrative Agent, in the case of an Absolute Rate Auction.
Subject to Articles VI and IX, any Competitive Bid Quote so made shall be
irrevocable except with the written consent of the Administrative Agent and the Borrower.




     (b) Each Competitive Bid Quote shall be in substantially the form of Exhibit
3.04 hereto and shall in any case specify:




     (i) the proposed Borrowing Date, which shall be the same as that set forth in
the applicable Competitive Bid Quote Request;




     (ii) the principal amount of the Competitive Bid Advance for which each such
offer is being made, which principal amount (1) may be greater than, less than or
equal to the Commitment of the quoting Bank, (2) must be at least $10,000,000 and an
integral multiple of $1,000,000 in excess thereof (or the Approximate Dollar Amount
if denominated in an Agreed Currency other than Dollars), (3) may not exceed the
aggregate principal amount of Competitive Bid Advances for which offers were
requested and (4) must be identified with an Interest Period and the Agreed Currency
specified in the applicable Competitive Bid Quote Request;




     (iii) in the case of a Eurocurrency Auction or a EURIBOR Auction, whether the
basis of such offer is the Eurocurrency Rate or EURIBOR and the Competitive Bid
Margin offered for each such Competitive Bid Advance;




     (iv) in the case of an Absolute Rate Auction, the Absolute Rate offered for
each such Competitive Bid Advance;




     (v) the identity of the quoting Bank; and




     (vi) if the quoting Bank shall therein make offers with respect to more than
one Type of Competitive Bid Advance, or at several rates or for several Interest
Periods, in each case as shall have been requested by the Borrower in the
applicable Competitive Bid Quote Request, the maximum aggregate principal
amount with respect to all such Competitive Bid Advances that such Bank shall be
willing to extend to the Borrower on such proposed Borrowing Date.




     (c) The Administrative Agent shall reject any Competitive Bid Quote that:




     (i) is not substantially in the form of Exhibit 3.04 hereto or does not
specify all of the information required by Section 3.04(b);



24









 






     (ii) contains qualifying, conditional or similar language, other than any such
language contained in Exhibit 3.04 hereto;




     (iii) proposes terms other than or in addition to those set forth in the
applicable Competitive Bid Quote Request; or




     (iv) arrives after the time set forth in Section 3.04(a).




If any Competitive Bid Quote shall be rejected pursuant to this Section
3.04(c), the Administrative Agent shall notify the relevant Bank of such
rejection as soon as practical.



          SECTION 3.05. Notice to the Borrower. The Administrative Agent shall promptly notify
the Borrower of the terms (i) of any Competitive Bid Quote submitted by a Bank that is in
accordance with Section 3.04 and (ii) of any Competitive Bid Quote submitted by a Bank
which amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted
by such Bank with respect to the same Competitive Bid Quote Request. Any such subsequent
Competitive Bid Quote shall be disregarded by the Administrative Agent unless such subsequent
Competitive Bid Quote specifically states that it is submitted solely to correct a manifest error
in such former Competitive Bid Quote. The Administrative Agent’s notice to the Borrower shall
specify the aggregate principal amount of Competitive Bid Advances for which offers have been
received for each Interest Period specified in the related Competitive Bid Quote Request and the
respective principal amounts and Competitive Bid Margins or Absolute Rates, as the case may be, so
offered.



          SECTION 3.06. Acceptance and Notice by the Borrower. Not later than (x) 10:00 a.m.
(Local Time) at least two (2) Business Days prior to the proposed Borrowing Date, in the case of a
Eurocurrency Auction or EURIBOR Auction or (y) 10:00 a.m. (Chicago time) on the proposed Borrowing
Date, in the case of an Absolute Rate Auction (or, in either case upon reasonable prior notice to
the Banks, such other time and date as the Borrower and the Administrative Agent may agree), the
Borrower shall notify the Administrative Agent of its acceptance or non-acceptance of any or all of
the offers so notified to it pursuant to Section 3.05; provided that in the case of
a Eurocurrency Auction or EURIBOR Auction, the Borrower shall also notify J.P. Morgan Europe
Limited of its acceptance or non-acceptance of any or all of such Eurocurrency Auctions or EURIBOR
Auctions so notified to it pursuant to Section 3.05; provided, however,
that the failure by the Borrower to give such notice to the Administrative Agent or J.P. Morgan
Europe Limited, as applicable, with respect to any such offer shall be deemed to be a rejection of
such offer. In the case of acceptance, such notice (a “Notice of
Competitive Bid Borrowing”) shall be substantially in the form of Exhibit 3.06
hereto and shall specify the aggregate principal amount of offers for each Interest Period that are
accepted. The Borrower may accept any Competitive Bid Quote in whole or in part; provided
that:




     (a) the aggregate principal amount of Competitive Bid Advances may not exceed the
applicable amount set forth in the related Competitive Bid Quote Request;




     (b) acceptance of offers may only be made on the basis of ascending Competitive Bid
Margins or Absolute Rates, as the case may be, starting with the lowest



25









 







and continuing with
the next lowest until offers in the aggregate amount specified by the Borrower for
acceptance shall have been accepted; and




     (c) the Borrower may not accept any offer that is described in Section 3.04(c)
or that otherwise fails to comply with the requirements of this Agreement.



          SECTION 3.07. Allocation by Administrative Agent. If offers are made by two (2) or
more Banks with the same Competitive Bid Margins or Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which offers remain to be
accepted, as specified by the Borrower, for the related Interest Period (after giving effect to the
acceptance of all offers made at lower rates), the principal amount of Competitive Bid Advances in
respect of which such offers are accepted shall be allocated by the Administrative Agent among such
Banks as nearly as practicable (in such multiples, not greater than $5,000,000 (or the Approximate
Dollar Amount if denominated in an Agreed Currency other than in Dollars), as the Administrative
Agent may deem appropriate) in proportion to the aggregate principal amount of such offers.
Allocations by the Administrative Agent of the amounts of Competitive Bid Advances shall be
conclusive in the absence of manifest error.



          SECTION 3.08. Notification of Acceptances to the Affected Banks. The Administrative
Agent shall (a) promptly following its receipt of a Notice of Competitive Bid Borrowing and in any
event not later than 11:00 a.m. (Local Time) on the date of its receipt of such Notice of
Competitive Bid Borrowing, provide notice by facsimile, telex or telecopy to each Bank that has
made a Competitive Bid Quote of the extent to which its offer or offers have been accepted,
specifying in such notice the principal amount of each Competitive Bid Advance in respect of which
such Competitive Bid Quote has been accepted, the Interest Period therefor and the Competitive Bid
Margin or Absolute Rate therefor, as applicable and (b) promptly thereafter provide notice to such
Banks by telex or telecopy confirming the same. If, pursuant to Section 3.06, the Borrower
and the Administrative Agent shall agree as to times for the delivery of a Notice of Competitive
Bid Borrowing other than those set forth in Section 3.06, and shall notify the Banks
thereof, such notice to the Banks shall set forth in addition any changes in the times set forth in
this Section 3.08.



          SECTION 3.09. Funding of Competitive Bid Advances. Each Bank that is to make a
Competitive Bid Advance in connection with any Notice of Competitive Bid Borrowing shall, (i) with
respect to a Competitive Bid Advance denominated in Dollars, before 12:00 Noon (Chicago time) on
the first day of the Interest Period therefor specified in the notice from the Administrative Agent
delivered pursuant to Section 3.08, deposit the amount of each of such Bank’s Competitive
Bid Advances in same day funds to the Administrative Agent’s LS2
Incoming Clearing Account No. 5927684 (ABA No. 071000013), Reference: ASST (unless another
account is designated by the Administrative Agent for such purpose), Reference: Baxter
International Inc., maintained at 1 Chase Tower, Chicago, Illinois and (ii) with respect to a
Competitive Bid Advance denominated in an Agreed Currency other than in Dollars, before 12:00 Noon
(Local Time) in the city of the Administrative Agent’s EURIBOR Lending Office, on the first day of
the Interest Period therefor specified in the notice from the Administrative Agent delivered
pursuant to Section 3.08, deposit the amount of each of such Bank’s Competitive Bid
Advances in such funds as may then be customary for the settlement of international transactions in
such Agreed Currency in the city of and at the address of the



26









 







Administrative Agent’s EURIBOR
Lending Office. After the Administrative Agent’s receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article VI, the Administrative Agent shall make same day
funds in the applicable currency or currencies and in the aggregate amount of such Competitive Bid
Advances available to the Borrower by 2:00 p.m. (Local Time) on the date of Borrowing, at the
account specified by the Borrower in the applicable Notice of Competitive Bid Borrowing. Promptly
following each Competitive Bid Advance, the Administrative Agent shall notify each Bank of the
amount thereof, the consequent Syndicated Reduction and the Interest Periods for such Competitive
Bid Advances.



ARTICLE IV




THE LETTER OF CREDIT FACILITY



          SECTION 4.01. Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations, warranties and covenants of the Borrower herein
set forth, each Issuing Bank hereby agrees to issue for the account of the Borrower through such
Issuing Bank’s branches as it and the Borrower may jointly agree, one (1) or more Letters of Credit
in accordance with this Article IV, from time to time during the period commencing on the
date hereof and ending no later than five (5) Business Days prior to the Termination Date, except
as set forth in clause (ii) of Section 4.02. On the Closing Date each Existing
Letter of Credit shall be deemed to be a Letter of Credit issued under and governed in all respects
by the terms and conditions of this Agreement, and each Bank shall participate in each Existing
Letter of Credit in an amount equal to its pro rata share of the Aggregate Commitments.



          SECTION 4.02. Types and Amounts. No Issuing Bank shall have any obligation to and no
Issuing Bank shall:




     (i) issue any Letter of Credit if on the date of issuance, before or after
giving effect to the Letter of Credit requested hereunder, (a) the Facility Usage at
such time would exceed the Aggregate Commitments at such time, or (b) the aggregate
outstanding amount of the L/C Obligations would exceed $375,000,000; or




     (ii) issue any Letter of Credit which has an expiration date (or date for
payment of any draft presented thereunder) later than the date which is five (5)
Business Days immediately preceding the Termination Date; provided,
however, that an Issuing Bank may issue a Letter of Credit which has an
expiration date (or date for payment of any draft presented thereunder) later
than the date which is five (5) Business Days immediately preceding the Termination
Date so long as the Borrower has cash collateralized on or prior to the date of
issuance, such Letter of Credit in an aggregate principal amount agreed to between
the Borrower and such Issuing Bank. Notwithstanding the foregoing, no Letter of
Credit shall be issued which has an expiration date that is more than three (3)
years beyond the Termination Date.



27









 





          SECTION 4.03. Conditions.




     (a) In addition to being subject to the satisfaction of the conditions contained in
Sections 6.01 and 6.02, the obligation of an Issuing Bank to issue any
Letter of Credit is subject to the satisfaction in full of the following conditions:




     (i) the Borrower shall have delivered to the applicable Issuing Bank (with a
copy to the Administrative Agent) an L/C Application in the manner prescribed in
Section 4.04, and the proposed Letter of Credit shall be reasonably
satisfactory to such Issuing Bank as to form and content; and




     (ii) as of the date of issuance, no order, judgment or decree of any court,
arbitrator or Governmental Authority shall purport by its terms to enjoin or
restrain the applicable Issuing Bank from issuing such Letter of Credit and no law,
rule or regulation applicable to such Issuing Bank and no request or directive
(whether or not having the force of law) from a Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit or request that such Issuing Bank
refrain from the issuance of Letters of Credit generally or the issuance of that
Letter of Credit or shall impose upon the Issuing Bank with respect to any Letter of
Credit any restriction or reserve or capital requirement (for which the Issuing Bank
is not otherwise compensated) or any unreimbursed loss, cost or expense which was
not applicable, in effect and known to the Issuing Bank as of the date of this
Agreement and which the Issuing Bank in good faith deems material to it.




     (b) No Issuing Bank shall extend, renew, or amend any Letter of Credit unless the
requirements of this Section 4.03 are met as though a new Letter of Credit were then
being requested and issued.



          SECTION 4.04. Procedure for Issuance of Letters of Credit.




     (a) Prior to the issuance of each Letter of Credit, and as a condition of such
issuance, the Borrower shall deliver to the Issuing Bank (with a copy to the Administrative
Agent) an L/C Application signed by the Borrower, together with such other documents or
items as may be required pursuant to the terms thereof. Unless the Issuing Bank shall
otherwise agree, each Letter of Credit shall be issued no earlier than two (2) Business Days
after delivery of the foregoing documents, which delivery may be by the Borrower to the
Issuing Bank by facsimile transmission, telex or other electronic means followed by delivery
of executed originals within five (5) days thereafter. The
documents so delivered shall be in compliance with the requirements set forth in
Sections 4.02 and 4.03, and shall specify therein (i) the stated amount of
the Letter of Credit requested, (ii) the effective date of issuance of such requested Letter
of Credit, which shall be a Business Day, (iii) the date on which such requested Letter of
Credit is to expire, which shall be a Business Day not later than five (5) Business Days
prior to the Termination Date, except as permitted in Section 4.02(ii), and (iv) the
aggregate amount of L/C Obligations which are outstanding and which will be outstanding
after giving effect to the requested Letter of Credit issuance. Subject to the terms and
conditions of



28









 







Sections 4.02 and 4.03, and provided that the applicable
conditions set forth in Sections 6.01 and 6.02 shall, to the knowledge of
the Issuing Bank, have been satisfied, the Issuing Bank shall, on the requested date, issue
a Letter of Credit on behalf of the Borrower in accordance with the Issuing Bank’s usual and
customary business practices (and a copy of such issued Letter of Credit shall be delivered
by the Issuing Bank to the Administrative Agent). In addition, any amendment of an existing
Letter of Credit that has the effect of increasing the face amount thereof or extending the
expiration date thereof shall be deemed to be an issuance of a new Letter of Credit and
shall be subject to the requirements of this Section 4.04.




     (b) The applicable Issuing Bank shall give the Administrative Agent written or telex
notice of the issuance of a Letter of Credit; provided, however, that the
failure to provide such notice shall not result in any liability on the part of such Issuing
Bank.




     (c) Notwithstanding anything contained in any L/C Application or any document executed
in connection therewith to the contrary, in the event any term or provision of such L/C
Application or other document is inconsistent with any term or provision of this Agreement,
the terms and provisions of this Agreement shall control and prevail.



          SECTION 4.05. Letter of Credit Participation. Unless a Bank shall have notified the
Issuing Bank, prior to its issuance of a Letter of Credit, that any applicable condition precedent
set forth in Sections 6.01 or 6.02 had not then been satisfied, immediately upon
the issuance of each other Letter of Credit hereunder, each Bank shall be deemed to have
automatically, irrevocably and unconditionally purchased and received from the applicable Issuing
Bank an undivided interest and participation in and to such Letter of Credit, the obligations of
the Borrower in respect thereof, and the liability of such Issuing Bank thereunder (collectively,
as to each Bank, an “L/C Interest”) in an amount equal to the amount available for drawing
under such Letter of Credit multiplied by such Bank’s pro rata share of the Aggregate Commitments.
Each Issuing Bank will notify each Bank that has a Commitment promptly upon presentation to it of
an L/C Draft or upon any other draw under a Letter of Credit. On or before the Business Day on
which an Issuing Bank makes payment of each such L/C Draft or, in the case of any other draw on a
Letter of Credit, on demand by the Administrative Agent, each Bank shall make payment to the
Administrative Agent, for the account of the applicable Issuing Bank, in immediately available
funds in an amount equal to the amount of the payment under the L/C Draft or other draw on the
Letter of Credit multiplied by such Bank’s pro rata share of the Aggregate Commitments. Except to
the extent set forth in the last sentence of this Section 4.05, the obligation of each Bank to
reimburse the Issuing Banks under this Section 4.05 shall be
unconditional, continuing, irrevocable and absolute without counterclaim or set-off;
provided, however, the obligation of each Bank shall not extend to payments made
under a Letter of Credit resulting from the Issuing Bank’s gross negligence or willful misconduct
in honoring any L/C Draft. In the event that any Bank fails to make payment to the Administrative
Agent of any amount due under this Section 4.05, the Administrative Agent shall be entitled
to receive, retain and apply against such obligation the principal and interest otherwise payable
to such Bank hereunder until the Administrative Agent receives such payment from such Bank or such
obligation is otherwise fully satisfied, and such Bank shall pay to the Administrative Agent, for
the account of the applicable Issuing Bank, interest on the amount of such Bank’s outstanding



29









 







obligation at the Federal Funds Rate; provided, however, that nothing contained in
this sentence shall relieve such Bank of its obligation to reimburse the applicable Issuing Bank
for such amount in accordance with this Section 4.05. Notwithstanding the foregoing, no
Bank shall have any reimbursement, payment or other obligation with respect to any Letter of Credit
issued pursuant to the proviso in Section 4.02(ii) hereof.



          SECTION 4.06. Reimbursement Obligation. The Borrower agrees unconditionally,
irrevocably and absolutely to pay immediately to the Administrative Agent, for the account of the
Banks which have Commitments, the amount of each drawing made under or pursuant to a Letter of
Credit (such obligation of the Borrower to reimburse the Administrative Agent for a drawing made
under a Letter of Credit being hereinafter referred to as a “Reimbursement Obligation” with
respect to such Letter of Credit) plus all other charges and expenses with respect thereto
specified in Section 4.07 or in the applicable L/C Application. If the Borrower at any
time fails to repay a Reimbursement Obligation pursuant to this Section 4.06, the Borrower
shall be deemed to have elected to borrow under a Syndicated Borrowing, as of the date of the
drawing giving rise to the Reimbursement Obligation and equal in amount to the amount of the unpaid
Reimbursement Obligation. Such Syndicated Borrowing shall be made automatically, without notice
and without any requirement to satisfy the conditions precedent otherwise applicable to a
Syndicated Borrowing. Such Syndicated Borrowing shall be comprised of Base Rate Advances made by
the Banks, each Advance being in the amount of the portion of the related drawing that shall have
been funded by the applicable Bank. The proceeds of such Syndicated Borrowing shall be used to
repay such Reimbursement Obligation.



          SECTION 4.07. Issuing Bank Charges. In addition to the fees described in Section
5.04(c), the Borrower agrees to pay to each Issuing Bank, (i) on the date of issuance of each
Letter of Credit (or on such other date as may be agreed between the Borrower and the applicable
Issuing Bank), a fronting fee in respect of such Letter of Credit in an amount not to exceed. 125%
per annum of the face amount of such Letter of Credit, and (ii) all reasonable and customary fees
and other issuance, amendment, document examination, negotiation and presentment expenses and
related charges in connection with the issuance, amendment, presentation of L/C Drafts, and the
like customarily charged by the Issuing Banks with respect to Letters of Credit, including, without
limitation, standard commissions, payable promptly following delivery to the Borrower of each
invoice in respect of any such amount. The Existing Letters of Credit shall not be subject to the
charges described herein to the extent such charges are duplicative of charges paid with respect
thereto pursuant to the Existing Credit Agreement.



          SECTION 4.08. Issuing Bank Reporting Requirements. In addition to the notices
required by Section 4.04(b), each Issuing Bank shall, no later than the tenth Business Day
following the last day of each month, provide to the Administrative Agent, upon the Administrative
Agent’s request, schedules, in form and substance reasonably satisfactory to the Administrative
Agent, showing the date of issue, account party, amount, expiration date and the reference number
of each Letter of Credit issued by it outstanding at any time during such month and the aggregate
amount payable by the Borrower during such month. In addition, upon the request of the
Administrative Agent, each Issuing Bank shall furnish to the Administrative Agent copies of any
Letter of Credit to which the Issuing Bank is party and such other documentation as may reasonably
be requested by the Administrative Agent. Upon the request of any Bank, the Administrative Agent
will provide to such Bank information concerning such Letters of Credit.



30









 





          SECTION 4.09. Indemnification; Exoneration.




     (a) In addition to amounts payable as elsewhere provided in this Article IV,
the Borrower hereby agrees to protect, indemnify, pay and save harmless the Administrative
Agent, each Issuing Bank and each Bank from and against any and all liabilities and costs
which the Administrative Agent, such Issuing Bank or such Bank may incur or be subject to as
a consequence, direct or indirect, of (i) the issuance of any Letter of Credit other than as
a result of the gross negligence or willful misconduct of the Issuing Bank, or (ii) the
failure of the applicable Issuing Bank to honor a drawing under a Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or future de
jure or de facto Governmental Authority (all such acts or omissions herein
called “Governmental Acts”).




     (b) As among the Borrower, the Banks, the Administrative Agent and the Issuing Banks,
the Borrower assumes all risks of the acts and omissions of, or misuse of each Letter of
Credit by, the beneficiary of such Letter of Credit. In furtherance and not in limitation
of the foregoing, neither the Administrative Agent, any Issuing Bank nor any Bank shall be
responsible for (unless caused by its gross negligence or willful misconduct): (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted
by any party in connection with the application for and issuance of the Letters of Credit,
even if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of a Letter of
Credit to comply duly with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex, or other similar form of teletransmission or otherwise;
(v) errors in interpretation of technical trade terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under any
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of
a Letter of Credit of the proceeds of any drawing under such Letter of Credit; and (viii)
any consequences arising from causes beyond the control of the Administrative Agent, the
Issuing Banks and the Banks, including, without limitation, any Governmental Acts.
None of the above shall affect, impair, or prevent the vesting of any Issuing Bank’s
rights or powers under this Section 4.09.




     (c) In furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by any Issuing Bank under or in
connection with the Letters of Credit or any related certificates shall not, in the absence
of gross negligence or willful misconduct, put the applicable Issuing Bank, the
Administrative Agent or any Bank under any resulting liability to the Borrower or relieve
the Borrower of any of its obligations hereunder to any such Person.




     (d) Without prejudice to the survival of any other agreement of the Borrower hereunder,
the agreements and obligations of the Borrower contained in this Section 4.09



31









 







shall survive the payment in full of the Advances and other obligations hereunder, the termination
of the Letters of Credit and the termination of this Agreement.



ARTICLE V




GENERAL TERMS



          SECTION 5.01. Illegality; Interest Rate Inadequate or Unfair. The obligation of each
Bank to extend an Advance on the date therefor is subject to the following:




     (a) If, after the date of this Agreement, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its Eurocurrency
Lending Office or its EURIBOR Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable agency shall make
it unlawful or impossible for any Bank (or its Eurocurrency Lending Office or its EURIBOR
Lending Office) to make, maintain or fund its Eurocurrency Advances or EURIBOR Advances,
such Bank shall so notify the Administrative Agent. The Administrative Agent and such Bank
shall forthwith give notice thereof to the other Banks and the Borrower, whereupon until
such Bank notifies the Borrower and the Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Bank to make (or to Convert
other Advances into) Eurocurrency Advances and/or EURIBOR Advances, as applicable, shall be
suspended and each Eurocurrency Advance and/or EURIBOR Advance, as applicable, which such
Bank shall thereafter be required to make hereunder (or Convert into) shall be made as (or
Converted into) a Base Rate Advance, which Base Rate Advance shall be made (or Converted) on
the same day as the Eurocurrency Advances or EURIBOR Advances made (or Converted into) by
the other Banks and comprising the balance of such Borrowing. If such Bank (A) shall
determine that it may not lawfully continue to maintain and fund any of its outstanding
Eurocurrency Advances and/or EURIBOR Advances to maturity, (B) shall so specify in a written
notice to the Borrower and the Administrative Agent and (C) if at such time fewer than three
(3) Banks shall have reached a similar determination, shall deliver to the Borrower and the
Administrative Agent an opinion of counsel concurring in such determination, the Borrower
shall
immediately Convert in full the then outstanding principal amount of each such
Eurocurrency Advance and/or EURIBOR Advance into a Base Rate Advance in an equal principal
amount (on which interest and principal shall be payable contemporaneously with the related
Eurocurrency Advances or EURIBOR Advances of the other Banks).




     (b) If, with respect to Borrowings to consist of Eurocurrency Advances or EURIBOR
Advances, (i) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon all parties hereto) that by reason of circumstances affecting
generally either the London interbank market or the Brussels euro-zone interbank market, as
applicable, and after using its best efforts to ascertain the interest rate applicable to
either the Eurocurrency Advances or EURIBOR Advances, as applicable, adequate and reasonable
means do not exist for ascertaining such applicable



32









 







rate, or (ii) by the Eurocurrency
Business Day or the EURIBOR Business Day, as applicable, before the first day of any
Interest Period in respect of a Borrowing to consist of Eurocurrency Advances or EURIBOR
Advances, the Administrative Agent shall have received notice from the Majority Banks (or,
in the case of a Competitive Bid Borrowing comprised of Eurocurrency Bid Rate Advances or
EURIBOR Bid Rate Advances, Banks selected to make more than fifty percent (50%) of the
aggregate principal amount of such Advances) that after using their respective best efforts
to obtain deposits in the applicable Agreed Currency, such deposits are not available to
such Banks (as such best efforts and unavailability are conclusively certified in writing to
the Administrative Agent and the Borrower) in the ordinary course of business in the London
interbank market or the Brussels euro-zone interbank market, as applicable, in sufficient
amounts to make its Eurocurrency Advances or EURIBOR Advances, then, in each case, the
Administrative Agent shall by 12:00 Noon (Chicago time) on such Business Day notify the
Borrower of such event, and the right of the Borrower to select Eurocurrency Advances or
EURIBOR Advances, as applicable, for such Borrowing or any subsequent Borrowing (and the
right of the Borrower to Convert Advances into Eurocurrency Rate Advances or EURIBOR Rate
Advances, as applicable) shall be suspended until the Administrative Agent shall notify the
Borrower and the Banks that the circumstances causing such suspension no longer exist. The
obligation of the Banks to make Eurocurrency Advances or EURIBOR Advances, as applicable, in
connection with such Notice of Borrowing shall thereupon terminate, and each Bank obligated
to participate in such Borrowing shall extend a Base Rate Advance to the Borrower in lieu of
the originally requested Type of Advance, which Base Rate Advance shall be made on the date
specified in the original Notice of Borrowing. In the case of an outstanding Notice of
Interest Rate Election at the time any such suspension shall occur, such Notice shall be
deemed amended, without any further action on the part of the Borrower, to request that the
Syndicated Advances specified therein be Converted to Base Rate Advances.




     (c) If the Majority Banks (or, in the case of a Competitive Bid Borrowing comprised of
Eurocurrency Bid Rate Advances or EURIBOR Bid Rate Advances, Banks selected to make more
than fifty percent (50%) of the aggregate principal amount of such Advances) shall, by 11:00
a.m. (Chicago time) on the Eurocurrency Business Day or the EURIBOR Business Day, as
applicable, before the first day of any Interest Period in respect of a Borrowing to consist
of Eurocurrency Advances or EURIBOR Advances, as applicable, notify the Administrative Agent
and the Borrower (setting forth in writing the
reasons therefor) that the Eurocurrency Rate for Eurocurrency Advances and/or the
EURIBOR for EURIBOR Advances comprising such Borrowing will not adequately reflect the cost
to such Banks of making or funding their respective Advances for such Borrowing or
Conversion, the right of the Borrower to select Eurocurrency Advances and/or EURIBOR
Advances, as applicable, for such Borrowing or Conversion and any subsequent Borrowing or
Conversion shall be suspended until the Administrative Agent shall notify the Borrower and
the Banks that the circumstances causing such suspension no longer exist. The obligation of
the Banks to make Eurocurrency Advances and/or EURIBOR Advances, as applicable, in
connection with such Notice of Borrowing shall thereupon terminate and each Bank obligated
to participate in such Borrowing shall extend a Base Rate Advance to the Borrower in lieu of
the originally requested Type of Advance, which Base Rate Advance shall be made on the date
specified in the original



33









 







Notice of Borrowing. In the case of an outstanding Notice of
Interest Rate Election at the time any such suspension shall occur, such Notice shall be
deemed amended, without any further action on the part of the Borrower, to request that the
Syndicated Advances specified therein be Converted to Base Rate Advances.



          SECTION 5.02. Effect of Notice of Borrowing; Maximum Number of Borrowings.




     (a) Subject to Section 5.01, each Notice of Borrowing and Notice of Interest
Rate Election shall be irrevocable and binding on the Borrower.




     (b) A Notice of Borrowing shall be rejected by the Administrative Agent, and the Banks
shall have no obligation to extend any Advances that may be requested in such Notice of
Borrowing, if after giving effect to the Borrowing requested in such Notice of Borrowing
there would then be more than fifteen (15) Borrowings outstanding (whether Syndicated
Borrowings, Competitive Bid Borrowings, or any combination of the foregoing).



          SECTION 5.03. Effect of Failure to Borrow or Fund.




     (a) In the case of any Borrowing which the related Notice of Borrowing specifies is to
be comprised of Fixed Rate Advances, the Borrower shall indemnify each Bank against all
direct out-of-pocket losses and reasonable expenses incurred by such Bank as a result of any
failure by the Borrower to fulfill on or before the date specified for such Borrowing the
applicable conditions set forth in Article VI to the extent of all direct
out-of-pocket losses and reasonable expenses incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund the Advance to be made
by such Bank as part of such Borrowing when such Advance, as a result of such failure, is
not made on such date. The Borrower shall not be liable to any Bank under this Section
5.03(a) with respect to consequential damages or loss of anticipated profits arising or
incurred by such Bank in connection with the Borrower’s failure to fulfill timely the
applicable conditions set forth in Article VI.




     (b) Unless the Administrative Agent shall have received notice from a Bank prior to the
date of any Borrowing (or, in the case of any Borrowing comprised of
Base Rate Advances, prior to 12:00 Noon (Chicago time) on the date of such Borrowing)
that such Bank will not make available to the Administrative Agent such Bank’s ratable
portion of such Borrowing, the Administrative Agent may assume that such Bank has made such
portion available to the Administrative Agent on the date of such Borrowing in accordance
with the terms of Section 2.02 or Section 3.09, as applicable, and the
Administrative Agent may, in reliance upon such assumption make available to the Borrower on
such date a corresponding amount. If and to the extent that such Bank shall not have so
made such ratable portion available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable



34









 







at the time to Advances
comprising such Borrowing and (ii) in the case of such Bank, the Federal Funds Rate. If
such Bank shall repay to the Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Bank’s Advance as part of such Borrowing for purposes of this
Agreement.




     (c) The failure of any Bank to make the Advance to be made by it as part of any
Borrowing shall not relieve any other Bank of its obligation, if any, hereunder to make its
Advance on the date of such Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Advance to be made by such other Bank on the date of any
Borrowing.



          SECTION 5.04. Fees and Certain Credit Rating Determinations.




     (a) Facility Fees. The Borrower agrees to pay to the Administrative Agent for
the account of each Bank a facility fee at the respective rates per annum set forth below on
the average daily amount of such Bank’s Commitment. The applicable rate for any period
shall be determined on the basis of the publicly announced ratings (“Credit
Ratings”) by Moody’s, S&P and Fitch on the Borrower’s senior unsecured Debentures during
such period, the applicable rate to change when and as such Credit Ratings change.



	 	 	 	 	 	 	 
	Level	 	Credit Ratings of Borrower’s Unsecured Debentures	 	Facility Fee
	I.

	 	Credit Ratings are better than or equal to at
least two (2) of the following three (3): (i) A2
by Moody’s, (ii) A by S&P and (iii) A by Fitch;
provided that, notwithstanding the foregoing, in
the event that the Moody’s Credit Rating is A3,
the S&P Credit Rating is A+ and the Fitch Credit
Rating is A-, Level I shall be in effect
	 	 	0.080	%
	 
	 	 	 	 	 	 
	II.

	 	Level I shall not apply, and Credit Ratings are
better than or equal to at least two (2) of the
following three (3): (i) A3 by Moody’s, (ii) A-
by S&P and (iii) A- by Fitch
	 	 	0.100	%






35









 






	 	 	 	 	 	 	 
	Level	 	Credit Ratings of Borrower’s Unsecured Debentures	 	Facility Fee
	III.

	 	Neither Level I nor Level II shall apply, and
Credit Ratings are better than or equal to at
least two (2) of the following three (3): (i) Baa1
by Moody’s, (ii) BBB+ by S&P and (iii) BBB+ by
Fitch
	 	 	0.125	%
	 
	 	 	 	 	 	 
	IV.

	 	Neither Level I, Level II nor Level III shall
apply, and Credit Ratings are better than or equal
to at least two (2) of the following three (3): (i) Baa2 by Moody’s, (ii) BBB by S&P and (iii) BBB
by Fitch	 	 	0.150	%
	 
	 	 	 	 	 	 
	V.

	 	Neither Level I, Level II, Level III nor Level IV
shall apply
	 	 	0.175	%







     The facility fee described in this Section 5.04(a) shall accrue from and
including the date hereof to but excluding the Termination Date or, in the case of any Bank,
the earlier date of reduction to zero of such Bank’s Commitment hereunder, and shall be
payable quarterly during the term of each Bank’s Commitment hereunder, in arrears, not later
than the last day of each January, April, July and October, and, in the case of each Bank,
on the date such Bank’s Commitment shall be reduced to zero.




     (b) Credit Rating Determinations. For purposes of determining the applicable
facility fee and letter of credit fees with respect to any period and the Eurocurrency
Margin and EURIBOR Margin at any time:




     (i) Any change in a Credit Rating shall be deemed to become effective on the
date of public announcement thereof and shall remain in effect until the date of
public announcement that such rating shall no longer be in effect.




     (ii) If, during any period, at least two (2) of Moody’s, S&P and Fitch shall
not have publicly announced a Credit Rating with respect to the Borrower’s senior
unsecured Debentures, the Borrower shall be at Level V; provided that the
Borrower may, at any time during such period, substitute another nationally
recognized rating agency acceptable to the Majority Banks for
Moody’s, S&P or Fitch. Any Credit Rating assigned by a substitute credit
agency, prior to the determination of the facility fee or letter of credit fee for
the period during which such Credit Rating shall be in effect or the determination
of the applicable Eurocurrency Margin or EURIBOR Margin at any time, shall be
converted to the nationally recognized equivalent thereof under the rating system
employed by Moody’s, S&P or Fitch, as applicable.



36









 






     (c) Letter of Credit Fees. In addition to the fees described in Section
4.07, the Borrower agrees to pay to the Administrative Agent for the account of each
Bank a letter of credit fee, in respect of any period, at the respective rates per annum set
forth below, on the average daily aggregate amount of such Bank’s L/C Interest in respect of
all Letters of Credit issued but undrawn during such period. The applicable rate for any
period shall be determined on the basis of the Credit Ratings on the Borrower’s senior
unsecured Debentures during such period, the applicable rate to change when and as such
Credit Ratings change.



	 	 	 	 	 	 	 
	Level	 	Credit Ratings of Borrower’s Unsecured Debentures	 	Letter of Credit Fee Rate
	I.

	 	Credit Ratings are better than or
equal to at least two (2) of the
following three (3): (i) A2 by
Moody’s, (ii) A by S&P and (iii) A
by Fitch; provided that,
notwithstanding the foregoing, in
the event that the Moody’s Credit
Rating is A3, the S&P Credit Rating
is A+ and the Fitch Credit Rating is
A-, the Level I letter of credit fee
rate — LIBOR Market Rate Spread
shall be in effect
	 	 	0.250	%
	 
	 	 	 	 	 	 
	II.

	 	Level I shall not apply, and Credit
Ratings are better than or equal to
at least two (2) of the following
three (3): (i) A3 by Moody’s, (ii)
A- by S&P and (iii) A- by Fitch
	 	 	0.375	%
	 
	 	 	 	 	 	 
	III.

	 	Neither Level I nor Level II shall
apply, and Credit Ratings are better
than or equal to at least two (2) of
the following three (3): (i) Baa1
by Moody’s, (ii) BBB+ by S&P and
(iii) BBB+ by Fitch
	 	 	0.500	%
	 
	 	 	 	 	 	 
	IV.

	 	Neither Level I, Level II nor Level
III shall apply, and Credit Ratings
are better than or equal to at least
two (2) of the following three (3): (i) Baa2 by Moody’s, (ii) BBB by S&P
and (iii) BBB by Fitch
	 	 	0.625	%






37









 






	 	 	 	 	 	 	 
	Level	 	Credit Ratings of Borrower’s Unsecured Debentures	 	Letter of Credit Fee Rate
	V.

	 	Neither Level I, Level II, Level III
nor Level IV shall apply
	 	 	0.750	%







     The letter of credit fee described in this Section 5.04(c) for letters of
credit shall accrue from and including the date of initial issuance to but excluding the
Termination Date or, in the case of any Bank, the earlier date of reduction to zero of such
Bank’s Commitment hereunder, and shall be payable quarterly during the term of each Bank’s
Commitment hereunder, in arrears, not later than the last day of each January, April, July
and October, and, in the case of each Bank, on the date such Bank’s Commitment shall be
reduced to zero.



          SECTION 5.05. Reduction of the Commitments. The Borrower may, upon at least three (3)
Business Days’ written notice to the Administrative Agent, terminate in whole or reduce ratably in
part the respective Commitments of the Banks; provided that (i) any such reduction shall
not cause the Aggregate Commitments to be less than the Facility Usage at such time, and (ii) in
the case of any partial reduction of the Commitments, such partial reduction shall be in an
aggregate amount not less than the lesser of (A) $20,000,000 (or an integral multiple of $5,000,000
in excess thereof) (or the Approximate Dollar Amounts thereof if denominated in an Agreed Currency
other than Dollars) and (B) the amount by which the Aggregate Commitments exceeds the Facility
Usage at such time.



          SECTION 5.06. Repayment. Each Syndicated Advance shall mature, and the principal
amount thereof shall be due and payable, on the Termination Date. Each Competitive Bid Advance
shall mature, and the principal amount thereof shall be due and payable, on the last day of the
Interest Period therefor.



          SECTION 5.07. Interest. The Borrower shall pay interest on the unpaid principal
amount of each Advance made by each Bank from the date of such Advance until such principal amount
shall be paid in full at the following rates per annum:




     (a) Base Rate Advances. If such Advance is a Base Rate Advance, a rate per
annum equal at all times for such Advance to the Base Rate in effect from time to time,
payable quarterly in arrears on the last day of January, April, July and October and on the
date such Base Rate Advance shall be Converted, repaid (whether due to acceleration or
otherwise), on the principal amount so repaid, or paid in full.




     (b) Eurocurrency Rate Advances. If such Advance is a Eurocurrency Rate
Advance, a rate per annum equal at all times during the Interest Period for such Advance to
the Eurocurrency Rate for such Interest Period plus the Eurocurrency Margin (such
rate to change when and as the Eurocurrency Margin changes), payable in arrears on the last
day of such Interest Period (and, if such Interest Period has a duration of more than three
(3) months, on the date during such Interest Period which occurs three (3) months after the
first day of such Interest Period) and on the date such Eurocurrency Rate



38









 







Advance shall be
Converted, repaid (whether due to acceleration or otherwise), on the principal amount so
repaid, or paid in full.



          “Eurocurrency Margin” means, at any time with respect to each Eurocurrency Rate
Advance outstanding at such time (for any Advance in any Agreed Currency other than Euro), the
applicable rate per annum set forth in the table below, determined in accordance with Section
5.04(b) on the basis of the Credit Ratings on the Borrower’s senior unsecured Debentures at
such time:



	 	 	 	 	 
	 	 	Credit Ratings of	 	Eurocurrency
	Level	 	Borrower’s Unsecured Debentures	 	Margin
	I.

	 	Credit Ratings are better than
or equal to at least two (2)
of the following three (3): (i) A2 by Moody’s, (ii) A by
S&P and (iii) A by Fitch;
provided that, notwithstanding
the foregoing, in the event
that the Moody’s Credit Rating
is A3, the S&P Credit Rating
is A+ and the Fitch Credit
Rating is A-, Level I shall be
in effect	 	LIBOR Market Rate Spread
(min/max)
0.250% / 0.750%
	 
	 	 	 	 
	II.

	 	Level I shall not apply, and
Credit Ratings are better than
or equal to at least two (2)
of the following three (3): (i) A3 by Moody’s, (ii) A- by
S&P and (iii) A- by Fitch
	 	LIBOR Market Rate Spread
(min/max)
0.375% / 1.00%
	 
	 	 	 	 
	III.

	 	Neither Level I nor Level II
shall apply, and Credit
Ratings are better than or
equal to at least two (2) of
the following three (3): (i)
Baa1 by Moody’s, (ii) BBB+ by
S&P and (iii) BBB+ by Fitch
	 	LIBOR Market Rate Spread
(min/max)
0.500% / 1.250%
	 
	 	 	 	 
	IV.

	 	Neither Level I, Level II nor
Level III shall apply, and
Credit Ratings are better than
or equal to at least two (2)
of the following three (3):
(i) Baa2 by Moody’s, (ii) BBB
by S&P and (iii) BBB by Fitch
	 	LIBOR Market Rate Spread
(min/max)
0.625% / 1.500%






39









 






	 	 	 	 	 
	 	 	Credit Ratings of	 	Eurocurrency
	Level	 	Borrower’s Unsecured Debentures	 	Margin
	V.

	 	Neither Level I, Level II,
Level III nor Level IV shall
apply
	 	LIBOR Market Rate Spread
(min/max)
0.750% / 1.750%






          (c) EURIBOR Rate Advances. If such Advance is a EURIBOR Rate Advance, a rate
per annum equal at all times during the Interest Period for such Advance to EURIBOR for such
Interest Period plus the EURIBOR Margin (such rate to change when and as the EURIBOR
Margin changes), payable on the last day of such Interest Period (and, if such Interest
Period has a duration of more than three (3) months, on the date during such Interest Period
which occurs three (3) months after the first day of such Interest Period) and on the date
such EURIBOR Rate Advance shall be Converted, repaid (whether due to acceleration or
otherwise), on the principal amount so repaid, or paid in full.




          “EURIBOR Margin” means, at any time with respect to each EURIBOR Rate Advance
outstanding at such time (for any Advance in Euro), the applicable rate per annum set forth in the
table below, determined in accordance with Section 5.04(b) on the basis of the Credit
Ratings on the Borrower’s senior unsecured Debentures at such time:



	 	 	 	 	 
	 	 	Credit Ratings of	 	EURIBOR
	Level	 	Borrower’s Unsecured Debentures	 	Margin
	I.

	 	Credit Ratings are better than
or equal to at least two (2)
of the following three (3): (i) A2 by Moody’s, (ii) A by
S&P and (iii) A by Fitch;
provided that, notwithstanding
the foregoing, in the event
that the Moody’s Credit Rating
is A3, the S&P Credit Rating
is A+ and the Fitch Credit
Rating is A-, Level I shall be
in effect	 	LIBOR Market Rate Spread
(min/max)
0.250% / 0.750%
	 
	 	 	 	 
	II.

	 	Level I shall not apply, and
Credit Ratings are better than
or equal to at least two (2)
of the following three (3): (i) A3 by Moody’s, (ii) A- by
S&P and (iii) A- by Fitch
	 	LIBOR Market Rate Spread
(min/max)
0.375% / 1.00%






40









 






	 	 	 	 	 
	 	 	Credit Ratings of	 	EURIBOR
	Level	 	Borrower’s Unsecured Debentures	 	Margin
	III.

	 	Neither Level I nor Level II
shall apply, and Credit
Ratings are better than or
equal to at least two (2) of
the following three (3): (i)
Baa1 by Moody’s, (ii) BBB+ by
S&P and (iii) BBB+ by Fitch
	 	LIBOR Market Rate Spread
(min/max)
0.500% / 1.250%
	 
	 	 	 	 
	IV.

	 	Neither Level I, Level II nor
Level III shall apply, and
Credit Ratings are better than
or equal to at least two (2)
of the following three (3):
(i) Baa2 by Moody’s, (ii) BBB
by S&P and (iii) BBB by Fitch
	 	LIBOR Market Rate Spread
(min/max)
0.625% / 1.500%
	 
	 	 	 	 
	V.

	 	Neither Level I, Level II,
Level III nor Level IV shall
apply
	 	LIBOR Market Rate Spread
(min/max)
0.750% / 1.750%






          (d) Competitive Bid Advances. Subject to Section 5.01, if such Advance
is a Competitive Bid Advance, a rate per annum equal (i) in the case of an Absolute Rate
Advance, to the Absolute Rate that shall have been offered by such Bank pursuant to
Section 3.04 in its Competitive Bid Quote related thereto and accepted by the
Borrower pursuant to Section 3.06 in its Notice of Competitive Bid Borrowing related
thereto, (ii) in the case of a Eurocurrency Bid Rate Advance, to the Eurocurrency Bid Rate
calculated on the basis of the Competitive Bid Margin that shall have been offered by such
Bank pursuant to Section 3.04 in its Competitive Bid Quote related thereto and
accepted by the Borrower pursuant to Section 3.06 in its Notice of Competitive Bid
Borrowing related thereto, and (iii) in the case of a EURIBOR Bid Rate Advance, to the
EURIBOR Bid Rate calculated on the basis of the Competitive Bid Margin that shall have been
offered by such Bank pursuant to Section 3.04 in its Competitive Bid Quote related
thereto and accepted by the Borrower pursuant to Section 3.06 in its Notice of
Competitive Bid Borrowing related thereto, in each case payable on the last day of the
applicable Interest
Period and, if such Interest Period has a duration of more than ninety (90) days or
three (3) months, as the case may be, on each day which occurs during such Interest Period
every ninety (90) days or three (3) months, as the case may be, from the first day of such
Interest Period.





41











 





          SECTION 5.08. Additional Interest on Eurocurrency Advances and EURIBOR Advances.





     (a) The Borrower shall pay to each Bank, so long as such Bank shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurocurrency Advance and/or
EURIBOR Advance, as applicable, of such Bank, from the date of such Advance until such
principal amount is paid in full, at an interest rate per annum equal at all times during
the Interest Period for such Advance to the remainder obtained by subtracting (i) the
Eurocurrency Rate or EURIBOR, as applicable, for such Interest Period from (ii) the rate
obtained by dividing the applicable rate referred to in clause (i) above by that percentage
equal to 100% minus the Eurocurrency Rate Reserve Percentage of such Bank for such
Interest Period, payable on each date on which interest is payable on such Advance.




     (b) For so long as any Bank is required to make special deposits with or comply with
reserve assets, liquidity, cash margin or other requirements of any monetary or other
authority (including any such requirement imposed by the Bank of England, the Financial
Services Authority, the European Central Bank or the European System of Central Banks, but
excluding requirements reflected in the Eurocurrency Rate Reserve Percentage) in respect of
any of such Bank’s Fixed Rate Advances, such Bank shall be entitled to require the Borrower
to pay, contemporaneously with each payment of interest on each of such Bank’s Advances
subject to such requirements, additional interest on such Advance at a rate per annum
specified by such Bank to be the actual cost to such Bank of complying with such
requirements in relation to such Advance.




     (c) Any additional interest owed pursuant to subsections (a) or (b)
above shall be determined by such Bank and such Bank shall deliver written notice thereof to
the Borrower through the Administrative Agent; provided that in the case of any such
required reserves, special deposits or other requirements referred to in
subsections (a) or (b) above that are imposed after the date of this
Agreement, the Borrower shall not be required to compensate a Bank pursuant to this Section
for any additional interest incurred more than 120 days prior to the date that such Bank
notifies the Borrower of such required reserves, special deposits or other requirements.
The Bank’s determination shall be prima facie evidence thereof. Such
additional interest shall be payable to the Administrative Agent for the account of such
Bank on each date on which interest is payable for such Advance.



          SECTION 5.09. Interest on Overdue Principal. If any amount of principal is not paid
when due (whether at stated maturity, by acceleration or otherwise), that amount of principal shall
bear interest, from the date on which such amount is due until such amount is paid in full, payable
on demand, at a rate per annum equal at all times to two percent (2%) per annum above the interest
rate in effect from time to time with respect to the applicable Advance.





42









 








          SECTION 5.10. Interest Rate Determinations. The Administrative Agent shall give
prompt notice to (i) the Borrower and the Banks, of any applicable interest rate determined by the
Administrative Agent for purposes of Section 5.07 and the applicable interest rate under
Section 5.07(b) and Section 5.07(c) and (ii) the Borrower and each Bank that is to
make a Eurocurrency Bid Rate Advance or a EURIBOR Bid Rate Advance in connection with any Notice of
Competitive Bid Borrowing, of the applicable rate, if any, determined by the Administrative Agent
for determining the applicable Eurocurrency Bid Rate or EURIBOR Bid Rate with respect to such
Advance.




          SECTION 5.11. Performance of Banks’ Obligations. Each Bank shall use commercially
reasonable efforts to keep apprised of all events and circumstances (a) that would excuse or
prohibit such Bank from performing its obligation to make (or to Convert Advances into)
Eurocurrency Rate Advances or EURIBOR Rate Advances hereunder pursuant to Section 5.01(a),
(b) that would permit such Bank to demand additional interest or increased costs pursuant to
Section 5.08 or Section 5.13 or (c) that would permit the Administrative Agent or
the Majority Banks pursuant to Section 11.12 to denominate an Advance in Dollars rather
than the applicable Agreed Currency. Such Bank shall, as soon as practicable after becoming aware
of any such event or circumstance, use commercially reasonable efforts, to the extent permitted by
law, to perform its obligations to make Eurocurrency Rate Advances or EURIBOR Rate Advances through
another office or lending office, and with respect to increased costs or additional interest, to
reduce such increased costs or additional interest (if the use of such other office or lending
office or such reduction would not adversely affect the performance of such obligations or
repayment of the Advances or result in, in any material respect, any increased cost, loss,
liability or other material disadvantage to such Bank in such Bank’s reasonable judgment), in
either case if by taking the action contemplated by the foregoing, such event or circumstance would
cease to exist.




          SECTION 5.12. Optional Prepayments.





     (a) The Borrower may, upon notice to the Administrative Agent, given not later than
9:00 a.m. (Chicago time) on the proposed date of prepayment, in the case of prepayment of an
Advance in Dollars, and 10:00 a.m. (London time) three (3) Business Days before the proposed
date of prepayment, in the case of prepayment of an Advance in an Agreed Currency other than
Dollars, by facsimile, stating in such notice the proposed date and aggregate principal
amount of the prepayment, and if such notice is given, the Borrower shall prepay the
outstanding principal amount of the Syndicated Advances made as part of the same Syndicated
Borrowing in whole or, in the case of a Syndicated Borrowing comprised solely of Base Rate
Advances, ratably in part, by paying the principal amount to be prepaid together with
accrued interest thereon and other amounts then due and owing, if any, hereunder to the date
of prepayment; provided that in the case of a prepayment of an Advance in an Agreed
Currency other than Dollars, such notice shall also be given by the Borrower to J.P. Morgan
Europe Limited; provided further that each partial prepayment shall be in an
amount not less than $20,000,000 and in an integral multiple of $5,000,000 in excess thereof
(or the Approximate Dollar Amount if such Syndicated Advances to be so prepaid are
denominated in Agreed Currencies other than Dollars). Each such optional prepayment shall
be applied to prepay ratably the Syndicated Advances of the several Banks included in such
Syndicated



43









 






Borrowing. If the Borrower prepays any Syndicated Borrowing consisting of
Eurocurrency Rate Advances or EURIBOR Rate Advances on any day other than the last day of an
Interest Period therefor, the Borrower shall reimburse each Bank for the losses, costs and
expenses contemplated in Section 11.04(b). The Borrower may not, unless otherwise
required hereunder, prepay any Competitive Bid Advance without the consent of the Bank which
shall have extended such Competitive Bid Advance.




     (b) Upon receipt of a notice of prepayment pursuant to this Section 5.12, the
Administrative Agent shall promptly notify each Bank of the contents thereof and of such
Bank’s ratable share, if any, of such prepayment. In the event the Borrower and a Bank
agree to the prepayment to such Bank of a Competitive Bid Advance, and such prepayment is
made, the Borrower thereupon shall notify the Administrative Agent and the Administrative
Agent shall promptly notify the other Banks thereof.



          SECTION 5.13. Increased Costs. Subject to Section 5.11, if, after the date of
this Agreement, any of the following (a “Change in Law”) shall occur:





     (a) due to either (i) the introduction of or any change (other than any change by way
of imposition or increase of reserve requirements included in the Eurocurrency Rate Reserve
Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other Governmental Authority (whether or
not having the force of law), there shall be any increase in the cost to any Bank of
agreeing or committing to make or making, funding or maintaining any Advances hereunder or
issuing or participating in any Letters of Credit (including, without limitation any
conversion of an Advance denominated in an Agreed Currency other than Euro into an Advance
denominated in Euro); or




     (b) either (i) the introduction of or any change in or in the interpretation of any
law, rule, regulation or guideline adopted after the date hereof and arising out of the July
1988 report of the Basel Committee on Banking Regulation and Supervisory Practices entitled
“International Convergence of Capital Measurement and Capital Standards” or (ii) compliance
by any Bank with any law or regulation, or with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law), affects or
would affect the amount of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank and such Bank determines that the amount of such capital
is increased by or based upon the existence of such Bank’s commitment to lend hereunder and
other commitments of this type, or upon the making or funding of its Advances hereunder or
upon the issuing or maintaining of its L/C Interest hereunder (including, without limitation
any conversion of an Advance denominated in an Agreed Currency other than Euro into an
Advance denominated in Euro),


then the Borrower shall from time to time, upon written demand by such Bank (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank,
within 120 days after such written demand, additional amounts sufficient to (i) in the case of any
of the events described in clause (a) above, reimburse such Bank for such increased cost,,
such increased cost to be determined by such Bank using its customary methods therefor




44









 







(and, if
such Bank uses from time to time more than one such method, the method chosen for application
hereunder shall be that method which most accurately determines such increased cost), and (ii) in
the case of any of the events described in clause (b) above, compensate such Bank in light
of such circumstances, to the extent such Bank reasonably determines such increase in capital to be
allocable to the existence of such Bank’s commitment to lend or maintain Advances or to issue or
maintain its L/C Interests hereunder. A certificate as to any such amount (demonstrating, in
reasonable detail, the calculations used by such Bank to determine such amount), submitted to the
Borrower and the Administrative Agent by such Bank, shall be prima facie evidence
thereof. Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform
and Consumer Protection Act and all requests, rules, guidelines, requirements and directives
thereunder, issued in connection therewith or in implementation thereof and (ii) all requests,
rules, guidelines, requirements and directives promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or
the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in
each case be deemed to be a Change in Law regardless of the date enacted, adopted, issued or
implemented.




     Failure or delay on the part of any Bank or Issuing Bank to demand compensation pursuant to
this Section shall not constitute a waiver of such Bank’s or Issuing Bank’s right to demand such
compensation; provided that the Borrower shall not be required to compensate a Bank or
Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more
than 120 days prior to the date that such Bank or Issuing Bank, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Bank’s
or Issuing Bank’s intention to claim compensation therefor; provided further that,
if the Change in Law giving rise to such increased costs or reductions is retroactive, then the
120-day period referred to above shall be extended to include the period of retroactive effect
thereof.



          SECTION 5.14. Payments and Computations.





     (a) The Borrower shall make each payment of principal or interest in respect of any
Advance or under any Notes not later than 12:00 noon (Local Time) on the day when due and in
the currency in which such Advance was made to the Borrower, to the Administrative Agent in
same day funds and without set-off, counterclaim or other deduction; all other payments
hereunder or under the Notes shall be made in Dollars. All payments hereunder shall be made
to the Administrative Agent at (except as set forth in the next sentence) the Administrative
Agent’s address specified in Section 11.02, or at any other Applicable Lending
Office of the Administrative Agent specified in writing by the Administrative Agent to the
Borrower, and, in the case of Syndicated Borrowings, shall be applied ratably by the
Administrative Agent among the Banks. All payments to be made by the Borrower hereunder in
any currency other than Dollars shall be made to the Administrative Agent at the account for
payments in such currency specified by the Administrative Agent in writing to the Borrower.
The Administrative Agent is hereby authorized to charge the Borrower’s account with the
Administrative Agent, after notice to the Borrower of the amount to be charged, for each
payment of principal, interest and fees as such payment becomes due. The Administrative
Agent will promptly thereafter cause to be distributed like funds relating to such payment
ratably (in accordance with all



45









 







like obligations then due and payable to which such payment
relates) to the Banks for the account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount payable to any Bank, to such Bank for
the account of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement.




     (b) Notwithstanding the foregoing provisions of this Section 5.14, if, after
the making of any Advance in any currency other than Dollars, currency control or exchange
regulations are imposed in the country which issues such currency with the result that the
type of currency in which the Advance was made (the “Original Currency”) no longer
exists or the Borrower is not able to make payment to the Administrative Agent for the
account of the Banks in such Original Currency, then all payments to be made by the Borrower
hereunder in such currency shall instead be made when due in Dollars in an amount equal to
the Dollar Amount (as of the date of repayment) of such payment due, it being the intention
of the parties hereto that the Borrower take all risks of the imposition of any such
currency control or exchange regulations.




     (c) All computations of interest based on the Base Rate shall, to the extent such Base
Rate is determined by reference to the Prime Rate, be made on the basis of a year of 365 or
366 days, as the case may be, and all other calculations of interest, facility fees and
letter of credit fees shall be made on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be conclusive and binding for all
purposes in the absence of manifest error.




     (d) Whenever any payment hereunder or under any Notes shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding Business
Day, and such extension of time shall in such case be included in the computation of payment
of interest and facility fees, as the case may be. If such extension would cause such
payment with respect to a Eurocurrency Advance or EURIBOR Advance to be made in the next
following calendar month, such payment shall be made on the immediately preceding applicable
Business Day and the period of time during which such payment would have been outstanding
but for compliance with this provision shall not be included in the computation of payment
of interest with respect thereto.




     (e) Unless the Administrative Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Banks hereunder that the Borrower will not
make such payment in full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on such due date
an amount equal to the amount then due such Bank. If and to the extent the Borrower shall
not have so made such payment in full to the Administrative Agent, each Bank shall repay to
the Administrative Agent forthwith on demand such amount distributed to such Bank together
with interest thereon, for each



46









 






day from the date such amount is distributed to such Bank
until the date such Bank repays such amount to the Administrative Agent, at the Federal
Funds Rate.



          SECTION 5.15. Taxes. (a) Any and all payments by the Borrower hereunder or under any
Notes shall be made, in accordance with Section 5.14, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding (i) in the case of each
Bank and the Administrative Agent, taxes imposed on any of its overall net income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Bank or the Administrative
Agent (as the case may be) is organized or any political subdivision thereof, (ii) in the case of
each Bank, taxes imposed on its net income, and franchise taxes imposed on it, by the jurisdiction
of such Bank’s Applicable Lending Office or any political subdivision thereof, and (iii) any taxes
imposed on any ”withholdable payment” payable to a Bank as a result of the failure of such Bank to
satisfy the applicable requirements as in effect after December 31, 2012 in FATCA to establish that
such payment is exempt from withholding under FATCA (all such taxes, levies, imposts, deductions,
charges, withholdings and liabilities, less the exclusions described in clauses (i),
(ii) and (iii) above, being hereinafter referred to as “Taxes”).





     (b) In addition, the Borrower agrees to pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies which arise (i) from
any payment made hereunder or under the Notes to any Applicable Lending Office listed on
Schedule 1.02 or to any lending or other office established pursuant to
Section 5.11 or otherwise in accordance with this Agreement with respect to Advances
made or to be made under this Agreement or (ii) from the execution or delivery of this
Agreement or the Notes or any amendment hereto or thereto (hereinafter referred to
as “Other Taxes”).




     (c) The Borrower will indemnify each Bank and the Administrative Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 5.15) incurred by
such Bank or the Administrative Agent (as the case may be) or any liability incurred by such
Bank or the Administrative Agent (as the case may be) (including penalties and interest
unless caused by the gross negligence or willful misconduct of such Bank or the
Administrative Agent, as the case may be) arising therefrom or with respect thereto, whether
or not such Taxes or Other Taxes were correctly or legally asserted. This indemnification
shall be made within 120 days from the date such Bank or the Administrative Agent (as the
case may be) makes written demand therefor, which demand shall be made within 120 days after
such Bank or the Administrative Agent, as applicable, becomes aware of the imposition on it
of such Tax or Other Tax or the incurrence by it of such liability and which demand shall
demonstrate, in reasonable detail, the circumstances concerning the imposition of, and the
calculations used to determine, such Taxes or Other Taxes.




     (d) Without limiting the generality of the foregoing, all Banks shall deliver to the
Borrower and the Administrative Agent (in such number of copies reasonably requested by the
Borrower and the Administrative Agent) on or prior to the date on which each Bank becomes a
party hereto, duly completed and executed copies of whichever of



47









 






the following is applicable
in order to establish that the Banks are entitled to a complete exemption from withholding
on all amounts to be received by such Bank at any Applicable Lending Office designated by
such Bank, including fees, pursuant to this Agreement and the Advances:




     (i) in the case of a Bank that is a U.S. Person (as such term is defined in
Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended
(the “Code”)), IRS Form W-9 certifying that such Bank is exempt from U.S.
Federal backup withholding tax;




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




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




     (iv) in the case of a Non-U.S. Bank claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN and
(2) a certificate substantially in the form of Exhibit 5.15(d)(iv) hereto
(any such certificate, a “Section 5.15(d)(iv) Certificate”) to the effect
that such Bank is not (a) a “bank” within the meaning of Section 881(c)(3)(A) of the
Code, (b) a “10 percent shareholder” of the Borrower within the meaning of
Section 881(c)(3)(B) of the Code, (c) a “controlled foreign corporation” described
in Section 881(c)(3)(C) of the Code, and (d) conducting a trade or business in the
United States with which the relevant interest payments are effectively connected;




     (v) in the case of a Non-U.S. Bank that is not the beneficial owner of payments
made under this Agreement (including a partnership or a participating Bank) (1) an
IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in this
subsection (d) that would be required of each such beneficial owner or
partner of such partnership if such beneficial owner or partner were a Bank;
provided, however, that if the Bank is a partnership and one or more
of its partners are claiming the exemption for portfolio interest under
Section 881(c) of the Code, such Bank may provide a Section 5.15(d)(iv) Certificate
on behalf of such partners; or




     (vi) any other form prescribed by law as a basis for claiming exemption from
U.S. Federal withholding Tax together with such supplementary



48









 






documentation necessary to enable the Borrower or the Administrative Agent to determine the amount
of Tax (if any) required by law to be withheld.




Thereafter and from time to time, each Bank shall submit to the Borrower such additional
duly completed and signed copies of the above applicable forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing authorities) as may
be (i) requested by the Borrower from such Bank and (ii) required under then current United
States law or regulations to avoid United States withholding taxes on payments in respect of
all amounts to be received by such Bank at any Applicable Lending Office designated by such
Bank, including fees, pursuant to this Agreement or the Advances. If any Bank determines,
as a result of any change in applicable law, regulation or treaty, or in any official
application or interpretation thereof, that it is unable to submit to the Borrower any form
or certificate that such Bank is obligated to submit pursuant to this
subsection (d), or that such Bank is required to withdraw or cancel any such form or
certificate previously submitted, such Bank shall promptly notify the Borrower of such fact;
provided, however, that delivery of such notice shall not preclude the
exercise by such Bank of any of its rights under this Section 5.15. No amount that
shall be required to be paid by the Borrower pursuant to subsections (a), (b)
or (c) of this Section 5.15 shall be payable by the Borrower to any Bank
that (i) is not, on the date this Agreement is executed by such Bank, either (x) required to
submit Form W-8BEN or any successor thereto (relating to such Bank and entitling it to a
complete exemption from withholding on all amounts to be received by such Bank at any
Applicable Lending Office designated by such Bank, including fees, pursuant to this
Agreement and the Advances) or Form W-8ECI or any successor thereto (relating to all amounts
to be received by such Bank at any Applicable Lending Office designated by such Bank,
including fees, pursuant to this Agreement and the Advances) and a Section 5.15(d)(iv)
Certificate, as the case may be, or (y) a United States person (as such term is defined in
Section 7701(a)(30) of the Code), or (ii) shall have failed to submit to the Borrower any
form or certificate that such Bank shall have been required to file pursuant to this
subsection and shall have been entitled to file under applicable law.




     (e) Any Bank claiming additional amounts payable pursuant to this Section 5.15
shall use reasonable efforts to change the jurisdiction of its office or Applicable Lending
Office if the making of such change would avoid the need for, or reduce the amount of, any
additional amounts that may thereafter accrue and would not, in the reasonable judgment of
such Bank, be otherwise materially disadvantageous to such Bank.




     (f) If any party determines, in its sole discretion exercised in good faith, that it
has received a refund of any Taxes or Other Taxes as to which it has been indemnified
pursuant to this Section 5.15 (including additional amounts paid pursuant to this
Section 5.15), it shall pay to the indemnifying party an amount equal to such refund
(but only to the extent of indemnity payments made under this Section 5.15 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses (including any Taxes or Other Taxes) of such indemnified party and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such
refund). Such indemnifying party, upon the request of such indemnified party, shall



49









 






repay
to such indemnified party the amount paid to such indemnified party pursuant to the previous
sentence (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event such indemnified party is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this
Section 5.15(f), in no event will any indemnified party be required to pay any
amount to any indemnifying party pursuant to this Section 5.15(f) if such payment
would place such indemnified party in a less favorable position (on a net after-Tax basis)
than such indemnified party would have been in if the indemnification payments or additional
amounts giving rise to such refund had never been paid. This Section 5.15(f) shall
not be construed to require any indemnified party to make available its Tax returns (or any
other information relating to its Taxes or Other Taxes which it deems confidential) to the
indemnifying party or any other Person.




     (g) Each party’s obligations under this Section 5.15 shall survive any
assignment of rights by, or the replacement of, a Bank, the termination of the Commitments
and the repayment, satisfaction or discharge of all other obligations under this Agreement
or any Notes.



          SECTION 5.16. Noteless Agreement; Evidence of Indebtedness.





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




     (b) The Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Advance made hereunder, the currency in which such Advance is denominated and
Type thereof and the Interest Period, if any, with respect thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the Borrower to each
Bank hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Bank’s share thereof.




     (c) The entries maintained in the accounts maintained pursuant to
subsections (a) and (b) above shall be prima facie evidence
of the existence and amounts of the Advances therein recorded; provided,
however, that the failure of the Administrative Agent or any Bank to maintain such
accounts or any error therein shall not in any manner affect the obligation of the Borrower
to repay the Borrowings in accordance with their terms.




     (d) Any Bank may request that its Advances be evidenced by a promissory note (each, a
“Note”). In such event, the Borrower shall prepare, execute and deliver to such
Bank a Note or separate Notes evidencing such Syndicated Advances and Competitive Bid
Advances, at such Bank’s request, payable to the order of such Bank in a form or forms
supplied by the Administrative Agent. Thereafter, the Advances evidenced by such Note or
Notes and interest thereon shall at all times (including after any assignment pursuant to
Section 11.06) be represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to Section 11.06, except



50









 






to the extent that
any such Bank or assignee subsequently returns any such Note for cancellation and requests
that such Advances once again be evidenced as described in subsections (a) and
(b) above.



          SECTION 5.17. Sharing of Payments, Etc. Except for payments made pursuant to
Section 5.18, if any Bank shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of any Advance made by it or any L/C
Interest in excess of its ratable share of all payments obtained by Banks on account of, as
applicable, the Advances comprising the Borrowing (whether the Borrowing to which it shall be
applied is a Syndicated Borrowing or a Competitive Bid Borrowing) to which such Advance relates or
in respect of the Letter of Credit to which such L/C Interest relates, such Bank shall forthwith
purchase from the other Banks which shall then have Advances outstanding comprising a part of such
Borrowing participations in the Advances comprising a part of such Borrowing (or, as applicable,
purchase from the other Banks participations in the L/C Interests in the related Letter of Credit)
as shall be necessary to cause such purchasing Bank to share the excess payment (net of any
expenses which may be incurred by such Bank in obtaining or preserving such excess payment) ratably
with respect to such Borrowing or Letter of Credit with each of such other Banks. If all or any
portion of such excess payment is thereafter recovered from such purchasing Bank, such purchase
from each selling Bank shall be rescinded and such selling Bank shall repay to the purchasing Bank
the purchase price to the extent of such recovery together with an amount equal to such selling
Bank’s ratable share (according to the proportion of (i) the amount of such selling Bank’s required
repayment to (ii) the total amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total amount so recovered. The
Borrower agrees that any Bank so purchasing a participation from another Bank pursuant to this
Section 5.17 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation as fully as if such
Bank were the direct creditor of the Borrower in the amount of such participation. Nothing
contained herein shall require any Bank to exercise any right it may have of set-off, bankers’
lien, counterclaim or similar right or shall affect the right of any Bank to exercise, and retain
the benefits of exercising, any such right with respect to any other indebtedness or obligation of
the Borrower not evidenced by this Agreement or the Notes. If under any applicable bankruptcy,
insolvency or other similar law, any Bank obtains a secured claim in lieu of a set-off or other
payment to which this Section 5.17 would apply, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with the rights of the
Banks entitled under this Section 5.17 to share in the benefits of any recovery on such
secured claim.




          SECTION 5.18. Termination and Prepayment with Respect to any Bank.





     (a) In addition to the right of the Borrower to terminate in whole or reduce ratably
the unused portion of the Commitments as described in Section 5.05 and the right of
the Borrower to ratably prepay Advances as described in Section 5.12, the Borrower
shall have the right to terminate the unused portion of the Commitment of any Bank and to
prepay all outstanding Advances made by such Bank in the manner described in this
Section 5.18 if a Bank becomes a Defaulting Bank or a Non-Consenting Bank or if the
Borrower shall have received notice (a “Special Notice”) that such Bank (i) cannot
extend a Eurocurrency Rate Advance and/or EURIBOR Rate Advance and shall exercise



51









 






its rights
pursuant to Section 5.01(a), (ii) claims additional interest pursuant to
Section 5.08, (iii) claims reimbursement for increased costs or reduced returns
pursuant to Section 5.13, (iv) claims reimbursement for Taxes or Other Taxes
pursuant to Section 5.15 or (v) elects not to make an Advance in the applicable
Agreed Currency pursuant to Section 11.12.




     (b) Upon receipt by the Borrower of a Special Notice from any Bank or upon a Bank
becoming a Defaulting Bank or a Non-Consenting Bank, the Borrower may elect to terminate the
unused portion of the Commitment of such Bank by giving notice thereof (a “Termination
Notice”) to such Bank and to the Administrative Agent on or before the thirtieth day
following the date of such Special Notice, specifying therein (i) the name of such Bank (a
“Terminated Bank”), (ii) the proposed effective date of termination
(“Bank Termination Date”) of the unused portion of such Terminated Bank’s
Commitment, which date shall not in any event be less than five (5) Business Days following
the date of such Termination Notice, and (iii) if applicable, one or more commercial banks
(each, a “Successor Bank”), each such Successor Bank having a combined capital,
surplus (or its equivalent) and undivided profits in an amount not less than U.S.
$500,000,000 (or its equivalent in another currency), which Successor Bank or Successor
Banks shall have agreed, in the aggregate, to succeed to the entire Commitment of such
Terminated Bank on the Bank Termination Date.




     (c) Unless the Borrower shall have elected, as evidenced by its Termination Notice, to
prepay all the Advances made by a Terminated Bank outstanding as of the Bank Termination
Date, any EURIBOR Advance or Eurocurrency Advance (each, a “TB Advance”) made by
such Terminated Bank having an Interest Period ending after the Bank Termination Date shall
remain outstanding until the last day of such Interest Period (unless required to be paid
earlier in accordance with the terms of this Agreement). On the last day of the then
current Interest Period in respect of each TB Advance, the Successor Bank shall extend an
Advance to the Borrower in a principal amount corresponding to such TB Advance, and having
an Interest Period of the type specified in the Notice of Interest Rate Election that would
otherwise have applied to such TB Advance, and the proceeds of such Advance from the
Successor Bank shall be used by the Borrower to repay such TB Advance to the Terminated
Bank. The Successor Bank or Successor Banks specified by the Borrower in a Termination
Notice shall have agreed, prior to the Bank Termination Date, to succeed, in the aggregate,
to the entire Commitment of such Terminated Bank on the Bank Termination Date which
succession shall, with respect to the unused portion of such Terminated Bank’s Commitment as
of such Bank Termination Date, become effective as of the Bank Termination Date and, with
respect to the remaining portion of such Terminated Bank’s Commitment, become effective as
and when such Terminated Bank’s Advances are repaid.




     (d) If the Borrower shall have elected, as evidenced by its Termination Notice, to
prepay all the Advances made by a Terminated Bank outstanding as of the Bank Termination
Date, the Successor Bank or Successor Banks shall in the aggregate extend to the Borrower,
on the Bank Termination Date, Advances (with interest at a rate to be agreed upon by the
Borrower and each Successor Bank) corresponding in respective amounts to each Advance being
prepaid as of such date, each of which Advances shall



52









 






have an Interest Period, if any,
beginning on the Bank Termination Date and ending on the last day of the Interest Period of
the Advance being prepaid to which it corresponds; provided that, upon the mutual
agreement of the Borrower and the Successor Bank (or Successor Banks, as applicable) and
notice thereof to the Administrative Agent, the Borrower may elect not to require the
Successor Bank (or Successor Banks, as applicable) to extend Competitive Bid Advances in
substitution for the Competitive Bid Advances extended by the Terminated Bank.




     (e) Each such termination pursuant to this Section 5.18 shall be effective on
the Bank Termination Date proposed by the Borrower in the related Termination Notice if
(i) no Event of Default shall have occurred prior to such date and be continuing on such
date, (ii) in the event the Borrower shall have elected to prepay all Advances made by such
Terminated Bank outstanding as of such date, (A) the Borrower shall have prepaid the
outstanding aggregate amount of all Advances made by the Terminated Bank, together with
accrued interest to such date on the amount prepaid and all other amounts payable to such
Bank as of such date and (B) the Successor Bank or Successor Banks shall have extended to
the Borrower Advances equal in aggregate amount to the Advances of the Terminated Bank being
prepaid as required pursuant to Section 5.18(d), and (iii) the Administrative Agent
shall have received evidence reasonably satisfactory to the Administrative Agent that the
Successor Bank or Successor Banks shall have agreed in the aggregate to succeed to the
entire Commitment of the Terminated Bank in accordance with this Section 5.18. On a
Bank Termination Date, the applicable Successor Bank (or Successor Banks, as applicable)
shall succeed to the L/C Interests of the Terminated Bank, and the Terminated Bank shall
thereafter cease to have any L/C Interest or any participation in, or liability for any
drawings made under, any Letter of Credit.




     (f) Subject to subsection (e) above, on the Bank Termination Date, (i) each
Successor Bank shall become a party to this Agreement as if such Successor Bank shall have
been named on the signature pages hereof, and such Successor Bank shall have all the rights
and obligations of a “Bank” hereunder and (ii) the Terminated Bank shall have no further
Commitment under this Agreement (other than with respect to Advances, if any, made by such
Bank which remain outstanding after such date) and shall no longer be a “Bank” under this
Agreement for any purpose (other than with respect to Advances made by such Bank which
remain outstanding after such date) except insofar as it shall be entitled to any payment or
indemnification, or be obligated to make any indemnification, on account of any event which
shall have occurred, or any right or liability which shall have arisen, on or prior to the
date of repayment of such outstanding Advances. The termination of any Bank’s Commitment
and the prepayment of such Bank’s Advances pursuant to this Section 5.18 shall not
relieve or satisfy the obligations of the Borrower to make any such prepayments free and
clear of all Taxes, to reimburse such Bank for all Other Taxes and for all increased costs
pursuant to Section 5.13, or to comply with all other terms and conditions of this
Agreement (including, without limitation, Section 11.04). A Successor Bank shall be
subject to the Syndicated Reduction (or, in the case of more than one Successor Bank, its
ratable share of the Syndicated Reduction) of the Terminated Bank it succeeds upon the Bank
Termination Date applicable to such successor.




53











 





          SECTION 5.19. Defaulting Banks. Notwithstanding any provision of this Agreement
to the contrary, if any Bank becomes a Defaulting Bank then the following provisions shall apply
for so long as such Bank is a Defaulting Bank:




     (a) Fees shall cease to accrue on the unfunded Commitment of such Defaulting Bank
pursuant to Section 5.04(a). Each Defaulting Bank shall be entitled to receive
letter of credit fees under Section 5.04(c) for any period during which such Bank is
a Defaulting Bank only to the extent allocable to its L/C Interest of the stated amount of
Letters of Credit for which it has provided cash collateral to the Administrative Agent.




     (b) The Commitments, Advances and L/C Interests of such Defaulting Bank shall not be
included in determining whether the Majority Banks have taken or may take any action
hereunder (including any consent to any amendment or waiver pursuant to Section
11.01) which requires Majority Banks consent.




     (c) All or any part of any L/C Interest shall be reallocated among the non-Defaulting
Banks in accordance with their respective Commitments but only to the extent such
reallocation does not cause any non-Defaulting Bank to exceed its Commitment;
provided that if such reallocation cannot, or can only partially, be effected, the
Borrower shall, without prejudice to any right or remedy available to it hereunder or under
law, within one (1) Business Day following notice by the Administrative Agent cash
collateralize for the benefit of each Issuing Bank the Borrower’s obligations corresponding
to such Defaulting Bank’s L/C Interest (after giving effect to any partial reallocation
described in this clause (c)) in accordance with the procedures set forth in
Section 9.02 for so long as such L/C Interest is outstanding. Notwithstanding the
foregoing, reallocation of L/C Interests in accordance with the terms of this Agreement
shall not constitute a waiver or release of claims against any such Defaulting Bank.




     (d) If the Borrower cash collateralizes any portion of such Defaulting Bank’s L/C
Interest pursuant to clause (c) above, the Borrower shall not be required to pay any
fees to such Defaulting Bank pursuant to Section 5.04(c) with respect to such
Defaulting Bank’s L/C Interest during the period such Defaulting Bank’s L/C Interest is so
cash collateralized.




     (e) If the L/C Interest of the non-Defaulting Banks are reallocated pursuant to
clause (c) above, then the fees payable to the Banks pursuant to Sections
5.04(a) and (c) shall be adjusted in accordance with such non-Defaulting Banks’
applicable L/C Interests.




     (f) If all or any portion of such Defaulting Bank’s L/C Interest is neither cash
collateralized nor reallocated pursuant to clause (c) above, then, without prejudice
to any rights or remedies of the Issuing Banks or any other Bank hereunder, all facility
fees that otherwise would have been payable to such Defaulting Bank (solely with respect to
the portion of such Defaulting Bank’s Commitment that was utilized by such L/C Interest) and
letter of credit fees payable under Section 5.04(c) with respect to such Defaulting
Bank’s L/C Interest shall be payable, on a pro rata basis, to the Issuing Banks until each
such L/C Interest is cash collateralized and/or reallocated.



54









 






     (g) So long as such Bank is a Defaulting Bank, the Issuing Banks shall not be required
to issue, amend or increase any Letter of Credit, unless, in each case, the applicable
Issuing Bank is satisfied that the related exposure will be 100% covered by the
non-Defaulting Banks, cash collateral provided pursuant to clause fifth of
Section 5.19(h) below and/or cash collateral will be provided by the Borrower in
accordance with Section 5.19(c).




     (h) Any payment of principal, interest, fees or other amounts received by the
Administrative Agent hereunder for the account of such Defaulting Bank (whether voluntary or
mandatory, at maturity, pursuant to Article IX or otherwise) or received by the
Administrative Agent from a Defaulting Bank pursuant to Section 11.05 shall be
applied at such time or times as may be determined by the Administrative Agent as follows:
first, to the payment of any amounts owing by such Defaulting Bank to the Administrative
Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such
Defaulting Bank to any Issuing Bank hereunder; third, to cash collateralize the Issuing
Banks’ exposure with respect to such Defaulting Bank; fourth, as the Borrower may request
(so long as no Event of Default or Unmatured Event of Default exists), to the funding of any
Advance in respect of which such Defaulting Bank has failed to fund its portion thereof as
required by this Agreement; fifth, if so determined by the Administrative Agent and the
Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such
Defaulting Bank’s potential future funding obligations with respect to Advances under this
Agreement and (y) cash collateralize the Issuing Banks’ future exposure with respect to such
Defaulting Bank with respect to future Letters of Credit issued under this Agreement; sixth,
to the payment of any amounts owing to the Banks or the Issuing Banks as a result of any
judgment of a court of competent jurisdiction obtained by any Bank or the Issuing Banks
against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations
under this Agreement; seventh, so long as no Event of Default or Unmatured Event of Default
exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a
court of competent jurisdiction obtained by the Borrower against such Defaulting Bank as a
result of such Defaulting Bank’s breach of its obligations under this Agreement; and eighth,
to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction;
provided that if (x) such payment is a payment of the principal amount of any
Advances or Reimbursement Obligations in respect of which such Defaulting Bank has not fully
funded its proportionate share, and (y) such Advances were made or the related Letters of
Credit were issued at a time when the conditions set forth in Section 6.02 were
satisfied or waived, such payment shall be applied solely to pay the Advances of, and
Reimbursement Obligations owed to, all non-Defaulting Banks on a pro rata basis prior to
being applied to the payment of any Advances of, or Reimbursement Obligations owed to, such
Defaulting Bank until such time as all Advances and funded and unfunded participations in
L/C Obligations are held by the Banks pro rata in accordance with the Commitments without
giving effect to Section 5.19(c). Any payments, prepayments or other amounts paid
or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a
Defaulting Bank or to post cash collateral pursuant to this Section 5.19(h) shall be
deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents
hereto.



55









 






     (i) In the event that the Administrative Agent, the Borrower and each Issuing Bank
agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to
be a Defaulting Bank, then the Advances and L/C Interests of the Banks shall be readjusted
to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase
at par such of the Advances of the other Banks as the Administrative Agent shall determine
may be necessary in order for such Bank to hold such Advances in accordance with its
applicable Commitments.




     (j) The Borrower may terminate the unused amount of the Commitment of any Bank that is
a Defaulting Bank upon not less than three Business Days’ prior notice to the Administrative
Agent (which shall promptly notify the Banks thereof), and in such event the provisions of
Section 5.19(h) will apply to all amounts thereafter paid by the Borrower for the
account of such Defaulting Bank under this Agreement (whether on account of principal,
interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall
have occurred and be continuing, and (ii) such termination shall not be deemed to be a
waiver or release of any claim the Borrower, the Administrative Agent, any Issuing Bank or
any Bank may have against such Defaulting Bank.



ARTICLE VI




CONDITIONS PRECEDENT



          SECTION 6.01. Conditions Precedent to Effectiveness of Agreement. The effectiveness
of this Agreement and the obligation of each Bank to make its initial Advance or for an Issuing
Bank to issue the initial Letter of Credit hereunder (whichever shall first be requested by the
Borrower) is subject to the condition precedent that the Administrative Agent shall have received
all of the following:




     (a) Certified copies of the resolutions of the Board of Directors of the Borrower
approving this Agreement and any Notes, and of all documents evidencing other necessary
corporate action with respect to this Agreement and any Notes.




     (b) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying
the names and true signatures of the officers of the Borrower authorized to sign this
Agreement and any Notes and the other documents or certificates to be delivered pursuant to
this Agreement.




     (c) A certificate, signed by the chief financial officer of the Borrower, stating that
as of the date hereof (i) all representations and warranties in this Agreement are correct
in all material respects except to the extent such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct in all
material respects as of such earlier date, (ii) no Event of Default or Unmatured Event of
Default has occurred and is continuing and (iii) there are no unreimbursed drawings under
any Existing Letter of Credit.




     (d) A favorable opinion of the General Counsel or Associate General Counsel of the
Borrower, substantially in the form set forth in Exhibit 6.01(d) hereto.



56









 





          SECTION 6.02. Conditions Precedent to Each Borrowing. The obligation of each Bank to
make an Advance on the occasion of each Borrowing (including the First Borrowing) or for any
Issuing Bank to issue any Letter of Credit shall be subject to the additional conditions precedent
that on the date of such Borrowing or issuance of such Letter of Credit (a) immediately before and
after giving effect to such Borrowing and to the application of proceeds therefrom, or (as
applicable) immediately before and after the issuance of such Letter of Credit, the following
statements shall be true (and each of the giving of the applicable Notice of Borrowing and the
acceptance by the Borrower of the proceeds of such Borrowing, or (as applicable) the submission of
a request for issuance of a Letter of Credit, shall be deemed to constitute a representation and
warranty by the Borrower that on the date of such Borrowing or such issuance, immediately before
and after giving effect thereto and to the application of the proceeds therefrom (in the case of a
Borrowing), such statements are true):




     (i) The representations and warranties contained in Section 7.01 (other
than subsections (e), (f) and (i) thereof) are correct in
all material respects on and as of the date of such Borrowing as though made on and
as of such date (except to the extent such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct
in all material respects as of such earlier date);




     (ii) No event has occurred and is continuing, or would result from such
Borrowing (or from the application of the proceeds therefrom) or from the issuance
of such Letter of Credit, which constitutes an Event of Default or an Unmatured
Event of Default; and




     (iii) The Facility Usage at such time does not exceed the Aggregate Commitments
at such time,


and (b) the Administrative Agent shall have received such other documents as any Bank through the
Administrative Agent may reasonably request related to clauses (a)(i) or (a)(ii)
above.




          SECTION 6.03. Termination of Existing Credit Agreement. The Borrower hereby
terminates the commitments of all lenders under the Existing Credit Agreement and represents to the
Administrative Agent and the Banks that all outstanding obligations, if any, under the Existing
Credit Agreement have been repaid in full except for the obligations with respect to the Existing
Letters of Credit which shall be deemed Letters of Credit outstanding under this Agreement as of
the date hereof. Each of the Banks party to this Agreement which is also a lender or, with respect
to JPMorgan Chase Bank, National Association, the administrative agent and a lender, under the
Existing Credit Agreement hereby agrees that, for purposes of the Existing Credit Agreement, the
termination set forth in the preceding sentence is sufficient to terminate the obligations of the
Borrower under the Existing Credit Agreement and hereby waives receipt of any additional written
notice and satisfaction of any other condition required to terminate the Existing Credit Agreement
in accordance with its terms.



57









 





ARTICLE VII




REPRESENTATIONS AND WARRANTIES



          SECTION 7.01. Representations and Warranties of the Borrower. The Borrower represents
and warrants as follows:




     (a) Corporate Existence and Standing. The Borrower and each Material
Subsidiary is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which the failure so to qualify would have a material
adverse effect on the financial condition or operations of the Borrower.




     (b) Authorization; No Violation. The execution, delivery and performance by
the Borrower of this Agreement and the Notes are within the Borrower’s corporate powers,
have been duly authorized by all necessary corporate action, and do not contravene (i) the
Borrower’s charter or by-laws or (ii) any law or any contractual restriction binding on or
affecting the Borrower.




     (c) Governmental Consents. No authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority or regulatory body is required
for the due execution, delivery and performance by the Borrower of this Agreement or any
Notes.




     (d) Validity. This Agreement is, and any Notes when delivered will be, the
legal, valid and binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally
and to the effect of general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).




     (e) Litigation. Except as disclosed by the Borrower in its SEC filings prior
to the date hereof, there is no pending or, to the knowledge of the Borrower, threatened
action or proceeding affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, which could reasonably be expected to have a material
adverse effect on the financial condition or operations of the Borrower or which purports to
affect the legality, validity or enforceability of this Agreement or any Note to be
delivered by it.




     (f) Financial Statements; No Material Adverse Change. The Consolidated balance
sheet at December 31, 2010, and the related Consolidated statements of income, cash flows
and shareholder’s equity and comprehensive income for the period then ended of the Borrower
and its Consolidated Subsidiaries present fairly in all material respects the financial
condition of the Borrower and its Consolidated Subsidiaries at December 31, 2010, and the
results of the operations and cash flows of the Borrower and its Consolidated Subsidiaries
for the year then ended, in conformity with generally accepted accounting principles applied
on a basis consistent with that of the preceding year except



58









 






as discussed in Note 1 to the Consolidated financial statements. Since December 31,
2010, except as disclosed in filings with the SEC prior to the date of this Agreement, there
has been no material adverse change in such financial condition or operations.




     (g) Investment Company Act. The Borrower is not an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.




     (h) Regulation U. Neither the Borrower nor any of its Subsidiaries is engaged
as a substantial part of its activities in the business of purchasing or carrying Margin
Stock. The value of the Margin Stock owned directly or indirectly by the Borrower or any
Subsidiary which is subject to any arrangement (as such term is used in Section 221.2(g) of
Regulation U issued by the Board of Governors of the Federal Reserve System) hereunder is
less than an amount equal to twenty-five percent (25%) of the value of all assets of the
Borrower and/or such Subsidiary subject to such arrangement.




     (i) Environmental Matters. The operations of the Borrower and each Material
Subsidiary comply in all material respects with all Environmental Laws, the noncompliance
with which would materially adversely affect the financial condition or operations of the
Borrower.



ARTICLE VIII




COVENANTS



          SECTION 8.01. Affirmative Covenants of the Borrower. So long as any Advance shall
remain unpaid, any L/C Obligations shall remain outstanding or any Bank shall have any Commitment,
the Borrower will:




     (a) Payment of Taxes, Etc. Pay and discharge, and cause each Material
Subsidiary to pay and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its income, profit or
property, and (ii) all lawful claims which, if unpaid, might by law become a lien upon its
property; provided, however, that neither the Borrower nor any Material
Subsidiary shall be required to pay or discharge any such tax, assessment, charge or claim
which is being contested in good faith and by proper proceedings and with respect to which
the Borrower shall have established appropriate reserves in accordance with generally
accepted accounting principles.




     (b) Maintenance of Insurance. Maintain, and cause each Material Subsidiary to
maintain, insurance with responsible and reputable insurance companies or associations in
such amounts and covering such risks as is usually carried by (or, as applicable,
self-insure in a manner and to an extent not inconsistent with conventions observed by)
companies engaged in similar businesses and owning similar properties in the same general
areas in which the Borrower or such Material Subsidiary operates.



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     (c) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause
each Material Subsidiary to preserve and maintain, its corporate existence, rights
(charter and statutory), and franchises, except as otherwise permitted by Section
8.02(c); provided, however, that neither the Borrower nor any Material
Subsidiary shall be required to preserve any right or franchise if the Board of Directors of
the Borrower shall determine that the preservation thereof is no longer desirable in the
conduct of business of the Borrower or such Material Subsidiary, as the case may be, and
that the loss thereof is not materially adverse to the financial condition or operations of
the Borrower.




     (d) Compliance with Laws, Etc. Comply, and cause each Material Subsidiary to
comply, with the requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority (including, without limitation, all Environmental Laws),
noncompliance with which would materially adversely affect the financial condition or
operations of the Borrower.




     (e) Keeping of Books. Keep, and cause each Material Subsidiary to keep, proper
books of record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Borrower and each Material
Subsidiary in accordance with generally accepted accounting principles in effect from time
to time.




     (f) Reporting Requirements. Furnish to the Administrative Agent in sufficient
copies for distribution to each Bank:




     (i) As soon as available and in any event within the earlier of (A) five (5)
days after the time period specified by the SEC under the Exchange Act for quarterly
reporting or (B) fifty-five (55) days after the end of each of the first three (3)
quarters of each fiscal year of the Borrower, a Consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such quarter and a
Consolidated statement of income and cash flows (or Consolidated statement of
changes in financial position, as the case may be) of the Borrower and its
Consolidated Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified by the chief
financial officer of the Borrower (it being understood that the certification
provided by the chief financial officer pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002 is acceptable for this purpose); provided,
however, that at any time the Borrower shall be subject to the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act, delivery within the
time period specified above of copies of the quarterly balance sheets and statements
on Form 10-Q of the Borrower and its Consolidated Subsidiaries for such quarterly
period as filed with the SEC shall be deemed to satisfy the requirements of this
clause (i);




     (ii) As soon as available and in any event within the earlier of (A) five (5)
days after the time period specified by the SEC under the Exchange Act for annual
reporting or (B) one hundred (100) days after the end of each fiscal year of the
Borrower, a Consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such year and a Consolidated statement of income,



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cash
flows and shareholder’s equity and comprehensive income of the Borrower and its
Consolidated Subsidiaries for such fiscal year and accompanied by (1) a
report of PricewaterhouseCoopers LLP, or other independent public accountants
of nationally recognized standing, on the results of their examination of the
Consolidated annual financial statements of the Borrower and its Consolidated
Subsidiaries, which report shall be unqualified as to a “going concern” or like
qualification or exception or as to the scope of such audit or shall be otherwise
reasonably acceptable to the Majority Banks, and (2) a certificate of such
accountants substantially in the form of Exhibit 8.01(f)(ii) hereto;
provided further, that at any time the Borrower shall be subject to
the reporting requirements of Section 13 or Section 15(d) of the Exchange Act,
delivery within the time period specified above of copies of the annual balance
sheets and statements on Form 10-K of the Borrower and its Consolidated Subsidiaries
for such annual period as filed with the SEC shall be deemed to satisfy the
requirements of this clause (ii);




     (iii) Promptly after the sending or filing thereof, copies of all reports which
the Borrower files with the SEC under the Exchange Act; provided, that such
quarterly and annual financial statements and reports filed with the SEC required
pursuant to clauses (i), (ii) and (iii) above shall be
deemed delivered to the Administrative Agent on the earlier of the date such
statements or reports are available at (i) www.sec.gov and (ii) the Borrower’s
website at www.baxter.com;




     (iv) Together with the financial statements required pursuant to clauses
(i) and (ii) above, a certificate signed by the chief financial officer
of the Borrower (A) stating that no Event of Default or Unmatured Event of Default
exists or, if any does exist, stating the nature and status thereof and describing
the action the Borrower proposes to take with respect thereto, and (B)
demonstrating, in reasonable detail, the calculations used by such officer to
determine compliance with the financial covenants contained in Sections
8.02(a) and 8.02(b); and




     (v) As soon as possible, and in any event within five (5) Business Days after
the Borrower shall become aware of the occurrence of each Event of Default or
Unmatured Event of Default, which Event of Default or event is continuing on the
date of such statement, a statement of the chief financial officer of the Borrower
setting forth details of such Event of Default or event and the action which the
Borrower proposes to take with respect thereto.




     (g) Use of Proceeds. Use the proceeds of Borrowings made under or Letters of
Credit issued in accordance with this Agreement for general corporate purposes not in
violation of any applicable law or regulation (including, without limitation, Regulation U
and X of the Board of Governors of the Federal Reserve System (the “Margin
Regulations”)). Without limiting the generality of the foregoing, the Borrower may use
the credit facilities provided by this Agreement in support of its commercial paper program.
With respect to any Borrowing the proceeds of which shall be used to purchase or carry
Margin Stock, the Borrower shall include in the Notice of Borrowing for such



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     Borrowing such
information as shall enable the Banks and the Borrower to comply with the Margin
Regulations.



          SECTION 8.02. Negative Covenants of the Borrower. So long as any Advance shall remain
unpaid, any L/C Obligations shall remain outstanding or any Bank shall have any Commitment, the
Borrower will not:




     (a) Liens, Etc. Suffer to exist, create, assume or incur, or permit any of its
Material Subsidiaries to suffer to exist, create, assume or incur, any Security Interest, or
assign, or permit any of its Material Subsidiaries to assign, any right to receive income,
in each case to secure Debt or any other obligation or liability, other than:




	 	(i)	 	Any Security Interest to secure Debt or any
other obligation or liability of any Material Subsidiary to the
Borrower.
	 
	 	(ii)	 	Mechanics’, materialmen’s, carriers’ or other
like liens arising in the ordinary course of business (including
construction of facilities) in respect of obligations which are not due
or which are being contested in good faith and for which reasonable
reserves have been established.
	 
	 	(iii)	 	Any Security Interest arising by reason of
deposits with, or the giving of any form of security to, any
governmental agency or any body created or approved by law or
governmental regulation which is required by law or governmental
regulation as a condition to the transaction of any business, or the
exercise of any privilege, franchise or license.
	 
	 	(iv)	 	Security Interests for taxes, assessments or
governmental charges or levies not yet delinquent or Security Interests
for taxes, assessments or governmental charges or levies already
delinquent but the validity of which is being contested in good faith
and for which reasonable reserves have been established.
	 
	 	(v)	 	Security Interests (including judgment liens)
arising in connection with legal proceedings so long as such
proceedings are being contested in good faith and, in the case of
judgment liens, the related judgment does not constitute an Event of
Default under Section 9.01(g).
	 
	 	(vi)	 	Landlords’ liens on fixtures located on
premises leased by the Borrower or one of its Material Subsidiaries in
the ordinary course of business.
	 
	 	(vii)	 	Security Interests arising in connection with
contracts and subcontracts with or made at the request of the United
States of America, any state thereof, or any department, agency or





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	 	 	 	instrumentality of the United States or any state thereof for
obligations not yet delinquent.






	 	(viii)	 	Any Security Interest arising by reason of deposits to qualify the
Borrower or a Subsidiary to conduct business, to maintain
self-insurance, or to obtain the benefit of, or comply with, laws.






	 	(ix)	 	Any purchase money Security Interest claimed by
sellers of goods on ordinary trade terms provided that no
financing statement has been filed to perfect such Security Interest.






	 	(x)	 	The extension of any Security Interest existing
as of the date hereof to additions, extensions, or improvements to the
property subject to the Security Interest which does not arise as a
result of borrowing money or the securing of Debt or other obligation
or liability created, assumed or incurred after such date.






	 	(xi)	 	Security Interests on (i) property of a
corporation or firm existing at the time such corporation or firm is
merged or consolidated with the Borrower or any Subsidiary or at the
time of a sale, lease or other disposition of the properties of a
corporation or a firm as an entirety (or the properties of a
corporation or firm comprising a product line or line of business, as
an entirety) or substantially as an entirety to the Borrower or a
Subsidiary; or (ii) property comprising machinery, equipment or real
property acquired by the Borrower or any of its Subsidiaries, which
Security Interests shall have existed at the time of such acquisition
and secure obligations assumed by the Borrower or such Subsidiary in
connection with such acquisition; provided that the Security
Interests of the type described in this clause (xi) shall not
attach to or affect property owned by the Borrower or such Subsidiary
prior to the event referred to in this clause (xi).






	 	(xii)	 	Security Interests arising in connection with
the sale, assignment or other transfer by the Borrower or any Material
Subsidiary of accounts receivable, lease receivables or other payment
obligations (together with rights and assets related thereto, any of
the foregoing being a “Receivable”) owing to the Borrower or
any Subsidiary or any interest in any of the foregoing (together in
each case with any collections and other proceeds thereof and any
collateral, guaranties or other property or claims in favor of the
Borrower or such Subsidiary supporting or securing payment by the
obligor thereon of any such Receivables), in each case whether such
sale, assignment or other transfer constitutes a “true sale” or a
secured financing for accounting, tax or any other purpose;
provided that either (i) such sale, assignment or other
transfer shall have been made as part of a sale of the business out of
which the




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	 	 	 	applicable Receivables arose, (ii) such sale, assignment or
other transfer is made in the ordinary course of business and is for
the purpose of collection only, (iii) such sale, assignment or other
transfer is made in connection with an agreement on the part of the
assignee thereof to render performance under the contract that has
given rise to such Receivable, or (iv) in all other cases, the
aggregate outstanding principal amount of the investment or claim
held by purchasers, assignees or other transferees of (or of
interests in) such Receivables (as determined by the Borrower using
any reasonable methods as of the time any such investment is made or
claim is incurred) shall not exceed an amount equal to ten percent
(10%) of the Consolidated total assets of the Borrower and its
Consolidated Subsidiaries at such time.






	 	(xiii)	 	Security Interests securing non-recourse obligations in connection
with leveraged or single-investor lease transactions.






	 	(xiv)	 	Security Interests securing the performance of
any contract or undertaking made in the ordinary course of business (as
such business is currently conducted) other than for the borrowing of
money.






	 	(xv)	 	Any Security Interest granted by the Borrower
or any Material Subsidiary of the Borrower; provided that (i)
the property which is subject to such Security Interest is a parcel of
real property, a manufacturing plant, manufacturing equipment, a
warehouse, or an office building hereafter acquired, constructed,
developed or improved by the Borrower or such Material Subsidiary, and
(ii) such Security Interest is created prior to or contemporaneously
with, or within 120 days after (x) in the case of acquisition of such
property, the completion of such acquisition and (y) in the case of the
construction, development or improvement of such property, the later to
occur of the completion of such construction, development or
improvement or the commencement of operations, use or commercial
production (exclusive of test and start-up periods) of such property,
and such Security Interest secures or provides for the payment of all
or any part of the acquisition cost of such property or the cost of
construction, development or improvement thereof, as the case may be.






	 	(xvi)	 	Any conditional sales agreement or other title
retention agreement with respect to property acquired by the Borrower
or any Material Subsidiary.






	 	(xvii)	 	Any Security Interest that secures an obligation owed to the United
States of America or any state, territory or possession of the United
States of America, any political subdivision of any of the foregoing




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	 		 	or the District of Columbia (each, a “Governmental Entity”) in
connection with a bond or other obligation issued by a Governmental
Entity to finance the construction or acquisition by
the Borrower or any Material Subsidiary of any manufacturing plant,
warehouse, office building or parcel of real property (including
fixtures).






	 	(xviii)	 	Any Security Interest in deposits or cash equivalent investments
pledged with a financial institution for the sole purpose of
implementing a hedging or financing arrangement commonly known as a
“back-to-back” loan arrangement, provided in each case that
neither the assets subject to such Security Interest nor the Debt
incurred in connection therewith are reflected on the Consolidated
balance sheet of the Borrower.






	 	(xix)	 	Security Interests of financial institutions
as collecting banks or with respect to deposit or securities accounts
held at such financial institutions, in each case in the ordinary
course of business.






	 	(xx)	 	Any extension, renewal or refunding (or
successive extensions, renewals or refundings) in whole or in part of
any Debt or any other obligation or liability secured by any Security
Interest referred to in the foregoing clauses (i) through
(xix), provided that the principal amount of Debt or
any other obligation or liability secured by such Security Interest
shall not exceed the principal amount outstanding immediately prior to
such extension, renewal or refunding, and that the Security Interest
securing such Debt or other obligation or liability shall be limited to
the property which, immediately prior to such extension, renewal or
refunding secured such Debt or other obligation or liability and
additions to such property.





          Notwithstanding the foregoing provisions of this Section 8.02(a), the Borrower and its
Material Subsidiaries may, at any time, suffer to exist, issue, incur, assume and guarantee Secured
Debt (in addition to Secured Debt permitted to be secured under the foregoing clauses (i)
through (xx)), provided that the aggregate amount of such Secured Debt, together
with the aggregate amount of all other Secured Debt (not including Secured Debt permitted to be
secured under the foregoing clauses (i) through (xx)) of the Borrower and its
Material Subsidiaries which is suffered to exist, issued, incurred, assumed or guaranteed after the
date hereof, does not at such time exceed ten percent (10%) of Consolidated Net Tangible Assets.




     (b) Limitation on Debt. Permit Consolidated Adjusted Debt of the Borrower and
its Consolidated Subsidiaries at any time to exceed an amount equal to fifty-five
percent (55%) of Consolidated Capitalization at such time.



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     (c) Merger, Etc.




     (i) Merge or consolidate with or into, or Transfer Assets to, any Person,
except that the Borrower may (A) merge or consolidate with any corporation,
including any Subsidiary, which is a U.S. Corporation and (B)
Transfer Assets to any Subsidiary which is a U.S. Corporation;
provided, in each case described in clause (A) and (B)
above, that (x) immediately after giving effect to such transaction, no event shall
have occurred and be continuing which constitutes an Event of Default or Unmatured
Event of Default and (y) in the case of any merger or consolidation to which the
Borrower shall be a party, the survivor of such merger or consolidation shall be the
Borrower.




     (ii) Permit any Material Subsidiary to merge or consolidate with or into, or
Transfer Assets to, any Person unless, immediately after giving effect to such
transaction, no event shall have occurred and be continuing which constitutes an
Event of Default or Unmatured Event of Default.



          For purposes of this Section 8.02(c): “Transfer Assets” means, when referring
to the Borrower, the conveyance, transfer, lease or other disposition (whether in one transaction
or in a series of transactions) of all or substantially all of the assets of the Borrower or of the
Borrower and its Subsidiaries considered as a whole and means, when referring to a Material
Subsidiary, the conveyance, transfer, lease or other disposition (whether in one transaction or in
a series of transactions) of all or substantially all of the assets of such Material Subsidiary;
and “U.S. Corporation” means a corporation organized and existing under the laws of the
United States, any state thereof or the District of Columbia.



ARTICLE IX




EVENTS OF DEFAULT



          SECTION 9.01. Events of Default. If any of the following events (each, an “Event
of Default,” and, collectively, “Events of Default”) shall occur and be continuing:




     (a) The Borrower shall fail to (i) pay any installment of interest on any Advance or
any facility fee payable under Section 5.04(a), or any letter of credit fee payable
under Section 4.07 or Section 5.04(c), in each case when due and such
default continues for five (5) days, or (ii) pay any amount of principal of any Advance or
any Reimbursement Obligation when due; or




     (b) Any representation or warranty made or deemed made by the Borrower (or any of its
officers) in connection with this Agreement, any Advance or Letter of Credit shall prove to
have been incorrect in any material respect when made or deemed made; or




     (c) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 8.02(a) or Section 8.02(b) of this Agreement on its
part to be performed or observed and such failure shall remain unremedied on the earlier to
occur of (i) or (ii): (i) the date thirty (30) days after the Borrower shall have become



66









 






aware of such failure or (ii) the date that financial statements of the Borrower shall be
available from which it may be ascertained that such failure to perform or observe such
term, covenant or agreement shall have occurred. For purposes of clause (ii) above,
the date that any financial statements shall be deemed available shall be the date on which
the Borrower shall file (or, if earlier, the date the Borrower shall have been required
to file) such financial statements with the SEC as part of any report required to be filed
pursuant to the Exchange Act; or




     (d) The Borrower shall (i) fail to perform or observe, or shall breach, any other term,
covenant or agreement contained in this Agreement on its part to be performed or observed
(other than those failures or breaches referred to in subsections (a), (b),
(c), (d)(ii) or (d)(iii) of this Section 9.01) and any such
failure or breach shall remain unremedied for thirty (30) days after written notice thereof
has been given to the Borrower by the Administrative Agent at the request of any Bank; (ii)
fail to perform or observe Section 8.02(c); or (iii) fail to perform or observe
Section 8.01(f)(v) and such failure shall remain unremedied for fifteen (15) days
after the occurrence thereof; or




     (e) The Borrower or any Material Subsidiary shall fail to pay any amount of principal
of, interest on or premium with respect to, any Debt (other than that evidenced by this
Agreement) of the Borrower or such Subsidiary when due (whether at scheduled maturity or by
required prepayment, acceleration, demand or otherwise) which Debt is outstanding under one
or more instruments or agreements in an aggregate principal amount not less than
$150,000,000 and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist after the applicable grace period specified in such agreement
or instrument, if the effect of such event or condition is to accelerate the maturity of
such Debt; or any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a scheduled prepayment), prior to the stated maturity thereof; or




     (f) The Borrower or any Material Subsidiary shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or such Material Subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debt under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or other similar official for it
or for any substantial part of its property; or the Borrower or any such Material Subsidiary
shall take corporate action to authorize any of the actions set forth above in this
subsection (f); provided that, in the case of any such proceeding filed or
commenced against the Borrower or any Material Subsidiary, such event shall not constitute
an “Event of Default” hereunder unless either (i) the same shall have remained undismissed
or unstayed for a period of sixty (60) days, (ii) an order for relief shall have been
entered against the Borrower or such Material Subsidiary under the federal bankruptcy laws
as now or hereafter in effect or (iii) the Borrower or such Material Subsidiary shall have



67









 






taken corporate action consenting to, approving or acquiescing in the commencement or
maintenance of such proceeding; or




     (g) Any judgment or order for the payment of money shall be rendered against the
Borrower or any Material Subsidiary and (i) either (A) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order or (B) there shall be
any period of thirty (30) consecutive days, in the case of a judgment or order rendered or
entered by a court during which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect, and (ii) the amount of such
judgment or order, when aggregated with the amount of all other such judgments and orders
described in this subsection (g), shall exceed $150,000,000; provided that
the rendering of any such judgment or order shall not constitute an Unmatured Event of
Default; or




     (h) Either (i) the PBGC shall institute proceedings under Section 4042 of ERISA to
terminate any Plan and such Plan shall have an Unfunded Liability in an amount in excess of
$150,000,000 at such time or (ii) withdrawal liability shall be assessed against the
Borrower or any Material Subsidiary in connection with any Multiemployer Plan (whether under
Section 4203 or Section 4205 of ERISA) and such withdrawal liability shall be an amount in
excess of $150,000,000; or




     (i) A Change of Control shall occur;


then, in any such event but subject to the next sentence, the Administrative Agent shall at the
request, or may with the consent, of the Majority Banks, by notice to the Borrower, (i) declare the
obligation of each Bank to make Advances and the obligation of each Issuing Bank to issue Letters
of Credit hereunder to be terminated, whereupon the same shall forthwith terminate, (ii) declare
the entire unpaid principal amount of the Advances, all interest accrued and unpaid thereon and all
other amounts payable under this Agreement (including Reimbursement Obligations) to be forthwith
due and payable, whereupon the Advances, all such accrued interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or further notice of
any kind, all of which are hereby expressly waived by the Borrower; provided that in the
case of any Competitive Bid Advance, the unpaid principal amount thereof, and all interest accrued
and unpaid thereon, shall not be declared to be due and payable pursuant to the foregoing
clause (ii) without the consent of the Bank to which such Competitive Bid Advance is owing
and (iii) demand delivery of, and promptly following such demand the Borrower shall deliver and
pledge to the Administrative Agent (or another Bank selected by the Borrower) for the benefit of
the Banks, cash or other collateral of a type satisfactory to the Majority Banks and having a
value, as determined by the Administrative Agent, equal to the aggregate undrawn face amount of the
Letters of Credit then outstanding and all fees and other amounts then due. In the event of the
occurrence of an Event of Default under Section 9.01(f), (A) the obligation of each Bank to
make Advances and the obligation of each Issuing Bank to issue Letters of Credit hereunder shall
automatically be terminated and (B) the Advances, all such interest and all such amounts (including
Reimbursement Obligations) shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly waived by the
Borrower.





68











 





          SECTION 9.02. Cash Collateral. Any cash collateral delivered pursuant to
Section 9.01 in respect of the outstanding Letters of Credit shall be held by the
Administrative Agent or the applicable Bank in a separate interest-bearing account appropriately
designated as a cash collateral account in relation to this Agreement and the Letters of Credit and
retained by and under the control of the Administrative Agent or the applicable Bank for the
benefit of all of the Banks and the Issuing Banks as collateral security for the Borrower’s
obligations in respect of this Agreement and each of the Letters of Credit. Amounts held in such
account shall be applied on the direction of the Administrative Agent to reimburse the Issuing
Banks for drawings or payments under or pursuant to Letters of Credit, or if no such reimbursement
is required, to payment of such of the other obligations due and owing hereunder as the
Administrative Agent shall determine. If no Event of Default shall be continuing, amounts
remaining in any cash collateral account established pursuant to this Section 9.02 which
are not to be applied to reimburse an Issuing Bank for amounts actually paid or to be paid by such
Issuing Bank in respect of a Letter of Credit or to payment of such of the other obligations due
and owing hereunder, shall be promptly returned to the Borrower upon the Borrower’s request
therefor.



ARTICLE X




THE ADMINISTRATIVE AGENT



          SECTION 10.01. Authorization and Action. Each Bank hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly provided for by this
Agreement, the Administrative Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Banks and such instructions
shall be binding upon all Banks and all holders of Notes. The Administrative Agent shall not be
required to take any action which exposes it to personal liability or which is contrary to this
Agreement or applicable law. The Administrative Agent shall be permitted from time to time to
designate one of its Affiliates to perform the duties to be performed by the Administrative Agent
hereunder with respect to Advances and Borrowings denominated in Agreed Currencies other than
Dollars. The provisions of this Article X shall apply to any such Affiliate mutatis
mutandis.



          SECTION 10.02. Duties and Obligations. Neither the Administrative Agent nor any of
its directors, officers, agents or employees shall be liable for any action taken or omitted to be
taken by it or them under or in connection with this Agreement except for its or their own gross
negligence or willful misconduct. Without limiting the generality of the foregoing, (i) the
Administrative Agent may treat the payee of any Note as the holder thereof unless and until the
Administrative Agent receives written notice of the assignment thereof signed by such payee and the
Administrative Agent receives the written agreement of the assignee that such assignee is bound
hereby as it would have been if it had been an original Bank party hereto, in each case in form
satisfactory to the Administrative Agent, (ii) the Administrative Agent may consult with legal
counsel (including counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such



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counsel, accountants or experts, and (iii) the Administrative Agent shall incur no liability
under or in respect of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable or telex) believed by it to be genuine and
signed or sent by the proper party or parties or by acting upon any representation or warranty of
the Borrower made or deemed to be made hereunder. Further, the Administrative Agent (A) makes no
warranty or representation to any Bank and shall not be responsible to any Bank for the accuracy or
completeness of any statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement, (B) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this Agreement on the
part of the Borrower or to inspect the property (including the books and records) of the Borrower,
and (C) shall not be responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto.




          SECTION 10.03. Administrative Agent and Affiliates. With respect to its Commitment,
the Advances made by it and the Notes issued to it, the Administrative Agent, in its separate
capacity as a Bank, shall have the same rights and powers under this Agreement as any other Bank
and may exercise the same as though it were not the Administrative Agent; and the term “Bank” or
“Banks” shall, unless otherwise expressly indicated, include the Administrative Agent in its
separate capacity as a Bank. The Administrative Agent, in its separate capacity as a Bank, and its
Affiliates may accept deposits from, lend money to, act as trustee under indentures of, participate
in Letters of Credit issued to and generally engage in any kind of business with, the Borrower, any
Subsidiary and any Person which may do business with or own securities of the Borrower or any
Subsidiary, all as if it were not the Administrative Agent hereunder and without any duty to
account therefor to the Banks.



          SECTION 10.04. Bank Credit Decision. Each Bank agrees that it has itself been, and
will continue to be, solely responsible for making its own independent appraisal of and
investigations into the financial condition, creditworthiness, condition, affairs, status and
nature of the Borrower. Accordingly, each Bank confirms to the Administrative Agent that such Bank
has not relied, and will not hereafter rely, on the Administrative Agent, or any other Bank, (i) to
check or inquire on its behalf into the adequacy, accuracy or completeness of any information
provided by the Borrower under or in connection with this Agreement or the transactions herein
contemplated (whether or not such information has been or is hereafter distributed to such Bank by
the Administrative Agent), (ii) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of the Borrower or (iii) in
entering into this Agreement or in making its own credit decisions with respect to the taking or
not taking of any action under this Agreement.



          SECTION 10.05. Indemnification. The Banks agree to indemnify the Administrative Agent
(to the extent not reimbursed by the Borrower) ratably according to the respective principal
amounts of the Commitments then held by each of them (or if the Commitments have at the time been
terminated, ratably according to the respective Dollar Amounts of their Advances then outstanding),
from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or
arising out of this Agreement



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or any action taken or omitted by the Administrative Agent under this Agreement,
provided that no Bank shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent’s gross negligence or willful misconduct. Without limiting the
generality of the foregoing, each Bank agrees to reimburse the Administrative Agent promptly upon
demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees)
incurred by the Administrative Agent in connection with the preparation, execution, delivery,
administration, modification or amendment of this Agreement or preservation of any rights of the
Administrative Agent or the Banks under, or the enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this
Agreement, to the extent that the Administrative Agent is not reimbursed for such expenses by the
Borrower.




          SECTION 10.06. Successor Administrative Agent. The Administrative Agent may resign at
any time by giving written notice thereof to the Banks and the Borrower. Upon any such resignation
or removal of the Administrative Agent, the Majority Banks shall have the right to appoint a
successor Administrative Agent to assume the position as Administrative Agent of the retiring
Administrative Agent. If no successor Administrative Agent shall have been so appointed by the
Majority Banks, and shall have accepted such appointment, within thirty (30) days after the
retiring Administrative Agent’s giving of notice of resignation or the Majority Banks’ removal of
the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the
Banks, appoint a successor Administrative Agent, which shall be either a Bank hereunder or a
commercial bank organized or licensed under the laws of the United States or of any state thereof
and having a combined capital and surplus of at least $500,000,000. The Borrower shall have the
right to approve any successor Administrative Agent, which approval shall not be unreasonably
withheld (in all such cases the Borrower shall be entitled to take into account its past and then
existing commercial banking relationships, among other things); provided that if an Event
of Default shall have occurred, such right of the Borrower to approve the successor Administrative
Agent shall be suspended during the continuance of such Event of Default. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement. After any retiring
Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of
this Article X shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement.



          SECTION 10.07. Syndication Agents and Co-Lead Arrangers. None of the Banks identified
on the cover page or signature pages of this Agreement as the “Syndication Agents” or “Co-Lead
Arrangers” shall have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Banks as such. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks identified as Syndication Agents or Co-Lead
Arrangers in deciding to enter into this Agreement or in taking or refraining from taking any
action hereunder or pursuant hereto.



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ARTICLE XI




MISCELLANEOUS



          SECTION 11.01. Amendments, Etc. Subject to the further terms of this Section
11.01, no amendment or waiver of any provision of this Agreement, nor consent to any departure
by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and
signed by the Majority Banks, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No amendment, waiver or consent
shall, unless in writing and signed by all the Banks, do any of the following: (a) waive any of
the conditions specified in Section 6.01, (b) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Advances and L/C Obligations, or the number of
Banks, which shall be required for the Banks or any of them to take any action hereunder, or amend
the definition herein of “Majority Banks,” or (c) amend this Section 11.01. No amendment,
waiver or consent shall: (i) change the Commitments of any Bank or subject any Bank to any
additional obligations without the written consent of such Bank, (ii) reduce the principal of, or
interest on, the Advances or the Reimbursement Obligations or any facility fees, letter of credit
fees or other amount payable hereunder without the written consent of each Bank directly affected
thereby, provided, however, that only the consent of the Majority Banks shall be
necessary to amend Section 5.09 or to waive any obligation of the Borrower to pay interest
at the rate specified in such Section 5.09 or (iii) change any date fixed for any payment
in respect of principal of, or interest on, the Advances or the Reimbursement Obligations or any
facility fees, letter of credit fees or other amount payable hereunder without the written consent
of each Bank directly affected thereby. No amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Banks required hereinabove to take such
action, affect the rights or duties of the Administrative Agent under this Agreement. No
amendment, waiver or consent shall, without the consent of each Issuing Bank affected thereby,
amend, modify or waive any provision of Article IV or alter any rights or obligations with
respect to any Letter of Credit issued by such Issuing Bank. Notwithstanding the foregoing, the
actions contemplated by Section 2.05 shall not be subject to the consent of the Banks,
except as otherwise expressly provided in such Section 2.05.



          SECTION 11.02. Notices, Etc. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including by telex, telegram or
telecopier) and mailed or sent or delivered, if to the Borrower, at the address set forth for the
Borrower on the signature pages hereof; if from the Borrower to the Administrative Agent or any
Bank, to the Administrative Agent at the address set forth for the Administrative Agent on the
signature pages hereof; if from the Administrative Agent to any Bank, at the address of such Bank’s
Domestic Lending Office or, in the case of a notice or communication relating to information
delivered under Section 8.01(f), by posting on an Internet website established by the
Administrative Agent with Intralinks, Inc. or other similarly available electronic media; or, in
any case, at such other address as shall be designated by such party in a written notice to the
other parties hereto (except in the case of the Borrower, as to which a change of address may be
made by notice to the Administrative Agent on behalf of the Banks and except in the case of any
Bank, as to which a change of address may be made by notice to the Administrative Agent). Subject
to the next sentence, all such notices and communications shall be effective, in the case of
written notice, when deposited in the mails, air mail, postage



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prepaid, and, in the case of notice by telex, telecopy, telegram or cable, when sent addressed
as set forth above. All notices and communications pursuant to Articles II, III,
IX and X shall not be effective until they are received by the addressee. The
Administrative Agent agrees to deliver promptly to each Bank copies of each report, document,
certificate, notice and request, or summaries thereof, which the Borrower is required to, and does
in fact, deliver to the Administrative Agent in accordance with the terms of this Agreement,
including, without limitation, copies of any reports to be delivered by the Borrower pursuant to
Section 8.01(f).




          SECTION 11.03. No Waiver; Cumulative Remedies. No failure on the part of the
Administrative Agent or any Bank to exercise, and no delay in exercising, any right hereunder or
under any Note shall operate as a waiver hereof, nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies provided by law.



          SECTION 11.04. Costs and Expenses; Indemnification.




     (a) The Borrower agrees to reimburse on demand the Administrative Agent, the
Syndication Agents and the Co-Lead Arrangers for all reasonable and documented out-of-pocket
costs and expenses (including, subject to such limits as may be agreed to in writing by the
applicable parties from time to time, the reasonable and documented fees, time charges and
expenses of attorneys for the Administrative Agent, the Syndication Agents and the Co-Lead
Arrangers, which attorneys may be employees of the Administrative Agent, the Syndication
Agents and the Co-Lead Arrangers) incurred by the Administrative Agent, the Syndication
Agents and the Co-Lead Arrangers in connection with the preparation, negotiation,
distribution through e-mail or secured website, execution, syndication and enforcement of
this Agreement, the Notes, if any, and the other documents to be delivered hereunder or
contemplated hereby; provided, however, that such out-of-pocket costs and
expenses of the Administrative Agent, the Syndication Agents and the Co-Lead Arrangers
through the date of execution of this Agreement shall only be payable as set forth in a
separate fee letter (if any) executed and delivered prior to the effective date of this
Agreement by the Administrative Agent, the Syndication Agents, the Co-Lead Arrangers and the
Borrower. The Borrower further agrees to pay on demand all direct out-of-pocket losses, and
reasonable out-of-pocket costs and expenses, if any (including reasonable fees and
out-of-pocket expenses of outside counsel), of the Administrative Agent, any Issuing Bank
and any Bank in connection with the enforcement (whether by legal proceedings, negotiation
or otherwise) of this Agreement, the Notes, if any, and the other documents delivered
hereunder.




     (b) If, due to payments made by the Borrower due to acceleration of the maturity of the
Advances pursuant to Section 9.01 or due to any other reason, any Bank receives
payments of principal of any Fixed Rate Advance, or any Fixed Rate Advance is Converted to a
non-Fixed Rate Advance, in each case other than on the last day of the Interest Period for
such Advance, the Borrower shall, upon demand by such Bank (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of such Bank any
amounts required to compensate such Bank for any



73









 






additional direct out-of-pocket losses, costs or expenses which it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any such loss
(excluding loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Bank to fund or
maintain such Advance.




     (c) Subject to the next sentence, the Borrower agrees to indemnify and hold harmless
the Administrative Agent, each Issuing Bank and each Bank and each of their respective
directors, officers and employees from and against any and all claims, damages, liabilities
and out-of-pocket expenses (including, without limitation, reasonable fees and out-of-pocket
expenses of outside counsel) which may be incurred by or asserted against the Administrative
Agent, such Issuing Bank or such Bank or any such director, officer or employee in
connection with or arising out of any investigation, litigation, or proceeding (i) related
to any transaction or proposed transaction (whether or not consummated) in which any
proceeds of any Borrowing are applied or proposed to be applied, directly or indirectly, by
the Borrower, whether or not the Administrative Agent, such Issuing Bank or such Bank or any
such director, officer or employee is a party to such transactions or (ii) related to the
Borrower’s entering into this Agreement, or to any actions or omissions of the Borrower, any
of its Subsidiaries or Affiliates or any of its or their respective officers, directors or
employees in connection therewith, and in each case regardless of whether the indemnified
Person is party thereto. The Borrower shall not be required to indemnify any such
indemnified Person from or against any portion of such claims, damages, liabilities or
expenses (a) arising out of the gross negligence or willful misconduct of such indemnified
Person as determined in a final judgment by a court of competent jurisdiction or (b) that
result from the violation by the Administrative Agent, such Issuing Bank or such Bank of any
law or judicial order.



          SECTION 11.05. Right of Set-Off. Upon (i) the occurrence and during the continuance
of any Event of Default and (ii) the making of the request or the granting of the consent specified
by Section 9.01 to authorize the Administrative Agent to declare the Advances due and
payable pursuant to the provisions of Section 9.01, each Bank (and each of its Affiliates)
is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Bank (or any of its Affiliates)
to or for the credit or the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement and any Notes held by such Bank,
irrespective of whether or not such Bank shall have made any demand under this Agreement and any
Notes and of whether or not such obligations may be matured. Each Bank agrees promptly to notify
the Borrower after any such set-off and application made by such Bank, but the failure to give such
notice shall not affect the validity of such set-off and application. The rights of each Bank
under this Section 11.05 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Bank may have.



          SECTION 11.06. Binding Effect; Assignment.




     (a) This Agreement shall become effective when it shall have been executed by the
Borrower and the Administrative Agent and when the Administrative Agent shall



74









 






have been notified by each Bank that such Bank has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Administrative Agent and each
Bank and their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the prior written
consent of all of the Banks.




     (b) Any Bank may assign, participate or otherwise transfer all or any part of, or
interest in, such Bank’s rights and obligations hereunder and under the Notes issued to it
hereunder to one or more banks or other entities; provided that (i) in the case of
any assignment, participation or other transfer to a Person that is not a Bank, an Affiliate
of a Bank or an Approved Fund, the Borrower (except during the continuance of an Event of
Default), the Issuing Banks and the Administrative Agent, in each case whose consent shall
not be unreasonably withheld or delayed, shall have expressly agreed in writing;
provided that a material increase in counterparty risk shall be reasonable grounds
(although not exclusive grounds) for the withholding of such consent; and (ii) in the case
of any assignment in part, the amount of the Commitment being assigned pursuant to such
assignment shall in no event be less than $5,000,000 (or a lesser amount approved by the
Administrative Agent). Upon the effectiveness of any such assignment (but not in the event
of any such participation or other transfer) such assignee shall be a Bank hereunder and
shall have all the rights and benefits thereof. However, unless and until the conditions
for the Administrative Agent’s treating such assignee as holder pursuant to clause
(c) below shall have been satisfied, such assignee shall not be entitled to exercise the
rights of a Bank under this Agreement and the Administrative Agent shall not be obligated to
make payment of any amount to which such assignee may become entitled hereunder other than
to the Bank which assigned its rights to such assignee. Nothing contained herein shall
impair the ability of any Bank, in its discretion, to agree, solely as between itself and
its assignees, participants and other transferees, upon the manner in which such Bank shall
exercise its rights under this Agreement and the Notes made to such Bank. The assignee, if
it shall not already be a Bank, shall deliver to the Administrative Agent an Administrative
Questionnaire in which the assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public information about the
Borrower and its affiliates and their related parties or their respective securities) will
be made available and who may receive such information in accordance with the assignee’s
compliance procedures and applicable laws, including Federal and state securities laws.




     (c) In order to effect any assignment permitted hereunder by a Bank of all or any
portion of its Commitment hereunder, the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the Register (as
defined below), an agreement substantially in the form of Exhibit 11.06 hereto (an
“Assignment and Acceptance”), together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,500 payable by the assignor or
assignee. Upon such execution, delivery, acceptance and recording and delivery to the
Administrative Agent of such assignee’s Administrative Questionnaire, from and after the
effective date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights



75









 






and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Bank’s rights and obligations under this Agreement, such
Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 5.13, 5.15 and 11.04 for any events or circumstances
occurring or existing before the effective date of assignment).




     (d) By executing and delivering an Assignment and Acceptance, the Bank assignor
thereunder and the assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such Assignment and Acceptance,
such assigning Bank makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Bank makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in Section
7.01(f) (and any later statements delivered pursuant to Section 8.01(f)(ii)) and
such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning Bank or any
other Bank 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 this
Agreement; (v) such assignee appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Bank.




     (e) The Administrative Agent shall maintain at its address referred to in Section
11.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Banks and the Commitment of,
and principal amount (and stated interest on) of the Advances owing to, each Bank from time
to time (the “Register”). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent
and the Banks shall treat each Person whose name is recorded in the Register as a Bank
hereunder for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Bank at any reasonable time and from time to time upon
reasonable prior notice.



76









 






     (f) Notwithstanding anything contained herein to the contrary, each Bank may pledge its
right, title and interest under this Agreement and any Note made to it to the Board of
Governors of the Federal Reserve System, or any other Governmental Authority, as security
for financial accommodations or privileges being provided or extended to such Bank by such
Governmental Authority.



          SECTION 11.07. Confidentiality. The Administrative Agent, each Bank and each Issuing
Bank agree to hold any confidential information which it may receive from the Borrower pursuant to
this Agreement in confidence, except for disclosure (i) to its Affiliates, legal counsel,
accountants, and other professional advisors, and then solely on a need-to-know basis, (ii) in
response to any request or order therefor issued by any Governmental Authority, (iii) as required
by law, regulation, or judicial process, (iv) within any legal proceeding to enforce any of its
rights or remedies hereunder; provided that an Event of Default shall have occurred
hereunder and the requisite Banks shall have elected under Section 9.01 to enforce such
rights or remedies against the Borrower, (v) to any permitted assignee under Section 11.06,
(vi) to any agents and advisors of a Bank solely in connection with the administration of this
Agreement and the Advances and L/C Obligations hereunder, and (vii) of information which has
already become publicly available at the time of such disclosure. In the case of disclosure
pursuant to clause (ii) or (iii) above, the disclosing party agrees, to the extent
permitted by applicable law, regulation or judicial process, to promptly notify the Borrower prior
to such disclosure and to request confidential treatment if the Borrower so requests.



          EACH BANK ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THIS SECTION FURNISHED TO IT PURSUANT TO
THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED
PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL
AND STATE SECURITIES LAWS.



          ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS AFFILIATES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH
BANK REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.



77









 





          SECTION 11.08. Governing Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the internal laws (as distinguished from the conflicts of laws rules)
of the State of New York.



          SECTION 11.09. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute but
one and the same agreement.



          SECTION 11.10. Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provisions or the remaining provisions of this Agreement.



          SECTION 11.11. Entire Agreement. This Agreement, taken together with all of the other
documents, instruments and certificates contemplated herein to be delivered by the Borrower,
including, without limitation, the fee letters (if any) executed and delivered prior to the
effective date of this Agreement by the Administrative Agent, the Syndication Agents, the Co-Lead
Arrangers and the Borrower, embodies the entire agreement and supersedes all prior agreements,
written and oral, relating to the subject matter hereof as among the Borrower, the Banks parties
hereto and the Administrative Agent.



          SECTION 11.12. Market Disruption. Notwithstanding the satisfaction of all conditions
referred to in Article II and Article VI with respect to any Advance denominated in
an Agreed Currency other than in Dollars, if there shall occur on or prior to the date of such
Advance any change in national or international financial, political or economic conditions or
currency exchange rates or exchange controls which, after the exercise of the Administrative
Agent’s best efforts, would in the reasonable opinion of the Administrative Agent or the Majority
Banks make it materially disadvantageous for such Advance to be denominated in the Agreed Currency
specified by the Borrower, then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Banks, and such Advance shall not be denominated in such Agreed Currency but shall
be made on such Borrowing Date in Dollars, in an aggregate principal amount equal to the Dollar
Amount of the aggregate principal amount specified in the related Notice of Borrowing or Notice of
Interest Rate Election, as the case may be, as Base Rate Advances, unless the Borrower notifies the
Administrative Agent within one (1) Domestic Business Day after receipt of notice from the
Administrative Agent that it elects not to borrow on such date.



          SECTION 11.13. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to
be payable herein (the “Specified Currency”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative Agent could
purchase the Specified Currency with such other currency at the Administrative Agent’s main New
York office on the Domestic Business Day preceding that on which final, non-appealable judgment is
given. The obligations of the Borrower in respect of any sum due to



78









 




any Bank or the Administrative Agent hereunder shall, notwithstanding any judgment in a
currency other than the Specified Currency, be discharged only to the extent that on the Domestic
Business Day following receipt by such Bank or the Administrative Agent (as the case may be) of any
sum adjudged to be so due in such other currency such Bank or the Administrative Agent (as the case
may be) may in accordance with normal, reasonable banking procedures purchase the Specified
Currency with such other currency. If the amount of the Specified Currency so purchased is less
than the sum originally due to such Bank or the Administrative Agent, as the case may be, in the
Specified Currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify such Bank or the
Administrative Agent, as the case may be, against such loss, and if the amount of the Specified
Currency so purchased exceeds (a) the sum originally due to any Bank or the Administrative Agent,
as the case may be, in the Specified Currency and (b) any amounts shared with other Banks as a
result of allocations of such excess as a disproportionate payment to such Bank under Section
5.17, such Bank or the Administrative Agent, as the case may be, agrees to remit such excess to
the Borrower.




          SECTION 11.14. USA PATRIOT ACT. Each Bank that is subject to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”) hereby notifies the Borrower that pursuant to the requirements of 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 Bank to
identify the Borrower in accordance with the Act.



[Signature Pages Follow]









79









 





     The duly authorized parties hereto have caused this Agreement to be executed by their
respective officers or agents, as of the date of this Agreement.



	 	 	 	 	 
	 	BAXTER INTERNATIONAL INC.

 	 
	 	By:  	/s/ Robert J. Hombach
 	 
	 	 	Name:  	Robert J. Hombach 	 
	 	 	Title:  	Corporate Vice President and Chief Financial
Officer 	 
	 
	 	 Address for Notice Purposes:

One Baxter Parkway

Deerfield, Illinois 60015

Attention: Assistant Treasurer

Telephone: (847) 948-3282

Telecopy: (847) 948-2624

 	 



Signature Page to

Baxter Four-Year Credit Agreement






 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as

Administrative Agent and as a Bank

 	 
	 	By:  	/s/ Robert S. Sheppard
 	 
	 	 	Title:      Vice President 	 
	 	 	 	 
	 	 Address for Notice Purposes:

 	 
	 	10 South Dearborn

Chicago, Illinois 60603

Attention: Robert S. Sheppard, Vice President

Telephone: (312) 732-3144

Telecopy: (312) 361-0466
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: Nanette Wilson

Telephone: (312) 385-7084

Telecopy: (312) 385-7096
 	 
	 
	 	Regarding Syndicated Borrowings in foreign currencies:
 	 
	 
	 	J.P. Morgan Europe Limited

9th Floor

125 London Wall

London

EC2Y 5AJ

Attention: The Manager, Loans Agency Section

Telephone: +44 20 7777 2940

Telecopy: +44 20 7777 2360

Email: Loan_and_Agency@JPMorgan.com
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Syndication Agent and as a Bank

 	 
	 	By:  	/s/ Zubin R. Shroff
 	 
	 	 	Name:  	Zubin R. Shroff 	 
	 	 	Title:  	Director 	 
	 
	 	Address for Notice Purposes:


100 North Tryon Street, 17th Floor

Charlotte, North Carolina 28255

Attention: Zubin Shroff

Telephone: (980) 387-1340

Telecopy: (704) 804-5415
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	 Attention: Rohit Nair

Telephone: (415) 436-3683

Telecopy: (972) 728-9146
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	CITIBANK, N.A.,

as Syndication Agent and as a Bank

 	 
	 	By:  	/s/ Maureen Maroney
 	 
	 	 	Maureen Maroney 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	Address for Notice Purposes:
 	 
	 
	 	388 Greenwich St.

New York, New York 10013

Attention: Cherry Maceda

Telephone: (212) 816-8161

Email: cherry.maceda@citi.com
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	1615 Brett Road

New Castel, DE 19720

Attention: Loan Operations

Telephone: (302) 894-6052

Telecopy: (212) 994-0847

Email: GLOriginationOps@citigroup.com
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

as a Bank

 	 
	 	By:  	/s/ Frederick W. Laird
 	 
	 	 	Title:       Managing Director 	 
	 
	 	By:  	                       /s/ Ming K. Chu
 	 
	 	 	Title:      Vice President 	 
	 
	 	Address for Notice Purposes:
 	 
	 
	 	60 Wall Street

New York, NY 10005

Attention: Ming K. Chu

Telephone: 212-250-5451

Telecopy: 212-797-4420
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: Lee Joyner

Telephone: 904-527-6438

Telecopy: 866-240-3622
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA,

as a Bank

 	 
	 	By:  	/s/  Mark Walton
 	 
	 	 	Title:      Authorized Signatory 	 
	 
	 	Address for Notice Purposes:


200 West Street

New York, New York 10282

Attention: Lauren Day

Telephone: (212) 934-3921

Telecopy: (917) 977-3966
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: Lauren Day

Telephone: (212) 934-3921

Telecopy: (917) 977-3966
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	UBS LOAN FINANCE LLC,

as a Bank

 	 
	 	By:  	/s/ Irja R. Otsa
 	 
	 	 	Title:       Associate Director 	 
	 	 	 
	 	By:  	                        /s/ Mary C. Evens
 	 
	 	 	Title:      Associate Director 	 
	 
	 	Address for Notice Purposes:


677 Washington Blvd.

Stamford, Connecticut 06901

Attention: Samantha Mason

Telephone: 203 719 4839

Telecopy: 203 719 3390
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: Samantha Mason

Telephone: 203 719 4839

Telecopy: 203 719 3390
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Bank

 	 
	 	By:  	/s/ Ari Bruger
 	 
	 	 	Ari Bruger 	 
	 	 	Title:  	Vice President 	 
	 	 	 
	 	By:  	                  /s/ Kevin Buddhdew
 	 
	 	 	Kevin Buddhdew 	 
	 	 	Title:  	Associate 	 
	 
	 	Address for Notice Purposes:


Eleven Madison Avenue

New York, New York 10010

Attention: Ari Bruger

Telephone: (212) 538-5577

Telecopy: (646) 935-8075
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: Ari Bruger

Telephone: (212) 538-5577

Telecopy: (646) 935-8075
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND, PLC,

as a Bank

 	 
	 	By:  	/s/  William McGinty
 	 
	 	 	William McGinty 	 
	 	 	Title:  	Director 	 
	 
	 	Address for Notice Purposes:


600 Washington Blvd

Stamford, CT 06901

Attention: Vijay Shankar

Telephone: 203-897-4431

Telecopy: 203-873-5019
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: Vijay Shankar

Telephone: 203-897-4431

Telecopy: 203-873-5019

 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Bank

 	 
	 	By:  	/s/ George Stoecklein
 	 
	 	 	Title:      Vice President 	 
	 
	 	Address for Notice Purposes:


1251 Avenue of the Americas

New York, New York 10020

Attention: George Stoecklein

Telephone: (212) 782-5572

Telecopy: (212) 782-6440
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: Jaime Velez - AVP, Loan Operations Dept.

Telephone: 201-413-8586

Telecopy: 201-521-2304

Telecopy: 201-521-2305
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	BARCLAYS BANK PLC,

as a Bank

 	 
	 	By:  	/s/ Vincent J. Muldoon
 	 
	 	 	Vincent J. Muldoon 	 
	 	 	Title:  	Director North America - MNC 	 
	 
	 	Address for Notice Purposes:


1 Churchill Place, London

E14 5HP United Kingdon

Attention: Vincent Muldoon

Telephone: +44 (0)20 7116 4975

Telecopy: +44 (0)20 7116 7651
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: Tracey Stratford

Telephone: +44 (0)203 134 6866

Telecopy: +44 (0)207 516 3868
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION, 

as a Bank

 	 
	 	By:  	/s/ Andrew Bicker
 	 
	 	 	Title:  Vice President 	 
	 
	 	Address for Notice Purposes:


71 South Wacker Drive

Suite 2700

Chicago, Illinois 60606

Attention: Andrew Bicker

Telephone: (312) 357-3991

Telecopy: (312) 357-3999
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: Andrew Bicker

Telephone: (312) 357-3991

Telecopy: (312) 357-3999
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 

ve






	 	 	 	 	 
	 	MIZUHO CORPORATE BANK (USA),

as a Bank

 	 
	 	By:  	/s/ Bertram H. Tang
 	 
	 	 	Name:  	Bertram H. Tang 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	Address for Notice Purposes:


1251 Avenue of the Americas

New York, New York 10020

Attention: Joseph Chan

Telephone: (212) 282-4430

Telecopy: (212) 282-4488
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	 1800 Plaza Ten, Harborside Financial Ctr.

Jersey City, New Jersey 07311

Attention: Mark Heberer

Telephone: (201) 626-9105

Telecopy: (201) 626-9941
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	BANK OF CHINA, NEW YORK BRANCH,

as a Bank

 	 
	 	By:  	/s/ Dong Yuan
 	 
	 	 	Title:  Deputy General Manager 	 
	 
	 	Address for Notice Purposes:


410 Madison Avenue

New York, New York 10017

Attention: John Shen

Telephone: (646) 231-3135

Telecopy: (212) 308-4993
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: John Shen

Telephone: (646) 231-3135

Telecopy: (212) 308-4993
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON,

as a Bank

 	 
	 	By:  	/s/ Clifford A. Mull
 	 
	 	 	Clifford A. Mull 	 
	 	 	Title:  	First Vice President 	 
	 
	 	Address for Notice Purposes:


6023 Airport Road

Oriskany, NY 13424

Attention: Pamela Clark

Telephone: 315-765-4155

Telecopy: 315-765-4783
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	
Attention: Pamela Clark

Telephone: 315-765-4155

Telecopy: 315-765-4783
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	TORONTO DOMINION (TEXAS) LLC,

as a Bank

 	 
	 	By:  	/s/ Debbi L. Brito
 	 
	 	 	Name:  	Debbi L. Brito 	 
	 	 	Title:  	Authorized Signatory 	 
	 	 	 
	 	By:  	
 	 
	 	 	Title:  Director 	 
	 
	 	Address for Notice Purposes:


77 King Street West, 18th Floor

Royal Trust Tower,

Toronto, Ontario M5k 1A2

Attention: Josephine Chiu / Ruth Bengo

Telephone: (416) 983-8927 (416) 983-8879

Telecopy: (416) 983-0003
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: Carmen Parente

Telephone: (212) 827-7526

Telecopy: (212) 827-7232
 	 
	 



Signature Page to

Baxter Four-Year Credit Agreement




 









 








	 	 	 	 	 
	 	STATE STREET BANK AND TRUST COMPANY, 

as a Bank

 	 
	 	By:  	/s/ Andrei Bourdine
 	 
	 	 	Andrei Bourdine 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	 	Address for Notice Purposes:


State Street Bank and Trust Company

Corporate Credit Services

100 Huntington Ave, tower 1, floor 4

Attention: Andrei Bourdine

Telephone: 617-662-8616

Telecopy: 617-662-8665
 	 
	 
	 	Regarding Syndicated Borrowing

Facility and/or Competitive

Bid Borrowing Facility:
 	 
	 
	 	Attention: Andrei Bourdine

Telephone: 617-662-8616

Telecopy: 617-662-8665
 	 
	 




Signature Page to

Baxter Four-Year Credit Agreement



 













 




Exhibit 2.02 to

Four-Year Credit Agreement

dated as of June 17, 2011



FORM OF




NOTICE OF SYNDICATED BORROWING



JPMorgan Chase Bank, National Association,

 as Administrative Agent for the

 Banks parties to the Credit

 Agreement referred to below

131 S. Dearborn

Chicago, Illinois 60603




Attention: Nanette Wilson




Dear Ms. Wilson:



          The undersigned, Baxter International Inc., refers to the Four-Year Credit Agreement, dated as
of June 17, 2011 (the “Credit Agreement,” the terms defined therein being used herein as
therein defined), among Baxter International Inc., the Banks parties thereto and JPMorgan Chase
Bank, National Association, as Administrative Agent, and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Syndicated Borrowing under the Credit Agreement, and in that connection sets forth below the
information relating to such Syndicated Borrowing (the “Proposed Syndicated Borrowing”) as
required by Section 2.02 of the Credit Agreement:


          (i) The Business Day of the Proposed Syndicated Borrowing is ____________, 20_.


          (ii) The Type of Syndicated Advances comprising the Proposed Syndicated Borrowing is [Base
Rate Advances] [Eurocurrency Rate Advances] [EURIBOR Rate Advances].


          (iii) The aggregate amount of the Proposed Syndicated Borrowing is [$] [Approximate Dollar
Amount of] _________.


          (iv) The Interest Period for each [Eurocurrency Rate Advance] [EURIBOR Rate Advance] made as
part of the Proposed Syndicated Borrowing is [____ months] [____ days].


          (v) The Agreed Currency for each Syndicated Advance made as part of the Proposed Syndicated
Borrowing is [ _____ ].


          (vi) The proceeds of the Proposed Syndicated Borrowing [will not be used, directly or
indirectly, to purchase or carry Margin Stock] [will be used to purchase or carry



Exhibit 2.02

Page 1













 





Margin Stock. A duly completed Form FR U-l (OMB No. 7100-0115), executed by a duly authorized
officer of the undersigned, accompanies this Notice of Syndicated Borrowing and sets forth thereon
the relevant information with respect to the use of the proceeds of the Proposed Syndicated
Borrowing].




	 	 	 	 	 
	 	



Very truly yours,



BAXTER INTERNATIONAL INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 



Exhibit 2.02

Page 2













 




Exhibit 2.03 to

Four-Year Credit Agreement

dated as of June 17, 2011



FORM OF




NOTICE OF INTEREST RATE ELECTION



JPMorgan Chase Bank, National Association,

 as Administrative Agent for the

 Banks parties to the Credit

 Agreement referred to below

131 S. Dearborn

Chicago, Illinois 60603




Attention: Nanette Wilson




Dear Ms. Wilson:



          The undersigned, Baxter International Inc., refers to the Four-Year Credit Agreement, dated as
of June 17, 2011 (the “Credit Agreement,” the terms defined therein being used herein as
therein defined), among Baxter International Inc., the Banks parties thereto and JPMorgan Chase
Bank, National Association, as Administrative Agent, and hereby gives you notice, irrevocably,
pursuant to Section 2.03 of the Credit Agreement of an interest rate election, and in that
connection sets forth below the information relating to the affected Syndicated Borrowing (the
“Affected Syndicated Borrowing”) as required by Section 2.03 of the Credit
Agreement:




	 	(i)	 	The Affected Syndicated Borrowing is the following:






	 	(a)	 	Type:________________________
	 
	 	(b)	 	Last Day of Present Interest Period:________________________
	 
	 	(c)	 	Agreed Currency:________________________
	 
	 	(d)	 	Aggregate Amount: [$] [Approximate Dollar
Amount of]________________________




          (ii) The portion of such Affected Syndicated Borrowing to be Converted is: [$] [[Approximate
Dollar Amount of] ________________________.


          (iii) Business Day of the Conversion in respect of the Affected Syndicated Borrowing is
________________________,
20____.


          (iv) Upon giving effect to the Conversion,



Exhibit 2.03

Page 1













 






	 	(a)	 	the portion of the Affected Syndicated
Borrowing that is Converted shall be comprised of [Base Rate Advances]
[Eurocurrency Rate Advances] [EURIBOR Rate Advances], each having an
Interest Period of __________________ [and being in the Agreed Currency
of _____________]; and
	 
	 	(b)	 	the portion of the balance of the Affected
Syndicated Borrowing shall continue to have the Type, the Agreed
Currency and Interest Period specified in clause (i) above.





	 	 	 	 	 
	 	



Very truly yours,



BAXTER INTERNATIONAL INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 




Exhibit 2.03

Page 2














 







Exhibit 3.02 to

Four-Year Credit Agreement

dated as of June 17, 2011



FORM OF COMPETITIVE BID QUOTE REQUEST




JPMorgan Chase Bank, National Association,

 as Administrative Agent for

 the Banks parties to the Credit

 Agreement referred to below

131 S. Dearborn

Chicago, Illinois 60603




Attention: Specialized Products Support Unit




Ladies and Gentlemen:



          The undersigned, Baxter International Inc., refers to the Four-Year Credit Agreement, dated as
of June 17, 2011 (the “Credit Agreement,” the terms defined therein being used herein as
therein defined), among Baxter International Inc., the Banks parties thereto and JPMorgan Chase
Bank, National Association, as Administrative Agent, and hereby gives you notice pursuant to
Section 3.02 of the Credit Agreement that the undersigned requests Competitive Bid Quotes
for the following proposed Competitive Bid Borrowing(s) (the “Proposed Borrowings”):


          (i) The Business Day of the Proposed Borrowings is ____________, 20_.


          (ii) The Type of Advances with respect to which Competitive Bid Quotes are hereby requested
are:



	 	 	 	 	 	 	 
	Aggregate Principal	 	Type of	 	Interest Period	 	Agreed
	Amount of Borrowing	 	Advances	 	for Advances	 	Currency
	[$][Approximate Dollar Amount]
	 	 	 	 	 	 





          (iii) Where the Type of Advance is specified to be a Eurocurrency Bid Rate Advance, each
quoting Bank is requested to quote a Competitive Bid Margin in relation to the Eurocurrency Rate to
be determined for the applicable Interest Period. Where the Type of Advance is specified to be a
EURIBOR Bid Rate Advance, each quoting Bank is requested to quote a Competitive Bid Margin in
relation to the EURIBOR to be determined for the applicable Interest Period. Where the Type of
Advance is specified to be an Absolute Rate Advance, each quoting Bank is requested to quote an
Absolute Rate.


          (iv) The Administrative Agent is hereby requested to advise [all of the Banks] [the Banks
specified below] of the request for Competitive Bid Quotes set forth herein.



Exhibit 3.02

Page 1













 




          (v) The proceeds of the Proposed Borrowing [will not be used, directly or indirectly, to
purchase or carry Margin Stock] [will be used to purchase or carry Margin Stock. A pro forma draft
of the Form FR U-1 (OMB No. 7100-0015) which will be executed and delivered by a duly authorized
officer of the undersigned in the event that the undersigned issues a Notice of Competitive Bid
Borrowing in connection with this Competitive Bid Quote Request accompanies this Competitive Bid
Quote Request and sets forth thereon the relevant information with respect to the use of the
proceeds of the Proposed Borrowing].



	 	 	 	 	 
	 	



BAXTER INTERNATIONAL INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 



Exhibit 3.02

Page 2













 





Exhibit 3.04 to

Four-Year Credit Agreement

dated as of June 17, 2011



FORM OF COMPETITIVE BID QUOTE




JPMorgan Chase Bank, National Association,

 as Administrative Agent for

 the Banks parties to the Credit

 Agreement referred to below

131 S. Dearborn

Chicago, Illinois 60603




Attention: Specialized Products Support Unit




Ladies and Gentlemen:





     The undersigned refers to the Four-Year Credit Agreement, dated as of June 17, 2011 (the
“Credit Agreement,” the terms defined therein being used herein as therein defined), among
Baxter International Inc., the Banks parties thereto and JPMorgan Chase Bank, National Association,
as Administrative Agent, and hereby notifies you of, and requests that you forward to Baxter
International Inc, on our behalf, pursuant to Section 3.04 of the Credit Agreement, the
following Competitive Bid Quotes on the following terms:




	 	(i)	 	Quoting Bank: _________________________.
	 
	 	(ii)	 	Person to contact at the Quoting Bank:
	 
	 	 	 	Name:_________________________
	 
	 	 	 	Telephone:_________________________
	 
	 	 	 	Telecopy:_________________________
	 
	 	 	 	Telex:_________________________
	 
	 	(iii)	 	Proposed Borrowing Date: _______________.




          (iv) We hereby offer to make Competitive Bid Advances in the following principal amounts, for
the following Interest Periods and at the following rates:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 		 	 
	Principal	 	Interest	 	[Basis for Advance/	 	[Absolute 	 	Agreed
	Amount	 	Period	 	Competitive Bid Margin*]	 	Rate]	 	Currency
	[$] [Approximate Dollar Amount]
	 	 	 	 	 	 	 	 








 




			
	*	 	Specify whether the Competitive Bid Margin is
to be added to or subtracted from either the applicable Eurocurrency Rate or
applicable EURIBOR for such Interest Period.





Exhibit 3.04

Page 1













 





provided that the aggregate principal amount with respect to which the Borrower may accept offers
in connection with this Competitive Bid Quote shall not exceed $___________.



          We understand and agree that the offer(s) set forth above, subject to the satisfaction of the
applicable conditions set forth in the Credit Agreement, irrevocably obligate(s) us to make the
Competitive Bid Advance(s) for which any such offer is accepted, in whole or in part.



	 	 	 	 	 	 	 

	 

	 	 	 	[NAME OF BANK]

	 
	 	 	 	 	 	 
	Dated:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	

	 

	 	 	 	 	 	Authorized Officer






Exhibit 3.04

Page 2













 




Exhibit 3.06 to

Four-Year Credit Agreement

dated as of June 17, 2011



FORM OF NOTICE OF COMPETITIVE BID BORROWING




JPMorgan Chase Bank, National Association,

 as Administrative Agent for

 the Banks parties to the Credit

 Agreement referred to below

131 S. Dearborn

Chicago, Illinois 60603




Attention: Specialized Products Support Unit




Ladies and Gentlemen:



          The undersigned, Baxter International Inc., refers to the Four-Year Credit Agreement, dated as
of June 17, 2011 (the “Credit Agreement,” the terms defined therein being used herein as
therein defined), among Baxter International Inc., the Banks parties thereto and JPMorgan Chase
Bank, National Association, as Administrative Agent, and hereby gives you notice, irrevocably,
pursuant to Section 3.06 of the Credit Agreement that the undersigned requests a
Competitive Bid Borrowing under the Credit Agreement and in that connection sets forth below the
information relating to such Competitive Bid Borrowing (the “Proposed Borrowing”) as
required by Section 3.06 of the Credit Agreement:


          (i) The Business Day of the Proposed Borrowing is _______________, 20_.


          (ii) The aggregate principal amount of Competitive Bid Advances, the Types thereof and the
Interest Periods therefor that have been offered to the undersigned by Banks submitting Competitive
Bid Quotes and that by this notice are hereby accepted, subject to the terms and conditions of the
Credit Agreement, are set forth below:



	 	 	 	 	 	 	 
	Aggregate Principal	 	Type of	 	Interest	 	Agreed
	Amount of Borrowing	 	Advance	 	Period	 	Currency
	[$][Approximate Dollar Amount]
	 	 	 	 	 	 





          (iii) The undersigned acknowledges and agrees that, by this notice, it irrevocably accepts the
offers made by the Banks which shall have submitted Competitive Bid Quotes to the extent that the
principal amount offered by each such Bank, together with the principal amount offered by all other
such Banks in connection therewith, does not exceed the respective amounts set forth above. As
among such Banks, the offers made are accepted in the ascending order of Competitive Bid Margin or
Absolute Rate, as the case may be.



Exhibit 3.06

Page 1













 




          (iv) The proceeds of the Proposed Borrowing [will not be used, directly or indirectly, to
purchase or carry Margin Stock] [will be used to purchase or carry Margin Stock. A duly completed
Form FR U-1 (OMB No. 7100-0115), executed by a duly authorized officer of the undersigned,
accompanies this Notice of Competitive Bid Borrowing and sets forth thereon the relevant
information with respect to the use of the proceeds of the Proposed Borrowing].


          (v) The proceeds of the Proposed Borrowing will be wired to the Borrower as follows:


          [insert wiring instructions]



	 	 	 	 	 
	 	



BAXTER INTERNATIONAL INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



Exhibit 3.06

Page 2
















 





Exhibit 5.15(d)(iv) to

Four-Year Credit Agreement

dated as of June 17, 2011




FORM OF SECTION 5.15(d)(iv) CERTIFICATE




     Reference is made to that certain Four-Year Credit Agreement, dated as of June 17, 2011 (as
the same may be amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among Baxter International Inc., the Banks thereto and JPMorgan Chase Bank,
National Association, as Administrative Agent. Capitalized terms used herein that are not defined
herein shall have the meanings ascribed to them in the Credit Agreement. [Name of applicable Bank]
(the “Bank”) is providing this certificate pursuant to Section 5.15(d)(iv) of the Credit
Agreement. The Bank hereby represents and warrants that:



          1. The Bank is the sole record and beneficial owner of the Advance(s) in respect of which it
is providing this certificate.




          2. The Bank is not a “bank” for purposes of Section 881(c)(3)(A) of the Internal Revenue Code
of 1986, as amended (the “Code”).




          3. The Bank is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Borrower).




          4. The Bank is not a “controlled foreign corporation” for purposes of Section 881(c)(3)(C) of
the Code.




          5. The Bank is not conducting a trade or business in the United States with which the relevant
interest payments are effectively connected.




          6. The Bank shall promptly notify the Borrower and the Administrative Agent if any of the
representations and warranties made herein are no longer true and correct.




     IN WITNESS WHEREOF, the undersigned has duly executed this certificate as of the _____ day of
______, 20__.



	 	 	 	 	 
	 	[NAME OF APPLICABLE BANK]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit 5.15(d)(iv)

Page 1






 









 










Exhibit 6.01(d) to

Four-Year Credit Agreement

dated as of June 17, 2011




FORM OF




OPINION OF COUNSEL FOR THE BORROWER



[Date]


To each of the Banks parties



to the Credit Agreement

described below, and to

JPMorgan Chase Bank, N.A.,

as Administrative Agent



Ladies and Gentlemen:




          This opinion is furnished to you pursuant to Section 6.01(d) of the Four-Year Credit
Agreement, dated as of June 17, 2011 (the “Credit Agreement”), among Baxter International
Inc. (the “Borrower”), the Banks parties thereto and JPMorgan Chase Bank, National
Association, as Administrative Agent. Terms defined in the Credit Agreement are used herein as
therein defined.




          I am Associate General Counsel of the Borrower. I have acted as counsel for the Borrower in
connection with the preparation, execution and delivery of the Credit Agreement.




          In that connection I, or attorneys under my supervision (with whom I have consulted) have
examined:




          (1) The Credit Agreement;




          (2) The Amended and Restated Certificate of Incorporation of the Borrower as in effect on the
date hereof (the “Charter”);




          (3) The Bylaws of the Borrower, as amended and in effect on the date hereof (the
“Bylaws”); and




          (4) Certificates of the Secretaries of State of Delaware, dated ________________, _____, and
Illinois, dated __________, _____, each attesting to the continued corporate existence and good
standing of the Borrower in such State.




          I, or attorneys under my supervision (with whom I have consulted), have also examined the
originals, or copies certified to my satisfaction, of the Borrower’s material agreements as
identified on the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010
and any subsequent filings on Form 10-Q or Form 8-K with the Securities and Exchange Commission
(collectively, the “Material Agreements”). In addition, I, or attorneys under my
supervision (with whom I have consulted), have examined the originals, or




Exhibit 6.01(d)

Page 1



 









 




copies certified to my satisfaction, of such other corporate records of the Borrower,
certificates of public officials and of other officers of the Borrower, and agreements, instruments
and documents, as I have deemed necessary as a basis for the opinions hereinafter expressed. As to
questions of fact material to such opinions, I have, when relevant facts were not independently
established by me, relied upon certificates of other officers of the Borrower or of public
officials. I have assumed the due execution and delivery, pursuant to due authorization, of the
Credit Agreement by the Banks and the Administrative Agent. Based upon the foregoing, I am of the
opinion that:





     1. The Borrower is a corporation duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which the failure so to qualify would have a material adverse
effect on the business, properties, assets, operations or condition (financial or otherwise) of the
Borrower.



     2. The execution, delivery and performance by the Borrower of the Credit Agreement [and the
Notes] are within the Borrower’s corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Charter or the Bylaws or (ii) any law, rule or
regulation applicable to the Borrower or (iii) any contractual or legal restriction binding on or
affecting the Borrower contained in any Material Agreement. The Credit Agreement [and the Notes]
have been duly executed and delivered on behalf of the Borrower.



     3. No authorization, approval or other action by, and no notice to or filing with, any
Governmental Authority or regulatory body is required for the due execution, delivery and
performance by the Borrower of the Credit Agreement [and the Notes].



     4. The Credit Agreement [and the Notes] are legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective terms.



     5. Except as disclosed in filings with the Securities and Exchange Commission, there is no
pending or, to my knowledge, threatened action or proceeding against the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator which is likely to have a
materially adverse effect upon the financial condition or operations of the Borrower or any of its
Subsidiaries or which purports to affect the legality, validity or enforceability of the Credit
Agreement [or the Notes].



     6. The Borrower is not an “investment company” as defined in, or subject to regulation under,
the Investment Company Act of 1940, as amended.



     The opinions set forth above are subject to the following qualifications:



     (a) My opinion in paragraph 4 above is subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, receivership, fraudulent conveyance or similar laws
affecting creditors’ rights generally and to the effect of general equitable principles (whether
considered in a proceeding in equity or at law). In applying such principles, a court, among other
things, might not allow a creditor to accelerate the maturity of a debt upon the



Exhibit 6.01(d)

Page 2



 









 




occurrence of a default deemed immaterial or might decline to order a debtor to perform
covenants. Such principles applied by a court might include a requirement that a creditor act with
reasonableness and in good faith. In addition, a court may refuse to enforce a provision of the
Credit Agreement if it deems such provision to violate public policy, including any provision
indemnifying a person or entity against liability for its own wrongful or negligent acts.




          (b) The opinions expressed herein are limited to the Applicable Laws of the State of Illinois
and the United States of America, except for the General Corporation Law of the State of Delaware
with respect to the opinions given in paragraphs 1 and 2. I do not express any opinion herein
concerning any other law. For purposes of the opinion given in paragraph 4 it is assumed, with
your permission, that the governing law is in all relevant respects identical to the laws of the
State of Illinois. Without limiting the generality of the foregoing, I express no opinion as to
the effect upon the obligations of the Borrower of (i) any law of any jurisdiction other than the
State of New York (assuming such law is in all relevant respects identical to the laws of the State
of Illinois) wherein the Agent or any Bank may be located or wherein enforcement of the Credit
Agreement may be sought, (ii) the compliance or noncompliance by the Agent or any Bank with any
laws or regulations applicable to it because of its legal or regulatory status or the nature of its
business, or (iii) any failure of the Agent or any Bank to be authorized to conduct business in any
applicable jurisdiction.




          (c) I express no opinion as to (i) Sections 5.17 and 11.05 of the Credit
Agreement insofar as they provide that any Bank purchasing a participation from another Bank
pursuant thereto may exercise set-off or similar rights with respect to such participation or that
any Affiliate of a Bank may exercise set-off or similar rights with respect to such Bank’s claims
under the Credit Agreement [or the Notes], (ii) Sections 5.15(c) or 11.04(c)
insofar as those Sections may be construed as requiring that the Borrower indemnify any Bank or the
Administrative Agent with respect to any claim, damage, liability or expense incurred as a result
of any violation of law by such Bank or the Administrative Agent, and (iii) the effect of the law
of any jurisdiction other than the State of Illinois wherein any Bank may be located or wherein
enforcement of the Credit Agreement [or the Notes] may be sought which limits the rates of interest
legally chargeable or collectible.




          For the purposes of this opinion, the term “Applicable Laws” means those laws, rules and
regulations that in my experience, are normally applicable to transactions of the type contemplated
by the Credit Agreement, without having made any special investigation as to the applicability of
any specific law, rule or regulation.




          This opinion is limited to the matters expressly set forth herein, and no opinion is implied
or may be inferred beyond the matters expressly set forth herein. The opinions expressed herein
are being delivered to you in connection with the transactions described hereinabove and are solely
for your benefit in connection with the transactions described hereinabove and may not be relied on
in any manner or for any purpose by any other person, nor any copies published, communicated or
otherwise made available in whole or in part to any other person or entity without our specific
prior written consent, except that you may furnish copies thereof (i) to any of your permitted
successors and assigns in respect of the Credit Agreement, (ii) to your independent auditors and
attorneys, (iii) upon the request of any state or federal




Exhibit 6.01(d)

Page 3



 









 




authority or official having regulatory jurisdiction over you, and (iv) pursuant to order or
legal process of any court or governmental agency.




          The opinions expressed herein are being delivered to you as of the date hereof and are based
solely on factual matters in existence as of the date hereof and laws and regulations in effect on
the date hereof. I assume no obligation to revise or supplement this opinion letter should factual
matters changes or should such laws or regulations be changed by legislative or regulatory action,
judicial decision or otherwise.




Very truly yours,




Exhibit 6.01(d)

Page 4



 









 





Exhibit 8.01(f)(ii) to

Four-Year Credit Agreement

dated as of June 17, 2011




FORM OF




REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM


To the Board of Directors of Baxter International Inc.:




          We have audited, in accordance with the standards established by the Public Company Accounting
Oversight Board (United States), the consolidated balance sheet of Baxter International Inc. as of
December 31, 20__, and the related consolidated statements of income, of cash flows and of changes
in equity and comprehensive income for the year then ended, and have issued our report thereon
dated ________, 20__.




          In connection with our audit, nothing came to our attention that caused us to believe that
Baxter International Inc. failed to comply with the terms, covenants, provisions, or conditions of
Section 8.02(b) of the Four-Year Credit Agreement, dated as of June 17, 2011, among Baxter
International Inc., the Banks parties thereto and JPMorgan Chase Bank, National Association, as
Administrative Agent, insofar as they relate to accounting matters. However, our audit was not
directed primarily toward obtaining knowledge of such noncompliance.




          This report is intended solely for the information and use of the board of directors and
management of Baxter International Inc. and the Banks and is not intended to be and should not be
used by anyone other than these specified parties.




	 	 	 	 	 
	 	[PricewaterhouseCoopers LLP]



[Date]

 	 



Exhibit 8.01(f)(ii)

Page 1



 









 





Exhibit 11.06 to

Four-Year Credit Agreement

dated as of June 17, 2011




FORM OF




ASSIGNMENT AND ACCEPTANCE



          This Assignment and Acceptance (the “Assignment and Acceptance”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, restated, 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 Acceptance as if set forth
herein in full.




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




	 	 	 	 	 	 	 

	1.

	 	Assignor:
	 	 
	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee:
	 	 
 [and is an Affiliate/Approved Fund of [identify Bank]1]
	 	  
	 
	 	 	 	 	 	 
	3.

	 	Borrower:
	 	Baxter International Inc.
	 	 








 




			
	1	 	Select as applicable.





Exhibit 11.06

Page 1



 









 






	4.	 	Administrative Agent: JPMorgan Chase Bank, National Association, as the
administrative agent under the Credit Agreement
	 
	5.	 	Credit Agreement: Four-Year Credit Agreement, dated as of June 17, 2011, among Baxter International
Inc., the Banks party thereto and JPMorgan Chase Bank, National Association, as
Administrative Agent (the “Credit Agreement”)
	 
	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 
	Aggregate Amount of	 	Amount of	 	 	Percentage of	 
	Commitment/Advances	 	Commitment/Advances	 	 	Commitment/Advances	 
	for all Banks	 	Assigned	 	 	Assigned2	 
	$
	 	$	 	 	 	 	%	 
	 
	 	 	 	 	 	 
	$
	 	$	 	 	 	 	%	 
	 
	 	 	 	 	 	 
	$
	 	$	 	 	 	 	%	 
	 
	 	 	 	 	 	 




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



The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire
in which the Assignee designates one or more credit contacts to whom all syndicate-level
information (which may contain material non-public information about the Borrower and its
affiliates and their related parties or their respective securities) will be made available and who
may receive such information in accordance with the Assignee’s compliance procedures and applicable
laws, including Federal and state securities laws.



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




	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	2	 	Set forth, to at least nine (9) decimals, as a
percentage of the Commitment/Advances of all Banks thereunder.





Exhibit 11.06

Page 2



 









 





	 	 	 	 	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Title: 	 



[Consented to and Accepted:]3




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as

Administrative Agent




	 	 	 	 	 
	 	By  	 	 
	 	 	Title: 	 



[Consented to:]4





BAXTER INTERNATIONAL INC., as Borrower





	 	 	 	 	 
	 	By  	 	 
	 	 	 	 
	 	 	Title:  	 	 



[Consented to:]5





JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as

Issuing Bank




	 	 	 	 	 
	 	By  	 	 
	 	 	Title: 	 





 




			
	3	 	If required by the terms of the Credit Agreement.
	 
	4	 	If required by the terms of the Credit Agreement and so long as no Event of Default has occurred and is
continuing.
	 
	5	 	If required by the terms of the Credit Agreement.





Exhibit 11.06

Page 3




 











 





ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE




          1. Representations and Warranties.




          1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Acceptance 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 document or instrument delivered in connection therewith, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other
document or instrument delivered in connection therewith 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 the Credit Agreement or any other document or instrument delivered in
connection therewith 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 the Credit Agreement
or any other document or instrument delivered in connection therewith.




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Acceptance and to consummate the transactions contemplated hereby and to become a Bank under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Bank, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Bank thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in Section 7.01(f) thereof and any
later financial statements delivered pursuant to Section 8.01(f)(ii) thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Bank, and (v) if it is a non-U.S. Bank,
attached to the Assignment and Acceptance is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b)
agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be performed by it as a
Bank.




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




Exhibit 11.06

Page 4





 









 







excluding the Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.




          3. General Provisions. This Assignment and Acceptance shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Acceptance 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 Acceptance by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the law of the State of New York.




Exhibit 11.06

Page 5








 









 








	 	 	 

	 

	 	Schedule 1.01 to

Four-Year Credit Agreement

dated as of June 17, 2011






COMMITMENTS




	 	 	 	 	 
	 	 	Amount of	 
	Bank	 	Commitment	 
	JPMorgan Chase Bank, National Association
	 	$	175,000,000	 
	Bank of America, N.A.
	 	$	175,000,000	 
	Citibank, N.A.
	 	$	175,000,000	 
	Deutsche
Bank AG New York Branch
	 	$	130,000,000	 
	Goldman Sachs Bank USA
	 	$	130,000,000	 
	UBS Loan Finance LLC
	 	$	130,000,000	 
	Credit Suisse AG, Cayman Islands Branch
	 	$	112,500,000	 
	Royal Bank
of Scotland, PLC
	 	$	112,500,000	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	55,000,000	 
	Barclays Bank PLC
	 	$	55,000,000	 
	HSBC Bank USA, National Association
	 	$	55,000,000	 
	Mizuho Corporate Bank (USA)
	 	$	55,000,000	 
	Bank of China, New York Branch
	 	$	40,000,000	 
	The Bank of New York Mellon
	 	$	40,000,000	 
	Toronto Dominion (Texas) LLC
	 	$	40,000,000	 
	State Street Bank and Trust Company
	 	$	20,000,000	 
	 
	 	 	 	 
	Total
	 	$	1,500,000,000	 






Schedule 1.01

Page 1








 









 








	 	 	 

	 

	 	Schedule 1.02 to

Four-Year Credit Agreement

dated as of June 17, 2011






LENDING OFFICE ADDRESSES




          Unless otherwise specified, the office set forth below opposite the name of any Bank is such
Bank’s “Domestic Lending Office,” “Eurocurrency Lending Office,” “EURIBOR Lending Office” and
“Competitive Bid Lending Office”:




	 	 	 	 	 	 	 	 	 
	 	 	Domestic	 	Eurocurrency	 	EURIBOR	 	Competitive Bid
	Bank	 	Lending Office	 	Lending Office	 	Lending Office	 	Lending Office
	 	 	 	 	 	 	 	 	 





[on file with the Administrative Agent]




Schedule 1.02

Page 1






 









 








	 	 	 

	 

	 	Schedule 1.03 to

Four-Year Credit Agreement

dated as of June 17, 2011






EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 	 	 
	 	 	Letter of Credit	 	 	 	 	 	 	 
	Issuing Bank	 	Number	 	Beneficiary	 	Expiration Date	 	Current Amount	 





Schedule 1.03

Page 1